Fall 2010 open memo assignment no doubt v. activision right of publicity cali...
Spring 2006 appellate brief assignment west v. mercy hospital (plaintiff)
1. Memorandum
To: Associates in LARW Sections A3 and B2 (Last names beginning with M-Z)
From: Professor Goering
Date: February 3, 2006
Re: Appellate Brief Assignment: West v. Mercy Hospital
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We have been retained to assist with the appellate brief to be filed in the United States
Court of Appeals for the Second Circuit. Our client is Jerry West. Mercy Hospital of New York
is the defendant in a lawsuit our client filed as the executor of the estate of Bryan Kessler, his
long-time partner. He has filed a medical malpractice and personal injury action on behalf of
Kessler’s estate. Our concern, however, pertains to his claim for wrongful death, filed on his
own behalf.
The decedent and West lived together for more than eleven years. After Massachusetts
recognized same-sex marriages, West and Kessler went to Massachusetts to be married. That
was in May 2004. Not long after, Kessler was injured in a crazy hit-and-run accident in
downtown New York City. His injuries were not life-threatening, but after a second round of
surgery to repair his fractured leg, he died unexpectedly. The exact cause is still under
investigation, but the autopsy results suggest it was an embolism.
The attached file contains all the documents we need for now. Note that we do not have
a copy of the original complaint in the file, but you should not need it. Most of the allegations in
the complaint pertain to the medical malpractice claim, not the wrongful death claim. Mercy
Hospital sought partial dismissal of the wrongful death claim on the grounds that a same-sex
marriage cannot qualify West to sue for wrongful death under the New York statutes. Our client
filed a long memorandum in opposition, and he also filed a cross-motion for partial summary
judgment on the wrongful death claim. He filed a lengthy affidavit in support, which is in the
file. The district court ruled for our client, but Mercy Hospital has filed a Notice of Appeal. We
have been instructed to prepare the appellee’s brief for Jerry West. Obviously, he is happy with
the district court’s ruling, and he wants us to be sure that decision is affirmed on appeal.
You will note from the file that this is a diversity case filed in federal district court, so the
defendant is appealing to the Second Circuit. Be sure to check the local rules for filing appellate
briefs. Also, remember that Fed. R. App. P. 28 and 32 govern the filing of briefs in the circuit
courts, so you must carefully comply with those rules, too.
Please draft the brief for our client. I need your draft no later than 5:00 p.m. on Monday,
February 27, so we can review it together and make necessary revisions before the filing
deadline in early April. Your draft should be no longer than 15 double-spaced pages, excluding
2. the Cover Page, Table of Contents, Table of Authorities, and Certificate of Service. In other
words, only narrative pages count against the 15-page limit.
Please prepare a research plan showing how you intend to proceed. I want to review your
research plan no later than February 10, a week from today, so I expect you to deliver a copy of
your plan to my mailbox in Room 203 no later than 5:00 on that date. When you turn in your
draft brief, you will be expected to submit hardcopies of all your research materials, filed in a
separate notebook.
Thank you for your assistance. You may discuss the matter and your research with other
associates in our firm only (LARW Sections A3 and B2), but please do not show your work to
anyone but me or my junior partners, Roarke Gordon and Jody Bebermeier. The Honor Code
applies to this assignment and all others in this course. If you have questions, please refer to the
Honor Code or ask me for clarification. The Honor Code is posted on our firm’s website for
your reference. Feel free to ask me or either one of my TA’s if you have any questions about
this assignment.