U.S. District Court for Western New York Case Summaries: October 1,

Daily Record (Rochester, NY), Oct 1, 2008

U.S. District Court, Western New York

Job Discrimination

Braxton v. Erie County District Attorney

06-CV-311

Judge Arcara

Background: The plaintiff has been employed by the Erie County District Attorney's Office since 1993 and is now is a confidential criminal investigator. He alleges that in August 2005 he discovered three white individuals with less seniority were promoted to the position of chief confidential criminal investigator and made more money than he did. The defendant moved to dismiss the complaint and the plaintiff moved to file a second amended complaint. The defendant moved to dismiss the integrated complaint on the grounds that the failure to promote the claim is barred by the statute of limitations and certain additional claims never were presented to the EEOC. The most recent promotion occurred on Sept. 25, 2003, 812 days before the plaintiff filed a claim with the NYSDHR.

Ruling: The supreme court has recognized that although discrete discriminatory acts such as termination, failure to promote, denial of transfer or refusal to hire are, generally, "easy to identify," there may be circumstances in which it is difficult to determine when the applicable time period begins. The court declines to convert the motion to dismiss to a motion for summary judgment so as to resolve the question of when the plaintiff reasonably should have discovered the promotions. The court finds the question is best addressed upon a more developed factual record following discovery. The plaintiff's motion to amend is granted and the defendant's motion to dismiss is denied without prejudice.

Harvey P. Sanders of Sanders & Sanders for the plaintiff, and Kristin Klein Wheaton, assistant county attorney, for the defendant

Interstate Commerce Act

Fyke Trading USA Inc. v. New England Motor Freight

07-CV-581

Judge Skretny

Background: The plaintiff alleged, in a 2007 state court filing, breach of contract and negligence claims against the defendant. The defendant moved to dismiss the negligence claim for failure to state a claim on which relief can be granted. The plaintiff moved to remand to state court for lack of diversity jurisdiction. The plaintiff is a company that arranges the shipment and transportation of goods for its customers. It contracted with the defendant, a motor carrier, for the interstate shipment of the plaintiff's goods - - four printing units -- from Buffalo to Norwood, N.J. The plaintiff alleges the defendant's negligence and breach of contract led to damage of the goods and seeks to recover $16,000, in addition to costs, disbursements and counsel fees.

Ruling: The savings clause of the Carmack Amendment to the Interstate Commerce Act preserves only potential claims that may exist under federal rather than state law. The savings clause does not preserve the plaintiff's negligence claim. As to the motion to remand to state court, the statute only requires that $10,000 be in controversy. That minimum is surpassed in the case. The motion to remand is denied and the motion to dismiss the negligence claim is granted.

Norton T. Lowe for the plaintiff, and Todd C. Rubenstein of Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger LLP for the defendant