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FLANNIGAN v. Kevin C. Davis, Defendant. (2020)

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United States Court of Appeals, Second Circuit.

Susan FLANNIGAN, Plaintiff-Counter-Defendant-Appellee, v. Ford F. GRAHAM, Defendant-Counter-Claimant-Appellant, Vulcan Power Group, LLC, Ajax Capital, LLC, Vulcan Capital, LLC. Defendants-Counter-Claimants, Kevin C. Davis, Defendant.


Decided: December 23, 2020

Present: Debra Ann Livingston, Chief Judge, Gerard E. Lynch, Joseph F. Bianco Circuit Judges. For Defendant-Appellant: Christopher George Olsen (Maged W. Hanna, on the brief), Schwartz, Hanna & Olsen, P.C., Metuchen, N.J. For Plaintiff-Appellee: Marc A. Stadtmauer, Stadtmauer & Associates, New York, N.Y.


Ford F. Graham appeals from an order of the Southern District of New York (Preska, J.), issued on December 9, 2019, and docketed on January 8, 2020, denying his motion for release from incarceration. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

This appeal is moot, and so we lack jurisdiction to decide it. See White River Amusement Pub, Inc. v. Town of Hartford, 481 F.3d 163, 167 (2d Cir. 2007). “A case becomes moot — and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III [of the Constitution] — ‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’ ” Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982)). Here, Graham challenges the district court's denial of his emergency motion for release from incarceration. However, after he took this appeal, the district court ordered Graham released pursuant to a stipulated accord. This subsequent order mooted Graham's appeal by granting him the relief he sought. See Chairs v. Burgess, 143 F.3d 1432, 1435 n.3 (11th Cir. 1998) (holding that a contemnor's release from incarceration moots a challenge to that sanction).

Graham argues that a live controversy exists because the district court, as a condition of releasing him, required him to reside within 100 miles of the courthouse. This is of no moment. For one thing, Graham does not appeal the order granting his conditional release; he appeals only the prior order denying his motion for release. As a consequence, his subsequent release means that he has already obtained the relief denied by the appealed order. For another, Graham agreed to the restriction on his residence, having proposed a similar condition in his motion for release, and so may not be heard to complain of it. In any event, neither the court nor the plaintiff has sought to enforce this condition, even though Graham has spent significant time outside of the area specified in the order due to the COVID-19 pandemic. Graham also presses that the release order's requirement that he “cooperate with continuing discovery demands,” Joint App'x at 96, violates the Bankruptcy Code's automatic stay. See 11 U.S.C. § 362. However, Graham conceded that he is not subject to any active discovery orders, and that efforts to collect the judgment in this case have properly shifted to the bankruptcy court.

For these reasons, there is not a live dispute for us to adjudicate. If the district court enters an order that in Graham's view is improper, he may pursue a remedy then.

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We have considered Graham's remaining arguments and find them to be without merit. Accordingly, we DISMISS the appeal.

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