3489	any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office____” 28 U.S.C. § 1442(a)(1). The purpose of the statute is to protect government officials enforcing federal laws. See Mesa v. California, 489 U.S. 121, 126, 109 S.Ct. 959, 963, 103 L.Ed.2d 99 (1989). The motivation for the enactment of § 1442(a)(1) was concern that “state governments hostile to duly enacted federal laws would be able to frustrate the implementation of [federal] laws by bringing (or allowing to be brought) civil or criminal actions in state court against the federal officials responsible for their implementation.” Brown & Williamson Tobacco Corp. v. Wigand, 913 F.Supp. 530, 533 (W.D.Ky.1996). By conferring federal subject matter jurisdiction over properly removed actions, Section 1442(a)(1) allows “those whose federal activity may be inhibited by state court actions to remove to the presumably less biased forum of federal court.” Ryan v. Dow Chem. Co., 781 F.Supp. 934, 939 (E.D.N.Y.1992). To successfully remove a case under 28 U.S.C. § 1442(a)(1), Armeo must (1) raise a colorable federal defense to the claims asserted against it; (2) show that it acted under the direction of a federal officer; and (3) demonstrate a causal nexus between the Estate’s claims and the acts it performed under color of federal authority. Mesa, 489 U.S. at 124-25,131-35,109 S.Ct. at 962, 966-67; see also Winters v. Diamond Shamrock Chem. Co., 901 F.Supp. 1195,
3209	of other, ancillary, crops may be unable to sell their harvests as well. See 668 F.Supp. at 1451. The effect of crop losses growing from discontinued use of dinoseb thus could seriously harm the entire regional economy. It may well be that, despite these dire economic effects, the suspension would be justified by the health risks to applicators and other farmworkers. Without any investigation of those economic effects, however, the EPA could not do even a rough and ready balancing. C. The EPA claims that the health risks were equivalent for all crops, and that the need to act decisively in removing dangerous pesticides from use justifies its less than exhaustive inquiry at the emergency suspension stage. See Environmental Defense Fund, Inc. v. EPA, 465 F.2d 528, 537 (D.C.Cir.1972) (expedited hearing on imminent hazard “is to make a preliminary assessment of evidence, and probabilities, not an ultimate resolution of difficult issues”). Complete review of all uses, it claims, is the proper function of the full cancellation proceedings. See Environmental Defense Fund, Inc. v. EPA, 510 F.2d 1292, 1303 (D.C.Cir.1975) (“[a] more careful exploration of the availability of alternatives for minor uses would be contemplated for the final determination on cancellation vel non”). Because the Pacific Northwest sites represented a relatively small percentage of dinoseb use nationally, the EPA contends that it was not required to prepare a full evaluation of economic consequences. With all due respect to the EPA and its overworked staff, such insensitivity to the local economic problems
4647	is distinct from expungement of records. Burdick v. U.S., 236 U.S. 79, 90, 35 S.Ct. 267, 59 L.Ed. 476 (1915). Expungement, by contrast, involves “the judicial editing of history.” Id. (citation omitted). Two sources of authority provide a federal court with the limited power to expunge records of federal criminal conviction: statutes and the court’s inherent authority. Id. There is no general federal expungement statute, and the statutes allowing expungement in particularized instances are not applicable here. Nevertheless, “federal courts have inherent authority to expunge criminal records in appropriate and extraordinary cases.” Id. at 793. District courts, however, do not “have the power ‘to expunge a record of a valid arrest and conviction solely for equitable considerations.’ ” Id. (quoting United States v. Sumner, 226 F.3d 1005, 1014 (9th Cir.2000)). If a person who has been lawfully convicted wishes to expunge the records of conviction, that person must first obtain a judgment that the conviction was unlawful. Id. However, “even where a conviction has been held unlawful and vacated, expungement remains a ‘narrow, extraordinary exception,’ one ‘appropriately used only in extreme circumstances.’ ” Id. at 795 (quoting United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991) (per curiam)). As the Ninth Circuit explained in Crowell: Once a petitioner has succeeded in getting her conviction vacated, a district court may then determine whether the petitioner has asserted circumstances extraordinary and unusual enough that would merit expungement of her criminal judicial records. We underscore what our cases have clearly held: even
3568	unconstitutional at the time: They didn’t make the decision to lease and sell Community House to an organization that discriminated on the basis of religion. The complaint accused them only of “implementing the policies of the City of Boise,” and we shouldn’t consider additional allegations that were “newly minted” on appeal. See Dream Games of Ariz., Inc. v. PC Onsite, 561 F.3d 983, 995-96 (9th Cir.2009); Crawford v. Lungren, 96 F.3d 380, 389 n. 6 (9th Cir.1996). Even if we do, Chatterton simply ran the RFP and auction processes, attended meetings and helped prepare the lease for Council approval. Birdsall apparently played no role in negotiating the lease and sale. Their conduct isn’t what triggered the alleged Establishment Clause problem. See Whitaker v. Garcetti, 486 F.3d 572, 582 (9th Cir.2007) (“[A]n individual defendant is stripped of qualified immunity only if he personally violated a plaintiffs constitutional rights.”). Birdsall and Chatterton have qualified immunity from the Fair Housing Act claims for similar reasons. They didn’t approve the men-only policy authorized by city council and implemented by the Rescue Mission. See Dittman v. California, 191 F.3d 1020, 1027 (9th Cir.1999) (“[W]hen a public official acts in reliance on a duly enacted statute or ordinance, that official ordinarily is entitled to qualified immunity.”); Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir.1994). And they could have reasonably believed that the policy was justified by legitimate safety concerns. See Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1050-51 (9th Cir.2007).
3508	& Williamson Tobacco Corp., 913 F.Supp. at 532-33 (holding that the suit to be removed must be based on activities performed under federal direction); Bakalis v. Crossland Sav. Bank, 781 F.Supp. 140, 144 — 45 (E.D.N.Y.1991) (holding the particular conduct being sued upon must be closely linked to detañed and specific regulations). Armco must also prove “a federal nexus between the actions for which [it is] being sued and the directives of federal officers.” Ryan, 781 F.Supp. at 945. The nexus requirement is established by showing that the state prosecution “has arisen out of the acts done by [the defendant] under color of federal authority and in enforcement of federal law.” Mesa, 489 U.S. at 131-32, 109 S.Ct. at 966 (quoting Maryland v. Soper, 270 U.S. 9, 33, 46 S.Ct. 185, 190-91, 70 L.Ed. 449 (1926)); Ryan, 781 F.Supp. at 946 (“Critical under the statute is ‘to what extent defendants acted under federal direction’ at the time they were engaged in the conduct now being sued upon.”) (quoting Gurda Farms, Inc. v. Monroe County Legal Assistance Corp., 358 F.Supp. 841, 844 (S.D.N.Y.1973)). To sustain this burden, the defendant must also “by direct averment exclude the possibflity that [the state action] was based on acts or conduct of his not justified by his federal duty.” Mesa, 489 U.S. at 132, 109 S.Ct. at 966. Because the claims asserted by the Estate in this case are predicated on negligence and limited to a failure to warn theory of liability, Armeo must show
2066	seizures generally known as investigative or Terry stops, which require a lesser reasonable suspicion. An arrest occurs when an officer, acting on probable cause that an individual has committed a crime, detains that individual as a suspect. Probable cause exists when police officers, relying on reasonably trustworthy facts and circumstances, have information upon which a reasonably prudent person would believe the suspect had committed or was committing a crime.(citations omitted) An investigative stop, also known as a Terry stop, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), occurs when a police officer, acting on reasonable and articulable suspicion of criminal activity, briefly detains an individual to confirm or dispel his suspicion.” Id. at 6 (citing U.S. v. McCarthy, 77 F.3d 522, 529 (1st Cir.1996)). With regards to investigative stops, the Court must determine “not whether the police had probable cause to act, but instead whether the actions taken were reasonable under the circumstances.” Id. The Court must first conclude whether the officer’s action was justified at its inception. If the action is justified, the Court must then ask whether the action taken was reasonably related in scope to the circumstances which justified the interference. Id. To satisfy the first prong, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Young at 7 (citing U.S. v. Kimball, 25 F.3d 1, 6 (1st Cir.1994)). To fulfill the second prong,
1844	42 S.Ct. 465, 66 L.Ed. 898, modem management has made them vehicles by which television and radio programs may be broadcast and advertising presented with an attractive nationwide appeal. The Government has established, and I have found, that the promotion of professional championship boxing contests was had by the defendants on a multi-state basis, and that it was coupled with the sale of rights to televise, broadcast and film the contests for interstate transmission. This, the Supreme Court has held, “constitutes ‘trade or commerce among the several States’ within the meaning of the Sherman Act”, United States v. International Boxing Club of New York, Inc., 348 U.S. 236, 240, 75 S.Ct. 259, 261. More recently, the Supreme Court in Radovich v. National Football League, 77 S.Ct. 390, 394, had occasion to say: “We did not extend them [the baseball decisions] to boxing or the theatre because we believed that the volume of interstate business in each — the rationale of Federal Base Ball — was such that both activities were within the Act.” My factual findings here justify and sustain this view. ■ Defendants seek refuge in the argument that the “far-reaching implications of this case * * * may well be the opening skirmish of a broad attack upon all professional sports, except organized baseball.” The answer to this is twofold: (1) the promotion of professional championship boxing contests is a pure and simple money-making, profit-seeking business, and (2) the Supreme Court, in the so-called “baseball cases,” has never
1198	Attorney General “apply to charge-bargaining fast-track programs as well as to PROTECT Act programs involving downward departures.” Id. The Attorney General’s office has authorized fast-track programs for illegal reentry charges in 13 districts: Arizona; California (Central, Southern, Eastern and Northern districts); Idaho; Nebraska; New Mexico; North Dakota; Oregon; Texas (Southern and Western districts); and the Western District of Washington. See United States v. Mejia, 461 F.3d 158, 161 (2d Cir.2006). The Eastern District of Pennsylvania, however, does not have such a program. III. We review the District Court’s criminal sentence of Rondon-Urena for reasonableness. See United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Our jurisdiction is based on 18 U.S.C. § 3742(a)(1). See United States v. Cooper, 437 F.3d 324, 328 (3d Cir.2006). Under Cooper, there are two components to our reasonableness review. “[W]e must first be satisfied the court exercised its discretion by considering the relevant factors” under 18 U.S.C. § 3553(a). Id. at 329. In assessing this, we review the record to determine whether “the trial court gave meaningful consideration to the § 3553(a) factors.” Id. If we are satisfied that the court considered the relevant factors, we turn to the second component of our analysis and consider whether those factors were “reasonably applied to the circumstances of the case.” Id. at 330. Rondon-Urena apparently believes that his sentence was unreasonable because of the alleged disparity between it and the sentence he would have received in a district with a fast-track
1291	Issues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues. By the plain language of this rule, this court has discretion to grant or deny a jury trial to a party failing to file a Rule 38(b) request. The Tenth Circuit has advised that a request for jury trial should be granted in the absence of “strong and compelling reasons to the contrary.” Green Const. Co. v. Kansas Power & Light Co., 1 F.3d 1005, 1011 (10th Cir.1993) (citing AMF Tuboscope, Inc. v. Cunningham, 352 F.2d 150, 155 (10th Cir.1965)). Liberally interpreting the arguments in the various briefs, Owen presents seven reasons why this court should deny plaintiffs request. First, Goff missed the deadline for requesting a jury trial as a matter of right under Rule- 38. This fact alone hardly provides a “strong and compelling” reason to deny a request brought under Rule 39. Presumably, every request for jury trial brought under Rule 39 is due to the failure to demand a jury trial under Rule 38. Owen next argues Goff was not required to file the second case or to amend her pleading in the first case, so she is not entitled to ask for a
948	Reversed and remanded by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury convicted Reginald Renard Ross of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2006). He now appeals the district court’s judgment, challenging the denial of his motion for judgment of acquittal on the ground that his prior North Carolina convictions were not felonies inasmuch as they were not “punishable for a term of imprisonment exceeding one year.” In light of our recent decision in United States v. Simmons, 649 F.3d 237 (4th Cir.2011) (en banc), we reverse Ross’ conviction and remand for further proceedings. This appeal turns on § 922(g)(l)’s prohibition of the possession of a firearm by any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). At the time of Ross’ indictment and conviction, this court determined whether a prior conviction qualified as a felony for purposes of § 922(g)(1) by considering “the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” United States v. Harp, 406 F.3d 242, 246 (4th Cir.2005). While Ross’ appeal was pending, however, Harp was overruled by the en banc decision in
3655	to employees based in Pennsylvania. Id. Killian’s rationale applies equally to Illinois’ Wage Act. As with the Pennsylvania wage law, federal and state courts have stated that the Illinois Wage Act is intended to protect employees. See In re Faber, 52 B.R. 563, 565 (Bankr.N.D.Ill.1985) (Wage Act “sets forth a mechanism for nongovernmental employees of the State of Illinois to recover the payment of wages due from their employers”); Miller v. J.M. Jones Co., 198 Ill.App.3d 151, 152, 144 Ill.Dec. 461, 462, 555 N.E.2d 820, 821 (4th Dist.1990) (“A reading of the entire [Wage] Act clearly shows that the purpose of the Act is to assist employees in seeking redress for an employer’s wrongful withholding of employee benefits”); Stafford v. Purofied Down Products Corp., 801 F.Supp. 130, 139 (N.D.Ill.1992) (private right of action under Wage Act protects employee’s interest in personal property). These eases belie Glass’s argument that the Wage Act is intended to deter employers from withholding employees’ wages. While deterrence may be a desired side effect, the Wage Act clearly is intended to provide a remedy to employees wrongfully deprived of their wages. “When the terms of a statute are not specifically defined, the words must be given their ordinary and popularly understood meanings, ... but the words must also be construed with reference to the purposes and objectives of the statute.” Niven v. Siqueira, 109 Ill.2d 357, 366, 94 Ill.Dec. 60, 65, 487 N.E.2d 937, 942 (1985) (citations omitted). It is clear that the purpose of the
2614	1973. Defendants also contend that plaintiffs Shapiro and Batchelor’s claims are barred by the statute of limitations because they discovered the fraud in 1972. Defendants have not moved for summary judgment on this issue, and a preliminary factual determination of the merits of a claim in connection with the certification of a class is improper. Eisen IV, supra, 417 U.S. at 177-178, 94 S.Ct. 2140. If an investment adviser could defeat class certification simply by disclosing evidence that suggests a valid defense against a representative plaintiff, “it would follow that no class action could stand until the plaintiff proved every material element of his individual claim” and rebutted every arguable defense—an approach that clearly violates Rule 23. Mersay v. First Republic Corp. of America, 43 F.R.D. 465, 469 (S.D.N.Y.1968). As in Cameron v. E. M. Adams & Co., supra, 547 F.2d at 478, “even if there exists [sic] questions of individual compliance with the [California] statute of limitations, they are not sufficient, on balance, to negate the predominance of the common issues.” f. Superiority Rule 23(b)(3) also requires a finding that “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” The Court finds that the superiority requirement is satisfied. Other available methods to resolve the disputes between CIS and its former clients do not make a class action based on some fraud claims inferior. It seems clear that some clients of CIS believe that CIS committed frauds other than those involved
4121	"an implied certification theory in the light of Escobar, — U.S.-, 136 S.Ct. 1989. Under a theory of implied certification, “the False Claims Act encompasses claims that make fraudulent misrepresentations, which include certain misleading omissions."" Id. at 1999. The relators contend that by submitting claims for reimbursement to FEMA, the Contractors were impliedly certifying that they were in compliance with the LP gas regulations—which, in the relators’ view, was inherently misleading. We will not address this argument because it was presented for the first time in the relators’ Reply Brief. We have said that appellants “cannot raise new issues in a reply brief; [they] can only respond to arguments raised for the first time in the appellee’s brief.” Stephens v. C.I.T. Group/Equipment Financing, Inc., 955 F.2d 1023, 1026 (5th Cir. 1992) (quoting 16 C. Wright et al., Federal Practice and Procedure § 3974, at 428 (1977)). Further, because we do not address relators’ argument raised in their Reply Brief, we deny as moot the Contractors’ opposed motions to file sur reply briefs. . Section 181 provides that [i]f a party is prohibited from doing an act because of his failure to comply with a licensing, registration or similar requirement, a promise in consideration of his doing that act or of his promise to do it is unenforceable on grounds of public policy if (a) the requirement has a regulatory purpose, and (b) the interest in the enforcement of the promise is clearly outweighed by the public policy behind the requirement,"
4704	in the Complaint. See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiffs favor.” (italics and internal quotation marks omitted)); Gonzalez v. Caballero, 572 F.Supp.2d 463, 466 (S.D.N.Y.2008) (same). In deciding a motion for judgment on the pleadings, as with a motion to dismiss, “a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal quotation marks omitted) (applying standard to a Rule 12(b)(6) motion); see also Smith v. City of New York, No. 13-CV-2395, 2014 WL 4904557, at *8 (E.D.N.Y. Sept. 30, 2014) (“When deciding a motion on the pleadings, the court must confine its consideration to the pleadings and their attachments, to documents ... incorporated in the complaint by reference, and to matters of which judicial notice may be taken” (alteration in original) (internal quotation marks omitted)). b. Analysis Plaintiff claims that because he alleges that he was paid nothing for hours worked in excess of 40 hours a week, he was not paid minimum wage under the FLSA. (PL’s Mem. 3-4, 24-25.) However, this argument fails. While Plaintiff may state a
230	trades to assist the erecting engineers in the foregoing work. For the services of such erecting engineers and/or mechanics the contractor will be paid the amounts per day, including Sundays and national legal holidays, stated in the schedule, for each erecting engineer and/or mechanic. The payment shall cover the entire period of time that such erecting engineers and/or mechanics are in the service of the Government, including the time required by them to travel by the most direct rail route to site of erection and return.” It is in these paragraphs of the contract that plaintiffs must find the bases for their position that they are either donee or creditor beneficiaries. As this Court pointed out in McCulloch v. Canadian Pacific Railway Co., D.C., 53 F.Supp. 534, 542, “ *- * * Donee and creditor beneficiaries differ only with respect to the factual situations to which they apply; that is, the donee beneficiary contract embraces the situation in which the relationship between the promisee and beneficiary is that of donor-donee, i. e., the performance received by the beneficiary from the promisor is in the nature of a gift. The creditor beneficiary contract embraces the situation in which the relationship* between the promisee and the beneficiary is that of debtor and creditor, i. e., the performance is received by the beneficiary from the promisor' in satisfaction of‘an actual or supposed obligation owed to him by the promisee. • See Restatement of Contracts, Section 133.” It would seem that under no possible
1068	television systems to dedicate some of their channels to local television stations. See 520 U.S. at 185, 117 S.Ct. 1174. The Court had previously held that these “must-carry” provisions were content-neutral restrictions on speech that under First Amendment doctrine must satisfy intermediate scrutiny. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 649, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (“Turner I”). Thus, the provisions would be constitutional if they furthered “ ‘an important or substantial governmental interest ... [that was] unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms [was] no greater than is essential to the furtherance of that interest.’ ” Id. at 662, 114 S.Ct. 2445 (quoting United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)). Congress had found that the must-carry provisions would preserve the benefits of free broadcast television, promote widespread dissemination of information from a variety of sources, and promote fair competition. Id. The Turner I Court remanded the case for further factual development in the district court, which had granted summary judgment. See id. at 667, 114 S.Ct. 2445. In doing so, a plurality of the Supreme Court agreed that “courts must accord substantial deference to the predictive judgments of Congress” because “Congress is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon an issue as complex and dynamic” as that presented in Turner. Id. at 665, 114 S.Ct.
2899	creditor’s claim, the plan may be approved only if it includes all of the debtor’s projected disposable income for the plan’s three-year period. EAC claims that the $6,000 lump sum payment Zellner received from Doane College should have been included in disposable income. As our previous discussion indicated, this money is an asset of the estate. The bankruptcy court was correct in concluding that it is not disposable income under section 1325(b)(1)(B). EAC also argues that Zellner overestimated his expenses and did not include his future tax returns and salary increases in projected income. Generally, in civil litigation, the party seeking to change the status quo has the ultimate burden of proving his allegations are true. See Joseph A. Bass Co. v. United States, 340 F.2d 842, 844 (8th Cir.1965) (“[i]t is fundamental that the burden of proof * * * rests upon the party who, as determined by the pleadings or the nature of the case, asserts the affirmative of an issue”). Since a Chapter 13 plan that meets the requirements of section 1325(a) would be confirmed absent the objections of the creditor, the creditor has, at minimum, “the initial burden of producing satisfactory evidence to support the contention that the debtor is not applying all of his disposable income” to the plan payments. In re Fries, 68 B.R. 676, 685 (Bkrtcy.E.D.Pa.1986); see also In re Mendenhall, 54 B.R. 44, 45-46 (Bkrtcy.W.D. Ark.1985). EAC presented no evidence to support its claim that Zellner overestimated his expenses. The record shows
1351	S.Ct. 1955. B. Rule 9(b) Fraud-based claims are subject to heightened pleading requirements under Federal Rule of Civil Procedure 9(b). In that regard, a plaintiff alleging fraud “must state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). The allegations must be “specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985). To that end, the allegations must contain “an account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (citation omitted). Averments of fraud must be accompanied by the “who, what, when, where, and how” of the misconduct charged. Vess v. Ciba-Geigy Corp. USA 317 F.3d 1097, 1106 (9th Cir.2003) (citation omitted). Additionally, “the plaintiff must plead facts explaining why the statement was false when it was made.” Smith v. Allstate Ins. Co., 160 F.Supp.2d 1150, 1152 (S.D.Cal.2001); see also In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1549 (9th Cir.1994) (en banc) (superseded by statute on other grounds). C. Rule 12(b)(1) A party may file a motion to dismiss with the Court for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion may be either facial or factual. Wolfe v. Strankman, 392
4358	issue preclusion, prevents a party from relitigating an issue that was litigated against that party in an earlier action. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Under federal law the requirements of the doctrine are that: (1) the issue decided in the prior adjudication must be identical to the one presented in the later action, (2) there must be a final judgment on the merits and (3) the party against whom the doctrine is asserted must have been a party or in privity with a party to the prior adjudication and have had a full and fair opportunity to litigate the issue in question in the prior action. Seborowski v. Pittsburgh Press Co., 188 F.3d 163, 169 (3d Cir.1999). Under 28 U.S.C. § 1447(d), “[a]n order remanding a case to the State court from which it was removed is not renewable on appeal or otherwise .... ” The question presented by this motion is whether an unappealable order to remand an action to the state court has the finality required by the second element of the issue preclusion, test. The Restatement (Second) of Judgments provides: Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded [when] [t]he party against whom preclusion is sought could not, as a matter of law, have obtained review
147	following his assailant’s release from a Veteran’s Administration hospital. The Williams court concluded that the hospital had a duty to notify county authorities (as it had agreed to do) of the discharge and release of the assailant who had a known propensity for violence. 450 F.Supp. at 1044-45. Because here the FBI never had custody of Sampson, and, thus, could not have promised to notify McCloskey (or any other person or entity) of his release, Williams also is inapposite. In addition, the present case is distinguishable from Fair v. United States, 234 F.2d 288 (5th Cir.1956), because here, the FBI never promised to protect McCloskey or notify McCloskey’s of Sampson’s presence in the area. This case is also distinguishable from Marin v. United States, 814 F.Supp. 1468, 1483, 1485-86 (E.D.Wash.1992) (concluding that the government had a duty “to warn a known potential victim of a known danger”), because the FBI did not know that McCloskey was a clear target of Sampson’s and that he was in danger. Finally, I agree with the Federal Defendants that this case is distinguishable from Estate of Davis v. United States, 340 F.Supp.2d 79 (D.Mass.2004). In that case, the plaintiff brought an FTCA action against the United States, alleging that the FBI wrongfully permitted two of its informants to commit criminal actions that resulted in her decedent’s murder. Id. at 81. I concluded that, under Massachusetts law, the United States had a “special relationship” with its informants, “creating a duty owed to [members of] the
1581	arbitrability. Before reaching that issue, however, we must address Liberty’s challenge to the district court’s jurisdiction to compel arbitration in the first place. A. Subject Matter Jurisdiction The National Labor Relations Act of 1935 (NLRA), 29 U.S.C. §§ 151-169, establishes a federal regime for managing labor relations and generally authorizes the National Labor Relations Board (NLRB) to resolve disputes between labor organizations and employers. See generally Vaca v. Sipes, 386 U.S. 171, 178-79, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). The United States Supreme Court has held that the NLRB’s jurisdiction is in general exclusive; that is, if a claim falls within the purview of the NLRB, state and federal courts are preempted from hearing it. See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). As the Court put it, “[w]hen an activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as the federal courts must defer to the exclusive competence of the [NLRB].” Id. This rule is referred to as “Garmon preemption.” Wash. Serv. Contractors Coal. v. District of Columbia, 54 F.3d 811, 815 (D.C.Cir.1995). The Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. §§ 141 et seq,, “carve[s] out” an exception to the NLRB’s “exclusive jurisdiction.” Vaca, 386 U.S. at 179, 87 S.Ct. 903. Specifically, section 301(a) of the LMRA grants a federal district court jurisdiction over “[s]uits for violations of contracts between an employer and a labor organization.”
2783	was part of “a pattern of persecution closely tied to” petitioner) (internal quotation and citation omitted). Substantial evidence also supports the agency’s determination that Ramos de Espinoza failed to establish a well-founded fear of future persecution on account of her political opinion. See Halim v. Holder, 590 F.3d 971, 977 (9th Cir.2009) (petitioner “failed to make a compelling showing of the requisite objective component of a well-founded fear of persecution.”). Thus, her asylum claim fails. Because Ramos de Espinoza failed to establish eligibility for asylum, her withholding of removal claim necessarily fails. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006). Finally, Ramos de Espinoza does not make any substantive arguments challenging the agency’s denial of her CAT claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996) (“Issues raised in a brief that are not supported by argument are deemed abandoned.”). PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3,
597	the reviewing court will weigh them by the substantial evidence standard. But, in a statute like OSHA where the decision making vested in the Secretary is legislative in character, there are areas where explicit factual findings are not possible, and the act of decision is essentially a prediction based upon pure legislative judgment, as when a Congressman decides to vote for or against a particular bill. OSHA sets forth general policy objectives and establishes the basic procedural framework for the promulgation of standards, but the formulation of specific substantive provisions is left largely to the Secretary. The Secretary’s task thus contains “elements of both a legislative policy determination and an adjudicative resolution of disputed facts.” Mobil Oil Corp. v. FPC, 157 U.S.App.D.C. 235, 254, 483 F.2d 1238, 1257 (1973). Although in practice these elements may so intertwine as to be virtually inseparable, they are conceptually distinct and can only be regarded as such by a reviewing court. From extensive and often conflicting evidence, the Secretary in this case made numerous factual determinations. With respect to some of those questions, the evidence was such that the task consisted primarily of evaluating the data and drawing conclusions from it. The court can review that data in the record and determine whether it reflects substantial support for the Secretary’s findings. But some of the questions involved in the promulgation of these standards are on the frontiers of scientific knowledge, and consequently as to them insufficient data is presently available to make a fully
2719	all related to the parties already named in this action and, indeed, have been participating in discovery. This mere addition of parties does not change the underlying claims or the nature of the relief desired and, therefore, does not revive plaintiffs right to a jury trial. See Richardson Greenshields Securities v. Mui-Han Lau, 693 F.Supp. at 1458. Bifurcation The court “in furtherance of convenience or to avoid prejudice” may in its discretion bifurcate a trial concerning issues of liability and damages. Fed. R.Civ.P. 42(b); Katsaros v. Cody, 744 F.2d 270 (2d Cir.1984). While it may be proper in certain instances to bifurcate a trial, “separation of issues is not the usual course that should be followed.” Keyes Fibre Co. v. Packaging Corp. of America, 763 F.Supp. 374 (N.D.Ill.1991), quoting, Response of Carolina, Inc. v. Leasco Response, Inc., 537 F.2d 1307 (5th Cir.1976); see Advisory Committee Notes to the Fed. R.Civ.P. 42(b). Bifurcation is appropriate where, for example, deciding the issue of liability first might save the court from having to rule on complex issues of damages. American Home Products Corp. v. Johnson & Johnson, 111 F.R.D. 448 (S.D.N.Y.1986). Defendant asserts that MCA will have to develop a computer program to isolate profit information on goods and services provided under the “UPTOWN” mark. . While the Court is not insensitive to the costs of litigation, this does not appear to be an overly burdensome task to impose on defendant, and there is no guarantee that at the close of the liability
1405	accepted that help. To remedy these unfair labor practices, the Board issued an order that G/M cease recognition of the Carpenters Union as the representative of the painters and tapers. Id. G/M and-the Carpenters Union filed a motion for reconsideration, arguing that the Board’s determination had ignored its holding in Coamo Knitting Mills, Inc., 150 N.L.R.B. No. 35 (1964), which was on point and controlling. The Board thought otherwise, concluding that Coamo was a much different case. G/M and the Carpenters Union petition for review and the Board cross-applies for enforcement of its orders. We have jurisdiction under 29 U.S.C. § 160(e), (f). II We give “a very high degree of deference to administrative adjudications by the NLRB.” Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011). But our deference is not absolute. We will overturn the Board if its “factual findings are not supported by substantial evidence,” or if it “acted arbitrarily or otherwise erred in applying established law to the facts of the case.” Coman, Inc. v. NLRB, 671 F.3d 1232, 1236 (D.C. Cir. 2012). A decision of the Board that “departs from established precedent without a reasoned explanation” is arbitrary. Id. Of course, the Board need not address “every conceivably relevant line of precedent in [its] archives,” but it must discuss “precedent directly on point.” Lone Mountain Processing, Inc. v. Sec’y of Labor, 709 F.3d 1161, 1164 (D.C. Cir. 2013). G/M and the Carpenters Union argue that the Board’s decision was arbitrary and
2753	federal prisoner # 11614-042, moves to proceed in forma pauperis (IFP) in his appeal of the denial of his 18 U.S.C. § 3582(c)(2) motion. The district court determined that Morris, who in 2003 had been sentenced to concurrent terms of 230 months and 120 months of imprisonment in connection with crack cocaine offenses, was not entitled to relief pursuant to § 3582(c)(2) or 28 U.S.C. § 2241 because he was a career offender. In considering Morris’s motion to proceed IFP, the district court concluded that he had failed to raise a nonfrivolous issue for appeal and certified that an appeal would not be in good faith. Morris is challenging the certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997). Our inquiry “is limited to whether the appeal involves legal points arguable on their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983) (internal quotation marks and citation omitted). Morris’s poorly drafted pleadings suggest an intent to argue that the Guidelines were incorrectly applied at sentencing and that the career offender designation should not apply in his case. However, Morris does not provide coherent argument that addresses the district court’s determinations that § 3582(c)(2) and § 2241 do not provide the relief that he requested. His assertions thus do not amount to legal argument that addresses the district court’s denial of relief. See Fed. R.App. P. 28(a)(5)-(9); Grant v. Cuellar, 59 F.3d 523, 524 (5th
4880	law enforcement officers ordered Mr. Fernandez to drop the gun, and that he did not, but, instead “attempted to pull the triger [sic].” The letter strongly suggests, moreover, that Oses, rather than any federal agent, initiated the 1985 meeting of which plaintiffs’ complain. It would have been more than reasonable for the district court to conclude, on the basis of these submissions, that plaintiffs’ allegations of misconduct turned on Oses’s credibility. By sending them to the jury, the court, we think, quite properly deferred to the “established safeguards of the Anglo-American legal system [which] leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury,” see United States v. Dailey, 759 F.2d 192, 196 (1st Cir.1985). At bottom, plaintiffs’ objections appear to rest on little more than the fact that their case depended, in part, upon an incredible witness. Had the district court resolved the misconduct issue before trial and out of the jury’s presence, plaintiffs suggest, no evidence relating to the 1985 meeting between Oses and the government would have been admissible at trial. Thus, according to plaintiffs, they might have called Oses to testify in their behalf, along the lines of his original (pre-1985) version of the Fernandez shooting, free from the risk of impeachment by reference to his subsequent recantation. Instead, plaintiffs complain, they were forced to choose between forsaking the testimony of a key witness and having his credibility destroyed by reference
4951	the claims.”) (citations omitted); CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed.Cir.2002) (“a patentee need not describe in the specification every conceivable and possible future embodiment of his invention”). “[TJhere is sometimes a fine line between reading a claim in light of the specification, and reading a limitation into the claim from the specification_ [Attempting to resolve that problem in the context of the particular patent is likely to capture the scope of the actual invention more accurately than either strictly limiting the scope of the claims to the embodiments disclosed in the specification or divorcing the claim language from the specification.” Decisioning.com, Inc. v. Federated Dept. Stores, Inc., 527 F.3d 1300, 1307-08 (Fed.Cir.2008) (quoting Comark Comm’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed.Cir.1998)). There is therefore “no magic formula or catechism for conducting claim construction,” and the court must “read the specification in light of its purposes in order to determine whether the patentee is setting out specific examples of the invention to accomplish those goals, or whether the patentee instead intends for the claims and the embodiments in the specification to be strictly coextensive.” Id. (internal citations omitted). Finally, as part of the intrinsic evidence analysis, the court “should also consider the patent’s prosecution history, if it is in evidence.” Phillips, 415 F.3d at 1317. The court should take into account, however, that the prosecution history “often lacks the clarity of the specification” and thus is of limited use for claim construction purposes.
4207	to the underlying lawsuit, could be applied to pending cases without having a retroactive effect. For example, the Court noted that application of a new statute that affects only secondary, rather than primary, conduct does not give rise to concerns about retroactivity. See id. at 274-76, 114 S.Ct. at 1502. The Court then specifically cited attorney’s fee determinations as an example of secondary conduct that “[does] not resemble the cases in which we have invoked the presumption against statutory retroactivity.” Id. at 277, 114 S.Ct. at 1503; see also id. (“Attorney’s fee determinations ... are ‘collateral to the main cause of action’ and ‘uniquely separable from the cause of action to be proved at trial.’” (quoting White v. New Hampshire Dep’t of Employment See., 455 U.S. 445, 451-52, 102 S.Ct. 1162, 1166-67, 71 L.Ed.2d 325 (1982))). We conclude, therefore, that application of the PLRA’s fee limitations to the awards made in the district court’s May and August orders does not have an impermissible retroactive effect because the determination of attorney’s fees awards, which are collateral to the main cause of action, does not attach new legal consequences to completed events. Moreover, the modifications made by § 803 of the PLRA to a plaintiffs entitlement to attorney’s fees are not so fundamentally unfair as to result in manifest injustice. Cf. Farrar v. Hobby, 506 U.S. 103, 115, 113 S.Ct. 566, 575, 121 L.Ed.2d 494 (1992) (instructing that § 1988 was “never intended to produce windfalls to attorneys” (quotation omitted)); see also
2574	Meteiver participated in the sentencing hearing and knew of the injustices that happened yet did nothing about them. Prosecutors have absolute immunity for the initiation and pursuit of a criminal prosecution, including presenting the state’s case at trial or any other conduct “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). “In initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for damages under § 1983.” Id. at 431, 96 S.Ct. 984. This immunity applies even where the prosecutor acts “maliciously, unreasonably, without probable cause, or even on the basis of false testimony or evidence.” Henry v. Farmer City State Bank, 808 F.2d 1228, 1238 (7th Cir.1986). Negotiating a plea agreement and participating in a sentencing hearing constitutes conduct intimately associated with the judicial phase of the criminal process, so even if Mr. Meteiver was aware that Judge Rieckhoff erred in sentencing Mr. Hansborough, he is immune from civil damages. Finally, Mr. Hansborough alleges that Sheriff Brooks knew of his situation and circumstances and is guilty of unlawfully incarcerating him. But Mr. Hansborough concedes that Sheriff Brooks held him pursuant to a conviction and sentencing order issued by Judge Rieckhoff. Sheriff Brooks did not have the authority to release Mr. Hansborough in the face of a judicial order requiring him to be held in custody. Moreover, if the remedy sought under § 1983 would require a finding
719	undertake and what risks to reject.” Neil v. Allstate Ins. Co., 379 Pa.Super. 299, 549 A.2d 1304, 1307 (1988), alloc. denied, 522 Pa. 577, 578, 559 A.2d 38, 39 (1989). Yet, under certain circumstances, public policy permits the law to “restrict [their] freedom of contract or private dealings for the good of the community.” Daley-Sand v. West Am. Ins. Co., 387 Pa.Super. 630, 564 A.2d 965, 969 (1989) (citation omitted), called into doubt on other grounds, Nationwide Ins. Co. of Columbus, Ohio v. Patterson, 953 F.2d 44 (3d Cir.1991). “As the term ‘public policy1 is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy.” Muschany v. United States, 324 U.S. 49, 66, 65 S.Ct. 442, 451, 89 L.Ed. 744 (1945). “[P]ublic policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest.” Guardian Life Ins. Co. v. Zerance, 505 Pa. 345, 479 A.2d 949, 954 (1984) (quoting Muschany, 324 U.S. at 66, 65 S.Ct. at 451). Therefore, in order to invalidate a contract on the basis of public policy, the Court must identify in the sovereign’s positive law a defined, dominant, and unambiguous expression that the performance of the thing agreed to by the parties is inimical to the public good. See In re McCurdy’s Estate, 303 Pa. 453, 154 A. 707, 708 (1931) (“The prime question is whether the thing forbidden is
1834	for review of a decision by the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of Murangwa’s application for asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252(a)(1) and deny the petition for review. Because the parties are familiar with the .factual and procedural history of the case, we do not repeat it here. We review the BIA’s decision to determine if it is supported by substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). This standard of review “is extremely deferential: ‘administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003) (quoting 8 U.S.C. § 1252(b)(4)(B)). I Murangwa argues that the evidence of the past persecution suffered by his family members compels the conclusion that he suffered past persecution and that he is eligible for a humanitarian grant of asylum under Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989). Murangwa also argues that the IJ and the BIA violated his due process rights by not developing a full record during the asylum hearing and by issuing a summary decision based upon an inadequate record. Murangwa’s brief to the BIA did not raise these issues. Rather, Murangwa’s brief addressed his fear of future persecution, the IJ’s adverse credibility determination and the IJ’s statement that Mu-rangwa would have “no problems”
2822	and withholding under the Convention Against Torture. We deny the petition for review. The INA authorizes the Attorney General to confer asylum on any refugee. 8 U.S.C. § 1158(a) (2000). It defines a refugee as a person unwilling or unable to return to her native country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (2000). An applicant can establish refugee status based on past persecution in her native country on account of a protected ground. 8 C.F.R. § 1208.13(b)(1) (2005). “An applicant who demonstrates that [s]he was the subject of past persecution is presumed to have a well-founded fear of persecution.” Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.2004) (alteration added). To establish eligibility for withholding of removal, an alien must show a clear probability that, if she was removed to her native country, her “life or freedom would be threatened” on a protected ground. 8 U.S.C. § 1231(b)(3)(A) (2000); see Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir.2004). An applicant has the burden of demonstrating her eligibility for asylum. 8 C.F.R. § 1208.13(a) (2005); Gonahasa v. INS, 181 F.3d 538, 541 (4th Cir.1999). Credibility findings are reviewed for substantial evidence. A trier of fact who rejects an applicant’s testimony on credibility grounds must offer specific, cogent reasons for doing so. Figeroa v. INS, 886 F.2d 76, 78 (4th Cir.1989). This court accords broad, though not unlimited, deference
3619	request, similar items “within the defendant’s possession, custody, or control,” if “the defendant intends to use the item in the defendant’s case-in-chief at trial.” Fed. R. Crim. P. 16(b)(1)(A)’s requirements for disclosure of evidence, however, do not apply to impeachment evidence. Medearis, 380 F.3d at 1057. Thus, the fact that defense counsel did not turn over the video to the government prior to trial is not grounds to prohibit the defense from using the video for impeachment purposes. But when reviewing an evidentiary ruling, we will reverse “only when an improper evi-dentiary ruling affected the defendant’s substantial rights or had more than a slight influence on the verdict.” United States v. Picardi, 739 F.3d 1118, 1124 (8th Cir. 2014) (quoting United States v. Summage, 575 F.3d 864, 877 (8th Cir. 2009)). In this case, Eason has failed to show how not playing the video affected his substantial rights or had more than a slight influence on the verdict. See United States v. Yarrington, 634 F.3d 440, 447 (8th Cir. 2011). While the district court prevented Eason from showing the video during additional cross examination, the court expressly permitted the defense to “call him back, and ask him if he didn’t go back and look [at the scene of arrest]” as well as about whether he was “searching the ground with a flashlight with his headlights on with a dash cam that he testified he didn’t have or he wasn’t sure [he had].” The court placed no limitations — other than
3210	vacate the district court’s injunction and remand for a redetermination of whether to stay the EPA’s suspension order. The EPA is not without recourse. If the district court does stay the suspension, and even if does not, the EPA may initiate an expedited suspension hearing in which plaintiffs and other interested parties may participate. Or, the EPA may itself modify its suspension order, much as it did with respect to dry peas and lentils, in response to the pending subpart D petition. The district court would, of course, take any such modification into account in deciding whether to issue the stay, or, once issued, in deciding whether to keep the stay in effect. See Fed.R.Civ.P. 60(b)(5)—(6); Necacio v. United States Immigration & Naturalization Serv., 797 F.2d 700, 706 (9th Cir.1985) (“a court which issues an injunction retains jurisdiction to modify the terms of the injunction if a change in circumstances so requires”); 11 C. Wright & A. Miller, Federal Practice & Procedure § 2961, at 558-600 (1973). Thus, while the district court may, under FIFRA, suspend the EPA’s order until completion of cancellation proceedings, this does not necessarily mean that dinoseb will be freely usable in the Northwest during that entire period. We leave these matters for the court and parties to sort out on remand. Conclusion We affirm the district court’s ruling that the EPA order was arbitrary and capricious. We vacate its order staying the suspension, and remand for further proceedings consistent with this opinion. AFFIRMED IN PART,
2735	of Plaintiffs Fourth Amended Complaint. For the reasons discussed below, Defendants’ Motion for Summary Judgment as to Count II is GRANTED and Count VI is DISMISSED. I. SUMMARY JUDGMENT Summary judgment is appropriate in the absence of a genuine issue as to any material fact and when the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue is genuine for these purposes if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that has “the potential to affect the outcome of the suit under the applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993). Facts may be drawn from “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.” Fed.R.Civ.P. 56(c). For the purposes of summary judgment the Court views the record in the light most favorable to the nonmoving party. See McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995). I. BACKGROUND In March of 1997, Plaintiff, who was 65 years of age at the time, submitted an application for admission to the class of 2000 of the University of Maine School of Law (“Law School”). He was not selected for admission. He was accepted at the University of Utah School of Law, though he declined to enroll due to family considerations. In January of 1997, Plaintiff
1222	1, 2003) (stating that a summons with notice constituted an initial pleading, and finding defendants’ removal untimely when not made within thirty days, because the “face of the [s]ummons with [n]otice ... demonstrated complete diversity” and listed the nature of the action and the sum due); cf. Whitaker, 261 F.3d at 206 (upholding the district court’s conclusion that a summons with notice that failed to identify the addresses of all of the parties did not allow the defendants to ascertain removability and did not start the thirty-day removal period). As Defendants point out, the reasonably ascertainable rule protects defendants from losing their right to remove when the jurisdictional details are omitted or misstated in a pleading. See Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 694 (9th Cir.2005) (“[O]nly where an initial pleading reveals a ground for removal will the defendant be bound to file a notice of removal within 30 days. Where, however, such details are obscured or omitted, or indeed misstated, that circumstance makes the case stated by the initial pleading not removable, and the defendant will have 30 days from the revelation of grounds for removal .... to file its notice of removal.” (quoting Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir.1997)) (emphasis and quotation marks omitted)); In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 399 F.Supp.2d 356, 364 (S.D.N.Y.2005) (“When a case is removable, but the grounds in the initial complaint are obscured, omitted, or misstated, a defendant has
4727	was involved in anything other than driving. And it is well established that driving is an activity that directly affects safety. See Morris v. McComb, 332 U.S. 422, 430, 68 S.Ct. 131, 92 L.Ed. 44 (1947) (“The drivers are full-time drivers of motor vehicles well within the definition of that class of work by the Commission if the work is done in interstate commerce.”); Walden, 2015 WL 1433353, at *3, *6 (“The four broad categories of workers whose duties are said to directly affect the safety of vehicle operation are: (1) drivers, (2) mechanics, (3) loaders, and (4) helpers of the first three, ... [and] [t]he case law regarding the motor carrier exemption’s application to drivers is well-established.”); McBeth v. Gabrielli Truck Sales, Ltd., 768 F.Supp.2d 383, 390 (E.D.N.Y.2010) (“The Department of Labor interprets the motor carrier exemption to apply to drivers, driver’s helpers, loaders, or mechanics whose work directly affects the safety of operation of vehicles on the public highways in transportation in interstate or foreign commerce within the meaning of the MCA.” (citing 29 C.F.R. § 782.2(b)(2)(i)(ii))); Dauphin, 544 F.Supp.2d at 274 (“The activities of drivers affect safety of operations of motor vehicles____”). The final requirement — and. the only one that Plaintiff contests — is the interstate commerce requirement, which requires that Plaintiff must affect the safety of motor vehicles in the transportation on the public highways of passengers or property in interstate or foreign commerce. There are two general methods of establishing sufficient involvement in interstate
1585	or the other, the Supreme Court has held that they retain jurisdiction to hear a contractual claim even if the claim is also representational. William E. Arnold Co. v. Carpenters Dist. Council, 417 U.S. 12, 16, 94 S.Ct. 2069, 40 L.Ed.2d 620 (1974) (“When [conduct allegedly subject to the NLRA] also constitutes a breach of a collective-bargaining agreement, the [NLRB’s] authority ‘is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301 [of the LMRA].’ ” (quoting Smith v. Evening News Ass’n, 371 U.S. 195, 197, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962))). In that event, the “labor case [falls] within the concurrent jurisdiction of the NLRB and the federal courts.” Mack Trucks, Inc. v. Int’l Union, UAW, 856 F.2d 579, 585 (3d Cir.1988); accord Mullins v. Kaiser Steel Corp., 642 F.2d 1302, 1316 (D.C.Cir.1980) (“[F]ederal courts have independent jurisdiction to decide cases alleging the breach of collective bargaining agreements, even though that very breach may also be an unfair labor practice.”), rev’d on other grounds, 455 U.S. 72, 102 S.Ct. 851, 70 L.Ed.2d 833 (1982). In many circuits, a party’s mere assertion that a claim is contractual is not an automatic ticket to federal court; rather, the court must “examin[e] the major issues to be decided” and determine “whether they can be characterized as primarily representational or primarily contractual.” Local Union 204, Int’l Bhd. of Elec. Workers v. Iowa Elec. Light & Power Co., 668 F.2d 413, 419 (8th Cir.1982); accord, e.g., Paper,
252	issue for trial. Id. at 322-23, 106 S.Ct. 2548. If the evidence is “merely colorable” or “not significantly probative,” summary judgment may be granted. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (stating that the “mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find [for the non-moving party]”). II. Standard for Motion to Dismiss Under Rule 12(c) A motion for judgment on the pleadings pursuant to Rule 12(e) of the Federal Rules of Civil Procedure is governed by the same standards as a motion to dismiss pursuant to Rule 12(b). LaFaro v. N.Y. Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir.2009). The court must “accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party.” Vietnam Ass’n for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104, 115 (2d Cir.2008) (internal quotation marks omitted). The court may consider only the “facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference.” Leonard v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal quotation and citation omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter ... to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
2169	strongly preferred method by which district courts should determine what fees to award prevailing parties” under ,§ 1988. Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 337 (1st Cir.1997) (citing Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.1992)). To arrive at a reasonable award, the Court “must evaluate the data submitted by the fee-seeker, compute a lodestar, consider the totality of the adjustment factors approved by Congress and the [Supreme] Court, and make specific, reasoned adjustments” to reduce the award if appropriate. Id. at 340 (citation omitted). Although this Court is not required to produce a “painstaking” explanation of its decision, which is reviewed “deferentially, according substantial respect to the trial court’s informed discretion,” id. at 336-37 (citing Brewster v. Dukakis, 3 F.3d 488, 492 (1st Cir.1993)), recent case law demonstrates that the First Circuit examines these “discretionary” decisions extremely closely, see, e.g., McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288, 310-11 (1st Cir.1998), cert. denied, —— U.S.—, 119 S.Ct. 870, 142 L.Ed.2d 772 (1999); Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 858-60 (1st Cir.1998); Williams, 113 F.3d at 1297-98. The First-Circuit has “ ‘never required that [district] courts set forth hour-by-hour analyses of fee requests.’ ” United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 16 (1st Cir.1988) (alteration in original) (quoting Jacobs v. Mancuso, 825 F.2d 559, 562 (1st Cir.1987)). “[A]t a bare minimum,” however, the trial court’s fee determination “must expose [its] thought process and show the method and
2771	“compelling reason for believing attorney’s private papers and thoughts would be probative of the client’s ability to rely on the attorney’s advice”; and “independent attorneys have substantial internal and external reasons to provide competent and honest advice”). The Court agrees with Eco’s reasoning and finds that Reilly has not waived the work product privilege for any pre-suit documents that were not communicated or otherwise disseminated to Reilly. C. Post Suit Attorney-Client and Work Product Privilege. BASF also argues that the attorney-client privilege waiver extends beyond the filing of suit through trial and “embraces all documents and communications relating to the subject matter of the opinion. ...” [Docket No. 73, p. 8]. There is certainly authority for BASF’s position. See AKEVA L.L.C. v. Mizuno Corp., 243 F.Supp.2d 418, 423 (M.D.N.C.2003); Novartis, 206 F.R.D. at 399 (focusing on waiver rather than alleged infringer’s state of mind); Chiron, 179 F.Supp.2d at 1188-90; McCormick-Morgan, Inc. v. Teledyne Indus., Inc., 765 F.Supp. 611, 613-14 (N.D.Cal.1991). These cases conclude that invoking the advice-of-eounsel defense waives the attorney-client privilege and work product protections to the broadest extent possible, and order disclosure of communications and documents regarding the subject matter of the opinion through trial regardless of whether communicated to the client. While varying to some degree in their analysis, these courts reason that the patentee should be allowed to explore the state of mind of the alleged infringer’s attorney as well as the mind of the alleged infringer. Novartis, 206 F.R.D. at 399; AKEVA 243 F.Supp.2d at
3178	not, as in this case, provide reasons for its decision. Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir.2003). In such a situation, the federal court: (1) assumes that the state court applied the proper “clearly established Federal law”; and (2) then determines whether its decision was “contrary to” or “an objectively unreasonable application of’ that law. Id. When the federal court holds an evidentiary hearing, the additional evidence is relevant, but deference to the State court’s decision is still due. “Where a district court elects, in instances not barred by § 2254(e)(2), to hold an eviden-tiary hearing, the hearing may assist the district court in ascertaining whether the state court reached an unreasonable determination under either § 2254(d)(1) or (d)(2).” Valdez v. Cockrell, 274 F.3d 941, 952 (5th Cir.2001), cert. denied, 537 U.S. 883, 123 S.Ct. 106, 154 L.Ed.2d 141 (2002). H. Conclusion Although Guillory gives the court pause, the undersigned ultimately finds that the unique facts in that case do not permit the denial of relief in this case even though the undersigned found credible Judge Kitchens’ affirmation that he did not intend to discriminate on the basis of race. He was not a new judge, and he did not establish a track record (like Judge Carter) distinct from the record of the judges who created the prima facie case. There was no evidence of objective criteria known in advance of the selection, nor were there the unique facts like presented in Guillory, where the judge involved was
4237	v. Hartford-Empire Co., 46 F. Supp. 541, 612 (N.D.Ohio W.D.1942); Hartford-Empire Co. v. United States, 323 U.S. 386, 400, 65 S.Ct. 373, 89 L.Ed. 322 (1945); Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 241-243, 64 S.Ct. 997, 88 L.Ed. 1250 (1944); Hartford-Empire Co. v. Shawkee Mfg. Co., 163 F.2d 474, 475-476 (C.A. 3, 1947); Hatch v. Ooms, 69 F.Supp. 788, 794-801 (D.C.1947). In the words of Justice Black: “Where the patent owner has ample resources to bear the costs of repeated litigation, the power of the infringement suit to stifle competition is increased. And where potential competitors are weak and few, it may afford a practically complete protection for the preservation of undeserved monopoly.” Williams Mfg. Co. v. United Shoe Machinery Corp., 316 U.S. 364, 381, 62 S.Ct, 1179, 1188, 86 L.Ed. 1537 (1942). See also United States v. Hartford-Empire Co., 46 F.Supp. 541, 565 (N.D.Ohio W.D. 1942). It must never be forgotten that the primary policy of the patent laws is to promote invention for the benefit of the public. Private gain is secondary. Pennock v. Dialogue, 2 Pet. 1, 19, 7 L.Ed. 327 (1829); Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 510-511, 37 S.Ct. 416, 61 L.Ed. 871 (1917); Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 665, 64 S.Ct. 268, 88 L.Ed. 376 (1944); Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 98 L.Ed. 630 (1954); Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 330-331,
3471	by deciding whether, under § 115(c), stockholders’ losses upon a corporate liquidation are to be treated, for purposes of computation of the tax, in the same manner as losses upon a sale or exchange of the stock. Section 115(c) provides: “Amounts distributed in complete liquidation of a corporation shall be treated as in full payment in exchange for the stock * * *. The gain or loss to the distributee resulting from such exchange shall be determined under section 111, but shall be recognized only to the extent provided in section 112. Despite the provisions of section'117(a), 100 per centum of the gain so recognized shall be taken into account in computing net income. * * *” In two cases, White v. United States, 59 S.Ct. 179, 83 L.Ed. -, and Helvering v. Chester N. Weaver Co., 59 S.Ct. 185, 83 L.Ed. -, both decided December 5, 1938, the Supreme Court in construing the quoted section as it appeared in the Revenue Act of 1928 and 1932, respectively, has held that it placed stockholders’ gains and losses from liquidations on the same basis as gains and losses from sales of stock. The cited cases are controlling here. The scheme of the 1934 Act, insofar as here pertinent, is similar to that of the 1928 and 1932 Acts. In the Act here under consideration, as in the earlier Acts, the ultimate reference from § 115(c) is to § 112, 26 U.S.C.A. § 112, for “recognition” of gain or loss on liquidation.
1313	a motion for leave to amend for abuse of discretion. Wilson v. Bruks-Klockner, Inc., 602 F.3d 363, 368 (5th Cir.2010). “[A] court should freely give leave” to amend pleadings “when justice so requires.” Fed.R.Civ.P. 15(a)(2). Such leave is not automatic, however, and is at the discretion of the district court. Muttathottil v. Mansfield, 381 Fed.Appx. 454, 457 (5th Cir.2010). “If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.” 28 U.S.C. § 1447(e). The district court should scrutinize an amended pleading naming a new nondiverse defendant in a removed case “more closely than an ordinary amendment.” Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.1987). In deciding whether to allow leave to amend, a court should consider several factors, including “the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether plaintiff has been dilatory in asking for amendment, whether plaintiff will be significantly injured if amendment is not allowed, and any other factors bearing on the equities.” Id. See also Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 679 (5th Cir.2013) (noting that Hens-gens is the “correct legal standard” to apply in determining whether joinder of nondiverse parties should be permitted after removal). Under Louisiana law, an employee is personally liable if (1) the employer owes a duty of care to a third person; (2) the employer delegated
3035	Additional considerations include the nature and circumstances of the offense, the history and characteristics of the defendant, the kinds of sentences available, the applicable guideline range, the pertinent policy statements of the Sentencing Commission, and the need to avoid unwarranted sentencing disparities. Id. § 3553(a)(1), (3)-(6). Weighing the § 3553(a) factors is a task committed to the discretion of the district court, and we will vacate a sentence as substantively unreasonable “if, but only if, we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir.2010) (en banc). We do not automatically presume that a sentence within the guidelines range is reasonable, but we ordinarily expect it to be. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.2008). The party challenging the sentence bears the burden of establishing its unreasonableness in light of the record and § 3553(a) factors. United States v. Langston, 590 F.3d 1226, 1236 (11th Cir.2009). In the present case the guidelines calculations are unchallenged. Jaimes’ base offense level was 38 because the offense involved more than 150 kilograms of cocaine. U.S.S.G. § 2D1.1(c)(1). He received a four-level enhancement because he was an organizer or leader of criminal activity that involved five or more participants or was otherwise extensive. Id. § 3Bl.l(a).
3729	at 1341 (Fed.Cir.2004). In such cases, “a factual determination must reveal that the overall effect of the license tends to restrain competition unlawfully in an appropriately defined relevant market.” Windsurfing Int’l Inc. v. AMF, Inc., 782 F.2d 995, 1001-02 (Fed.Cir.1986). The Court reads the email as a representation made by GTS that it would file suit if BECO sold products without its consent outside the U.S., and that it would not grant any company exclusive rights to its patents unless it agreed to minimum sales numbers. Considered in a light most favorable to Plaintiff, BECO’s representations may impermissibly broaden the scope of its patent if Plaintiff can show that GTS prevented sales conducted entirely outside the U.S. Cybiotronics, Ltd. v. Golden Source Electronics Ltd., 130 F.Supp.2d 1152, 1171 (C.D.Cal.2001) (“[A]n ‘offer to sell’ made within the United States that contemplates a ‘sale’ of goods outside of the United States is not within the permissible scope of liability for 35 U.S.C. § 271(a). No direct infringement can be found solely premised on an “offer to sell” within the United States, unless the sale that is contemplated by the “offer” is or will also be consummated within the United States.”). ■ While this conduct may constitute broadening, it is not in a class of conduct that the Federal Circuit or Supreme Court has found to be misuse per se. Therefore, Plaintiff must also allege facts that tend show that on “overall effect” of Defendant’s actions “restrained competition unlawfully in an appropriately defined
2689	149-54 (notice requirements); Enewally v. Wash. Mutual Bank (In re Enewally), 368 F.3d 1165, 1173 (9th Cir.), cert. denied, 543 U.S. 1021, 125 S.Ct. 669, 160 L.Ed.2d 497 (2004) (confirmation has no preclusive effect on matters requiring adversary proceeding, or where plan does not give adequate notice of proposed treatment). The foregoing limitations on res judicata principles are particularly apropos when secured claims are involved. Absent some action by the representative of the bankruptcy estate, hens ordinarily pass through bankruptcy unaffected, regardless whether the creditor holding that lien ignores the bankruptcy case, or files an unsecured claim when it meant to file a secured claim, or files an untimely claim after the bar date has passed. See Bisch v. United States (In re Bisch), 159 B.R. 546, 550 (9th Cir.BAP1993) (“there is no duty on the part of the secured party to object to the confirmation of the [Chapter 13] plan, and failure to do so does not somehow constitute a waiver of the party’s secured claim”); Work v. County of Douglas (In re Work), 58 B.R. 868, 869 (Bankr. D.Or.1986). See also Enewally, 368 F.3d at 1168-72 and n. 2 (noting implications of “Fifth Amendment’s prohibition against taking private property without compensation”) (citation and quotations marks omitted). There is no dispute that Ventura’s assessments are secured by a lien because California law provided as of the filing date of the Second Case that “[e]very tax on real property is a lien against the property assessed.” Cal. Rev. & Tax.Code
4322	undisputed evidence that Weiner collected millions of dollars in 2003 for his ownership interest in the companies and that, in 2003 and 2004, Weiner and several high-ranking salaried employees of Concord Confections and Alpharetta Confections earned more than the jurisdictional threshold. The district court did not clearly err when it found that Tootsie Roll established by a preponderance of the evidence that the value of the relief sought by Weiner exceeds the required amount in controversy. B. The District Court Did Not Err by Granting the Motion of Tootsie Roll to Compel Arbitration. “The ‘validity of an arbitration agreement is generally governed by the Federal Arbitration Act.’ ” Lambert v. Austin Ind., 544 F.3d 1192, 1195 (11th Cir.2008) (quoting Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1367 (11th Cir.2005)). The Act promotes enforcement of written agreements to arbitrate, see 9 U.S.C. § 2, “in the manner provided for in [the parties’] agreement,” id. § 4. As a result, contracting “parties who do agree to arbitrate” are free to “exclud[e] certain claims from the scope of their arbitration agreement.” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 1255, 103 L.Ed.2d 488 (1989). Weiner and Tootsie Roll agreed that, “except for claims barred by the applicable survival period in [section] 8(a)” and “claims for preliminary or provisional injunctive relief ..., any and all disputes ... that relate[d] to [the] Agreement” would be “determined solely and exclusively by arbitration.” Weiner
1504	1950) (“It is true that such character evidence is not relevant to the question of the witness’s veracity, and is therefore not admissible to discredit him in that regard. Nor could defendant introduce the evidence merely as contradiction of the witness’s own denial that he was ‘an immoral pervert.’ ” [citations omitted]); United States v. Xuccio, 2 Cir., 373 F.2d 168, 171, cert. denied 387 U.S. 906, 87 S.Ct. 1688, 18 D.Ed.2d 623 (1967) (“ * * * it would indeed have been wrong to permit cross-examination on the score of homosexuality merely to discredit [a witness’] character * * *.”) . Wynn v. United States, 130 U.S.App.D.C. 60, 62-63, 397 F.2d 621, 623, 624 (1967); Villaroman v. United States, 87 U.S.App.D.C. 240, 241, 184 F.2d 261, 262, 21 A.D.R.2d 1074 (1950). . Villaroman v. United States, supra note 8, 87 U.S.App.D.C. at 241, 184 F.2d at 262; McFarland v. United States, 85 U.S.App.D.C. 19, 21 n. 3, 174 F.2d 538, 540 n. 3 (1949). . Wynn v. United States, supra note 8, 130 U.S.App.D.C. at 62, 397 F.2d at 623. See also Blair v. United States, 130 U.S.App.D.C. 322, 324, 325, 401 F.2d 387, 389-390 (1968); Villaroman v. United States, supra note 8, 87 U.S.App.D.C. at 241, 184 F.2d at 263. . See Salgado v. United States, supra note 7, 278 F.2d at 831-832; United States v. Nuccio, supra note 7, 373 F.2d at 171. . Blair v. United States, supra note 10, 130 U.S.App.D.C. at 324, 325, 401
3908	the foreclosure sale of her home. We have jurisdiction over these interlocutory appeals under 28 U.S.C. § 1292. We affirm as to appeal No. 10-16525, and we dismiss appeal No. 10-16526 as moot. 1. No. 10-16525 Th’e district court denied Silvas’s request for a preliminary injunction as to her claims arising under the Fair Housing Act (FHA), 42 U.S.C. § 3601 et seq., and the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq. Silvas argues that the district court erroneously found that the statute of limitations barred her FHA and TILA damages claims, and that it failed to consider her TILA rescission claim. We review the denial of a preliminary injunction for an abuse of discretion. Playmakers LLC v. ESPN, Inc., 376 F.3d 894, 896 (9th Cir.2004). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). The party requesting a preliminary injunction must carry its burden of persuasion by a “ ‘clear showing’ ” of these four elements. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam). Silvas failed to show a likelihood of success on the merits of her FHA. claim
2366	prevailing party, plaintiff is entitled to an award of these three specific items of costs unless a party opposing an award of costs shows the award would be inequitable. Smith v. SEPTA 47 F.3d 97, 99 (3d Cir.1995). Defendant Allstate does not oppose an award of costs to plaintiff, and even if it did, no equitable considerations weigh against an award of costs. Accordingly, the judgment of $4,654.50 in favor of plaintiff and against Defendant Allstate will be modified to include an award of costs taxed in the amount of $826.67. C. Attorneys’Fees “As a general matter, attorneys’ fees are not available in admiralty cases unless the court determines in its equitable discretion that one party has acted in bad faith.” Sosebee v. Rath, 893 F.2d 54, 56 (3d Cir.1990) (citing F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974); Vaughan v. Atkinson, 369 U.S. 527, 530-31, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962)); see also Inland Tugs Co., 709 F.2d at 1074 (“Equity principles applicable in admiralty permit attorney fees where there is a factual finding of ‘callous disregard and indifference’ of the party against whom the fees are allowed.”). Although this case involves a contractual dispute over a grand total of $4,654.50, plaintiff is requesting an award of attorneys’ fees in an amount in excess of $7,913.98. Plaintiff presents three arguments in favor of his request for attorneys’ fees. First, plaintiff requested that this Court
1794	cannot be “removably supported” if it is attached using fasteners that are meant to be permanent and not removed. As the accused pump is attached to its support plate by rivets, it cannot meet the “remov-ably supported” claim limitation. Thus, as a matter of law, defendant’s pump assembly does not literally infringe the '326 patent. The court also finds plaintiff cannot establish infringement under the doctrine of equivalents. An element that is implicitly excluded by the claim limitations cannot be resurrected under the doctrine of equivalents. To do so would violate a corollary of the all limitations rule “that ‘the concept of equivalency cannot embrace a structure that is specifically excluded from the scope of the claims.’ ” Cook Biotech Inc. v. Acell, Inc., 460 F.3d 1365, 1379 (Fed.Cir.2006) (citation omitted). The court finds that a proper construction of the term “remov-ably supported” necessarily excludes any means of permanent attachment. Attachment of the pump assembly by means of permanent attachments such as rivets is the antithesis of “removably supported.” Furthermore, no embodiment of the '326 patent includes permanently attached modular units. Indeed, it would defeat the object of the patent if the modular components were attached with permanent-type fasteners and the specification notes the ease of removability of the component parts. To hold that components that are permanently attached are equivalent to “removably supported” components would effectively read the “removably” limitation out of the patent. This the court cannot do. See Asyst Techs., Inc., 402 F.3d at 1195. Thus, as
4979	the filing and pursuit of lawsuits during the unlicensed 2008 period. Count III alleges Defendants violated Section 425/9(a)(20) by attempting to enforce a right or remedy with knowledge or reason to know that the right or remedy does not exist. Count IV seeks restitution of any monies obtained as a result of collection activities while unlicensed in 2008. II. LEGAL STANDARD To withstand a Motion to Dismiss, a Complaint “must be plausible on its face, meaning that the plaintiff must have pled ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” G & S Holdings LLC v. Cont’l Cas. Co., 697 F.3d 534, 537 (7th Cir.2012) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). A complaint need not contain detailed factual allegations to meet that standard, but must go beyond mere labels and conclusions. G & S Holdings LLC, 697 F.3d at 537-38. III. ANALYSIS A. Consideration of Standing Before Class Certification WAP I and West answered the Amended Complaint, but WAP II brought a Motion to Dismiss. WAP II argues that Davidson has no Article III standing to sue WAP II because the Complaint acknowledges that WAP I, rather than the separate legal entity of WAP II, sued Davidson. The requirements of Article III case-or-controversy standing are threefold: (1) an injury in-fact; (2)
2475	out of threatened regulation by Mille Lacs Band ordinances. The Court finds this claimed injury does not meet the constitutional requirement for standing; it is not actual, concrete, or imminent. While actual enforcement of regulatory ordinances is not required by law, standing requires more than an “imaginary or speculative” fear of prosecution. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). An injury may involve past prosecution, United Food & Commercial Workers Int’l Union v. IBP, Inc., 857 F.2d 422, 427 (8th Cir.1988), or the intent to engage in the exercise of a constitutionally guaranteed right, Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). See also Stoianoff v. Montana, 695 F.2d 1214 (9th Cir.1982) (“The mere existence of a statute, which may or may not ever be applied to plaintiffs, is not sufficient to create a controversy within the meaning of Article III.”). In order to allege a cognizable injury, plaintiffs must demonstrate a realistic danger of enforcement by the Band. In Steffel v. Thompson, the United States Supreme Court permitted a pre-enforcement First Amendment challenge to a law, but the law was a criminal statute. See 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). The Court limited potential prosecution claims to cases where the threat of prosecution is not imaginary, speculative, or chimerical. Id.; United Food, 857 F.2d at 425-30 (first amendment challenges to previously enforced criminal picketing statutes); High 01’
143	actors does not create liability unless state law would impose liability on a ‘private individual under like circumstances,’ 28 U.S.C. § 2674”). To prevail on a negligence claim under Massachusetts law, the plaintiff must establish that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached that duty, (3) proximately or legally causing (4) the plaintiffs actual injury or damages. Fithian v. Reed, 204 F.3d 306, 308-09 (1st Cir.2000) (explaining that, while “such matters most often comprise grist for the jury’s mill, they may be resolved on summary judgment when the facts lead ineluctably to a particular outcome”); see Primus v. Galgano, 329 F.3d 236, (1st Cir.2003); Magarian v. Hawkins, 321 F.3d 235, 238 (1st Cir.2003); Jorgensen v. Massachusetts Port Auth., 905 F.2d 515, 522 (1st Cir.1990). In the context of an FTCA claim, a legal duty of care exists where there is “some relationship between the governmental employee[s] and the plaintiff to which state law would attach a duty of care in purely private circumstances.” Sea Air Shuttle Corp., 112 F.3d at 537 (quoting Myers v. United States, 17 F.3d 890, 899 (6th Cir.1994)). In defining the duty of care in tort actions, Massachusetts follows the Restatement (Second) Of Torts § 315 (1965) (“Section 315”). Mosko v. Raytheon Co., 416 Mass. 395, 400 n. 7, 622 N.E.2d 1066 (1993); Jean v. Commonwealth, 414 Mass. 496, 513, 610 N.E.2d 305 (1993); see Rakes, 352 F.Supp.2d at 59 (discussing Section 315 and citing Jean). Section 315 “recognizes two
4674	and recommendation, the district court dismissed the federal claims for failure to state a claim, concluded that the Maitlands failed to allege diversity jurisdiction, and declined to exercise supplemental jurisdiction over their state law claims. This appeal follows. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review de novo the dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences in the plaintiffs favor. Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015). The complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although a court must accept as true all the factual allegations in the complaint, that requirement is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. As an initial matter, the Maitlands have waived appellate review of their RICO claim against the Fishbeins by failing to object to the portion of the magistrate judge’s February 28, 2017 report and recommendation addressing that claim despite being notified of the consequences of their failure to do so. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). Although we have discretion to excuse that waiver “in the
975	be made notwithstanding any divorce; the taxpayer agreed, further, to make up any deficiency which might occur in any year because of the failure of the trust to produce the required income; and he agreed further to pay to Helen Gallatin Welsh additional amounts sufficient to provide for taxes, imposed by the United States or any state or territory, with respect to the income paid by the trust. If these various undertakings had been included in a simple contract by the terms of which a third party thereto had been required to pay, on behalf of the taxpayer, the various amounts specified, such payments clearly would have been made in his behalf and in satisfaction of his obligations. Old Colony Trust Co. v. Commissioner, 279 U. S. 716; United States v. Boston & Maine Railroad, 279 U. S. 732. “The creation of a trust by the taxpayer as the channel for the application of the income to the discharge of his obligation leaves the nature of the transaction unaltered.” Douglas v. Willcuts, supra. The facts in the instant case clearly distinguish it from other cases decided by this Board since Douglas v. Willcuts, in which the income of trusts paid to former wives was held not taxable to the settlors of the trusts following divorce or remarriage. In Harry S. Blumenthal, supra, the trust there involved was created by the taxpayer pursuant to a decree requiring him to do so. It was created expressly for the purpose of paying alimony;
1903	(2d Cir.1949) (“The goodwill of the business, though unmentioned, passed with the transfer of the business.”); J. Thomas McCarthy, 3 McCarthy on Trademarks and Unfair Competition § 18:37 (4th ed.1994) (“When a business is sold as a going concern, trademarks and the good will of the business that they symbolize are presumed to pass with the sale of the business.”). This has been called an “old and clear rule,” 3 McCarthy on Trademarks § 18:37, and its longevity is due to its logic. The contrary proposition — that the names “Kehot” and “Kehot Publication Society” were assigned to Merkos, but the logo bearing the very same words (in Hebrew) was not — is untenable. Cf. Oklahoma Beverage Co. v. Dr. Pepper Love Bottling Co., 565 F.2d 629, 632 (10th Cir.1977) (“[T]he trial judge correctly found that ‘trade name’ used in the contract meant ‘trademark.’ ”). Vaad objects that the resolution reflects only a transfer of the “right to use” the name Kehot and is, therefore, more a license than a transfer of ownership. That interpretation, however, is belied by the overwhelming evidence that Kehot, as an entity, was folded into Merkos, which has now run its publishing operations for more than 70 years. In that role, it took steps to protect the logo by registering it under New York law. To be sure, the Rebbe served as Merkos’s president and played a major role in its management. But that role merely underscores that the steps he took to formalize the
2296	(“dot”) to Gaddis were fraudulent; (2) whether the bankruptcy court erred in holding that Gaddis’s counterclaim to recover funds reclaimed by the bankruptcy estate was barred under the doctrine of res judicata; and (3) whether the bankruptcy court erred in approving the applications for compensation as special counsel to the Trustee. For the reasons set forth below, this court affirms the bankruptcy court’s rulings with respect to the $655,000.00 in fraudulent transfers and special counsel fees, but reverses the bankruptcy court’s determination regarding the Trustee’s entitlement to summary judgment based on the doctrine of res judicata. I. Standard of Review “The district court sits as an appellate court when an appeal is taken from the bankruptcy court.” United States v. Domme (In re Domme), 163 B.R. 363, 365 (D.Kan.1994) (citing 28 U.S.C. § 1334(a)). The Tenth Circuit has made the following remarks with respect to the district court’s role as an appellate court: Just as the court of appeals may not conduct an evidentiary hearing for a bankruptcy appeal, so too a district court may not conduct such hearing when it is acting in its capacity as an appellate court. In a bankruptcy appeal, a district court may alter or amend its judgment pursuant to Fed.R.Civ.P. 59(e), but may not conduct a hearing to take additional'testimony or other evidence. Branding Iron Motel, Inc. v. Sandlian Equity, Inc. (In re Branding Iron Motel, Inc.), 798 F.2d 396, 399 (10th Cir.1986). The district court may affirm, reverse or modify the bankruptcy court’s
4632	too is ripe for decision. Rule 56 Standards Rule 56 requires this Court to rule in favor of the moving party if “there is no genuine issue as to any material fact and ... [he] is entitled to a judgment as a matter of law.” “Genuine” issues exist if the record evidence would permit a reasonable factfinder to adopt the view of the nonmoving party (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Old Republic Ins. Co. v. Federal Crop Ins. Corp., 947 F.2d 269, 274 (7th Cir.1991.)). “As to materiality, the substantive law will identify which facts are material” (Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Pritchard v. Rainfair, Inc., 945 F.2d 185, 191 (7th Cir.1991)). It is the movant’s burden to establish the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). In deciding whether that burden has been met, the court must draw “all reasonable inferences” in favor of the nonmovant (Allensworth v. General Motors Corp., 945 F.2d 174, 178 (7th Cir. 1991)), and must resolve factual disputes in the nonmovant’s favor as well (Anderson, 477 U.S. at 255, 106 S.Ct. at 2513 (“evidence of the nonmovánt is to be believed”)). Where as here cross-motions are involved, the court must extend to each party the benefit of any factual doubt when considering the other’s motion — a Janus-like perspective
3961	case). First, Kariotis must establish a prima facie case. She must show: (1) that she belongs to a protected group; (2) that she performed satisfactorily; (3) that she was subjected to an adverse employment action; and (4) that similarly situated employees outside the classification received more favorable treatment. Hughes v. Brown, 20 F.3d 745, 746 (7th Cir.1994). Navistar does not argue that Kariotis cannot establish a prima facie case under either the ADA, the ADEA, or the ERISA; accordingly, Kariotis passes the first step. Once established, the “prima facie ease creates a rebuttable presumption of discrimination, and the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for its allegedly biased employment decision.” Johnson v. City of Fort Wayne, Ind., 91 F.3d 922, 931 (7th Cir.1996). “If the employer meets its burden of production, the presumption dissolves.” Id. Navistar meets its burden of production at step two — it claims that it terminated Kariotis because it believed that she was committing disability fraud. As discussed, Navistar, suspicious of the recovery period associated with Kariotis’ injury, decided to pursue undercover surveillance. In Navis-tar’s opinion, the undercover videotape was inconsistent with Kariotis’ injury. Thus, it believed that she was committing disability fraud and had her terminated. Accordingly, the presumption of discrimination under the ADA, the ADEA, and the ERISA dissolves. If the presumption dissolves, “[t]o prevail, the employee then must demonstrate that the nondiscriminatory explanation of the employer is pretextual.” Id. Pretext means a lie. Id. There are
210	where the “plaintiff has attempted to manipulate the statutory rules for determining federal removal jurisdiction, thereby preventing the defendant from exercising its rights.” Id. at 428-29. Courts must determine, based upon a review of the parties’ conduct, whether “it is equitable to strictly apply the one-year limit.” Id. at 426. And, as part of the analysis, the court must balance the Tedford exception with the general rule construing removal jurisdiction strictly, because any “doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.” Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir.2000). “Contested issues of material fact, and any ambiguity or uncertainty in the controlling state law, are -resolved in the plaintiffs favor.” Cantor v. Wachovia Mortg., FSB, 641 F.Supp.2d 602, 606 (N.D.Tex.2009) (citing Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 259 (5th Cir.1995)). In Tedford, two plaintiffs filed suit against a pharmaceutical company and named a single non-diverse defendant, who was initially alleged to be both plaintiffs’ treating physician, even though the physician had never treated Tedford. Id. at 424. Further, the other plaintiffs claim was filed in the wrong venue. The trial court severed the plaintiffs’ claims and transferred the other plaintiffs case to another county. Id. at 425. When the pharmaceutical company discovered that the doctor treated only one of the plaintiffs, it indicated its intent to remove. Id. at 424-25. Three hours after receiving notice that the pharmaceutical company would seek removal, Tedford amended her petition
4720	to commence discovery with respect to the non-movant’s claims.” Desclafani v. Pave-Mark Corp., No. 07-CV-4639, 2008 WL 3914881, at *7 (S.D.N.Y. Aug. 22, 2008) (emphasis, alterations, and internal quotation marks omitted); see also Walden, 2015 WL 1433353, at *3 (same). “Only in the rarest of eases may summary judgment be granted against á plaintiff who has not been afforded the opportunity to conduct discovery.” Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000). But if the nonmovant “give[s] the ... court no basis to conclude that further discovery would yield” information that would create a genuine dispute as to material facts, then summary judgment may be appropriate, even before discovery has been conducted. Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir.1995). 2. Analysis The FLSA applies generally to “employees, engaged in interstate commerce.” Dauphin v. Chestnut Ridge Transp., Inc., 544 F.Supp.2d 266, 271 (S.D.N.Y.2008). Among other things, the FLSA requires employers to pay overtime wages to certain, employees who work more than 40 hours per week. See 29 U.S.C. § 207. However, the FLSA has also' exempted classes 'of employees from its wage protections. “Because the FLSA is a remedial law, [courts] must narrowly construe its exemptions.” Reiseck v. Universal Commons of Miami, Inc., 591 F.3d 101, 104 (2d Cir.2010) (footnote omitted). Moreover, an employer bears the burden of establishing that an exemption applies. See Young v. Cooper Cameron Corp., 586 F.3d 201, 204 (2d Cir.2009) (“The employer has the burden,
4642	on November 17, 2010, however, counsel for Respondent conceded Petitioner was entitled to a Writ of Audita Querela setting aside the conviction. However, Respondent maintained objection to expungement of the record. DISCUSSION I. Writ of Coram Nobis and/or Audita Querela The All Writs Act provides that federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). A petition for Writ of Coram Nobis under the All Writs Act may provide relief for persons who have grounds to challenge the validity of their conviction but are not eligible for habeas corpus relief under 28 U.S.C. § 2255 because they are not in custody. United States v. Crowell, 374 F.3d 790, 794-95 (9th Cir.2004), cert. denied, 543 U.S. 1070, 125 S.Ct. 911, 160 L.Ed.2d 806 (2005). The Writ of Audita Querela “ ‘provides relief from the consequences of a conviction when a defense or discharge arises subsequent to entry of the final judgment. The defense or discharge must be a legal defect in the conviction, or in the sentence which taints the conviction.’ ” Crowell, 374 F.3d at 794 (quoting Doe v. INS, 120 F.3d 200, 203 (9th Cir.1997)) (footnote omitted). The Ninth Circuit has explained “that the difference between coram nobis and audita querela is largely ‘one of timing, not substance.’ ” Crowell, 374 F.3d at 795 n. 4 (quoting Doe v. INS, 120 F.3d at 203 n. 4). “Whereas coram nobis could
4132	breached that duty by its negligent conduct; and (3) as a result of that breach, plaintiff suffered injury.’” Rambert v. U.S., 1996 WL 583392 (S.D.N.Y. 1996) (internal cites omitted). “With regard to premises liability, New York has adopted a single standard of liability, requiring an owner to maintain reasonably safe conditions in view of all the circumstances ‘including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.’ ” Id. “The question of whether a hazard is open and obvious is normally one that goes to the [trier of fact] unless only one possible conclusion may be drawn from the undisputed facts.” Tuthill v. U.S., 270 F.Supp.2d 395, 399 (S.D.N.Y. 2003) (citing Pelman v. McDonald’s Corp., 237 F.Supp.2d 512, 541 (S.D.N.Y.2003)). In New York, “it is well settled that a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances. The nature and scope of that duty and the persons to whom it is owed require consideration of the likelihood of injury to another from a dangerous condition on the property, the seriousness of the potential injury, the burden of avoiding the risk and the foreseeability of a potential plaintiffs presence on the property.” Furey v. U.S., 458 F.Supp.2d 48, 53 (N.D.N.Y.2006) (emphasis in original). In addition, under New York law, Generally, a party who, in possession of premises, throws them open to the public for the purpose of gain, impliedly
1703	that kept custody of investor’s funds and securities had no fiduciary duty to him). Clearing brokers may have a fiduciary duty to investors in certain extenuating circumstances. See, e.g., Goldman v. McMahan, Brafman, Morgan & Co., No. 85 Civ. 2236(PKL), 1987 WL 12820, *22 (S.D.N.Y. June 18,1987) (finding that complaint adequately made out a claim for clearing agent’s breach of fiduciary duty due to claim that agent “actively engaged ... in creating fraudulent trading losses” rather than acting as “a mere conduit.”). However, the complaint in this action does not allege any facts, such as, for example, the existence and violation of a customer agreement between Rozsa and SG Cowen, upon which such a finding could be based. Cf. Conway v. Icahn & Co., 16 F.3d 504, 509 (2d Cir.1994). Rather, the complaint alleges only that the other defendants “induced SG Cowen ... to transfer Rozsa’s funds.... ” (Comply 19.) In short, the complaint fails to allege facts on which the Court could find that SG Cowen acted as anything other than a generic clearing agent that acted only through May Davis. As a result, SG Cow-en had no fiduciary duty to Rozsa. SG Cowen’s motion to dismiss the breach of fiduciary duty claim is granted for failure to plead facts upon which a claim for relief may be granted. III. Breach of Contract SG Cowen next moved to dismiss the breach of contract claim against it on the grounds that the complaint fails to allege that Rozsa and SG
1974	109 S.Ct. 556, 102 L.Ed.2d 583 (1988). The Government contends that the seizure authorization was not overbroad because the businesses searched were “permeated with fraud.” It is argued that, under such circumstances, the seizure of all business records of the companies controlled by the Defendants is authorized. See National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir.1980) (citing United States v. Brien, 617 F.2d 299, 309 (1st Cir.), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980)). The Fourth Amendment requires that warrants “particularly describ[e] ... the person or things to be seized.” The particularity requirement renders “general searches ... impossible and prevents the seizure of one thing under a warrant describing another.” Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). In reviewing a warrant against a claimed lack of particularity, “the language of a warrant is to be construed in light of an illustrative list of seizable items.” United States v. Riley, 906 F.2d 841, 844 (2d Cir.1990); see also United States v. Young, 745 F.2d 733, 759-60 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). While the purpose of the particularity requirement is to avoid leaving to “the unguided discretion of the officers executing the warrant the decision as to what items may be seized,” (United States v. Riley, supra, citing Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976) and
2797	meet the required DRE even if feed concentrations were as low as 300 ppm. Accordingly, the court finds that plaintiffs have not shown a likelihood of success on the merits of their claim that there is an existing or threatened future violation of TSCA. Nuisance 17. The court has previously granted the Federal defendants’ motion to dismiss this claim on the basis of immunity. Defendant EG & G has also moved to dismiss this count. The court finds that plaintiffs’ allegations with regard to their nuisance claim are inadequate. “Under Utah law, [plaintiffs] must suffer some substantial injury or damage not inflicted on the community at large in order to recover on a public nuisance theory.” Hardy Salt Co. v. Southern Pacific Transportation Co., 501 F.2d 1156, 1164 (10th Cir.1974). The complaint fails to specify the nature of the particularized in jury that individual plaintiffs will suffer as a result of the proposed operation of TOCDF by EG & G. Indeed, based on the general environment-related complaints which form the basis of plaintiffs’ suit, it does not appear likely that plaintiffs will be able to allege injury which would be different in nature from that would be suffered by the public in general. To the extent that plaintiffs’ assertion of likely injury is based upon alleged increases in pollutant levels, the court finds that such injury, if it exists, would not be different from that which is suffered by the general public. Accordingly, the court will grant defendant EG &
1295	more than a month after Goff filed her motion for jury trial. Although initial Rule 26 disclosures were made prior to the request, a jury trial should not impact any “strategy” involving mandatory disclosures. To the extent that it might, the parties can supplement the disclosures. The only actions in the first case prior to Goff filing her motion for jury trial were defendant’s removal of the case to federal court and Owen’s answer. Goff could have filed a Rule 38 demand for jury trial within ten days after Owen’s answer. Additionally, the cases cited by Owen which support denial of the motion involve much longer delays. See Lewis v. Thigpen, 767 F.2d 252, 256 (5th Cir.1985) (12 months); Littlefield v. Fort Dodge Messenger, 614 F.2d 581, 585 (8th Cir.1980) (request filed at pretrial conference stage and after “a pattern of conduct apparently intended to delay trial”), cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980). Owen has not shown prejudice from the short delay in this case. Regarding the additional expense associated with a jury trial, Owen cites no authority for the proposition that this constitutes prejudice; neither does the court find any prejudice. Owen next argues the case is too complex to be presented to a jury. Juries are commonly called upon to decide complex cases and it is not an abuse of discretion to grant a motion for jury trial in complex cases. Green Const., 1 F.3d at 1011. Finally, Owen cites Horton v.
4175	the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The Court also determines “whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition.” Id. 1. Violation of a Constitutional Right The Plaintiffs allege that the Defendants violated their Fourth Amendment right when the Defendants unreasonably seized the Plaintiffs and used excessive force. Excessive force claims are analyzed using the Fourth Amendment’s “reasonableness” standard in the context of “an arrest, an investigatory stop or any other type of seizure.” Stainback v. Dixon, 569 F.3d 767, 771 (7th Cir. 2009). The Fourth Amendment protects against the use of force that is not “objectively reasonable.” Kinney v. Ind. Youth Ctr., 950 F.2d 462, 465 (7th Cir. 1991). The “right to make an arrest.. .necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). However, this right is not without limits; a “police officer’s use of force is unconstitutional if, judging from the totality of circumstances at the time of the arrest, the officer used greater force than was reasonably necessary to make the arrest.” Payne v. Pauley, 337 F.3d 767, 778 (7th Cir. 2003) (citation and quotation
3576	law in enforcing the limitations clause to exclude several different claims. This court has done the same concerning the failure to warn claims. Nevertheless, “questions of substantive law are governed by the law of the place of the transaction or the place where the right is acquired (lex loci), while questions of procedure and remedy are governed by the law of the place where the action is brought (lex fori).” Frye v. Commonwealth, 231 Va. 370, 376, 345 S.E. 2d 267, 272 (1986). The court does not attempt to discern where the place of wrong would be in a failure to warn case. This difficulty can be avoided because “the law of lex loci does not deal with remedies.” Walters v. Rockwell International Corp., 559 F.Supp. 47, 49 (E.D.Va.1983). The court in Walters concluded that “while the right to recovery and the limits on recovery are substantive law, the distribution of the recovery is remedial law.” Id. at 49-50. Although one could argue that the availability of punitive damages is a matter of substantive law because it concerns the limits of recovery, this court is convinced that it is more in the nature of a remedy. The court holds to this position despite the parties’ choice of Michigan law. When the Fourth Circuit and this court considered the consequential damages issue, it was in the context of interpreting the scope of an explicit contractual provision. The parties can contract for governing law in such a case. In contrast, the contract
2285	from disclosure by himself or by the legal adviser, (8) except the protection be waived. United States v. Lawless, 709 F.2d 485, 487 (7th Cir.1983) (citing 8 Wigmore § 2292). The burden falls on the party seeking to invoke the privilege to establish all the essential elements. Id. The claim of privilege cannot be a blanket claim; it “must be made and sustained on a question-by-question or document-by-document basis.” Id. Finally, the scope of the privilege is narrow, because it is in “derogation of the search for truth.” In re Walsh, 623 F.2d 489, 493 (7th Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980). Any findings of fact will not be overturned unless clearly erroneous. United States v. Nelson, 851 F.2d 976, 978 (7th Cir.1988). In Lawless, we held that “[wjhen information is transmitted to an attorney with the intent that the information will be transmitted to a third party ... such information is not confidential.” Lawless, 709 F.2d at 487. There, the defendant had provided information to be used in the preparation of an estate tax return. Apparently, some of the information transmitted to the attorney for this purpose never made it onto the return. We concluded, “[i]f the client transmitted the information so that it might be used on the tax return, such a transmission destroys any expectation of confidentiality which might have otherwise existed.” Id.; see also United States v. Windfelder, 790 F.2d 576 (7th Cir.1986). We also noted that “disclosure of
3751	Rameses, Inc., d/b/a Cleo’s, operates an erotic dancing establishment in Orlando, Florida, licensed by Defendant, Orange County (“the County”). Plaintiff brought this action seeking declarative and injunctive relief to prevent the County from enforcing certain provisions of its Adult Entertainment Code (“AEC”). This cause is before the Court on Defendant’s Dispositive Motion for Final Summary Judgment (Doc. 53) and Memorandum of Law in support thereof (Doc. 66). Plaintiff has filed a Response in Opposition to Orange County’s Motion for Summary Judgment. (Doc. 95.) In addition to asking that Defendant’s motion be denied, Plaintiff asks that “relief [be] granted to the plaintiff.” (Id. at 1.) The Court construes Plaintiffs Memorandum in Opposition as a cross-motion for summary judgment. See United States v. M/V Jacquelyn L., 100 F.3d 1520, 1521-22 & n. 2 (11th Cir.1996); Centerfolds v. Town of Berlin, 352 F.Supp.2d 183, 186 (D.Conn.2004). For the following reasons, Defendant’s Motion for Summary Judgment is granted in part and denied in part; Plaintiffs Cross-Motion for Summary Judgment is also granted in part and denied in part. I.Background In 2004, members of the County’s Metropolitan Bureau of Investigation (“MBI”) arrested patrons and employees of Cleo’s for criminal violations following an extensive undercover investigation called “Operation Overexposed.” (First Am. Compl. ¶¶ 14, 21.) As a result of those arrests, Plaintiff anticipates that the County will suspend or revoke its adult entertainment license pursuant to the AEC’s suspension and revocation provisions. (Id. ¶¶ 9, 14.) The County initiated suspension proceedings against Plaintiff in 2002 after
2179	each. Whenever such an entry involved one of the enumerated uncom-pensable categories discussed in this séction, I allocated fifty percent of the hours in that entry to the category in question. 1. Unproductive or Unnecessary Hours Citing a failure by plaintiffs’ counsel to exercise “billing judgment,” the City challenges a long list of Attorney Hernandez’s time entries as unproductive or otherwise unnecessary to advance the litigation. The Court agrees with the City on a number of these entries. Hours spent by plaintiffs’ counsel talking with the press (7.2) were eliminated. See, e.g., Rum Creek Coal Sales, Inc., v. Caperton, 31 F.3d 169, 176 (4th Cir.1994) (“The legitimate goals of litigation are almost always attained in the courtroom, not in the media.”); Knight v. Alabama, 824 F.Supp. 1022, 1033 (N.D.Ala.1993) (holding that “time spent talking with the media is not compensable because it is not ‘ordinarily necessary to secure the final result obtained from the litigation’ ” (quoting Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S. 546, 561, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1985))); cf. Hart v. Bourque, 798 F.2d 519, 523 (1st Cir.1986) (disallowing time spent on “ ‘arrangements for lectures or publications about the case’ ”). The Court also disallowed time spent communicating with the Attorney General’s office (.90 hours), as there is little indication that those communications were necessary to the presentation of this case. In addition, the Court eliminated the considerable time (62.6 hours) that Attorney Hernandez spent waiting in the courthouse for the jury’s verdict
1213	237, 62 L.Ed. 713 (1918))). Judicial scrutiny is especially important “in the context of removal, where considerations of comity play an important role.” Johnston v. St. Paul Fire & Marine Ins. Co., 134 F.Supp.2d 879, 880 (E.D.Mich.2001). Indeed, “[o]ut of respect for the independence of state courts, and in order to control the federal docket, federal courts construe the removal statute narrowly, resolving any doubts against removability.” Stan Winston Creatures, Inc. v. Toys “R” Us, Inc., 314 F.Supp.2d 177, 179 (S.D.N.Y.2003) (internal quotation marks omitted); see also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) (noting that federalism concerns call for “the strict construction” of the removal statute); Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269, 274 (2d Cir.1994) (“In light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability.” (internal citation omitted)); Zerafa v. Montefiore Hosp. Hous. Co., 403 F.Supp.2d 320, 324 (S.D.N.Y.2005) (“Removal jurisdiction is strictly construed inasmuch as it implicates significant federalism concerns and abridges the deference courts generally give to a plaintiffs choice of forum.”). As a general matter, the party asserting federal jurisdiction bears the burden of proving that the case is properly in federal court. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). “Where, as here, jurisdiction is asserted
1926	its effect as a ruling on the merits. Consequently, since plaintiff invoked the authority of the district court and that authority has been exercised in the matter, the bank cannot ignore the adverse ruling it received in hopes of getting a better answer in another forum. Sound principles of judicial administration dictate that any error in the ruling be pursued on appeal and not through a subsequent action elsewhere on the same claim. Indeed, the rule is that “[w]here a court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every court.” Elliot v. Peirsol, 26 U.S. (1 Pet.) 328, 340, 7 L.Ed. 164 (1828). Therefore, plaintiffs demand for money damages remains pending before the district court. Accordingly, suit in this Court is barred by 28 U.S.C. § 1500 (1982). CONCLUSION For the reasons stated, defendant’s motion to dismiss is granted and the Clerk is directed to enter judgment dismissing the complaint.
2012	DSM-III-R at 248.) The Manual M21-1 also provides the following guidance that may be applied in a manner favorable to the veteran: “A stressor is not to be limited to just one single episode. A group of experiences also may affect an individual, leading to a diagnosis of PTSD.” Manual M21-1, Part VT, ¶ 7.46(b)(2) (1995); Manual M21-1, Subch. XII, ¶ 50.45(f)(2) (1989); see Hayes, Austin, Kamas, and Fug-ere, all swpra. In view of the subjective nature of the DSM-IV criteria for assessing the sufficiency of a PTSD stressor, the question of the sufficiency of the asserted stressors, in terms of DSM-IVs two requirements, is a medical question requiring examination and assessment of the veteran by a mental-health professional. See West (Carleton) v. Brown, 7 Vet.App. 70, 79 (1994) (noting that “a significant diagnostic feature of PTSD requires that the sufficiency of the stressor be clinically established”). Hence, the Board can reject favorable medical evidence as to stressor sufficiency only on the basis of independent medical evidence, accompanied by an adequate statement of reasons or bases, and only after first seeking clarification of an incomplete examination report (whether or not such clarification is actually provided by the original examiner) pursuant to applicable VA regulatory provisions discussed above. See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); see also 38 U.S.C. § 7104(d)(1); Caluza, supra; Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). In Zarycki, the Court held that it is the distressing
1590	L.Ed.2d 833 (1982). In many circuits, a party’s mere assertion that a claim is contractual is not an automatic ticket to federal court; rather, the court must “examin[e] the major issues to be decided” and determine “whether they can be characterized as primarily representational or primarily contractual.” Local Union 204, Int’l Bhd. of Elec. Workers v. Iowa Elec. Light & Power Co., 668 F.2d 413, 419 (8th Cir.1982); accord, e.g., Paper, Allied-Indus., Chem. & Energy Workers Int’l Union v. Air Prods. & Chems., Inc., 300 F.3d 667, 675 (6th Cir.2002) (“simply referring to the claim as a ‘breach of contract’ [is] insufficient for purposes of § 301 federal courts’ jurisdiction”; instead test is whether claim is “primarily representational”); Pace v. Honolulu Disposal Serv., Inc., 227 F.3d 1150, 1156 (9th Cir.2000) (“[An] end run around [the NLRA] ... under the guise of contract interpretation ... cannot be countenanced, and we have drawn the jurisdictional line by asking whether the major issues to be decided ... can be characterized as primarily representational or primarily contractual.” (internal quotation marks and citations omitted) (ellipses in original)); United Food & Commercial Workers Union, Local 400 v. Shoppers Food Warehouse Corp., 35 F.3d 958, 961 (4th Cir.1994) (court is without jurisdiction if “a dispute is so primarily representational, that it falls solely within the Board’s jurisdiction” (internal quotation marks omitted)); Copps Food Ctr., Inc. v. United Food & Commercial Workers Union, Local 73-A, No. 90-1905, 1991 WL 135508, at *2 (7th Cir.1991) (unpublished) (“In answering the
3848	owners in the exclusive use of their marks when use by another would be likely to cause confusion.” Interpose Corp. v. Lapp, Inc., 721 F.2d 460, 462 (3d Cir.1983). A claim of trademark infringement is established when the plaintiff proves that: (1) its mark is valid and legally protectable; (2) it owns the mark; and (3) the defendant’s use of the mark to identify its goods or services is likely to create confusion concerning the origin of those goods or services. See Opticians Ass’n of Am. v. Independent Opticians of Am., 920 F.2d 187,192 (3d Cir.1990). If the mark at issue is federally registered and has become incontestible, then validity, legal protectability, and ownership are proved. See Ford Motor Co. v. Summit Motor Prods., 930 F.2d 277, 292 (3d Cir.1991). If the mark has not been federally registered or, if registered, has not achieved incontestability, then “validity depends on proof of secondary meaning, unless the unregistered or contestable mark is inherently distinctive.” Id. A plaintiff must establish secondary meaning in a mark at the time and place that the defendant began use of the mark. See Scott Paper Co. v. Scott’s Liquid Gold, Inc., 589 F.2d 1225, 1231 (3d Cir.1978); J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 15:4 (4th ed.1997) [hereinafter “Trademarks”']. Secondary meaning exists when the mark “is interpreted by the consuming public to be not only an identification of the product or services, but also a representation of the origin of those products or services.”
101	it urges us to consider the broad discretion that it has over alien and immigration matters. The Attorney General has been charged with the responsibility for the administration and enforcement of the nation’s laws relating to immigration and naturalization. 8 U.S.C. § 1103. Accordingly, the Attorney General enjoys broad discretion in this area. The Attorney General has in turn delegated that authority and discretion to the Commissioner of the INS. 8 C.F.R. § 2.1. While in general the Executive Branch is permitted to exercise broad discretion on immigration matters, Congress can impose limitations on the exercise of that discretion. INS v. Chadha, 462 U.S. 919, 953 n. 16, 103 S.Ct. 2764, 2785 n. 16, 77 L.Ed.2d 317 (1983); see also United States v. Frade, 709 F.2d 1387, 1402 (11th Cir.1983). In short, executive agencies cannot exceed the limits of their congressionally delegated authority. “[T]he Attorney General acts in his presumptively Art. II capacity when he administers the [INA].... That kind of Executive action is always subject to check by the terms of the legislation that authorized it; and if that authority is exceeded it is open to judicial review.” Chadha, 462 U.S. at 953 n. 16, 103 S.Ct. at 2785 n. 16. While deference must be shown to the Executive’s exercise of discretion, see Kleindienst v. Mandel, 408 U.S. 753, 770, 92 S.Ct. 2576, 2585-86, 33 L.Ed.2d 683 (1972), it should come as no surprise that Executive action cannot be contrary to law. Moreover, the cases that establish the principle
941	pattern or habit on the part of Defendant Bowman “will waste considerable time and cause delays,” Def.’s Mot. in limine at 3; and (3) the evidence is “highly prejudicial” insofar as it seeks to show Defendant Williams is guilty by association, id. None of these arguments warrant exclusion of the evidence in question at this time. The Government indicated in its opposition that it will not seek to introduce any evidence of a pattern, habit, or routine pursuant to Rule 406. Gov’t General Opp’n ¶ 11. The Government indicates that it may seek to introduce evidence of Bowman’s dealings with other alleged co-conspirators as, among other things: (1) circumstantial evidence of the Defendant’s knowledge of and participation in the conspiracy, United States v. Martinez, 476 F.3d 961, 969 (D.C.Cir.2007); and (2) intrinsic evidence of the conspiracy, see United States v. Badru, 97 F.3d 1471, 1474-75 (D.C.Cir.1996). Moreover, “[d]rugs distributed by a co-conspirator in furtherance of a conspiracy are attributable to a member of the conspiracy so long as the distribution was ‘reasonably foreseeable’ to that member.” United States v. Wilson, 605 F.3d 985, 1036 (D.C.Cir.2010) (quoting United States v. Childress, 58 F.3d 693, 722 (D.C.Cir.1995)). Thus, to the extent the Government is able to show Defendant Williams was a member of the conspiracy, the evidence about which Williams complains will not be unduly prejudicial, misleading, confusing, or cumulative. Nor will it cause undue delay. Rather, it will be relevant evidence of acts that the Government may succeed in attributing to
4726	create a genuine factual dispute about the weight of the trucks. Second, the employee must engage in activities directly affecting safety. Here, there is no dispute that Plaintiff was employed as a driver. (See Cruz Deck ¶ 3 (“I drove a garbage truck that collected household waste.”); id. ¶ 5 (“I only collected and drove household waste”); Car-talemi Deck ¶ 21 (“Plaintiff was employed by AAA Carting as a garbage truck driver.... ”); Compl. ¶ 16 (“Plaintiffs duties . included driving a garbage truck — ”).) Nothing in Plaintiffs counsel’s declaration suggests that discovery would yield information that Plaintiff was involved in anything other than driving. And it is well established that driving is an activity that directly affects safety. See Morris v. McComb, 332 U.S. 422, 430, 68 S.Ct. 131, 92 L.Ed. 44 (1947) (“The drivers are full-time drivers of motor vehicles well within the definition of that class of work by the Commission if the work is done in interstate commerce.”); Walden, 2015 WL 1433353, at *3, *6 (“The four broad categories of workers whose duties are said to directly affect the safety of vehicle operation are: (1) drivers, (2) mechanics, (3) loaders, and (4) helpers of the first three, ... [and] [t]he case law regarding the motor carrier exemption’s application to drivers is well-established.”); McBeth v. Gabrielli Truck Sales, Ltd., 768 F.Supp.2d 383, 390 (E.D.N.Y.2010) (“The Department of Labor interprets the motor carrier exemption to apply to drivers, driver’s helpers, loaders, or mechanics whose work directly affects
937	Therefore, by September 5, 2012, the Government shall submit a revised disclosure of Detective Abdalla’s testimony providing additional detail in the areas identified above, and omitting the topics about which Detective Abdalla will not be permitted to testify. 3. Special Agent John Bevington The Government’s supplemental notice of expert testimony indicates the Government may call Special Agent Bevington to testify “regarding the interpretation of the coded and disguised language included in the wiretap conversations and during controlled buys.” Gov’t Suppl. Notice at 1. To the extent Special Agent Bevington will offer testimony regarding coded and disguised language based on his personal knowledge of this alleged conspiracy, he may do so as a lay witness, and no further disclosure is required. United States v. Smith, 640 F.3d 358, 365 (D.C.Cir.2011). If Special Agent Bevington intends to provide testimony based on “knowledge derived from previous professional experience,” the Government must specifically disclose the opinions Special Agent Bevington will offer, and the bases for those opinions as required by Rule 16(a)(1)(G). Id. C. First Motion in Limine The Defendant’s First Motion in Limine identifies two issues: (1) the use of transcripts of intercepted telephone calls; and (2) the Government’s use of “pattern” or “habit” evidence at trial. First, the Court shall allow the jurors to use the transcripts during trial and deliberations while listening to the recordings of intercepted calls, but shall set forth a procedure for the defendants to object to the Government’s transcripts. Second, the Government does not seek to introduce
193	be inconvenienced by having to travel a substantial distance. In deciding § 1404 transfer motions, “substantial weight” is given to plaintiffs choice of forum. S-G Securities v. Fuqua Inv. Co., 466 F.Supp. 1114 (D.Mass. 1978), citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). In Gulf Oil, 330 U.S. 501, 508, 67 S.Ct. 839, 843, the Supreme Court held that “unless the balance is strongly in favor of the defendants, the plaintiffs choice should rarely be disturbed.” Thus, “a plaintiffs choice of forum should not be disturbed unless the reasons for transfer are clear and cogent.” Horwitz v. Southwest Forest Industries, Inc., 612 F.Supp. 179, 182 (D.Nev.1985) citing Williams v. Green Bay & W.R. Co., 326 U.S. 549, 554-555, n. 4, 66 S.Ct. 284, 287, at n. 4, 90 L.Ed. 311 (1946) and Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843. Where the forum chosen by plaintiff is not his place of residence, Horwitz, 612 F.Supp. at 182, or bears no obvious connection to the case, Foster v. Litton Industries, Inc., 431 F.Supp. 86 (D.C.N.Y.1977), the defendants’ residence gains importance in determining the relative convenience of the parties. This, however, is not the case here. Puerto Rico is both where plaintiffs reside and where a substantial portion of the operative facts giving rise to this claim arose. Furthermore, “If the foreign location of defendants were viewed as a critical factor in transfer decisions, plaintiffs forum choice would have little
3457	different punishment recommended for cocaine base and cocaine, this Court has previously upheld the ratio differential codified in 21 U.S.C. § 841. See United States v. Lawrence, 951 F.2d 751 (7th Cir.1991). The Supreme Court’s holdings in Booker do nothing to overturn this decision. See Booker, 125 S.Ct. at 756-69. Booker rendered the sentencing guidelines advisory; it did not strike them down in their entirety. Id. C. Due Process Consideration. Lastly, Lister argues that the district court’s finding on relevant conduct violated his right to due process because it was predicated on the unreliable testimony of Gosha and Sims. We begin by noting that “a defendant has a due process right to be sentenced on the basis of accurate information.” United States v. Townsend, 73 F.3d 747, 751 (7th Cir.1996). This right is generally satisfied when the facts in question are found by a preponderance of the evidence using information that has a “sufficient indicia of reliability to support its probable accuracy.” Id. at 751-52 (citing United States v. Salinas, 62 F.3d 855, 859 (7th Cir.1995)); United States v. Ewers, 54 F.3d 419, 421 (7th Cir.1995) (internal quotation marks omitted). We review a district court’s findings of fact regarding the quantity of drugs considered as rele vant conduct for clear error. United States v. Beler, 20 F.3d 1428, 1431 (7th Cir.1994). Contrary to Lister’s contention, the district court based its finding of relevant conduct primarily on the admission of Lister himself. The district judge weighed the facts as presented in
4494	occurred in Windsor, Ontario, Canada, and defendants do not contract to insure any person in the state of Michigan, nor do they enter into contracts for performance of services in the state of Michigan. Id. The plaintiff has the burden of establishing the Court’s jurisdiction over the defendants, and when faced with a properly supported Rule 12(b)(2) motion, the plaintiff must set forth facts establishing personal jurisdiction. Id. at 1458. Where, as in this case, the court does not hold an evidentiary hearing on the matter, “the court must consider the pleadings and affidavits in a light most favorable to the plaintiff.... To defeat such a motion, [the plaintiff] need only make a prima facie showing of jurisdiction.” Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir.1998) (quoting CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996)). A prima facie showing requires the plaintiff to “ ‘demonstrate facts which support a finding of jurisdiction....’” Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir.1980) (quoting Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir.1977), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981)). Furthermore, a court does not weigh the controverting assertions of the party seeking dismissal. Dean, 134 F.3d at 1272 (quoting CompuServe, Inc., 89 F.3d at 1262). Therefore, in order to decide this motion, the Court must ascertain only whether plaintiffs have established a prima facie case of personal jurisdiction. The Court will review the pleadings, including
2608	of damages and not on the relative merits of different class damage for muías and because none of the parties has considered the damage formula tentatively preferred by the Court. The Court itself has not considered whether under its formula plaintiffs would also be entitled to return of investment advisory fees and whether plaintiffs are entitled to prejudgment interest,see Rolf v. Blyth, Eastman Dillon & Co., supra, 570 F.2d at 50. What is important for purposes of this motion is that the potentially acceptable damage formulas all seem to be relatively simple to apply, so common questions of damages predominate over individual questions of damages. Under these circumstances where damages are “ ‘capable of mathematical or formula calculation,’ ” Windham v. American Brands, Inc., 565 F.2d 59, 68 (4 Cir. 1977) (en banc), cert denied, 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978), quoting Practicing Law Institute, Current Problems in Federal Civil Practice 491 (1975), common questions of damages predominate. See Blackie v. Barrack, supra, 524 F.2d at 905. iv. Statute of Limitations Defenses The only defense which defendants argue makes individual questions predominate over common ones is a statute of limitations defense. This suit was filed August 23, 1976. Defendants contend that a significant number of CIS clients knew or should have known before August 23, 1973, that CIS had defrauded them and that the claims of those clients are barred by the apparently applicable three-year statute of limitations, Cal.Code Civ.Proc. § 338(4). Sackett v. Beaman, 399
4411	omission made BoA’s disclosures about its litigation risk and the specific disclosures about particular risks false and misleading. An alleged omission of fact is material if there is “a substantial likelihood that disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” Basic, Inc. v. Levinson, 485 U.S. 224, 231-32, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (citation and internal quotation marks omitted). “Put another way, a fact is to be considered material if there is a substantial likelihood that a reasonable person would con- sider it important in deciding whether to buy or sell shares of stock.” Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 92-93 (2d Cir.2010) (citation and internal quotation marks and brackets omitted). “A[n] omission is actionable under federal securities laws only when the [defendant] is subject to a duty to disclose the omitted facts.” In re Time Warner Inc. Sec. Litig., 9 F.3d 259, 267 (2d Cir.1993). Even though Rule 10b-5 imposes no duty to disclose all material, nonpublic information, once a party chooses to speak, it has a “duty to be both accurate and complete.” Caiola v. Citibank, N.A, N.Y., 295 F.3d 312, 331 (2d Cir.2002). “[A]n entirely truthful statement may provide a basis for liability if material omissions related to the content of the statement make it ... materially misleading.” In re Bristol Myers Squibb Co. Sec. Litig., 586 F.Supp.2d 148, 160
3634	[robbery] alone establishes a violent felony” may be rightfully reevaluated. Id. While the reasoning of Sawyer “is no longer sound, its conclusion may still be correct if robbery under [Arkansas] law” meets the Johnson standard. Winston, 2016 WL 2757451, at *5. It does not. The Supreme Court of Arkansas has held that the degree of force used was sufficient to support a robbery conviction even where there was no threat of force and no actual injury befell the victim. See Fairchild v. State, 269 Ark. 273, 600 S.W.2d 16, 17 (1980) (“[J]erking the door from [a victim], cornering [her] in the back hallway and grabbing her dress [lightly] is sufficient restraint and bodily impact to constitute physical force.”); see also United States v. Castro-Vazquez, 802 F.3d 28, 37 (1st Cir. 2015) (holding that Puerto Rico’s robbery statute did not require violent force where “violence” was defined to include only the slightest use of force). But see Banks v. State, 2009 Ark. App. 633, at *3, 2009 WL 3153214 (Ark. Ct. App. 2009) (“[The Arkansas Supreme Court] has stated that the mere snatching of money or goods from the hand of another is not robbery ‘unless some injury is done to the person or there be some struggle for possession of the property prior to the actual taking or some force used in order to take it.’” (quoting Parker v. State, 258 Ark. 880,529 S.W.2d 860, 863 (1975))). In sum, we cannot conclude that the degree of physical force required to
4689	court lacks subject matter jurisdiction, the motion is governed by the same standard that applies to a Rule 12(b)(1) motion.” Xu v. City of New York, No. 08-CV-11339, 2010 WL 3060815, at *2 n. 2 (S.D.N.Y. Aug. 3, 2010); see also S.E.C. v. Rorech, 673 F.Supp.2d 217, 220 (S.D.N.Y.2009) (“The standards to be applied to a motion for judgment on the pleadings pursuant to Rule 12(c) are the same as those applied to a motion to dismiss pursuant to Rule 12(b).”). On a motion to dismiss pursuant to Rule 12(b)(1), a court must dismiss a claim if it “lacks the statutory or constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (internal quotation marks omitted), aff'd, 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). Additionally, the difference between a motion made under Rule 12(b)(1) and one made under Rule 12(h)(3) “is largely academic, and the same standards are applicable to both types of motions.” Greystone Bank v. Tavarez, No. 09-CV-5192, 2010 WL 3325203, at *1 (E.D.N.Y. Aug. 19, 2010). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005). In deciding a Rule 12 motion to dismiss, the Court “‘must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,’ ” Morrison, 547 F.3d at 170 (quoting Natural Res. Def. Council v. Johnson, 461
2593	action, and Rule 23 cannot be used in that way. 28 U.S.C. § 2072; Blackie v. Barrack, supra, 524 F.2d at 908. Proof of receipt is an aspect of materiality which presents individual questions, but the common questions of materiality still predominate. Defendants argue that because the total mix of information varied materially from CIS client to CIS client depending on the oral representations made by CIS representatives and brokers and on other sources of information, individual questions of materiality predominate. Although written representations are more likely to be suited for class treatment than oral representations, which often tend to vary materially, see, e. g., Clark v. Watchie, 513 F.2d 994, 1000 n. 13 (9 Cir. 1975); In re Scientific Control Corp. Securities Lit., 71 F.R.D. 491, 500 (S.D.N.Y.1976), the mere fact that plaintiffs’ claims are based on written representations does not guarantee class treatiflent. “[I]f the writings contain material variations, emanate from several sources, or do not actually reach the subject investors, they are no more valid a basis for a class action than dissimilar oral representations.” Simon v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 482 F.2d 880, 882 (5 Cir. 1973). In addition, oral representations ■ dealing with the same subject as the written representations may vary the total mix of information to such a degree that individual questions concerning the total mix predominate. “[Ajlthough having some common core, a fraud case may be unsuited for treatment as a class action if there was material variation in
2759	” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (second alteration in Olano) (quoting Fed. R. Crim. P. 52). Moreover, we do not correct such an error unless it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id, (alteration in original) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). Duong contends that the District Court plainly erred by considering her personal circumstances under a restrictive standard applicable to departures rather than variances. She then argues that the sentence was substantively unreasonable because of that alleged procedural flaw. We disagree. “We expressly distinguish between departures from the guidelines and variances from the guidelines.” United States v. Brown, 578 F.3d 221, 225 (3d Cir. 2009) (citing United States v. Vampire Nation, 451 F.3d 189, 195 n.2 (3d Cir. 2006)). Departures are changes to the guidelines calculation that require a motion by the requesting party and are “based on a specific Guidelines departure provision.” Id. (quoting Vampire Nation, 451 F.3d at 195 n.2). Variances are discretionary changes to the sentencing guidelines range based on a review of the § 3553(a) factors. Id. at 226. In that regard, “[district courts have greater leeway in deciding what to consider in determining whether to vary from the Guidelines.” United States v. Lofink, 564 F.3d 232, 240 (3d Cir. 2009). “[We] review[ ] a variance for reasonableness ... by evaluating the district court’s analysis of the § 3553(a) factors,
1281	this case because defendant Pey-ton N. Jackson has filed neither an answer nor a motion for summary judgment; indeed, he has not even been served. But defendant has filed for bankruptcy, which raises the question of whether the automatic stay provision of 11 U.S.C. § 362 prohibits plaintiff from voluntarily dismissing this action. See Slay v. Living Ctrs. East, Inc., 249 B.R. 807, 807 (S.D. Ala. 2000). A plaintiff can voluntarily dismiss an action under Rule 41, Fed. R. Civ. P., because “the purposes of the Bankruptcy Code [are] in no way infringed by the dismissal by a plaintiff of a case against the bankrupt without any additional cost or risk to the bankrupt or its creditors.” Chase Manhattan Bank, N.A. v. Celotex Corp., 852 F.Supp. 226, 228 (S.D.N.Y. 1994). Because “voluntary dismissals assist rather than interfere with the goals of Chapter 11,” this action can be dismissed under Rule 41(a)(1)(A)(i), Fed. R. Civ. P. Slay, 249 B.R. at 807. Accordingly, and for good cause, It is hereby ORDERED that plaintiffs motion to dismiss his case voluntarily without prejudice (Doc. 9) is GRANTED. The Clerk is directed to send a copy of this Order to the pro se plaintiff, all counsel of record, Bankruptcy Judge Robert G. Mayer of the United States Bankruptcy Court for the Eastern District of Virginia, the Clerk of the United States Bankruptcy Court for the Eastern District of Virginia, and to place this matter among the ended causes. . See Peyton Nelson Jackson, No. 1:16—bk—
4995	and that Fitzpatrick claims he lost a sale as of that date. Without question, Fitzpatrick was injured in fact more than two years prior to the commencement of litigation. Moreover, that injury involved the most important stick in the bundle of rights he had as a dealer: the right to sell APUs to customers. “Law of the case is an amorphous concept. As most commonly defined, the doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Law of the case directs a court’s discretion, it does not limit the tribunal’s power.” Harlow v. Children’s Hosp., 432 F.3d 50, 55 (1st Cir.2005) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)). Moreover, the doctrine does not strictly apply to interlocutory orders. “Interlocutory orders, including denials of motions to dismiss, remain open to trial court reconsideration, and do not constitute the law of the case.” Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994) (holding that trial court was free to enter an order dismissing claims as time barred after prior ruling to the contrary). Given the picture developed in the course of discovery and presented to the Court in both parties’ summary judgment statements, Fitzpatrick’s claim under the Franchise Laws is time barred. Mr. Fitzpatrick contests this outcome on the ground that a mere refusal to perform under the agreement is not “sufficiently positive until the
2006	board to return the report for clarification” (emphasis added)); Manual M21-1, part VI, ¶ 7.46(e) (1995) (“[i]f an examination is received with the diagnosis of PTSD which does not contain the above essentials of diagnosis, return the examination as incomplete for rating purposes, note the deficiencies, and request reexamination” (emphasis added)); Manual M21-1, Subeh. XII, ¶ 50.45(c) (1989) (essentially same as Manual M21-1, ¶ 7.46(e) (1995), provision quoted in above parenthetical); VA Gen. Coun. Prec. 10-95, ¶ 1 (Mar. 31, 1995) [hereinafter G.C. Prec. 10-95] (“[i]f the diagnosis is not in accordance with the manual [DSM], it ‘is not acceptable for rating purposes’ and must be returned to the examiner”) (emphasis added); see also 38 C.F.R. §§ 4.2, 19.9 (1996); cf. Massey v. Brown, 7 Vet.App. 204, 208 (1994) (Board consideration of factors wholly outside rating criteria is legal error). For example, if the discussion of the stressor in the examination report does not fit within the description of a PTSD stressor under the applicable DSM, that would provide a basis for the BVA to return the examination report to the RO for clarification as to how there can be a clear diagnosis of PTSD, as required by § 3.304(f), in light of the DSM requirements. See ibid. The Board cannot use the DSM provisions themselves as a basis for rejecting the veteran’s favorable medical evidence as to the sufficiency of a stressor or the adequacy of the veteran’s symptomatology (but rather must rely on independent medical evidence) even if
398	one which a federal court must resolve before it assumes jurisdiction.” North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). If the district court is presented with a moot case, the case must be dismissed because any decision on the merits would constitute an impermissible advisory opinion. Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir.2001); Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1217 (11th Cir.2000). A district court lacks the power, on mootness grounds, to decide a case if its decision cannot affect the rights of the litigants in the case. Rice, 404 U.S. at 246, 92 S.Ct. at 404; see also Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969) (“[A] case is moot when ... the parties lack a legally cognizable interest in the outcome.”). This court has concluded that a case must be dismissed as moot if the court can no longer provide “meaningful relief.” Fla. Ass’n of Rehab. Facilities, 225 F.3d at 1216-17. Before we can address the merits of this case, we must determine whether the district court could give meaningful relief to Nyaga and Kibarra. The Plaintiffs requested two types of relief: (1) to “[c]ompel Defendants and those acting under them to immediately perform their legal duty to complete all remaining process of Plaintiff, Charles Kibaara Nyaga’s, Adjustment of Status” and (2) to “[djeclare that there are no just
4172	also moved for summary judgment on the Plaintiffs’ state law claims, alleging that Officers Zotz and Ross lacked the necessary intent to be held liable for assault, battery, and excessive force. The Defendants assert that the City is entitled to summary judgment because the underlying state law claims fail as a matter of law. A. Excessive Force and Unreasonable Seizure under the Fourth Amendment The Defendants assert that Officers Zotz and Ross are entitled to qualified immunity against the Fourth Amendment claims alleged by the Plaintiffs. “[G]overn ment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments and protects all but the plainly incompetent or those who knowingly violate the law.” Messerschmidt v. Millender, 565 U.S. 535, 132 S.Ct. 1235, 1244, 182 L.Ed.2d 47 (2012) (citation and quotation marks omitted). The parties acknowledge that there are disputed facts. The Defendants’ version is that Officers Zotz and Ross saw Morris with a gun, that Officer Zotz struggled with Morris over a gun before he and Officer Ross collectively fired eleven rounds into the backseat of the vehicle. The Plaintiffs testified that they never saw Morris with a gun, that Morris was attempting to open the car door when he was
2919	MEMORANDUM 1. Neither the failure to define certain terms in a jury instruction nor the failure to give an additional instruction sua sponte “so infected the entire trial that the resulting conviction” violated John Joseph’s due process rights. See Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (citations omitted). 2. Joseph’s ineffective assistance of counsel claims fail as he has not shown “that there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 4. After our independent review of the record, we conclude that the state court decision denying Joseph’s habeas petition was not “objectively unreasonable.” Pham v. Terhune, 400 F.3d 740, 742 (9th Cir.2005) (citation omitted). 5. To the extent Joseph raises arguments not encompassed within the certificate of appealability (COA), we construe this as a motion to expand the COA and deny the motion because Joseph fails “to make a substantial showing of the denial of a Constitutional right.” Nardi v. Stewart, 354 F.3d 1134, 1138 (9th Cir.2004) (citation omitted); see also 28 U.S.C. § 2253(c)(2); 9th Cir. R. 22-1(e). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by
575	fact to be determined in the same manner as other facts; by the jury, if it be a jury case, or by the court, if the jury be waived; while the construction of the contract and its legal effect are questions of law for the court.’ Pike Rapids Power Co. v. Minneapolis, St. P. & S. S. M. R. Co., 8 Cir., 99 F.2d 902, 916; National Surety Corporation of New York v. Ellison, 8 Cir., 88 F.2d 399, 402; State v. Fellows, 98 Minn. 179, 187, 107 N.W. 542, 108 N.W. 825; Bell Lumber Co. v. Seaman, 136 Minn. 106, 161 N.W. 383, 384; Lucas v. Ganley Bros., 166 Minn. 7, 206 N.W. 934, 936.” See also Severson v. Fleck, 8 Cir., 1958, 251 F.2d 920, 923. In discussing this particular question, the trial court, at page 16 of 160 F.Supp., very aptly said: “Had the contract referred to a ‘will’ rather than to ‘assignments,’ and had Mr. Steele undertaken to ‘devise and bequeath’ an interest in his property to the deceased (sic) rather than to ‘assign’ such interest to her, the argument now under consideration could not have been seriously advanced; and to attach controlling importance to the particular words used would be, in this instance, to elevate form over substance, which should not be done.” The method by which Mr. Steele would assign the property to the plaintiff was not clear but certainly the fact that twice within less than a month before his death he “republished”
2612	filed August 23, 1976. Defendants contend that a significant number of CIS clients knew or should have known before August 23, 1973, that CIS had defrauded them and that the claims of those clients are barred by the apparently applicable three-year statute of limitations, Cal.Code Civ.Proc. § 338(4). Sackett v. Beaman, 399 F.2d 884, 890 (9 Cir. 1968); Smith v. Guaranty Service Corp., 51 F.R.D. 289, 294-295 (N.D.Cal.1970). “[T]he time from which the statute of limitations begins to run is not the time at which a plaintiff becomes aware of all of the various aspects of the alleged fraud, but rather the statute runs from the time at which plaintiff should have discovered the general fraudulent scheme.” Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 410 (2 Cir. 1975). As the Court of Appeals said in Cameron v. E. M. Adams & Co., supra, 547 F.2d at 478, quoting Williams v. Sinclair, 529 F.2d 1383, 1388 (9 Cir. 1975): “ ‘The existence of a statute of limitations issue does not compel a finding that individual issues predominate over common ones. Given a sufficient nucleus of common questions, the presence of the individual issue of compliance with the statute of limitations has not prevented certification of class actions in securities cases.’ ” The evidence before the Court does not suggest that a significant number of class members knew or should have known that CIS’s representations concerning past performance in Performance Chart No. 1 were fraudulent. CIS never distributed on
2748	following year indicated “spasm and tenderness of the paravertebral cervical and thoracolumbar regions” with “some limitation of motion” and “decreased sensation.” In addition, plaintiff repeatedly questioned whether Dr. Simon had received adequate information to evaluate plaintiffs condition, and requested an opportunity to cross-examine Dr. Simon. The court determines that in these circumstances, the ALJ abused his discretion in failing to subpoena Dr. Simon to testify at the hearings. See Cruz v. Shalala, No. CV 93-5916, 1995 WL 302505 at *1 (E.D.N.Y. May 5, 1995). Because Dr. Simon did not indicate whether he received or reviewed plaintiffs medical records, including those of plaintiffs treating physician, Dr. Esteban, plaintiffs objections to the reliability of Dr. Simon’s report were “sufficiently controversial to merit cross-examination.” Fernandez v. Schweiker, 650 F.2d 5, 8 (2d Cir.1981), quoting McLaughlin v. Secretary of Health, Education and Welfare, 612 F.2d 701, 704 n. 2 (2d Cir.1980). For the ALJ, without the advice of a medical witness, to dismiss the significance of the reports of the doctors finding plaintiff disabled and rely so heavily on the perfunctory report of Dr. Simon who did not even have the MRI and CAT records before him suggests that the ALJ unjustifiably transmogrified himself into a neurologist and psychiatrist. All of plaintiffs doctors were retained by the Fire Department until Dr. Head. Yet some of those retained took plaintiffs injuries more seriously than the ALJ, who never even referred to their reports in his decision. This omission is disturbing not only because some of
2998	property was not accepted under Council regulations and did not qualify for the special exception. The Council determined the use pro posed in the second application (the beach club) did not satisfy the “compelling public purpose” standard. There is no indication the Council would have accepted the application had petitioner’s proposed beach club occupied a smaller surface area. To the contrary, it ruled that the proposed activity was not a “compelling public purpose.” App. 27; cf. id., at 17 (1983 application to fill wetlands proposed an “activity” conflicting with the CEMP). Williamson County’s final decision requirement “responds to the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer.” Suitum v. Tahoe Regional Planning Agency, 520 U. S. 725, 738 (1997). While a landowner must give a land-use authority an opportunity to exercise its discretion, once it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened. The case is quite unlike those upon which respondents place principal reliance, which arose when an owner challenged a land-use authority’s denial of a substantial project, leaving doubt whether a more modest submission or an application for a variance would be accepted. See MacDonald, supra, at 342 (denial of 159-home residential subdivision); Williamson County, supra, at 182 (476-unit subdivision); cf. Agins v. City of Tiburon, 447 U. S. 255
4836	and shareholders through corporate takeover legislation. The Commerce Clause limits the power of states to regulate or interfere with the free flow of interstate commerce. The Commerce Clause prohibits Tennessee’s attempt to regulate tender offers for non-Tennessee corporations. A. The ACPA Tennessee’s ACPA violates the Commerce Clause for three reasons: it directly regulates interstate commerce; it creates a risk of inconsistent regulation; and its burden on interstate commerce is excessive in relation to its local benefits. 1. Direct Regulation of Interstate Commerce “The Commerce Clause permits ... only incidental regulation of interstate commerce by the States; direct regulation is prohibited.” Edgar v. MITE Corp., 457 U.S. 624, 640, 102 S.Ct. 2629, 2639, 73 L.Ed.2d 269 (1982) (plurality opinion) (citing Shafer v. Farmers Grain Co., 268 U.S. 189, 199, 45 S.Ct. 481, 485, 69 L.Ed. 909 (1925)). See also Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). The ACPA is an undisguised attempt to insulate from competition management of foreign corporations doing business in Tennessee by directly regulating nationwide tender offers. The Supreme Court recently upheld an Indiana statute similar in certain respects to Tennessee’s CSAA but applying to Indiana corporations only. See CTS Corp. v. Dyanamics Corp. of Am., 481 U.S. 69, 107 S.Ct. 1637, 95 L.Ed.2d 67 (1987). The CTS Court found that the burdens on interstate commerce created by the statute were merely incidental to Indiana’s interest in regulating Indiana corporations. See id. 107 S.Ct. at 1649-52. But CTS
135	as to which cases to bring [to the supervisor’s attention, the federal] officer of necessity weighs the benefits to society of protecting an individual and receiving the information he has against the cost of placing the individual in the WPP”). To the extent that the Plaintiffs’ claim is based on the assumption that, if notified of Sampson’s call, the FBI would have immediately arrested Sampson, thereby preventing McCloskey’s death, their claim also falls within the discretionary function exception to the FTCA. Horta, 4 F.3d at 21 (explaining that, while “law enforcement agents have a mandatory duty to enforce the law, decisions as to how best to fulfill this duty are protected by the discretionary function exception to the FTCA”); see Attallah v. United States, 955 F.2d 776, 782-84 (1st Cir.1992) (concluding that customs agents have discretion, protected by 28 U.S.C. § 2680(a), to search or not search a particular passenger “without fearing legal repercussions”); Littell v. United States, 191 F.Supp.2d 1338, 1345 (M.D.Fla.2002) (emphasizing that “[t]he overwhelming consensus of federal case law establishes that criminal law enforcement decisions ... are discretionary in nature and, therefore, by Congressional mandate, immune from judicial review”). Compare Estate of Davis v. United States, 340 F.Supp.2d 79, 93 (D.Mass.2004) (concluding that, in light of the circumstances of that case, the conduct of the FBI agents in failing to warn the plaintiffs decedent of impending danger was not protected by the discretionary function exception because “a federal official cannot have discretion to behave unconstitutionally or outside
159	state law when engaged in a conspiracy with state officials”); Krohn v. United States, 578 F.Supp. 1441, 1447-48 (D.Mass.1983) (noting that, to make federal officers liable under Section 1983 for actions done under color of state law, the plaintiff must show either that “the deprivation of his rights was directly occasioned by acts of federal officials,” or that “federal officials participated in a conspiracy to deprive him of a constitutional right”; emphasizing that, “in either case ... the plaintiff must show that the federal officials acted or conspired to act under color of state law; it is not enough that they simply acted in concert with state officials to deprive plaintiff of a constitutional right” [emphasis in original]), rev’d in part on other grounds, 742 F.2d 24 (1st Cir.1984). In this case, counts II and III are devoid of any allegations that the Federal Defendants acted under color of any state law. The Federal Defendants “are never asserted to be other than employees and agents of the United States.” See Behre, 665 F.Supp. at 93. Moreover, there is no allegation that the Federal Defendants conspired with state officials to deprive McCloskey of his constitutional rights. Accordingly, counts II and III of the complaint “fall[ ] far short of alleging the type of activity which would permit maintenance of a[S]ection 1983 action” against the Federal Defendants. Behre, 665 F.Supp. at 93. C. Claim for punitive damages (count VI) Count VI purports to state a claim for punitive damages against the Federal
942	Mot. in limine at 3; and (3) the evidence is “highly prejudicial” insofar as it seeks to show Defendant Williams is guilty by association, id. None of these arguments warrant exclusion of the evidence in question at this time. The Government indicated in its opposition that it will not seek to introduce any evidence of a pattern, habit, or routine pursuant to Rule 406. Gov’t General Opp’n ¶ 11. The Government indicates that it may seek to introduce evidence of Bowman’s dealings with other alleged co-conspirators as, among other things: (1) circumstantial evidence of the Defendant’s knowledge of and participation in the conspiracy, United States v. Martinez, 476 F.3d 961, 969 (D.C.Cir.2007); and (2) intrinsic evidence of the conspiracy, see United States v. Badru, 97 F.3d 1471, 1474-75 (D.C.Cir.1996). Moreover, “[d]rugs distributed by a co-conspirator in furtherance of a conspiracy are attributable to a member of the conspiracy so long as the distribution was ‘reasonably foreseeable’ to that member.” United States v. Wilson, 605 F.3d 985, 1036 (D.C.Cir.2010) (quoting United States v. Childress, 58 F.3d 693, 722 (D.C.Cir.1995)). Thus, to the extent the Government is able to show Defendant Williams was a member of the conspiracy, the evidence about which Williams complains will not be unduly prejudicial, misleading, confusing, or cumulative. Nor will it cause undue delay. Rather, it will be relevant evidence of acts that the Government may succeed in attributing to Williams as reasonably foreseeable aspects of the conspiracy. Accordingly, based on the current record, exclusion of this
89	a large class of citizens. Id. (citing Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 220, 94 S.Ct. 2925, 2931-32, 41 L.Ed.2d 706 (1974)). The plaintiff class has satisfied the requirements for standing. Members of the class have alleged and demonstrated to the district court that the INS failed to provide them with proof of their LPR status despite repeated requests for such documentation. While some of these class members have received such documentation since the filing of this action, we must look to the facts and circumstances as they existed at the time this suit was initiated. We conclude that members of the class adequately have established the existence of an injury in fact. See Bordell v. General Elec. Co., 922 F.2d 1057, 1060 (2d Cir.1991). To establish the existence of an injury in fact, a plaintiff must demonstrate “some ‘threatened or actual injury resulting from the putatively illegal action.’ ” Id. (citations omitted). In our view, plaintiffs have satisfied this test. Plaintiffs have alleged that as a result of INS procedures they and others similarly situated either have been or will be denied adequate proof of their legal alien status and employment eligibility. Moreover, this asserted injury “fairly can be traced” to the INS’s alleged improper conduct. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-26, 48 L.Ed.2d 450 (1976). While perhaps not the sole cause, the alleged improper conduct of the INS plainly constituted a primary factor in
2185	the tasks accomplished or the claim pursued to allow the Court to assess whether the time spent was reasonable. Deary v. City of Gloucester, 9 F.3d 191, 197-98 (1st Cir.1993) (instructing that, in the absence of “specific information about ... the nature of the work performed,” the requested fees “should be reduced or even denied altogether” (citing Calhoun v. Acme Cleveland Corp., 801 F.2d 558, 560 (1st Cir.1986), and Grendel’s Den, 749 F.2d at 952)); see also Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir.1994) (requiring “ ‘a full and specific accounting of the tasks performed’ ” and upholding a thirty-percent reduction in the fee award for over-general time sheets (quoting Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 527 (1st Cir.1991))); Lipsett, 975 F.2d at 938; Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir.1978) (suggesting that “counsel’s records ... [should] provide a proper basis for determining how much time was spent on particular claims”). The entries in question, totaling 115.4 hours in all, contain only vague descriptions such as “Drafting documents,” “Reviewing documents,” “Case planning,” or “Trial planning/Trial preparations.” These descriptions simply do not fit the bill, see Tennessee Gas, 32 F.3d at 634 (approving the reduction of fees for similar entries), especially in a complex, multiclaim case. 3. Unsuccessful Claims With one exception, the Court did not deduct specific hours spent on claims that were ultimately unsuccessful. See, e.g., McMillan, 140 F.3d at 311 (permitting courts to make such
1597	under § 301, the federal courts should decline to exercise jurisdiction over the contractual allegations.”). The second is “where the issue is an initial decision in the representation area,” DiPonio, 687 F.3d at 750 (quoting Trafftech, 461 F.3d at 695); for example, where the court must decide whether the union was properly elected by the employees, id. (citing Amalgamated Clothing & Textile Workers Union v. Facetglas, Inc., 845 F.2d 1250, 1253 (4th Cir.1988)). At least one circuit contemplates a third scenario: a case in which the “center of the dispute” is a representational question, such as whether workers are “employees” or “supervisors” under the NLRA, but the NLRB has not yet taken up “the representation question at issue.” Morello v. Fed. Barge Lines, Inc., 746 F.2d 1347, 1349-50 (8th Cir.1984) (internal quotation marks omitted). Here, MEBA asserts that the district court’s jurisdiction arises under section 301 of the LMRA. It argues that Liberty violated the parties’ CBA and that its suit alleges a “violation of [the] con-trae^ ]” as section 301 requires. See 29 U.S.C. § 185(a). Liberty challenged that assertion in district court and does so again on appeal. Although somewhat garbled, Liberty’s argument that the court lacks jurisdiction under section 301—or, at the very least, lacks jurisdiction unless the court determines the disputed impasse question—appears to be two-fold. First, Liberty claims the existence of impasse vel non is a jurisdictional fact. As Liberty apparently sees it, if the parties did not reach impasse, the court had jurisdiction of
3578	Acceptance Corp. v. Glasby, 230 Va. 422, 432, 337 S.E.2d 291, 297 (1985). In yet another case, the Supreme Court held that because “the evidence of fraud in the inducement was insufficient to take the case to the jury as to compensatory damages, there was, a fortiori, no basis for an award of punitive damages.” Watson v. Avon Street Business Center, Inc., 226 Va. 614, 619, 311 S.E.2d 795, 799 (1984). See also Zedd v. Jenkins, 194 Va. 704, 706-07, 74 S.E.2d 791, 793 (1953). The Fourth Circuit has also followed this path. See Durham v. New Amsterdam Casualty Co., 208 F.2d 342, 345 (4th Cir.1953) (“Punitive damages can be allowed only where compensatory damages have been awarded.”); Gay v. American Motorists Insurance Co., 714 F.2d 13, 16 (4th Cir.1983) (compensatory damages necessary predicate in Virginia for award of punitive damages). The plaintiffs have barely responded to the defendant’s arguments on punitive damages. The only possible support for their position is found in a case cited by the defendant, O’Brien v. Snow, 215 Va. 403, 210 S.E.2d 165 (1974). In Snow, the defendant admitted to property damage liability and the trial court granted summary judgment allowing recovery of the compensatory damages but denying punitive damages. The Supreme Court reversed, stating that “as the result of the defendant’s admission of property damage liability, there has been a finding of compensatory damages which is a prerequisite to an award of punitive damages____ A defendant, when sued for compensatory and exemplary damages, may
2982	28 L.Ed.2d 493 (1971). The Supreme Court has made clear that this principle applies to sentencing as well as substantive provisions. See Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980); United States v. Batchelder, 442 U.S. 114, 121, 99 S.Ct. 2198, 2203, 60 L.Ed.2d 755 (1979); Simpson v. United States, 435 U.S. 6, 14-15, 98 S.Ct. 909, 914, 55 L.Ed.2d 70 (1978). As the Court has stated, “[t]his policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958). Where, as here, the legislative history and other extrinsic sources offer no guidance in resolving the ambiguity in the statutory language, we can do no more than guess as to Congress’ intent and must therefore resolve the ambiguity in favor of the accused. Accordingly, we hold that the catchall, “otherwise” clause of 18 U.S.C. § 924(e)(2)(B)(ii) must be limited in its application to offenses which, as defined, pose by their very nature a serious potential risk of injury to another. Since, as indicated earlier, Maryland’s crime of storehouse breaking is not such an offense, we conclude that it is not a “violent felony” within the meaning of 18 U.S.C. § 924(e)(2)(B)®. IV For the
3182	was an “unreasonable application” of Strickland. 28 U.S.C. § 2254(d); Williams, 120 S.Ct. at 1523. This court cannot say that the State courts were unreasonable to determine that Petitioner’s attorneys did not render constitutionally deficient performance by their omission of a motion to quash. Petitioner’s standing to assert such a motion was not then recognized by Louisiana law, and it would be more than five years after the trial before the U.S. Supreme Court would squarely recognize that standing in Campbell. Counsel were sensitive to the race issue, shown by their Batson/Powers objections at trial and on appeal. The State court was not unreasonable for failing to find counsel constitutionally deficient because they were not also prescient enough to forecast Campbell. Meanes v. Johnson, 138 F.3d 1007, 1012 (5th Cir.l998)(counsel need not pursue an issue that “would have been futile in light of existing state law and the right was not clearly established under federal law”); Lucas v. Johnson, 132 F.3d 1069, 1078-79 (5th Cir.1998) (“counsel is not required to anticipate subsequent developments in the law”). Granted, the jurisprudence now says Campbell did not announce a new rule, but it was not obvious to all reasonable attorneys at the time of Petitioner’s indictment that white defendants had standing on the foreman issue. When Terry Campbell made the argument to the Supreme Court of Louisiana in 1995 (3 years after Petitioner’s conviction was final), the Court ruled against him 6-1. The lone dissenting justice’s sole objection was that the record was
399	order requiring the INS to process his application on the merits — only to have their adjustment applications denied by the Attorney General because Nyaga does not meet the “eligible to receive an immigrant visa” requirement of § 1255(a) — would not constitute meaningful relief. Accordingly, the question of whether the district court could provide meaningful relief to the Plaintiffs reduces to a single inquiry: would Nyaga be “eligible to receive an immigrant visa” if the INS were to process his application on the merits and conclude that he would other wise be admissible for legal permanent residence? To answer this question, we must interpret the diversity visa statute, and our analysis begins with the language of the statute. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 760, 142 L.Ed.2d 881 (1999). “[U]nless there is some ambiguity in the language of a statute, a court’s analysis must end with the statute’s plain language.” Coggin Automotive Corp. v. Comm’r of Internal Revenue, 292 F.3d 1326, 1332 (11th Cir.2002). When we examine the meaning of statutory words or phrases, however, we cannot examine statutory provisions in isolation. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 1300-01, 146 L.Ed.2d 121 (2000). “It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Mich. Dep’t of Treas., 489 U.S. 803, 809,109
4012	not a staple article or commodity of commerce suitable for substantial noninfringing use____” 35 U.S.C. § 271(c). To succeed on a claim of contributory infringement, Plaintiffs must show Defendant “knew that the combination for which its components were especially made was both patented and infring ing.” Golden Blount, Inc. v. Robert H. Peterson Co., 365 F.3d 1054, 1061 (Fed.Cir.2004) (citation omitted). Plaintiffs must also “show that [Defendant’s] components have no substantial noninfringing uses.” Id. (citing Alloc, Inc. v. ITC, 342 F.3d 1361, 1374 (Fed.Cir.2003)). Plaintiffs have shown that Defendant knew of the '833 patent at least since the notice letters were sent in January 1998, and such letters are enough to satisfy the intent requirement of § 271(c). See Trell v. Marlee Electronics Corp., 912 F.2d 1443, 1447 (1990) (explaining that “the knowledge requirement of section 271(c) limited an alleged contributory infringer’s liability to sales made after it received a letter from the patent holder informing it of the existence of the patent.” (quoting Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964))). Plaintiff also points to Rueckert’s statement that his Ultra was “designed to permit drive on docking for personal water crafts and small boats.” (Rueckert Decl. ¶ 3, Pis.’ Ex. D, ECF No. 268-5.) Plaintiff argues that this statement is conclusive of the no-other-use issue. Additionally, Plaintiffs point to Defendant’s advertising, none of which suggests that the Ultra has any purpose or use beyond use as a floating
3930	respond? A: They said, “Well, next time, you’ll wait.” Q: Do you know who it was that fired you? A: The same guy. Q: That Mr. Dean? A: Yes. This testimony clearly is contrary to plaintiff’s statements in his affidavit and reveals that plaintiff considered himself fired from the A & P warehouse job. Plaintiff stated that Mr. Dean fired him and he received a pink slip. He testified, “I was fired.” While the court must view all facts in the light most favorable to plaintiff in analyzing this motion for summary judgment, plaintiff “may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts [his] earlier deposition.” Reid v. Sears, Roebuck and Co., 790 F.2d 453, 460 (6th Cir.1986) (citing Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir.1984)). While an inconsistent affidavit may preclude summary judgment if the affiant was confused during the deposition, the affidavit must clearly explain why the deponent was confused. Miller v. A.H. Robins Co., Inc., 766 F.2d 1102, 1104 (7th Cir.1985) (citing Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir.1988); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893-95 (5th Cir.1980)). In the instant matter, plaintiff’s affidavit contains nothing to explain its inconsistency with his deposition testimony. The court, therefore, must give credence to the deposition and conclude, based upon plaintiff's own admissions, that the A & P warehouse supervisor fired plaintiff. This establishes that plaintiff made
4847	1325(b)(2), the bankruptcy court concluded that the child support awarded by the Illinois divorce court necessarily satisfied the requirements of § 1325(b)(2) and could therefore be excluded in its entirety. The court further noted that although, under its interpretation of § 1325, a double deduction would be theoretically possible, Congress’s desire to preserve child support payments for their intended beneficiaries prevailed over any risk of duplicate exclusions from income. Finally, the court concluded that the “reasonably necessary” qualification would still function as an independent backstop — a “hedge against the risk of abuse” — to prevent the excessive reduction of disposable income in cases where the custodial parent is “so well off that child support payments amount to unneeded surplus funds.” In re Brooks, 498 B.R. 856, 863 (Bankr.C.D.Ill.2013). After making other unrelated amendments to Brooks’s disposable income calculation, the bankruptcy court confirmed a Chapter 13 plan requiring Brooks to pay $459.00 per month for 60 months. The District Court for the Central District of Illinois, Peoria Division, affirmed the bankruptcy court’s order. II. Discussion We apply the same standard of review to bankruptcy court decisions as does a district court, reviewing findings of fact for clear error and conclusions of law de novo. In re Midway Airlines, Inc., 383 F.3d 663, 668 (7th Cir.2004). A Chapter 13 debtor’s plan 'will be approved only if it provides that all of the debtor’s projected disposable income during the repayment period will be applied to the reimbursement of unsecured creditors.-11 U.S.C. §
312	to common ownership, a common name, and common inventory. At any given moment, all unsold units in inventory were treated the same way by Sanibel and/or its listing agent for purposes of marketing and promotion. That those marketing tactics shifted over time (beginning with internal marketing to certain favored company principals or investors, before switching to external marketing to the public of all unsold inventory) in no way bespeaks the absence of a common promotional plan. For these reasons, the Court finds that defendant has failed to overcome the statu tory presumption that a common promotional plan existed. The few authorities the Court has located on this point adopt similar reasoning. See generally Hammar v. Cost Control Marketing and Sales Management of Virginia, Inc., 757 F.Supp. 698, 700 (W.D.Va.1990) (where lots of Lake Montieello development were extensively advertised as a common unit by a common name, that development “clearly meets the Act’s definition of a subdivision as lots offered for sale as part of a common promotional plan”); Windham, 582 So.2d at 1047-48 (combining phase I and phase II of twin condominium tower project for ILSFDA exemption purposes where developer had retained option to build second phase, had reserved the land, and had issued promotional material depicting both towers, such that phase I and II were part of common promotional plan); N & C Properties v. Pritchard, 525 So.2d 1346, 1349 (Ala.1988) (Phase I and Phase II of a single development constitute common promotional plan, even though construction on Phase
3862	Amendment 715 effectuates the two-level reduction intended by Amendment 706 for offenses involving both crack cocaine and another controlled substance. See U.S.S.GApp. C Supp., Amend. 715 (May 1, 2008). We will refer to Amendments 706 and 715 as “the Amendments.” In February, 2009, all three defendants filed § 3582 motions for reduction of their sentences under the Amendments. The District Court denied their motions. All three defendants filed timely appeals of the District Court’s decisions; their appeals have since been consolidated at their request. II. Analysis We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review the District Court’s decision to deny defendants’ motion to reduce their sentences pursuant to § 3582(c)(2) for abuse of discretion. United States v. Mateo, 560 F.3d 152, 155 (3d Cir.2009). A District Court may reduce a defendant’s sentence under § 3582 “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission .... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). However, district courts’ § 3582 authority to reduce sentences based on amended guideline ranges is limited by § 1B1.10, which provides, in relevant part, that a reduction is not authorized under 18 U.S.C. § 3582(c)(2) if the “amendment listed in subsection (c) does not
4518	Arpaio and MCSO’s compliance and collection of traffic stop data. Id. Arpaio and MCSO appealed the Melen-dres Order and the Supplemental Order (collectively, the “Melendres injunction”), challenging provisions which addressed non-saturation patrol activities and arguing the evidence was insufficient -to sustain the district court’s conclusion that Arpaio and MCSO’s unconstitutional policies extended beyond the context of saturation patrols.. Melindres v. Apraio, No. 13-16285, Opening Brief of Defendant/Appellant Arpaio, Doc. 32-1, at 2, 13-15, 17-18 (March 17, 2014). MCSO also argued it was . not a proper party in the. case. Id. On April 15, 2015, the Ninth Circuit issued an opinion holding MCSO was not a proper party because it is a non-jural entity lacking separate legal status from Mari-copa County. Melendres v. Arpaio, 784 F.3d 1254 (9th Cir.2015). The Ninth Circuit ordered Maricopa County substituted as a party in lieu of MCSO. Id. at 1260. But the court also stated, “[o]n remand, the district court may consider dismissal of Sheriff Arpaio in his official capacity because ‘an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.’ ” Id. In addition, the court held the Melendres injunction was not overbroad because it applied to activities beyond saturation patrols: “Although the evidence largely addressed [the] use of race during saturation patrols, the district court did not clearly err in finding [Arpaio’s] policy applied across-the-board to all law enforcement decisions — not just those made during saturation patrols.” Id. However, the court found
2180	by plaintiffs’ counsel to exercise “billing judgment,” the City challenges a long list of Attorney Hernandez’s time entries as unproductive or otherwise unnecessary to advance the litigation. The Court agrees with the City on a number of these entries. Hours spent by plaintiffs’ counsel talking with the press (7.2) were eliminated. See, e.g., Rum Creek Coal Sales, Inc., v. Caperton, 31 F.3d 169, 176 (4th Cir.1994) (“The legitimate goals of litigation are almost always attained in the courtroom, not in the media.”); Knight v. Alabama, 824 F.Supp. 1022, 1033 (N.D.Ala.1993) (holding that “time spent talking with the media is not compensable because it is not ‘ordinarily necessary to secure the final result obtained from the litigation’ ” (quoting Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S. 546, 561, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1985))); cf. Hart v. Bourque, 798 F.2d 519, 523 (1st Cir.1986) (disallowing time spent on “ ‘arrangements for lectures or publications about the case’ ”). The Court also disallowed time spent communicating with the Attorney General’s office (.90 hours), as there is little indication that those communications were necessary to the presentation of this case. In addition, the Court eliminated the considerable time (62.6 hours) that Attorney Hernandez spent waiting in the courthouse for the jury’s verdict before the jury returned it late in the day on February 8, 1999. Counsel were free to leave and/or work on matters for other clients during that time. The Court also deducted the 6.7 hours that plaintiffs’ counsel unsuecess-fully
4587	122, 126, 618 P.2d 616 (Ariz.Ct.App.1980) (“[PJublic policy demands the free reporting of unethical conduct”). However, the Supreme Court and the Ninth Circuit have held that “state law cannot provide immunity from suit for federal civil rights violations.” Wallis v. Spencer, 202 F.3d 1126, 1144 (9th Cir.2000); Martinez v. State of Cal., 444 U.S. 277, 285, n. 8, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) (“A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced”). For example, in Imbler v. Pachtman, the Court held common law prosecutorial immunity applies to cases under § 1983. 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). But the Fifth Circuit refused to extend prosecutorial immunity to decisions to bring complaints before state ethics commissions, even where a state law also provides absolute privilege for those complaints. Lampton v. Diaz, 639 F.3d 223, 229 (5th Cir.2011) (“Lampton likely enjoys immunity from the state law claims under Mississippi law.... [Hjowever, federal law does not provide immunity to complainants before state ethics committees .... In the absence of congressional action, we should not create that immunity merely because it may be desirable for some policy reason.”). Arpaio cites Donahoe v. Arpaio in support of his position. 869 F.Supp.2d 1020 (D.Ariz.2012) aff'd sub nom. Stapley v. Pestalozzi, 733 F.3d 804 (9th Cir.2013). In Donahoe, Arpaio had
4881	The Autopsy Photographs At trial, plaintiffs sought to introduce a set of autopsy photographs of Mr. Fernandez’s naked back and torso. Plaintiffs argue on appeal that the district court produced reversible error by (1) excluding the photographs as irrelevant, (2) curtailing plaintiffs’ use of the photographs during cross-examination of a witness, and (3) leaving the jury with the impression that the court found plaintiffs’ counsel irritating and unprofessional. 1. Relevance Evidence is relevant if it tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. We review a district court’s relevancy determination for abuse only, United States v. St. Michael’s Credit Union, 880 F.2d 579, 600 (1st Cir.1989), and find none here. Plaintiffs argue that the autopsy photographs were relevant because they tended to show that four of the five bullets that struck Mr. Fernandez entered his back. The placement of the entry wounds, plaintiffs suggest, demonstrates that, whether or not Mr. Fernandez was holding Shepard’s gun before he was shot, he could not have been facing defendants at the time. Thus, according to plaintiffs, the photographs were relevant to the question of whether Mr. Fernandez was shot in self defense or in the exercise of excessive and unreasonable force. First of all, we doubt whether, unless instructed, lay persons could distinguish entry from exit wounds in the photographs. Having viewed the photographs ourselves, we are left with
449	corporate stock, under favor of section 117-(e). and section 23 (g) of the code. Thus the single question posed for decision is, Are. the petitioners entitled to a capital loss carry-over to 1944 ? The respondent’s sole contention is that the pro visions of section 117 (e) are inapplicable because the contract between Allan Bond and the corporation resulted in denying to the corporation any recognition as an entity for tax purposes. As a consequence, our consideration is limited to the inquiry, Should the corporation be recognized as a separate entity? Says the respondent, the “Corporation was nothing more than the ‘alter ego’ of Allan Bond” and we “must look to actualities and must treat substance as prevailing over form,” citing Griffiths v. Commissioner, 308 U. S. 355. Petitioner accepts this challenge and points to the facts of record to sustain his argument that the corporate entity may not here be disregarded. He calls to attention that petitioner was a bona fide owner of the stock, having a cost basis in excess of $191,000; that, when the corporation was stripped of all its assets, the stock became worthless and petitioner suffered a loss; that there is no basis in law or in the facts here present to disregard the corporate entity; and that only in exceptional circumstances will a corporate entity be disregarded. Dalton v. Bowers, 287 U. S. 404; Burnet v. Clark, 287 U. S. 410; Burnet v. Commonwealth Improvement Co., 287 U. S. 415; New Colonial Ice Co.
2643	not be assumed or merely asserted, it must be proven. Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). “When Negro representation on venire lists is not extremely disproportionate to the Negro population in the parish [county], the burden may be a heavy one.” Labat v. Bennett, 5 Cir., 1966, 365 F.2d 698, 712. However, juries must be drawn from a fair cross section of the community. Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ; Thiel v. Southern Pac. Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); Scott v. Walker, 5 Cir., 1966, 358 F.2d 561, 564. The jury must, therefore, be “drawn from a pool of persons broadly representative of the community”, Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34, 45, for “It is part of the established tradition in the use of juries' as instruments of public justice that the jury be a body truly representative of the community.” Smith v. State of Texas, supra. In compiling jury lists, both the need for competency and for a fair cross section of the community are important elements but the desire for competency must not be pursued to the extent that it prevents a fair cross section and any attempt to gain competent jurors that would result in a less representative cross section than one drawn from
3718	patents are unenforceable because the patent attorney failed to disclose material prior art and that Defendant concealed Lininger’s contributions to work on the patents. Id. at ¶¶ 354, 373. Defendant argues that Plaintiffs allegations sounding inequitable conduct fail to meet the heightened pleading standard required for claims sounding in fraud. MTD at 13. The Federal Circuit has made clear that inequitable conduct “while a broader concept than fraud, must be pled with particularity” under Rule 9(b). Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1326 (Fed.Cir.2009). “[T]he accused infringer must prove by clear and convincing evidence that the applicant knew of the reference, knew that it was material, and made a deliberate decision to withhold it.” Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276, 1290 (Fed.Cir.2011). Pleadings will only survive a motion to dismiss “if the plaintiffs complaint recites facts from which the court may reasonably infer that a specific individual both knew of invalidating information that was withheld from the [US Patent and Trade Office] and withheld that information with a specific intent.to deceive the PTO.” Delano Farms Co. v. California Table Grape Comm’n, 655 F.3d 1337, 1350 (Fed.Cir.2011). It may only require “but a few facts” to plead a viable claims, as Plaintiff observes. The test is whether a party has plead “the who, what, when,' where, and how ' of the alleged fraud:” Exergen, 575 F.3d at 1327 (internal quotations omitted). '• As discussed in- .the Court’s previous order, an allegation of inequitable conduct
2465	generally speaking, demonstrate that he has suffered injury in fact, that the injury is fairly traceable to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.” Id. “In addition to constitutional requirements, standing also involves prudential limits on the exercise of federal jurisdiction.” Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031, 1036 (8th Cir.2002) (citing Bennett, 520 U.S. at 162,117 S.Ct. 1154). Constitutional standing “assures that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). “Absent specific facts establishing distinct and palpable injuries fairly traceable to [the defendants’ conduct]” the injury in fact requirement is not satisfied. Ark. ACORN Fair Horn., Inc. v. Greystone Dev., Inc., 160 F.3d 433, 435 (8th Cir.1998). Therefore, absent an actual controversy, the Court lacks jurisdiction. See Caldwell v. Gurley Ref. Co., 755 F.2d 645, 648 (8th Cir.1985). 1. Law of the Case First National Bank of Milaca claims the Court’s inquiry into its standing is foreclosed by Magistrate Judge Noel’s Order allowing it to intervene. The Bank asserts the Magistrate’s ruling established the binding “law of the case.” The Bank is incorrect; its position misconstrues the “law of the case.” The Bank cites a
2348	perform his or her regular employment. If the claimant can, the inquiry is at an end, and benefits are denied. If the claimant cannot perform his or her regular employment, a determination of whether the claimant can perform other gainful work is made. See 20 C.F.R. §§ 404.1520, 416.920 (1986). Because the AU determined that Havas could continue in his former employment, the second determination was never made. A determination by the Secretary that an individual is not disabled is conclusive if supported by substantial evidence. 42 U.S.C. § 405(g) (1982); Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984). “Substantial evidence” has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). In reviewing district court decisions in disability cases, we undertake our own plenary review of the administrative record to determine whether substantial evidence supports the Secretary’s denial of benefits. See Valente v. Secretary ofHHS, 733 F.2d 1037,1041 (2d Cir.1984). Accordingly, “our focus is not so much on the district court’s ruling as it is on the administrative ruling.” Id. Some time ago, we adopted the so-called “treating physician” rule whereby the medical opinion of the doctor who treated the claimant is given greater weight relative to other medical evidence before the Secretary. According to this rule,
1176	approved by the district court, its inquiry is limited to the consideration of whether the proposed settlement is lawful, fair, reasonable, and adequate. Hiram Walker, 768 F.2d at 889. Our appellate review is even more narrow, as we review the determination of the district court only for an abuse of discretion. Id. at 890. As we engage in this limited review, we are mindful that the district courts have been admonished “to refrain from resolving the merits of the controversy or making a precise determination of the parties’ respective legal rights,” a directive that applies to our own inquiry as well. Id. at 889. See also Dawson v. Pastrick, 600 F.2d 70, 75 (7th Cir.1979); Bryan v. Pittsburgh Plate Glass Co. (PPG Industries, Inc.), 494 F.2d 799, 801 (3d Cir.1974), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974). Our focus, then, is upon “the general principles governing approval of class action settlements” and not upon the “substantive law governing the claims asserted in the litigation.” Armstrong, 616 F.2d at 315. Where, as here, constitutional claims are asserted, we recognize that public interests may potentially conflict with the desire of the parties to settle their dispute. Id. at 319. The presence of constitutional claims does not, however, prevent us from applying the principles that guide our review which allow “ample room for settlement and compromise.” Id. We must, however, “apply these principles with particular care and state [our] reasoning with particular clarity.” Id. In addition, we cannot
846	Porsche marks inhibits Porsche’s ability to control which products its reputation and good will are being used to promote or endorse. This lack of control and potential damage to Porsche’s reputation constitutes irreparable injury because monetary damages cannot adequately compensate for harm to good will or reputation. Opticians Ass’n of America, 920 F.2d at 196 (“a plaintiffs mark is his authentic seal; by it he vouches for the goods which bear it;' it carries his name for good or ill. If another uses it, he borrows the owner’s reputation, whose quality no longer lies within his own control. This is an injury, even though the borrower does not tarnish it, or divert any sales by its use... ”)(quoting Ambassador East, Inc. v. Orsatti, Inc., 257 F.2d 79, 82 (3d Cir.1958)). Furthermore, irreparable injury is established by a finding of likelihood of confusion. Id.; Church of Scientology Int’l v. Elmira Mission of the Church of Scientology, 794 F.2d 38, 41 (2d Cir.1986)(“high probability of confusion as to sponsorship almost inevitably establishes irreparable harm”). Because this court has found that Porsche will likely prevail on the merits of its infringement and dilution claims, irreparable harm is established. See Opticians Ass’n of America, 920 F.2d at 196; Dr. Seuss Enterprises, L.P., v. Penguin Books USA, Inc., 924 F.Supp. 1559, 1574 (S.D.Cal.1996)(irrepa-rable injury in a trademark case is presumed upon a showing of likelihood of success), aff'd, 109 F.3d 1394 (9th Cir.1997), cert. dismissed, - U.S. -, 118 S.Ct. 27, 138 L.Ed.2d 1057 (1997).
254	Rule 12(c) A motion for judgment on the pleadings pursuant to Rule 12(e) of the Federal Rules of Civil Procedure is governed by the same standards as a motion to dismiss pursuant to Rule 12(b). LaFaro v. N.Y. Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir.2009). The court must “accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party.” Vietnam Ass’n for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104, 115 (2d Cir.2008) (internal quotation marks omitted). The court may consider only the “facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference.” Leonard v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal quotation and citation omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter ... to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). Plausibility “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. III.42 U.S.C. § 1983 “Section 1983 imposes liability on anyone who, under color of state law, deprives a person of any rights, privileges, or immunities secured by the Constitution” of
4128	[w]aives the United States’s sovereign immunity for certain classes of torts claims and provides that the federal district courts shall have exclusive jurisdiction over damages claims against the United States for injury or loss of property, or for personal injury or death ‘caused by the negligent or wrongful acts or omission of any employee of the Government while acting within the scope of his office or employment.’ 28 U.S.C. § 1346(b)(1). The FTCA’s purpose is both to allow recovery by people injured by federal employees or by agents of the Federal Government, and, at the same time, to immunize such employees and agents from liability for negligent or wrongful acts done in the scope of their employment.” Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 80 (2d Cir.2005). “Under the FTCA, the liability of the United States for the negligence acts of its agents is governed by the law of the state in which the alleged negligence occurred.” Gerace v. U.S., 2006 WL 2376696 (N.D.N.Y.2006). In other words, “the court [should] apply the substantive law of the place where the events occurred.” Giordano v. U.S., 2009 WL 1362979 (N.D.N.Y.2009) (citing Castro v. United States, 34 F.3d 106, 110 (2d Cir.1994)). III. Negligence / Duty To Warn / Reasonable Care “Under New York law, the elements of a negligence claim are: (i) a duty owed to the plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially caused by that breach.” Lombard v. Booz-Allen & Hamilton,
2927	F.2d 973 (2d Cir. 1939), cert. denied, 309 U.S. 656, 60 S.Ct. 469, 84 L.Ed. 1005 (1940). Both parties agree that if the property had not been sold, the gift would be valued at fair market value less the outstanding mortgage. The government contends, however, that the real estate contract and accompanying escrow agreement imposed a binding legal obligation upon the Alexanders to continue to make the mortgage payments, which the donees could enforce, and hence that the fair value of the property would not be reduced by the amount of the mortgage. The government asserts that “a taxable gift is made at the time that a binding obligation to make future payments is incurred.” It relies upon such cases as Rosenthal v. Commissioner, 205 F.2d 505 (2d Cir. 1953), and Commissioner v. Copley’s Estate, 194 F.2d 364 (7th Cir. 1952), where in different circumstances the court held that a legally binding promise to make future payments constituted a present gift of the amount of those payments. In the present case, however, we ^conclude that the Alexanders’ agreement to continue to make the mortgage payments did not constitute a legally binding promise that the donees could enforce. Accordingly, the value of the Alexanders’ gift to the donees did not include the amount of the mortgage. Both before and after the sale the Alexanders, and only the Alexanders, were liable to make the mortgage payments. The only difference was that after the sale the Alexanders’ obligation to do so ran not
2082	surrounding; (b) the number of law enforcement agents that were present at the scene; (c) the degree of physical restraint which was placed upon the subject, i.e., whether the subject was free to leave; (d) and .the duration and character of the interrogation. Fernández Ventura, 85 F.3d at 711, quoting United States v. Masse, 816 F.2d 805, 809 (1st Cir.1987). A defendant is, on the other hand, said to be under interrogation when he or she is subjected to “words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Fernández Ventura, 85 F.3d at 711, quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). As with the custody determination, the test is objective: the Court must determine whether a reasonable person would, given the same circumstances, perceive such questioning to constitute an attempt to elicit an incriminating response. Fernandez Ventura, 85 F.3d at 711 (quoting United States v. Taylor, 985 F.2d 3, 7 (1st Cir.1993)). It is undisputed that defendant Luis Fernandez Santana was under custody at the time that agent Andaluz questioned the defendants about whether they had money, drugs or weapons in the vehicle. Furthermore, the nature of the question — whether defendants had a considerable amount of money, or whether there were drugs or weapons in the car — clearly suggests that an affirmative answer
52	PER CURIAM: Antonio Duran-Olvera appeals the within-guidelines, 46-month sentence imposed for his guilty plea conviction of illegal reentry. He contends that his sentence is substantively unreasonable because it is greater than necessary to satisfy the 18 U.S.C. § 3558(a) factors. We review the substantive reasonableness of a sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.2008). “The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009). Duran-Olvera’s arguments that his sentence is substantively unreasonable because U.S.S.G. § 2L1.2 lacks an empirical basis, double-counted his prior conviction in the calculation of the offense level and criminal history score, and overstates the seriousness of illegal reentry are unavailing. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.2009); United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir.2008); United States v. Aguirre-Villa, 460
4174	quotation marks omitted). The parties acknowledge that there are disputed facts. The Defendants’ version is that Officers Zotz and Ross saw Morris with a gun, that Officer Zotz struggled with Morris over a gun before he and Officer Ross collectively fired eleven rounds into the backseat of the vehicle. The Plaintiffs testified that they never saw Morris with a gun, that Morris was attempting to open the car door when he was shot, and the officers did not grab Morris’ arm or wrestle over a gun. To determine whether qualified immunity applies, the Court must determine whether “[tjaken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The Court also determines “whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition.” Id. 1. Violation of a Constitutional Right The Plaintiffs allege that the Defendants violated their Fourth Amendment right when the Defendants unreasonably seized the Plaintiffs and used excessive force. Excessive force claims are analyzed using the Fourth Amendment’s “reasonableness” standard in the context of “an arrest, an investigatory stop or any other type of seizure.” Stainback v. Dixon, 569 F.3d 767, 771 (7th Cir. 2009). The Fourth Amendment protects against the use of force that is not “objectively reasonable.” Kinney
2757	On those grounds, the Court sentenced Duong to 70 months’ imprisonment, varying downward eight months from the recommended guidelines range. Duong did not object to the sentence at the time. This appeal ensued. II. Discussion We review Duong’s sentence for plain error. See United States v. Flores-Mejia, 759 F.3d 253, 255 (3d Cir. 2014) (en banc) (“We now hold that .,. when a party wishes to take an appeal based on a procedural error at sentencing ... that party must object to the procedural error complained of after sentence is imposed in order to avoid plain error review on appeal.”). For there to be plain error, “[tjhere must be an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’ ” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (second alteration in Olano) (quoting Fed. R. Crim. P. 52). Moreover, we do not correct such an error unless it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id, (alteration in original) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). Duong contends that the District Court plainly erred by considering her personal circumstances under a restrictive standard applicable to departures rather than variances. She then argues that the sentence was substantively unreasonable because of that alleged procedural flaw. We disagree. “We expressly distinguish between departures from the guidelines and variances from the guidelines.” United States v. Brown, 578 F.3d 221, 225 (3d Cir. 2009)
4220	there is “clear congressional intent favoring such a result.” Id. If the statute does not indicate retroactive effect, then the court should “apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice.” Bradley v. School Board of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). Nothing in the section 803(d) “expressly prescribed [its] proper reach.” (emphasis added). The Majority argues that the language “no award of attorney’s fees” expressly prescribes the statute’s reach in that it indicates that the statute applies when fees are awarded. However, such language certainly does not “expressly” indicate that the Congress intended § 803(d) to apply retroactively. See also Leland v. Federal Ins. Adm’r, 934 F.2d 524, 528 (4th Cir.1991) (“[E]ven where some substantial justification for retroactivity is presented, courts should be reluctant to find such authority absent an express statutory grant.”) In fact, there is evidence that Congress intended that § 803(d) should apply prospectively. Section 802 of the PLRA specifically provides that § 802 applies to relief “granted or approved before, on, or after the date of enactment of this title.” Section 803, however, is silent in that regard. Although the fact that Congress expressly indicated that § 802 applies retroactively and did not do so for § 803 may not “expressly” indicate that the Congress intended § 803(d) to apply retroactively, it does, however, indicate that when Congress chooses to expressly indicate that a provision is retroactive
1002	arbitration awards, we have held that the court may set aside an arbitration award if it was rendered in manifest disregard of the law.” Schwartz v. Merrill Lynch & Co., Inc., 665 F.3d 444, 451 (2d Cir.2011) (internal quotation marks, citation, and alteration omitted). Vacating an award for manifest disregard of the law requires a showing that “the governing law alleged to have been ignored by the arbitrators was well defined, explicit, and clearly applicable,” and that “the arbitrator knew about the existence of a clearly governing legal principle but decided to ignore it or pay no attention to it.” Jock v. Sterling Jewelers Inc., 646 F.3d 113, 121 n. 1 (2d Cir.2011) (internal quotation marks omitted); see Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 208 (2d Cir.2002) (stating that vacatur requires “something beyond and different from mere error in the law or failure on the part of the arbitrators to understand or apply the law” (internal quotation marks omitted)). An arbitrator’s award may also be vacated if it is “in manifest disregard of the terms of the parties’ relevant agreement.” Schwartz v. Merrill Lynch & Co., Inc., 665 F.3d at 452 (internal quotation marks and alteration omitted). In such cases, “interpretation of the contract terms is within the province of the arbitrator and will not be overruled simply because we disagree with that interpretation”; rather, “[i]f the arbitrator has provided even a barely colorable justification for his or her interpretation of the contract, the award must stand.”
4962	prior art transforms the preamble into a claim limitation because such reliance indicates use of the preamble to define, in part, the claimed invention”). b. Indefinite Sun next contends that the term “increasing a number of consistency point images” is indefinite under section 112, paragraph 2. A claim is indefinite under section 112, ¶ 2 when “its legal scope is not clear enough that a person of ordinary skill in the art could determine whether a particular [product] infringes or not.” Geneva Pharms., Inc. v. GlaxoSmithKline PLC, 349 F.3d 1373, 1384 (Fed.Cir.2003). “It is the applicants’ burden to precisely define the invention, not the PTO’s,” and section 112, ¶ 2 “puts the burden of precise claim drafting squarely on the applicant.” In re Morris, 127 F.3d 1048, 1056 (Fed. Cir.1997). Indefiniteness must be shown by clear and convincing evidence that the claim terms at issue are “not amenable to construction” or are “insolubly ambiguous.” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347-48 (Fed.Cir.2005). The inquiry “depends on whether those terms can be given any reasonable meaning.” Id. at 1347. Unless “reasonable efforts at claim construction prove futile[,]” the claim is not invalid for indefiniteness. Exxon Research & Eng’g Co. v. United States, 265 F.3d 1371, 1375 (Fed.Cir.2001). Sun contends that the term “increasing” provides one of skill in the art with no measure of the scope of the claims. Sun’s expert contends that the term “increasing a number of persistent consistency point images” implies that a storage system
1065	health-exception challenge. Although the parties have expended considerable time and effort arguing the other bases for which Plaintiffs allege the Act may be unconstitutional, the Court believes it prudent to refrain from making constitutional rulings that are unnecessary to the resolution of the case. “[There exists an] obligation of the Judicial Branch to avoid deciding constitutional issues needlessly.” Christopher v. Harbury, 536 U.S. 403, 417, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002); see also Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1932) (Brandéis, J., concurring) (“ ‘It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of a case.’ ”) (quoting Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905)). The Act as a whole cannot be sustained because it does not provide for an exception to protect the health of the mother; addressing the other alleged constitutional defects is unnecessary to the resolution of this case. Therefore, this opinion will not address the alternative arguments that Plaintiffs have raised. B. Level of Deference Owed to Congressional Findings As a threshold matter, the Court must determine the appropriate level of deference owed to Congress’s factual findings. The Government contends that the Court’s “ ‘sole obligation is to assure that, in formulating judgments, Congress has drawn reasonable inferences based on substantial evidence.’ ” (Gov’t Proposed Conclusions of Law ¶ 2 (quoting Turner Broad. Sys., Inc. v.
4807	necessary before the officers questioned defendants on April 24, 1970, as to their identity and places of residence. Disclosure of name and address is an essentially neutral act. It identifies but does not by itself implicate anyone in criminal conduct. California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 1540, 1541, 29 L.Ed.2d 9 (1971). But if we are mistaken in deciding that the stopping and interrogating on April 24, 1970, was not unlawful, we in any event conclude that the connection between that conduct and the discovery of the challenged evidence “became so attenuated as to dissipate the taint.” See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939), quoted in Wong Sun v. United States, 371 U.S. 471, 487, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963). The interrogation took place four days prior to the crime with which we are concerned. No information was gained during the interrogation which provided substantive evidence in the bank robbery prosecution or which, as in Wong Sun, purported to reveal where incriminating evidence could be found. The information gained — names, addresses descriptions — would have been wholly innocuous were it not for the subsequent eyewitness accounts of the bank robbery. The information gained on April 24, made it possible for the officers to make a prompt investigation at Hall’s Motel. But it would be speculative to conclude that, but for such information, the police would not have identified defendants or learned their place
1975	Defendants is authorized. See National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir.1980) (citing United States v. Brien, 617 F.2d 299, 309 (1st Cir.), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980)). The Fourth Amendment requires that warrants “particularly describ[e] ... the person or things to be seized.” The particularity requirement renders “general searches ... impossible and prevents the seizure of one thing under a warrant describing another.” Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). In reviewing a warrant against a claimed lack of particularity, “the language of a warrant is to be construed in light of an illustrative list of seizable items.” United States v. Riley, 906 F.2d 841, 844 (2d Cir.1990); see also United States v. Young, 745 F.2d 733, 759-60 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). While the purpose of the particularity requirement is to avoid leaving to “the unguided discretion of the officers executing the warrant the decision as to what items may be seized,” (United States v. Riley, supra, citing Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976) and Marron v. United States, supra), the particularity requirement is not so exacting as to eliminate all discretion of the executing officers. United States v. Riley, supra. “Once a category of seizable papers has been adequately described, with the description delineated in part by an
543	(9th Cir.); United States v. Corey, Cr. No. 96-01019DAE, slip op. at 6-9 (D.Haw. Apr. 16, 1998) (order denying defendant’s mo tion to dismiss indictment and granting the government’s motion in iimine to prohibit objection to jurisdiction) (holding that a United States Air Base in Yokota, Japan, is within the “special maritime and territorial jurisdiction of the United States”), appeal pending, No. 99-10232 (9th Cir.); Witten v. Pitman, 613 F.Supp. 63, 65-66 (S.D.Fla.1985) (holding that an area controlled by the United States Customs Service in the airport of Nassau, Bahamas, is within the “special maritime and territorial jurisdiction of the United States”). In addition, several courts, including this one, have repeated the Erdos holding in dicta. See, e.g., Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d 1326, 1342 (2d Cir.1992) (“Interestingly, both United States citizens and aliens alike, charged with the commission of crimes on Guantanamo Bay [in Cuba], are prosecuted under United States laws.” (citing, inter alia, 18 U.S.C. § 7)), vacated on other grounds sub nom. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 918, 113 S.Ct. 3028, 125 L.Ed.2d 716 (1993); Persinger v. Islamic Republic of Iran, 729 F.2d 835, 841^2 & n. 11 (D.C.Cir.1984); McKeel v. Islamic Republic of Iran, 722 F,2d 582, 588-89 (9th Cir.1983). On the other hand, at least one court has rejected the Erdos decision, see United States v. Bin Laden, 92 F.Supp.2d 189, 206 (S.D.N.Y.2000) (stating that the Erdos Court’s reasoning “is elliptical and disjointed”), and several commentators have criticized the
3307	L.Ed.2d 445 (2007). We must first review for “significant procedural error,” including “improperly calculating! ] the Guidelines range, ... failing to consider the [18 U.S.C.] § 3553(a) [ (2012) ] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 552 U.S. at 51, 128 S.Ct. 586. If we find no procedural error, we examine the substantive reasonableness of the sentence under “the totality of the circumstances.” Gall, 552 U.S. at 51, 128 S.Ct. 586. The sentence imposed must be “sufficient, but not greater than necessary!,]” to satisfy the goals of sentencing. See § 3558(a). We presume on appeal that a sentence below or within a properly calculated Guidelines range is reasonable. United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.2006) (internal quotation marks omitted). The defendant bears the burden to rebut the presumption by showing “that the sentence is unreasonable when measured against the § 3553(a) factors.” Id. Meredith received an adequate, individualized explanation of her below-Guidelines sentence. Our review of the record leads us to conclude that her sentence was neither procedurally nor substantively unreasonable. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court’s judgment. This court requires that counsel inform Meredith, in writing, of her right to petition the Supreme Court of the United States for further review. If she requests that a petition be filed, but counsel believes that such
1591	Allied-Indus., Chem. & Energy Workers Int’l Union v. Air Prods. & Chems., Inc., 300 F.3d 667, 675 (6th Cir.2002) (“simply referring to the claim as a ‘breach of contract’ [is] insufficient for purposes of § 301 federal courts’ jurisdiction”; instead test is whether claim is “primarily representational”); Pace v. Honolulu Disposal Serv., Inc., 227 F.3d 1150, 1156 (9th Cir.2000) (“[An] end run around [the NLRA] ... under the guise of contract interpretation ... cannot be countenanced, and we have drawn the jurisdictional line by asking whether the major issues to be decided ... can be characterized as primarily representational or primarily contractual.” (internal quotation marks and citations omitted) (ellipses in original)); United Food & Commercial Workers Union, Local 400 v. Shoppers Food Warehouse Corp., 35 F.3d 958, 961 (4th Cir.1994) (court is without jurisdiction if “a dispute is so primarily representational, that it falls solely within the Board’s jurisdiction” (internal quotation marks omitted)); Copps Food Ctr., Inc. v. United Food & Commercial Workers Union, Local 73-A, No. 90-1905, 1991 WL 135508, at *2 (7th Cir.1991) (unpublished) (“In answering the question of whether the federal court has jurisdiction to hear a contract-based dispute between a union and an employer, the court generally has to employ a difficult process of determining whether a particular dispute is primarily contractual—hence suited for § 301 feder al court jurisdiction—or representational, requiring preliminary NLRB determination of the matter.”); see Trs. of Colo. Statewide Iron Workers (ERECTOR) Joint Apprenticeship & Training Trust Fund v. A & P
4701	U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (second alteration in original) (citations -omitted). Instead, the Supreme Court has emphasized that “[Qactual allegations must be enough to raise a right to relief above the speculative level,” id., and that “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563, 127 S.Ct. 1955. A plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570,127 S.Ct. 1955. But if a plaintiff has “not nudged [his or her] claims across the line from conceivable to plausible, the[] complaint must be dismissed.” Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.”’ (alteration in original) (citation omitted) (quoting Fed.R.Civ.P. 8(a)(2))). For the purposes of a motion for judgment on the pleadings, as with a motion to dismiss under 12(b)(6), the Court is required to consider as true the factual allegations contained in the Complaint. See Ruotolo v. City of New
4988	10-2169, 2010 WL 4627656, at *3, 2010 U.S. Dist. LEXIS 117825, at *7-8 (N.D.Ill. Nov. 5, 2010). To allege an actionable conspiracy, the plaintiff must do more than simply allege that a corporate defendant participated in a conspiracy. Hollinger Int’l v. Hollinger Inc., No. 04-0698, 2005 WL 589000, at *14, 2005 U.S. Dist. LEXIS 21305, at *47 (N.D.Ill. March 11, 2005). Instead the plaintiff must (1) point to evidence showing the existence of a conspiracy and the defendants’ knowing participation in that conspiracy and (2) allege specific facts warranting an inference that the defendant was a member of the conspiracy. Id. Additionally, “mere knowledge of the fraudulent or illegal actions of another is also not enough to show a conspiracy.” GMAC, LLC v. Hillquist, 652 F.Supp.2d 908, 923 (N.D.Ill.2009). Although this is a close call, this Court ultimately cannot find that Plaintiff has adequately alleged an agreement between WAP II and either of the other corporate defendants to engage in illegal conduct. Indeed, it was not clear until Plaintiffs response brief that civil conspiracy was even being alleged. Even taking the response brief into account, the agreement was never adequately alleged. As the entire point of a complaint is to give a defendant notice of what it stands accused of, this Court finds that Plaintiff failed to adequately allege civil conspiracy to violate the Illinois Collection Agency Act. D. Standing to Sue WAP II With these decisions reached, the question of whether Davidson has standing to sue WAP II is
3661	standard, the court may not substitute its judgment for that of the agency when the choice is between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Budd Co. v. United States, 14 CIT 595, 600, 746 F. Supp. 1093, 1097 (1990) (quotations and citations omitted). Furthermore, as long as the methodology and procedures used by Commerce are “reasonable means of effectuating the statutory purpose, and there is substantial evidence in the record supporting the agency’s conclusions, the court will not impose its own views as to the sufficiency of the agency’s investigation or question the agency’s methodology.” National Knitwear & Sportswear Assoc. v. United States, 15 CIT 548, 553, 779 F. Supp. 1364, 1369 (1991) (quotation and citation omitted). Discussion A. Nissan’s Related-Party Transfer Prices: On remand Commerce determined it could not rely on Nissan’s transfer prices. Remand Results at 7. Commerce, therefore, calculated the percentage by which Nissan’s total standard cost of manufacturing should be increased to reflect adequately arm’s length prices. Id. at 8. Plaintiffs argue Commerce should have instead adjusted the transfer prices themselves to reflect arm’s length transactions. Plaintiffs maintain Commerce was required to explain why it believed the [ ] represented arm’s length prices. According to plaintiffs, Commerce itself recognized this data did not represent arm’s length prices because the agency did not rely on the data to calculate Nissan’s costs for those transfer prices which were [ ]. The
3654	the effect of deterring wrongful behavior on the part of employers, its primary aim is to ensure that those who are employed in Pennsylvania receive compensation for their work. This conclusion is buttressed by the fact that the plaintiffs have not pointed to a single case, and our research has not uncovered one, in which an out-of-state employee has brought a [Wage Payment Law] claim in a Pennsylvania court. Id. The court thus held that the protections of the Wage Payment Law extended only to employees based in Pennsylvania. Id. Killian’s rationale applies equally to Illinois’ Wage Act. As with the Pennsylvania wage law, federal and state courts have stated that the Illinois Wage Act is intended to protect employees. See In re Faber, 52 B.R. 563, 565 (Bankr.N.D.Ill.1985) (Wage Act “sets forth a mechanism for nongovernmental employees of the State of Illinois to recover the payment of wages due from their employers”); Miller v. J.M. Jones Co., 198 Ill.App.3d 151, 152, 144 Ill.Dec. 461, 462, 555 N.E.2d 820, 821 (4th Dist.1990) (“A reading of the entire [Wage] Act clearly shows that the purpose of the Act is to assist employees in seeking redress for an employer’s wrongful withholding of employee benefits”); Stafford v. Purofied Down Products Corp., 801 F.Supp. 130, 139 (N.D.Ill.1992) (private right of action under Wage Act protects employee’s interest in personal property). These eases belie Glass’s argument that the Wage Act is intended to deter employers from withholding employees’ wages. While deterrence may be a desired
1232	Inc., No. 08-CV-1773, 2009 WL 385541, at *3 (E.D.N.Y. Feb. 11, 2009) (“In analyzing the fraudulent joinder issue, the court is permitted to look beyond the pleadings to resolve this jurisdictional question.”); Sherman v. A.J. Pegno Constr. Corp., 528 F.Supp.2d 320, 327 n. 10 (S.D.N.Y.2007) (stating that the court is permitted to look beyond the pleadings to resolve jurisdictional question of fraudulent joinder); Arseneault, 2002 WL 472256, at *6 (considering “deposition testimony and other material outside of the pleadings” in analyzing fraudulent joinder claim). In fraudulent joinder cases, “[p]ost-removal filings may not be considered, however, when or to the extent that they present new causes of action or theories not raised in the controlling petition filed in state court.” Griggs v. State Farm Lloyds, 181 F.3d 694, 700 (5th Cir.1999); see also Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 263 (5th Cir. 1995) (stating that although the court could consider affidavits or deposition testimony in analyzing fraudulent joinder claim, the court should not use such evidence to “determine whether a claim has been stated against the nondiverse defendant under a legal theory not alleged in the state court complaint”); Lovell v. United Airlines, Inc., No. 09-CV-146, 2009 WL 3172729, at *3 (D.Haw.2009) (stating that in evaluating fraudulent joinder, “the court may consider the plaintiffs factual assertions (whether in a brief, an affidavit, or in some other form), that elaborate on the allegations of the complaint, so long as those factual assertions are not inconsistent with the
4675	that the Maitlands failed to allege diversity jurisdiction, and declined to exercise supplemental jurisdiction over their state law claims. This appeal follows. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review de novo the dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences in the plaintiffs favor. Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015). The complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although a court must accept as true all the factual allegations in the complaint, that requirement is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. As an initial matter, the Maitlands have waived appellate review of their RICO claim against the Fishbeins by failing to object to the portion of the magistrate judge’s February 28, 2017 report and recommendation addressing that claim despite being notified of the consequences of their failure to do so. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). Although we have discretion to excuse that waiver “in the interests of justice,” Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435
3818	was in fact fair.” Id. at 794, 108 S.Ct. 2667. The rebuttable presumption that shifted the burden in that case was North Carolina’s attempt to salvage what would clearly be an unconstitutional ordinance. While the Court emphasized the inequity that would result from requiring a fundraiser to have to litigate every fee exceeding the statute’s thresholds, the statute was not held unconstitutional because of that provision; the statute was unconstitutional with or without the burden-shifting provision. Although BSA and Riley are not helpful in this analysis, there is United States Supreme Court precedent which bears directly on this issue. Although the Supreme Court has held that “the burden of proving that [a] film is unprotected expression must rest on the censor,” Freedman v. Maryland, 380 U.S. 51, 57, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), the Court later held that burden-shifting is permissible in the licensing context “[b]ecause the license is the key to the applicant’s obtaining and maintaining a business, [and therefore,] there is every incentive for the applicant to pursue a license denial through court,” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229-30, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). The Freedman Court had expressed concern that a speaker or exhibitor — in a prior restraint, censorship context — be protected to the fullest extent possible, and thus, it mandated three procedural safeguards that are constitutionally required under a censorship scheme, including the requirement that the censor bear the burden of proof. Freedman, 380 U.S. at
4429	stock during the Class Period, (Nahas Deel. Ex. 31), sold a single share of BoA stock during the Class Period. There is also no allegation that that the defendants possessed any other concrete and personal motive to defraud BoA investors by concealing the AIG suit. Instead, the plaintiffs assert that the Second Amended Complaint states facts constituting strong circumstantial evidence of conscious misbehavior or recklessness. Where, as here, motive is not apparent, “the strength of the circumstantial allegations must be correspondingly greater.” Kalnit v. Eichler, 264 F.3d 131, 142 (2d Cir.2001) (internal quotation marks omitted). Plaintiffs typically allege conscious misbehavior or recklessness by pleading with specificity that the defendants had “knowledge of facts or access to information contradicting their public statements.” Novak v. Kasaks, 216 F.3d 300, 308 (2d Cir.2000). As the Second Circuit Court of Appeals has explained, “[r]eckless conduct is, at the least, conduct which is highly unreasonable and which represents an extreme departure from the standards of ordinary care ... to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.” Chill v. Gen. Elec. Co., 101 F.3d 263, 269 (2d Cir.1996) (alteration in original and internal quotation marks omitted). The facts must support a strong inference with regard to each defendant. See Plumbers and Pipefitters Local Union No. 630 Pension-Annuity Trust Fund v. Arbitron Inc., 741 F.Supp.2d 474, 488 (S.D.N.Y.2010). Further, “in determining whether the pleaded facts give rise to a ‘strong’ inference
4584	Department of Justice, Guidance- to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed.Reg. 41455, 41469-70 (Jun. 18, 2002). The McDonnell Douglas burden shifting framework applies to Title VI disparate treatment claims. ' Bashdan v. Ge-issberger, 764 F.3d 1179, 1182 (9th Cir. 2014). “First, the plaintiff has the burden of proving by [a] preponderancé of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the [treatment].’ ” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Arpaio argues he has made reasonable efforts to provide LEP inmates with meaningful access to information and services, thus defeating the United States’ claim. He cites his DI-6 Policy, which states LEP inmates are to have “the same rights and protections mandated by federal, state, and local laws.” (Doc. 345 at 10).' The United States attacks these assertions on three grounds: (1) the DI-6 Policy on which Arpaio relies was not enacted until October 2013 — eighteen months after the U.S. brought suit; (2) the pre-DI-6 Policy actions Arpaio took to address LEP discrimination were insufficient to meet the “reasonable steps” requirement; and (3) notwithstanding the enactment of.the DI-t6 Policy, evidence shows disparate treatment of
4386	can be properly remedied by money damages. Id. at 632. However, it went on to note that “[c]eompetition changes probabilities,” a fact that makes it difficult for businesses to easily “identify which contracts slipped from its grasp.” Id. at 633. In such a circumstance, money damages cannot provide a necessary remedy. The Court concludes that Plaintiff does not have an adequate remedy at law. III. Possibility of Irreparable Harm Plaintiff has also demonstrated the possibility of irreparable harm, as it has shown that it risks losing business to Alpha if Olson is permitted to breach his contract. “Under Illinois law, irreparable harm has been presumed in cases where a former insider lures customers away through a competing businesses.” Jano Justice Sys., Inc. v. Burton, 636 F.Supp.2d 763, 767 (C.D.Ill.2009). In order to demonstrate irreparable harm, a Plaintiff need not demonstrate concrete harm or specific injuries such as lost business. Owens, 415 F.3d at 632. Rather, “it is precisely the difficulty of pinning down what business has been or will be lost that makes an injury ‘irreparable’.” Id. IV.Balance of Harm Last, the Court must consider the balance of harms. As explained above, the court weighs all factors using a sliding-scale approach. Abbott Laboratories, 971 F.2d at 12. In cases in which a plaintiff has demonstrated a higher likelihood of succeeding on the merits, “the less the balance of irreparable harms need weigh towards its side,” and the less the court need to consider consequences to the public interest. Id. Plaintiff
1600	Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992), impasse vel non is not a jurisdictional fact. Section 301 of the LMRA grants the district court jurisdiction of “[s]uits for violation of contracts between an employer and a labor organization.” 29 U.S.C. § 185(a). For a district court to exercise jurisdiction, then, there need not be a valid contract but only a suit for violation of a contract. The existence of the contract is instead an element of the cause of action. See Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005-06 (6th Cir.2009) (section 301’s “contract requirement is non-jurisdictional” and instead constitutes “an element of a cause of action”); Pittsburgh Mack Sales & Serv., Inc. v. Int’l Union of Operating Eng’rs, Local Union No. 66, 580 F.3d 185, 189 (3d Cir.2009) (“It is unnecessary for us to resolve whether or not the CBAs were terminated [before the alleged breach] because ... the existence of a contract is not a jurisdictional element of a section 301 claim.”). See generally Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (court must determine whether statutory requirement is jurisdictional or instead describes elements of cause of action). Second, Liberty attempts to argue that even if MEBA’s suit is nominally contractual, it is in fact “primarily representational” because MEBA’s goal in bringing the suit is to replace AMO as the bargaining representative of the officers and engineers aboard Liberty vessels. According to Liberty, “MEBA’s objective in this case is
134	F.3d 1, 4 (1st Cir.1997)); see Limar Shipping Ltd., 324 F.3d at 7 (explaining that the exception does not apply “when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow” (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954)). With regard to the second prong, the inquiry must center “not on the agent’s subjective intent in exercising the discretion ..., but on the nature of the actions taken and on whether they are susceptible to policy analysis.” Gaubert, 499 U.S. at 325, 111 S.Ct. 1267. There exists a presumption that if “there is an exercise of discretion, that exercise is based on considerations of public policy.” Coyne, 233 F.Supp.2d at 145 (citing Shansky v. United States, 164 F.3d 688, 692 (1st Cir.1999)); see also Muniz-Rivera, 326 F.3d at 17. The plaintiff bears the burden of showing that the challenged decision “does not lend itself to a policy analysis.” Coyne, 233 F.Supp.2d at 145. If an action “meets both prongs of this test ... and is thus within the discretionary function exception, even an abuse or negligent exercise of discretion is not actionable.” Id. I hold that under the principles set forth above, Anderson’s actions in dealing with Sampson’s call fall within the discretionary function exception. The FBI’s broad discretion to decide whether to investigate and/or apprehend a particular individual, encompasses the discretion of an individual officer like Anderson to report or not report a particular call. Coyne, 233 F.Supp.2d at 145 (concluding
1519	Stanton. Hoping to accomplish this reorganization in the summer of 2002, SUPERVALU initiated discussions with the Union in the spring to resolve issues associated with the effects of the closing. One of these issues — how long SUPERVALU would continue to contribute to the pension plan— had significant economic repercussions for SUPERVALU. The MPPAA provides that an employer, for various reasons, may opt out of a mul-tiemployer pension plan. Where there is a complete withdrawal the employer immediately incurs “withdrawal liability” to the Fund. This liability is defined as “the employer’s proportionate share of the plan’s ‘unfunded benefits,’ calculated as the difference between the present value of the vested benefits and the current value of the plan’s assets.” Robbins v. Pepsi Metro. Bottling Co., 636 F.Supp. 641, 647 (N.D.Ill.1986)(quoting Pension Ben. Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 725, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984)). The Act specifies that withdrawal liability is to be calculated with reference to a plan’s unfunded benefits outstanding at the end of the plan year preceding the year of an employer’s withdrawal. 29 U.S.C. § 1391(b)(2)(A)(ii). Because the Fund’s plan year ended on June 30, the amount owing in the event of SUPERVA-LU’s withdrawal during the 2002 plan year would have been based on the Fund’s unfunded vested benefits as of June 30, 2001. Similarly, withdrawal liability for the plan year 2003 would have been calculated on the basis of unfunded vested benefits outstanding as of June 30, 2002. In April
1346	the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.2008). Moreover, the factual allegations “must be enough to raise a right to relief above the speculative level” such that the claim “is plausible on its face.” Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955. When deciding whether to grant a motion to dismiss, the court generally “may not consider any material beyond the pleadings.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). The court must accept as true all “well-pleaded factual allegations.”' Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The court must also construe the alleged facts in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1988). However, the court may consider material submitted as part of the complaint or relied upon in the complaint, and may also consider material subject to judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688-69 (9th Cir.2001). But “courts are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. B. Rule 9(b)
778	1130 (noting that “Congress explicitly recognized the substantial advantages of having these eases resolved in the court which originally imposed the confinement or in the court located near the site of the underlying controversy”). Applying Braden in the fashion suggested by Wadsworth would have another untenable consequence. Were we to accept Wadsworth’s application of the supposition that a district court needs only personal jurisdiction over the custodian for a situation like his, where § 2241(d) would otherwise apply, this broad reading of § 2241(a) would trump the more specific § 2241(d). Thus, § 2241(d) would be unnecessary. As a matter of statutory interpretation, we do not read one section so as to render another related section superfluous. See Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 876, 111 S.Ct. 2631, 2638, 115 L.Ed.2d 764 (1991) (“Our cases consistently have expressed a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment”) (citations omitted). In short, we find Wadsworth’s Bra-den-based arguments unavailing. Because we find that the district court lacked jurisdiction to hear Wadsworth’s application, we do not address the remaining questions presented in this appeal. For the foregoing reasons, we VACATE the district court’s judgment and DISMISS the petition for lack of jurisdiction. . While we do not reach this issue, we question whether the district court can circumvent Fed.R.Civ.P. 12(b), which provides that the party must make its motion for lack of jurisdiction before pleading, and enter a default judgment.
1548	or practice, “which results in a denial or abridgement of the right of any citizen ... to vote on account of race or color_” The Act goes on to specifically recognize claims of vote dilution as a violation of the statute. The 1982 amendment to the Act rejects the “intent to discriminate” test in favor of the “results” test. If, under the “totality of circumstances” it is established that “the political processes ... are not equally open to participation by ... [a protected minority] ... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice” then a violation of the Act has been shown. In Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the Supreme Court explained the requirements for a vote dilution case under Section 2. In view of the square holding in Chisom that Louisiana’s judicial elections fall within the requirements of Section 2 of the Act, it is appropriate that the court apply the teachings of Thornburg to determine whether plaintiffs have proved any violations. That is what the court did following the trial on liability issues. The decision in League of United Latin Am. Citizens v. Clements, supra, is predicated upon the notion that trial judges hold “single-member” offices, more closely akin to offices such as president or governor or mayor than to multi-member bodies such as legislatures or municipal councils or school boards. Noting
297	nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir.1992) (internal citations and quotations omitted). “Summary judgment is justified only for those cases devoid of any need for factual determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir.1987) (citation omitted). “The applicable Rule 56 standard is not affected by the filing of cross-motions for summary judgment.” Godard v. Alabama Pilot, Inc., 485 F.Supp.2d 1284, 1291 (S.D.Ala.2007); see also May v. A Parcel of Land, 458 F.Supp.2d 1324, 1333 (S.D.Ala.2006) (same). Indeed, the Eleventh Circuit has explained that “[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984) (citation omitted); see also Wermager v. Cormorant Tp. Bd., 716 F.2d 1211, 1214 (8th Cir.1983) (“the filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits”). Nonetheless, “cross-motions may be probative of the absence of a factual dispute where they reflect
303	the [ILSFDA] is to insure that a buyer, prior to purchasing certain kinds of real estate, is informed of facts which will enable him to make an informed decision about purchasing the property.” Law v. Royal Palm Beach Colony, Inc., 578 F.2d 98, 99 (5th Cir.1978); see also Winter, 777 F.2d at 1449 (Act’s purpose requires that buyer must receive information necessary to make his decision prior to entering into purchase agreement); United States v. Steed, 674 F.2d 284, 287 (4th Cir.1982) (ILSFDA “is a comprehensive statute requiring subdivision developers, unless exempt, to furnish prospective purchasers pertinent information about lots offered for sale”). The Act “should be construed not technically, but flexibly to effectuate its remedial purposes.” Schatz v. Jockey Club Phase III, Ltd., 604 F.Supp. 537, 541 (S.D.Fla.1985). One of the ILSFDA’s requirements is that a developer selling a nonexempt lot must furnish the purchaser with a so-called “property report” in advance of the execution of a purchase agreement. See 15 U.S.C. § 1708(a)(1)(B) (declaring it unlawful for a developer to use means of communication in interstate commerce “to sell or lease any lot unless a printed property report ... has been furnished to the purchaser or lessee in advance of the signing of any contract or agreement by such purchaser or lessee”); 24 C.F.R. § 1710.3 (“In non-exempt transactions, the developer must give each purchaser a printed Property Report ... in advance of the purchaser’s signing of any contract or agreement for sale or lease.”). This property report
1586	to hear a contractual claim even if the claim is also representational. William E. Arnold Co. v. Carpenters Dist. Council, 417 U.S. 12, 16, 94 S.Ct. 2069, 40 L.Ed.2d 620 (1974) (“When [conduct allegedly subject to the NLRA] also constitutes a breach of a collective-bargaining agreement, the [NLRB’s] authority ‘is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301 [of the LMRA].’ ” (quoting Smith v. Evening News Ass’n, 371 U.S. 195, 197, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962))). In that event, the “labor case [falls] within the concurrent jurisdiction of the NLRB and the federal courts.” Mack Trucks, Inc. v. Int’l Union, UAW, 856 F.2d 579, 585 (3d Cir.1988); accord Mullins v. Kaiser Steel Corp., 642 F.2d 1302, 1316 (D.C.Cir.1980) (“[F]ederal courts have independent jurisdiction to decide cases alleging the breach of collective bargaining agreements, even though that very breach may also be an unfair labor practice.”), rev’d on other grounds, 455 U.S. 72, 102 S.Ct. 851, 70 L.Ed.2d 833 (1982). In many circuits, a party’s mere assertion that a claim is contractual is not an automatic ticket to federal court; rather, the court must “examin[e] the major issues to be decided” and determine “whether they can be characterized as primarily representational or primarily contractual.” Local Union 204, Int’l Bhd. of Elec. Workers v. Iowa Elec. Light & Power Co., 668 F.2d 413, 419 (8th Cir.1982); accord, e.g., Paper, Allied-Indus., Chem. & Energy Workers Int’l Union v. Air Prods. & Chems.,
3753	suspension and revocation provisions. (Id. ¶¶ 9, 14.) The County initiated suspension proceedings against Plaintiff in 2002 after a similar raid that resulted in the arrests of dancers. (Id. at 3-4.) As of yet, however, the County has neither taken action against Plaintiffs license nor expressed any intention of doing so. II.Summary Judgment Standard Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing that no genuine issues of material fact remain. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322, 106 S.Ct. 2548. In ruling on a motion for summary judgment, the Court construes the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether
4495	insure any person in the state of Michigan, nor do they enter into contracts for performance of services in the state of Michigan. Id. The plaintiff has the burden of establishing the Court’s jurisdiction over the defendants, and when faced with a properly supported Rule 12(b)(2) motion, the plaintiff must set forth facts establishing personal jurisdiction. Id. at 1458. Where, as in this case, the court does not hold an evidentiary hearing on the matter, “the court must consider the pleadings and affidavits in a light most favorable to the plaintiff.... To defeat such a motion, [the plaintiff] need only make a prima facie showing of jurisdiction.” Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir.1998) (quoting CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996)). A prima facie showing requires the plaintiff to “ ‘demonstrate facts which support a finding of jurisdiction....’” Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir.1980) (quoting Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir.1977), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981)). Furthermore, a court does not weigh the controverting assertions of the party seeking dismissal. Dean, 134 F.3d at 1272 (quoting CompuServe, Inc., 89 F.3d at 1262). Therefore, in order to decide this motion, the Court must ascertain only whether plaintiffs have established a prima facie case of personal jurisdiction. The Court will review the pleadings, including the deposition testimony offered by plaintiffs, in a light most favorable
2188	311 (permitting courts to make such deductions in certain circumstances); Coutin, 124 F.3d at 337 (same) (citing Hensley, 461 U.S. at 435, 103 S.Ct. 1933). It declined to do so for three principal, reasons. First, “attempts to allocate hours between claims may be unwarranted where an action involves related legal theories applied to a common core of facts.” Phetosomphone v. Allison Reed Group, Inc., 984 F.2d 4, 7 (1st Cir.1993) (citing Hensley, 461 U.S. at 434-35, 103 S.Ct. 1933); cf, e.g., McMillan, 140 F.3d at 311. Second, the Court should not attempt to parse out work on unsuccessful claims hour-by-hour “ ‘[wjhere it would be an exercise in futility.’ ” Lipsett, 975 F.2d at 940-41 (alteration in original) (quoting General Dynamics Corp. v. Horrigan, 848 F.2d 321, 325 (1st Cir.1988)). Third, because the Court may consider less-than-complete success as a factor in adjusting the lodestar, see, e.g., Coutin, 124 F.3d at 339-40, extraction of “unsuccessful” hours when calculating the lodestar would run the risk of doubly reducing the award, see Phetosomphone, 984 F.2d at 8. The one exception is that the Court eliminated, to the extent it was discernible, much of the time spent working on the malicious prosecution claim on the ground that the claim was tangentially related to the successful claims in the case. “Attorneys’ fees normally should not be awarded for time spent in litigating (or preparing to litigate) unsuccessful, severable claims.” Coutin, 124 F.3d at 339 (citing Hensley, 461 U.S. at 435, 103 S.Ct. 1933, and
2141	construed in the light of the prior art and a mere improvement in a crowded art is not entitled to a liberal construction even though the patent may have met with commercial success. Gillette Safety Razor Co. v. Cliff Weil Cigar Co., 4 Cir., 107 F.2d 105; Victor Cooler Door Co. v. Jamison Cold Storage Door Co., supra. The history of the application in the Patent Office on the Davis patent, while not essentially controlling, is of evidentiary value in determining the extent and limitations of the patent as subsequently granted. Roemer v. Peddie, 132 U.S. 313, 10 S.Ct. 98, 33 L.Ed. 382; Knapp v. Morss, 150 U.S. 221, 14 S.Ct. 81, 37 L.Ed. 1059; American Seating Co. v. Ideal Seating Co., 6 Cir., 124 F.2d 70, 72. The last cited case has this to say: “It is clear to us, as it was to the District Judge, that in view of the prior art only a narrow range of equivalents is permitted to fall within the scope of the claims in suit. The essence of the invention lies in the precise retaining means and in their positioning. The defendant has not appropriated such retaining means and has not similarly positioned those it has employed so there is no room for the expansion of the claims by construction to bring the defendant’s means within their ambit, by the application of the doctrine of equivalency”. When the Davis application was originally filed in the Patent Office, the claim read as follows:
4230	civilized society, as Justice Brandéis has aptly reminded us. Ancillary and incidental thereto, and an integral part thereof, is the burden of discovery procedure, under the rules adopted for the federal court system in 1937 through the efforts of Attorney General Homer Cummings. There comes a time, however, where the hardship is so severe, and the injustice so manifest, that the courts will exercise their equitable powers in order to prevent abuse of process. The courts will refuse to be used as affirmative instrumentalities of injustice, but will leave the wrongdoers to their own devices. Whatever necessary evils may come must come through other agencies. Toyosaburo Korematsu v. United States, 323 U.S. 214, 247-248, 65 S.Ct. 193, 89 L.Ed. 194 (1944); Shelley v. Kraemer, 334 U.S. 1, 13, 20, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). As said in Bank of the United States v. Owens, 2 Pet. 527, 538, 7 L.Ed. 508 (1829), it “would seem to be plain and obvious that no court of justice can in its nature be made the handmaid of iniquity.” Patent litigation, of which the case at bar is an instance, furnishes a good example of the use of lawsuits as an economic weapon to harass competitors. The abuses of patent infringement suits, particularly in the glass industry, were exhaustively ventilated in the TNEC hearings, and led to antitrust prosecutions marked, among other features, by disciplinary proceedings against lawyers connected with prominent metropolitan firms for deceptions practiced on the courts handling those cases.
1601	jurisdiction, then, there need not be a valid contract but only a suit for violation of a contract. The existence of the contract is instead an element of the cause of action. See Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005-06 (6th Cir.2009) (section 301’s “contract requirement is non-jurisdictional” and instead constitutes “an element of a cause of action”); Pittsburgh Mack Sales & Serv., Inc. v. Int’l Union of Operating Eng’rs, Local Union No. 66, 580 F.3d 185, 189 (3d Cir.2009) (“It is unnecessary for us to resolve whether or not the CBAs were terminated [before the alleged breach] because ... the existence of a contract is not a jurisdictional element of a section 301 claim.”). See generally Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (court must determine whether statutory requirement is jurisdictional or instead describes elements of cause of action). Second, Liberty attempts to argue that even if MEBA’s suit is nominally contractual, it is in fact “primarily representational” because MEBA’s goal in bringing the suit is to replace AMO as the bargaining representative of the officers and engineers aboard Liberty vessels. According to Liberty, “MEBA’s objective in this case is to displace its rival union .,. and establish MEBA’s representational rights over the supervisors working aboard Liberty’s ships”—action that violates section 8 of the NLRA and thus triggers the NLRB’s jurisdiction. Appellant’s Br. at 34. Liberty relies on the Eighth Circuit’s opinion in Morello v. Federal Barge Lines, Inc.
4785	a new grant of judicial power. In passing upon the meaning and purpose of this section this court has said: “[w]hile the section augments the power of the court in cases of existing jurisdiction, it in no wise expands or extends its territorial jurisdiction.” Edgerly v. Kennelly, 7 Cir., 1954, 215 F.2d 420, 422. There are few authorities touching upon the jurisdiction of a district court to entertain an information in the nature of quo warranto. “No instance is known of the use of writ of quo warranto in a district court of the United States other than the District Court of the District of Columbia.” Cyc. of Federal Procedure, 2d Ed., Sec. 7098. The court, in United States v. Malmin, 3 Cir., 1921, 272 F. 785, 790, indicated that quo warranto is the proper remedy to try the title of a judge of a court of the United States but did not indicate in what court it could be entertained. In a suit to enjoin defendant city from levying taxes the court noted that the state law provided the exclusive remedy in an action for quo warranto and stated, “* * * the federal courts, * * * have not the right to exercise the quo warranto jurisdiction * * *.” (our emphasis). Morin v. City of Stuart, 5 Cir., 1940, 111 F.2d 773, 775. Doubt was expressed that federal courts have quo warranto jurisdiction, except as specifically authorized by statute in Cleveland Cliffs Iron Co. v. Village of
406	In reaching this conclusion based on the statute’s plain meaning, we are not alone. See Iddir v. INS, 301 F.3d 492, 500-01 (7th Cir.2002) (concluding that even if the INS were to adjudicate applications after the fiscal year ended, visas could not be issued); id. at 502 (Flaum, J., concurring) (concluding that the plaintiffs are no longer eligible to receive visas); Fornalik v. Perryman, 223 F.3d 523, 526 (7th Cir.2000); Vladagina v. Ashcroft, 2002 WL 1162426 (S.D.N.Y. Apr. 8, 2002) (unpublished); Iddir v. INS, 166 F.Supp.2d 1250, 1259 (N.D.Ill.2001) (holding that “[t]he end of fiscal year 1998 was September 30, 1998, which means that plaintiffs are no longer eligible to receive visas”), aff'd on other grounds, 301 F.3d 492 (7th Cir.2002); Zapata v. INS, 93 F.Supp.2d 355, 358 (S.D.N.Y.2000) (“The plain meaning of § 1154 is that after the fiscal year has ended on September 30, no diversity visas may be issued nunc pro tunc based on the results of the previous fiscal year’s visa lottery.”); Diallo v. Reno, 61 F.Supp.2d 1361, 1368 (N.D.Ga.1999). The Plaintiffs contend that when the phrase “shall remain eligible to receive such visa” is construed in light of its context, the phrase actually means “shall remain eligible to apply for such visa.” The Plaintiffs rely on the fact that § 1154(a)(l)(I)(ii)(II) sets forth the procedure for applying for a diversity visa; the Plaintiffs contend that when this section is read as a whole, it is clear that a lottery winner “has until the end of
4403	While factual allegations should be construed in the light most favorable to the plaintiffs, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. A claim under Section 10(b) of the Securities Exchange Act sounds in fraud and must meet the pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure and the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-4(b). Rule 9(b) requires that the complaint “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir.2007). The PSLRA similarly requires that the complaint “specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading,” and it adds the requirement that “if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(l); ATSI, 493 F.3d at 99; see also City of Roseville Emps’ Ret. Sys. v. EnergySolutions, Inc., 814 F.Supp.2d 395, 401 (S.D.N.Y.2011). When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiffs relied on in bringing suit and that are either in
2594	representations made by CIS representatives and brokers and on other sources of information, individual questions of materiality predominate. Although written representations are more likely to be suited for class treatment than oral representations, which often tend to vary materially, see, e. g., Clark v. Watchie, 513 F.2d 994, 1000 n. 13 (9 Cir. 1975); In re Scientific Control Corp. Securities Lit., 71 F.R.D. 491, 500 (S.D.N.Y.1976), the mere fact that plaintiffs’ claims are based on written representations does not guarantee class treatiflent. “[I]f the writings contain material variations, emanate from several sources, or do not actually reach the subject investors, they are no more valid a basis for a class action than dissimilar oral representations.” Simon v. Merrill Lynch, Pierce, Fenner and Smith, Inc., 482 F.2d 880, 882 (5 Cir. 1973). In addition, oral representations ■ dealing with the same subject as the written representations may vary the total mix of information to such a degree that individual questions concerning the total mix predominate. “[Ajlthough having some common core, a fraud case may be unsuited for treatment as a class action if there was material variation in the representations made or in the kinds or degrees of reliance by the persons to whom they were addressed.” Advisory Committee Note on 1966 Amendments of Rule 23, 39 F.R.D. 98, 103 (1966). Individual issues of materiality do not necessarily preclude predominance, and the Court must make some assessment of the probability that variations in the total mix of information are frequent and
2487	on a legal or factual question absent “a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical and abstract.” See Babbitt, 442 U.S. at 298, 99 S.Ct. 2301 (quotations omitted). Ripeness requires “fitness of the issues for judicial decision” and examination of “the hardship to the parties of withholding court consideration.” See Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The Declaratory Judgment Act calls upon the Court to apply a heightened standard of ripeness, allowing judicial intervention only where “there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” See Lake Carriers Ass’n v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Gopher Oil Co. v. Bunker, 84 F.3d 1047, 1050 (8th Cir.1996) (citing Caldwell, 755 F.2d at 649). The Court’s declaratory power is strictly discretionary, see Wilton v. Seven Falls Co., 515 U.S. 277, 282, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995), and is to be exercised with caution. The Court finds this litigation involves only hypothetical and speculative disagreements. See Cass County v. United States, 570 F.2d 737, 738 (8th Cir.1978) (finding generalized claims of confusion over jurisdiction lack needed specificity). According to plaintiffs, legal uncertainty over tribal jurisdiction within the 1855 reservation boundaries has created an unbearable hardship requiring judicial action. While the Courts have found uncertainty regarding legal status can justify judicial action
1403	meeting with G/M’s owners and employees in the conference room of the hotel. The G/M owners did not see the petitions until they returned from the meeting, where they had already signed an agreement that the Carpenters Union would represent the painters and tapers. The Painters Union filed an unfair labor practice charge with the Board, and the General Counsel issued a complaint alleging that G/M violated section 8(a)(1) of the NLRA by engaging in unlawful surveillance of the painters and tapers at the April 2 meeting. An employer’s surveillance of employees is unlawful under section 8(a)(1) where it “interfered with, restraints], or coerced employees in the exercise” of their collective-bargaining rights. 29 U.S.C. § 158(a)(1); see also Gold Coast Rest. Corp. v. NLRB, 995 F.2d 257, 266 (D.C. Cir. 1993), amended, No. 91-1533, 1993 WL 444597 (D.C. Cir. Oct. 25, 1993). The complaint also alleged that G/M violated section 8(a)(2) of the NLRA, which prohibits an employer from unlawfully assisting a union, by being present at the meeting while the Carpenters Union collected authorization cards and unlawfully recognizing the Carpenters Union as the bargaining representative of the painters and tapers. See 29 U.S.C. § 158(a)(2). Finally, the complaint alleged that the Carpenters Union improperly accepted G/Mis unlawful recognition and assistance. See id. § 158(b)(1)(A). After a two-day hearing, the ALJ recommended dismissing the complaint. As to the allegation of unlawful surveillance, the ALJ found that the presence of the company’s owners at the meeting “had no tendency whatsoever toward
2402	suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Under the ADEA it is .“unlawful for an employer ... to fail or refuse to hire ... any individual ... with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). A successful claim under the ADEA requires a plaintiff to demonstrate that he “(1) ... is a member of the protected class (i.e., over 40 years of age); (2) ... was qualified for the position for ’which [he] applied; (3) ... was not hired; and (4) ’... was disadvantaged in favor of a younger person.” Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1155 (D.C.Cir.2004) (citations omitted). “[P]laintiff is not required to plead every fact necessary to establish^ a prima facie case to survive a motion to dismiss,” however. Jones v. Air Line Pilots Ass’n, Int'l, 642 F.3d 1100, 1104 (D.C.Cir.2011) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). Nevertheless, he must allege sufficient facts to put the defendant on notice of the claim against it, see Kangethe v. District of Columbia, 953 F.Supp.2d 194, 199 (D.D.C.2013), which in this case means allegations that plaintiff suffered an adverse employment action because of his age, see Montgomery v. Omnisec Int’l Sec. Servs., Inc., 961 F.Supp.2d 178, 183 (D.D.C.2013) (citing Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008)). A 'pro
1073	S.Ct. 1910, or undue burden. While the Turner Court imposed a low burden on Congress’s predictions, it has not been so deferential to congressional factfinding in other cases evaluating the constitutionality of congressional statutes, even when strict scrutiny did not apply. See, e.g., United States v. Morrison, 529 U.S. 598, 614-15, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (striking down Violence Against Women Act on rational basis review, despite Congress’s detailed findings that gender-based violence substantially affects interstate commerce, because “the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation”). Moreover, at issue here are findings of constitutional fact, those “upon which the enforcement of the constitutional rights of the citizen depend.” See Crowell v. Benson, 285 U.S. 22, 56, 60, 52 S.Ct. 285, 76 L.Ed. 598 (1932) (“In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function.”). Justice Thomas, while a judge on the Court of Appeals for the District of Columbia Circuit, eloquently explained why legislative findings of constitutional fact are not entitled to substantial deference: We know of no support ... for the proposition that if the constitutionality of a statute depends in part on the existence of certain facts, a court may not review a legislature’s judgment that the facts exist. If a legislature could make a statute constitutional simply by “finding”
2192	prosecution claim stemmed from a distinct set of events that occurred after the incidents at Night Games and in the holding cell — namely, defendant Aufiero’s compilation of the incident report, defendants’ decision to charge plaintiffs with affray, apd the resulting criminal trials. See Goodwin v. Metts, 973 F.2d 378, 382-83 (4th Cir.1992) (holding that civil rights plaintiffs’ malicious prosecution claims were unrelated to their other claims); Lenard v. Argento, 808 F.2d 1242, 1246-47 (7th Cir.1987) (finding plaintiffs malicious prosecution claim temporally and conceptually distinct from his excessive force claim). It is not true that, “in order to try [their] successful claims, [plaintiffs] would have had to try the entire case, including evidence relevant to the unsuccessful [malicious prosecution] claim[ ].” Krewson v. Finn, 107 F.3d 84, 85 (1st Cir.1997). Although Attorney Hernandez’s billing records do not indicate when he worked specifically on the malicious prosecution claim, there are, as the City points out, three clusters of activities that clearly relate to that claim: matters concerning Lisa McLean, the Assistant District Attorney who prosecuted plaintiffs’ criminal cases; matters concerning Spear, who witnessed events relevant to all claims in the case; and matters concerning Thomas Macone, a Somerville police officer who allegedly offered to dismiss the criminal charges against Henderson in return for Henderson dropping his criminal complaints against several of the defendants. The Court eliminated identifiable hours spent on McLean and Macone (6.4), including an estimated one-half hour spent on McLean’s testimony at trial. For the most part, the Court
4679	substantial merit or, put otherwise, whether the magistrate judge committed plain error in ruling against the defaulting party,” Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000). Upon review, we conclude that, even were we to excuse the Maitlands’ failure to object to the relevant portions of the magistrate judge’s report and recommendation, we would nonetheless affirm for substantially the reasons stated by the magistrate judge. On appeal, the Maitlands primarily argue that the district court possessed diversity jurisdiction over their state law claims and erred when it dismissed their claims for want of diversity jurisdiction (having declined to exercise supplementary jurisdiction following dismissal). “For purposes of diversity jurisdiction, a party’s citizenship depends on his domicile.” Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998). “[Establishing one’s domicile in a state generally requires both physical presence there and intent to stay.” Universal Reinsurance Co. v. St. Paul Fire & Marine Ins. Co., 224 F.3d 139, 141 (2d Cir. 2000). The magistrate judge properly concluded, in a report and recommendation adopted in its entirety by the district court, that the Maitlands failed to adequately plead diversity jurisdiction. The complaint alleged only that the Maitlands resided in Florida, the Fishbeins resided in New York, and Chase’s main office was in New Yoi’k. .This was insufficient to show that the Maitlands were domiciled in, and thus citizens of (within the meaning of 28 § U.S.C. 1332), Florida, especially considering that their lawsuit involved a property they owned
111	regard to when the act or omission occurred.” Bennett, 278 F.Supp.2d at 121 (explaining that the FTCA provides jurisdiction for claims brought “against the United States”). Accordingly, the Plaintiffs’ claims against Anderson and Mueller set forth in counts I, IV, V, and VI, are dismissed. b. Claims against the FBI I also dismiss counts I, IV, V, and VI, to the extent that they set forth claims against the FBI. The FTCA makes it clear that individual agencies of the United States may not be sued in tort for personal injuries or death caused by “the negligent or wrongful act or omission” of any federal employee acting within the scope of his or her employment. 28 U.S.C. § 1346(b); see Allen v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir.1984) (citing Evans v. United States Veterans Admin. Hospital, 391 F.2d 261, 262 (2d Cir.1968) (per curiam), cert. denied, 393 U.S. 1040, 89 S.Ct. 667, 21 L.Ed.2d 589 (1969)); see also Bennett, 278 F.Supp.2d at 121 (explaining that the FTCA “does not permit tort actions to be brought against federal agencies”; concluding that “no claim cognizable under [28 U.S.C. § 1346(b) ] may be brought against the relevant federal agency in its own name”). As in Bennett, the Plaintiffs’ action is cognizable under the FTCA because the complaint in this case “asserts all the required elements — the claim is one for wrongful death under Massachusetts state law, arising from actions taken by an FBI employee within the scope of his
3094	judgment action to determine the constitutionality of this order and article 658. Later, Gallegos was recommitted to Feliciana pursuant to this order and article. Gallegos argues in his declaratory judgment action that article 658 is an unconstitutional violation of equal protection and due process because it permits recommitment on a finding of propensity for danger alone; Louisiana law allows commitment only upon a dual showing of mental illness and dangerousness. La.C.Crim.P. article 654. State v. Babin, 319 So.2d 367, 381 (La.1975). This court neither makes nor intimates any decision on the merits of this argument. We note only that it is not frivolous and Gallegos is entitled to have the district court decide the merits of the issues he raises. In Jackson v. Foti, 670 F.2d 516, 522 (5th Cir.1982), this court, addressing Louisiana law, stated, “Unless Jackson presently is mentally ill, ... he may not be committed to an institution. The propensity for danger is not enough. Mental institutions exist for the benefit of those who can be helped by care and treatment or who require custodial attention. They are not substitutes for prisons.” Gallegos’ action for declaratory judgment was dismissed solely because he failed to name any individual or legal entity as a defendant, and instead named as a defendant the Louisiana Code of Criminal Procedure article 658. Although this is a clear error, Gallegos’ intent is also clear. Initially, it was to prevent recommitment to a Louisiana state mental facility, and now it is to effect his
4989	administered, is “really pleasure.” The third segment shows Marilyn Chambers being interviewed by a disc jockey who has fantasized the interviewing of a naked woman. Chambers wants her record to be played on radio stations. She removes her blouse and, while being interviewed, performs fellatio on him and leaves him with a statement that she would “finish you off” when her record is a hit across the country. The fourth segment is of a bachelor party crashed at the groom’s invitation by Marilyn Chambers. Two men at the bachelor party, Marilyn Chambers, and later the bride, Marilyn Chambers and the groom perform fellatio, intercourse, and cunnilingus. The determination of whether material is obscene is to be made under the test in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973): “The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” The same test is applicable to federal cases, according to Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). That case said: “The result of the Miller case, therefore, as a matter of constitutional law and federal
2201	the size of any discrepancy between “the damages requested in the complaint and the damages awarded,” though relevant, does not “amount to more than one element in the constellation of factors that the court considers when determining the quality of the results obtained.” Id. at 338. C. Societal Importance of the Right Vindicated The third meaning attached to the term “results obtained” refers more broadly to the impact of the case on others similarly situated. Attorneys’ fees should be awarded in a way consistent with “the recognized principle that even small damage awards may mean a substantial victory for ‘a policy that Congress considered of the highest importance.’ ” Lewis v. Kendrick, 944 F.2d 949, 955 (1st. Cir.1991) (quoting City of Riverside v. Rivera, 477 U.S. 561, 575, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986)). A substantial attorneys’ fee award may be maintained, even in the case of -limited or nominal damages, based on “the importance of providing an incentive to attorneys to represent litigants ... who seek to vindicate constitutional rights but whose claim may not result in substantial monetary compensation” and on “the deterrent impact” of litigation. O’Connor v. Huard, 117 F.3d 12, 18 (1st Cir.1997), cert. denied, 522 U.S. 1047, 118 S.Ct. 691, 139 L.Ed.2d 636 (1998). D.The Bottom Line Based on its application of the three meanings of “results obtained,” see Coutin, 124 F.3d at 338, the Court concludes that the failure of plaintiffs to succeed on all of their claims and to obtain all of
1579	to do so. The district court granted MEBA’s motion for summary judgment, holding, first, that it had jurisdiction to hear the suit, and second, that the question of impasse was arbitrable under the New Agreement’s broad arbitration provision. See Liberty Mar., 70 F.Supp.3d at 350 (“This Court concludes that it properly may exercise subject matter jurisdiction over MEBA’s claims because they arise under section 301 of the LMRA. Moreover, whether the parties’ CBA was still in place at the time of all of the alleged violations is a question that arises under the durational provision of the contract, and is therefore a question for the arbitrator to decide.”). Liberty timely appealed. II. “We review a grant of summary judgment de novo.” Hairston v. Vance-Cooks, 773 F.3d 266, 271 (D.C.Cir.2014). “Summary judgment will be granted when ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Id. (quoting FED. R. CIV. P. 56(a)). On appeal, Liberty contends that MEBA was not entitled to judgment as a matter of law on the issue of arbitrability. Before reaching that issue, however, we must address Liberty’s challenge to the district court’s jurisdiction to compel arbitration in the first place. A. Subject Matter Jurisdiction The National Labor Relations Act of 1935 (NLRA), 29 U.S.C. §§ 151-169, establishes a federal regime for managing labor relations and generally authorizes the National Labor Relations Board (NLRB) to resolve disputes between labor organizations and employers. See
3766	revocation, and hearing process provisions. (Def.’s Mem. at 2; Def.’s Trial Br., Doc. 113 at 8.) Plaintiff brought a Complaint for Permanent Injunction and a Writ of Prohibition challenging the constitutionality of the AEC’s method of selecting and compensating hearing officers. The claims were dismissed with prejudice following the parties’ settlement. The County argues that the dismissal is a negative adjudication on the merits and that it has a preclusive effect on aspects of this suit. Stipulated dismissals with prejudice based on settlement may constitute res judicata of subsequent, repetitive claims. Norfolk S. Corp. v. Chevron, U.S.A., Inc., 371 F.3d 1285, 1288 (11th Cir.2004); see also United States v. Ameritrade Terminals, Inc., 177 Fed.Appx. 855, 857-58 (11th Cir.2006); Horton v. Metro. Life Ins. Co., 459 F.Supp.2d 1246, 1251-52 (M.D.Fla.2006). If the parties entered into a settlement agreement, a modified res judicata effect applies “to the matters specified in the settlement agreement, rather than the original complaint.” Norfolk S. Corp., 371 F.3d at 1288. Neither party has identified or filed a settlement agreement relating to the 2003 voluntary dismissal, and thus the Court presumes none exists. “In the absence of a settlement agreement ... a judgment of dismissal pursuant to Rule 41[, Federal Rules of Civil Procedure,] should be given the same res judicata ef- feet as any other judgment.” Id. (citing Astron Indus. Assocs. v. Chrysler Motors Corp., 405 F.2d 958, 960 (5th Cir.1968)). Thus, traditional res judicata principles will preclude any overlapping claims if the four res judicata elements
1230	Mem. 7-8.) In a fifty-nine page Proposed Complaint, Plaintiffs lay out breach of contract claims against all Defendants relevant to all three Logan CDS contracts, which are substantially similar to the allegations in the Summons with Notice. (Chun Aff. Ex. C ¶¶ 145-162.) Plaintiffs also detail a host of new causes of action against RBCCMC, including (i) fraud based upon affirmative misrepresentations; (ii) fraudulent omissions; (iii) aiding and abetting fraud; (iv) negligent misrepresentations; and (v) promissory estoppel. (Id. ¶¶ 113-144, 163-166.) Courts “generally evaluate a defendant’s right to remove a ease to federal court at the time the removal notice” was filed. Vera v. Saks & Co., 335 F.3d 109, 116 n. 2 (2d Cir.2003) (per curiam); see also In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir.1992) (“Because jurisdiction is determined as of the instant of removal, a post-removal affidavit or stipulation is no more effective than a post-removal amendment of the complaint.”) (per curiam); In re MTBE, 399 F.Supp.2d at 363 (“A court must thus consider the complaint at the time of removal to determine if removal was appropriate in the first place.” (footnote omitted)). Thus, “[i]n considering a motion to remand where the issue of fraudulent joinder has been raised, the court examines the pleadings at the time the case was removed to determine whether a cause of action has been pleaded” against the non-diverse defendant. Rosenberg v. Carnival Cruise Lines, No. 83-CV-6985, 1984 WL 535, at *1 (S.D.N.Y. June 27, 1984) (internal quotation marks
1111	arbitration, identifying the circumstances under which district courts should apply the standard for a motion to dismiss, as provided by Rule 12(b)(6) of the Federal Rules of Civil Procedure, and those under which they should apply the summary judgment standard found in Rule 56.” Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 767 (3d Cir.2013). As the Court of Appeals instructed, “when it is apparent, based on ‘the face of a complaint, and documents relied upon in the complaint,’ that certain of a party’s claims ‘are subject to an enforceable arbitration clause, a motion to compel arbitra tion should' be considered under a Rule 12(b)(6) standard without discovery’s delay.’ ” Id. at 776 (quoting Somerset Consulting, LLC v. United Capital Lenders, LLC, 832 F.Supp.2d 474, 482 (E.D.Pa.2011)). However, if the complaint and its supporting documents are unclear regarding the agreement to arbitrate, or if the plaintiff has responded to a motion to compel arbitration with additional facts sufficient to place the agreement to arbitrate in issue, then “the parties should be entitled to discovery on the question of arbitra-bility before a court entertains further briefing on [the] question.”- — After limited discovery, the court may entertain a renewed motion to compel arbitration, this time judging the motion under a summary judgment standard. Id. (quoting Somerset Consulting, 832 F.Supp.2d at 482). III. Analysis A. Monfared’s claims are within the scope of the arbitration clause. Defendants contend that Mon-fared’s “claims and disputes with Defendants are well within the scope of
4422	could have a material adverse effect on BoA’s financial condition. The extensive disclosures discussed above, see supra Part 11(B), could not have misled a reasonable investor into believing that AIG would not sue BoA. Moreover, BoA made clear that its accruals reflected only probable and estimable litigation losses and that the disclosed amount by which its losses could exceed accruals did not include “those matters for which an estimate is not possible.” (Annual Report at 196; see also SAC ¶ 71.) Because no investor could read these disclosures without understanding that indeterminate potential losses, like the AIG suit, were not disclosed in BoA’s public filings but could later materialize, the defendants had no duty to say more. See In re ProShares Trust Sec. Litig., 728 F.3d 96, 103 (2d Cir.2013) (“Disclosure is not a rite of confession or exercise in common law pleading.”). Taken together and in context, the disclosures that BoA made would not have misled a reasonable investor. See Hunt, 159 F.3d at 731. The plaintiffs maintain that the defendants extensive risk disclosures were misleading because they concealed an actualized risk. It is true that “[i]f a party is aware of an actual danger or cause for concern, the party may not rely on a generic disclaimer in order to avoid liability.” Edison Fund v. Cogent Inv. Strategies Fund, Ltd., 551 F.Supp.2d 210, 226 (S.D.N.Y.2008). However, the risk of the AIG suit was adequately subsumed in the disclosures with respect to the increasing risks of litigation that could
3437	MEMORANDUM Xin He appeals her felony conviction, following a bench trial, of misbranding of a drug held for sale, with intent to defraud or mislead, in violation of 21 U.S.C. §§ 331 (k) and 333(a)(2). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We find sufficient indicia in the record to support a conclusion that the district judge properly interpreted 21 U.S.C. § 333(a)(2). Thus, we review whether there was sufficient evidence to support Appellant’s felony conviction. Our review of the sufficiency of evidence is governed by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir.2010). First, we consider “the evidence presented at trial in the light most favorable to the prosecution.” Id. at 1164. We then “determine whether this evidence, so viewed, is adequate to allow ‘any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.’ ” Id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). Reversal is appropriate only “if the evidence of innocence, or lack of evidence of guilt, is such that all rational fact finders would have to conclude that the evidence of guilt fails to establish every element of the crime beyond a reasonable doubt.” Nevils, 598 F.3d at 1165. In the count she appeals, Appellant was charged with offering “for sale as
4762	from the ease before us. While the stipulation there concerned facts directly relevant to the instant crime, the case before us involves a stipulation to facts establishing only the defendant’s status. This difference is so significant that we no longer deem Collamore’s dictum to be compelling in cases such as this. As we now reconsider the issue fully, we begin our analysis by reiterating its limited scope. A decision to honor a stipulation concerning the predicate crime in a felon-in-possession case in no way trenches upon the right of the prosecution to make a full presentation of the crime currently charged. We fully concede the government’s “right to ‘present to the jury a picture of the events relied upon,’ ” United States v. Doherty, 675 F.Supp. 714, 717 (D.Mass.1987), aff'd in part and rev’d in part, 867 F.2d 47 (1st Cir.1989), including proof of all elements of the crime for which the defendant has been brought to trial. The prosecution ordinarily may not be forced to eliminate gruesome details of a killing, the quantity of drugs, or the degree of malevolence exhibited by the defendant through a defense-proffered stipulation. This well-established right of the government to present its case as it sees fit is in no fashion weakened by requiring a stipulation to establish the defendant’s status as a felon. The status element is a discrete and independent component of the crime, a requirement reflecting a Congressional policy that possession of a firearm is categorically prohibited for those individuals who
3783	inappropriate is the strict standard of review advocated by Plaintiff. Strict scrutiny is the exacting review required for regulations that target speech or expressive conduct, based on its content. See United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). While the ordinances at issue may be content-based if considered without regard to the legislative purpose behind them, the evolution of nude-dancing jurisprudence has made clear that when an ordinance’s aim is to reduce or eliminate the deleterious secondary effects associated with adult entertainment establishments, the ordinance is, legally, content-neutral. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301, 1306 (11th Cir.2003) (titling this category as “content-based regulations treated as content-neutral”) (capitalization omitted); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1364 (11th Cir.1999); see also Clark, 259 F.3d at 1004 (“Restrictions upon nude dancing are considered content-neutral because they are aimed at the so-called secondary effects of nude dancing and not at expressive conduct.”) (citing Pap’s A.M., 529 U.S. at 289-92, 120 S.Ct. 1382). That is, when the claimed intent of the law is not to suppress expressive conduct based on its message but to combat the societal ills which arguably naturally flow from that conduct, then the law is content-neutral and strict scrutiny is not justified. See Pap’s, 529 U.S. at 294, 120 S.Ct. 1382 (“If States
536	the sole basis of their nationality is universally conceded.”). Thus, the issue in this ease is one of congressional intent — -that is, statutory construction — not of congressional power. In determining whether a statute applies extraterritorially, we are guided by a general “presumption that Acts of Congress do not ordinarily apply outside our borders.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 173, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993); see Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (“It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” (internal quotation marks omitted)); see also Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (“When it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute.”). This “canon of construction,” Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (internal quotation marks omitted), is “rooted in a number of considerations,” Smith v. United States, 507 U.S. 197, 204 n. 5, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993). It “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” Aramco, 499 U.S. at 248, 111 S.Ct. 1227. In addition, it recognizes that Congress “generally legislates with domestic concerns in mind.” Smith, 507 U.S. at 204 n. 5, 113 S.Ct. 1178; see also
1375	(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. Fed. R. Civ. P. 26(c). The Ninth Circuit determined this Rule provides the Court with “extensive control” over the discovery process, and “authorizes] courts to make any order which justice requires” to protect the parties. United States v. CBS, Inc., 666 F.2d 364, 369 (9th Cir. 1982) (internal quotation marks omitted). In general, it is rare for a court to disallow the taking of a deposition. See Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (“strong showing is required before a party will be denied entirely the right to take a deposition”); see also Apple Inc. v. Samsung Electronics Co., 282 F.R.D. 259, 263 (N.D. Cal. 2012) (“it is very unusual for a court to prohibit the taking of a deposition altogether absent extraordinary circumstances”). In general, under Rule 26 “the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” Phillips v. GMC, 307 F.3d 1206, 1210-1211 (9th Cir. 2002). However, when an apex deposition is at issue, courts are inconsistent as to whether the party resisting the discovery or the party seeking to depose the high-ranking official bears the burden related to whether the deposition should go forward. See In re Transpacific Passenger Air Transportation Antitrust Litig., 2014 WL 939287, at *2 (N.D. Cal. Mar. 6, 2014). IV. “Apex” Depositions The deposition of a
1007	was unable to place relevant evidence into the record and to argue against this resolution. See Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir.1997) (stating that evidence exclusion under § 10(a) not erroneous unless viola-tive of “fundamental fairness”). We are not persuaded. The panel reasoned that implicit in the PLA, viewed as a whole, was the obligation to pay royalties under the circumstances now presented because, without such an obligation, the object of the PLA would be hindered. Thus, according to the panel, the Goldwassers’ right to royalties from the EchoStar settlement is an “implied promise ... so interwoven into the contract as to be necessary for effectuation of the purposes of the contract.” Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d 400, 407 (2d Cir.2006) (internal quotation marks omitted). The panel effectively gave notice of this reasoning when, after the hearing but before the final award, it requested briefing on “whether the situation underlying the arbitration was contemplated by the parties at the time they negotiated and executed the PLA.” Because TiVo did not request — and therefore the arbitration panel did not refuse — an opportunity to reopen the record to answer this inquiry, and the evidence needed to answer this inquiry is substantially the same as that needed to combat the arbitration panel’s ultimate reliance on the covenant of good faith and fair dealing, the proceeding was not fundamentally unfair. See Tempo Shain Corp. v. Bertek, Inc., 120 F.3d at 21. Moreover, no
1124	see id. ¶¶ 14-15, but she provides no information about her current income or assets, other than the fact that she returned to full-time work in March 2015, see M. ¶ 12. With respect to the projected costs of arbitration, which are exclusive of attorney’s fees, Monfared states that she anticipates that these “would amount to costs in excess nf several thousand dollars,” but she does not explain how she arrived at this estimate. Id. ¶ 18. In short, the information provided by Monfared is not sufficient for the Court to determine that arbitration would be prohibitively expensive for her. Plaintiffs are ordinarily entitled to an opportunity for limited discovery on the issue of the costs of arbitration. See Blair v. Scott Specialty Gases, 283 F.3d 595, 609 (3d Cir.2002) (“Without some discovery, albeit limited to the narrow issue of the estimated costs of arbitration and the claimant’s ability to pay, it is not clear how a claimant could present information on the costs of arbitration as required by Green Tree and how the defendant could meet its burden to rebut the claimant’s allegation that she cannot afford to share the cost.”). Accordingly, the parties shall have thirty days to conduct limited discovery on the sole issue of the costs of arbitration and Monfared’s ability to pay those costs, relative to the costs of litigation before this Court. If Monfared is able to show that she is unable to pay the costs of arbitration, this provision too can be severed
4749	67 L.Ed.2d 662 (1981); see also Touche Ross & Co., 442 U.S. at 576, 99 S.Ct. at 2489 (“Certainly, the mere fact that § 17(a) was designed to provide protection for brokers’ customers does not require the implication of a private damages action in their behalf.”). The language of the statute does not appear to create any remedy for the RTC transferee beyond an action for breach of contract, which is made possible by the obligation created by Section 471. B. Surrounding Statutory Scheme Having considered the language of Section 471 itself, the statutory scheme surrounding the statute is another important factor to consider in determining whether Congress intended a private right of action. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 378, 102 S.Ct. 1825, 1839, 72 L.Ed.2d 182 (1982) (“the initial focus must be on the state of the law at the time the legislation was enacted. More precisely, we must examine Congress’ perception of the law that it was shaping or reshaping.”). The context of the Federal Deposit Insurance Corporation Improvement Act and of the United States Code provision which includes Section 471 does not create any inference or implication that an RTC transferee is given a private right of action under Section 471. However, the surrounding statutory scheme clearly infers that the RTC has the power to bring suit to enforce Section 471. Section 471 is an amendment to the Home Owners’ Loan Act, 12 U.S.C. § 1441a. Section 471 is
3919	summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The Rule promotes the expedient administration of justice and protects the parties’ rights. “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’ ” Celotex Corporation v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1); Cloverdale Equipment Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir.1989). The courts construe Rule 56 “with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact ... but also for the rights of persons opposing such claims and defenses.” Celotex, 477 U.S. at 327, 106 S.Ct. at 2555. A party moving for summary judgment bears a considerable burden. The Court of Appeals for the Sixth Circuit has held that a District Court may grant a motion for summary judgment only if it finds from the whole record before it that there are no material facts which are in dispute. It may not make findings of disputed facts on a motion for summary judgment. The movant has the burden of showing conclusively
4665	"interrogation should have ceased once he invoked his right to counsel. But the district court found as a fact that Ellison’s testimony that he had demanded to speak with counsel “at least five times” was not credible (though the judge did conclude that “there probably was some discussion of counsel” that the officer “brush[ed] aside”). But even if Ellison had clearly expressed a desire to speak with a lawyer, he could not have invoked any constitutional right to do that in a noncustodial interrogation conducted before he was formally charged. See United States v. Wyatt, 179 F.3d 532, 537 (7th Cir.1999) (“The Fifth Amendment right to counsel safeguarded by Miranda cannot be invoked when a suspect is not in custody....”); United States v. Boskic, 545 F.3d 69, 84 (1st Cir.2008) (“The Sixth Amendment takes hold when the investigation gives way to a prosecution.... ”). Suppression could not, therefore, vindicate the Constitution. In any event, the district court’s finding pretermits any issue based on the requests alleged. III The judgment of the district court is affirmed. . In Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), a suspect's answers incriminating him in tax fraud, given to federal investigators while he was imprisoned on a state conviction, were held inadmissible because no Miranda warnings had been given. The Court acknowledged Miranda ’s applicability to questioning "" 'when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way,’"
2184	and trial was approaching or had begun at the time. 2. Imprecision As First Circuit law permits me to do, I eliminated a significant number of hours for which Attorney Hernandez’s records are “not sufficiently precise” as to the tasks accomplished or the claim pursued to allow the Court to assess whether the time spent was reasonable. Deary v. City of Gloucester, 9 F.3d 191, 197-98 (1st Cir.1993) (instructing that, in the absence of “specific information about ... the nature of the work performed,” the requested fees “should be reduced or even denied altogether” (citing Calhoun v. Acme Cleveland Corp., 801 F.2d 558, 560 (1st Cir.1986), and Grendel’s Den, 749 F.2d at 952)); see also Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir.1994) (requiring “ ‘a full and specific accounting of the tasks performed’ ” and upholding a thirty-percent reduction in the fee award for over-general time sheets (quoting Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 527 (1st Cir.1991))); Lipsett, 975 F.2d at 938; Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir.1978) (suggesting that “counsel’s records ... [should] provide a proper basis for determining how much time was spent on particular claims”). The entries in question, totaling 115.4 hours in all, contain only vague descriptions such as “Drafting documents,” “Reviewing documents,” “Case planning,” or “Trial planning/Trial preparations.” These descriptions simply do not fit the bill, see Tennessee Gas, 32 F.3d at 634 (approving the reduction of fees for similar entries),
1208	days after receipt by the defendant ... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable....” Id. In evaluating the propriety of a removal, the Court starts with the baseline principle that federal courts are courts of limited jurisdiction. See Keene Corp. v. United States, 508 U.S. 200, 207, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993). Accordingly, “removal jurisdiction exists in a given case only when that jurisdiction is expressly conferred on the courts by Congress.” Fed. Ins. Co. v. Tyco Int’l Ltd., 422 F.Supp.2d 357, 367 (S.D.N.Y.2006) (internal quotation marks omitted); see also Irving Trust Co. v. Century Exp. & Imp., S.A., 464 F.Supp. 1232, 1234 (S.D.N.Y.1979) (noting that the right of removal is “a matter of legislative grace” (citing Great N. Ry. Co. v. Alexander, 246 U.S. 276, 280, 38 S.Ct. 237, 62 L.Ed. 713 (1918))). Judicial scrutiny is especially important “in the context of removal, where considerations of comity play an important role.” Johnston v. St. Paul Fire & Marine Ins. Co., 134 F.Supp.2d 879, 880 (E.D.Mich.2001). Indeed, “[o]ut of respect for the independence of state courts, and in order to control the federal docket, federal courts construe the removal statute narrowly, resolving any doubts against removability.” Stan Winston Creatures, Inc. v. Toys “R” Us, Inc., 314 F.Supp.2d 177, 179 (S.D.N.Y.2003) (internal quotation marks omitted); see also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
4208	main cause of action’ and ‘uniquely separable from the cause of action to be proved at trial.’” (quoting White v. New Hampshire Dep’t of Employment See., 455 U.S. 445, 451-52, 102 S.Ct. 1162, 1166-67, 71 L.Ed.2d 325 (1982))). We conclude, therefore, that application of the PLRA’s fee limitations to the awards made in the district court’s May and August orders does not have an impermissible retroactive effect because the determination of attorney’s fees awards, which are collateral to the main cause of action, does not attach new legal consequences to completed events. Moreover, the modifications made by § 803 of the PLRA to a plaintiffs entitlement to attorney’s fees are not so fundamentally unfair as to result in manifest injustice. Cf. Farrar v. Hobby, 506 U.S. 103, 115, 113 S.Ct. 566, 575, 121 L.Ed.2d 494 (1992) (instructing that § 1988 was “never intended to produce windfalls to attorneys” (quotation omitted)); see also id. at 122, 113 S.Ct. at 578-79 (stating that § 1988 “is not a relief Act for lawyers” (quotation omitted) (O’Connor, J., concurring)). As a result, the district court erred when it failed to apply the law in effect at the time it entered its May and August orders. C. Finally, we address the new standards imposed by the PLRA for determining a fee award in a prison conditions suit. Section 803(d) of the PLRA requires the district court to conduct a three-step analysis when reviewing attorney’s fees requests. First, the court must be satisfied that the plaintiff
1214	to control the federal docket, federal courts construe the removal statute narrowly, resolving any doubts against removability.” Stan Winston Creatures, Inc. v. Toys “R” Us, Inc., 314 F.Supp.2d 177, 179 (S.D.N.Y.2003) (internal quotation marks omitted); see also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) (noting that federalism concerns call for “the strict construction” of the removal statute); Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269, 274 (2d Cir.1994) (“In light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability.” (internal citation omitted)); Zerafa v. Montefiore Hosp. Hous. Co., 403 F.Supp.2d 320, 324 (S.D.N.Y.2005) (“Removal jurisdiction is strictly construed inasmuch as it implicates significant federalism concerns and abridges the deference courts generally give to a plaintiffs choice of forum.”). As a general matter, the party asserting federal jurisdiction bears the burden of proving that the case is properly in federal court. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). “Where, as here, jurisdiction is asserted by a defendant in a removal petition, it follows that the defendant has the burden of establishing that removal is proper.” United Food & Commercial Workers Union v. Center-Mark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir.1994). B. Summons with Notice as an Initial Pleading Plaintiffs only filed
641	that time. Ruling Case Law (23 R. C. L. 742) says: “According to the weight of authority a stipulation of the parties extending the time to plead to the complaint or declaration does not extend the period in which a petition for removal can be made. And a majority of the courts also hold that the reference in the federal statute to the rule of the state court as to time to answer or plead relates, not to special orders granted upon application or stipulations of parties in any given case, but rather to a general rule fixing the date at which all defendants are required to appear in order to avoid being held in default” — • citing Austin v. Gagan (C. C.) 39 F. 626, 5 L. R. A. 476; Wilson v. Big Joe Block Coal Co., 135 Iowa, 531, 113 N. W. 348, 14 Ann. Cas. 266; Nichols v. Stevens, 123 Mo. 96, 25 S. W. 578, 27 S. W. 613, 45 Am. St. Rep. 514. The Supreme Court of the United States, in the case of Kansas City, etc., Railroad Co. v. Daughtry, 138 U. S. 298, 303, 11 S. Ct. 306, 308 (34 L. Ed. 963) said: “The statute is imperative that the application to remove must be made when the plea is due, and because a plaintiff in error does not take advantage of his right to take judgment by default, it cannot be properly held that he thereby extends the time for removal.”
2466	involves prudential limits on the exercise of federal jurisdiction.” Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031, 1036 (8th Cir.2002) (citing Bennett, 520 U.S. at 162,117 S.Ct. 1154). Constitutional standing “assures that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). “Absent specific facts establishing distinct and palpable injuries fairly traceable to [the defendants’ conduct]” the injury in fact requirement is not satisfied. Ark. ACORN Fair Horn., Inc. v. Greystone Dev., Inc., 160 F.3d 433, 435 (8th Cir.1998). Therefore, absent an actual controversy, the Court lacks jurisdiction. See Caldwell v. Gurley Ref. Co., 755 F.2d 645, 648 (8th Cir.1985). 1. Law of the Case First National Bank of Milaca claims the Court’s inquiry into its standing is foreclosed by Magistrate Judge Noel’s Order allowing it to intervene. The Bank asserts the Magistrate’s ruling established the binding “law of the case.” The Bank is incorrect; its position misconstrues the “law of the case.” The Bank cites a number of cases, including Klein v. Arkoma Prod. Co., 73 F.3d 779, 784 (8th Cir.1996), to support its position. Klein, however, refers not to a magistrate’s ruling vis-a-vis the district court hearing the case, but rather to the precedential effect of an
2118	(2) Scope of declaration. — The declaration referred to in paragraph (1) shall be— (A) in the case of a determination referred to in subparagraph (A) of paragraph (1), whether or not such determination is reasonable, and, if it is not reasonable, a determination of the issue set forth in subparagraph (A)(ii) of paragraph (1), and (B) in the case of a failure described in subparagraph (B) of paragraph (1), the determination of the issues set forth in subparagraph (A) of paragraph (1). The critical language of each such section is “the * * * [court] may make a declaration with respect to such initial qualification.” Additional cases employing the substantial evidence rule in reviewing administrative findings are: Alsbury v. United States Postal Serv., 530 F.2d 852, 854 (9th Cir. 1976); Moore v. Administrator, Veterans Administration, 475 F.2d 1283, 1286 (D.C. Cir. 1973); N.L.R.B. v. George Grok & Sons, 329 F.2d 265, 266 (10th Cir. 1964); Hayes v. Celebrezze, 311 F.2d 648, 651 (5th Cir. 1963); Board of County Commissioners of Prince George's County v. Levitt & Sons, Inc., 235 Md. 151, 200 A.2d 670, 675 (1964); Barnwell, Inc. v. Sun Oil Co., 249 Miss. 398, 162 So. 2d 635, 640 (1964); Hardy v. City of Tarpon Springs, 81 So. 2d 503, 505 (Fla. 1955). SEC. 367. FOREIGN CORPORATIONS. (a) Transfers of Property From the United States.— (1) General rule.— If, in connection with any exchange described in section 332,351, 354, 355, 356, or 361, there is a transfer of
3760	at 399 (holding that plaintiffs had standing to pursue facial challenges to a licensing scheme even though the government had “not yet sought to suspend or revoke plaintiffs licenses” and that those purely legal claims were ripe). The claims are justiciable and, if Plaintiff must comply with an unconstitutional ordinance, Plaintiff will be prejudiced by the withholding of judicial review. V. Bes Judicata The County contends that some of Plaintiffs claims are barred by res judica-ta. Res judicata, or claim preclusion, conserves judicial resources by preventing parties from bringing successive, repetitive claims. If a party seeks to relitigate “matters that were litigated or could have been litigated in an earlier suit,” res judicata requires dismissal of the subsequent claim. Koziara v. City of Casselberry, 239 F.Supp.2d 1245, 1254 (M.D.Fla.2002). In order to show that the instant claims are barred by res judicata, the County must satisfy four elements: “(1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the same parties or their privies; and (4) both cases must involve the same causes of action.” In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir.2001). Determining whether two causes of action are the same for purposes of res judicata requires a court to “compare the substance of the actions, not their form.” Koziara, 239 F.Supp.2d at 1257 (quoting I.A. Durbin, Inc. v. Jefferson Nat’l Bank, 793 F.2d 1541, 1549
191	to address the factor relating to the factor of convenience of the parties. Transfer will not be ordered if the result is merely to shift the inconvenience from one party to another. Buckley v. McGraw-Hill, Inc., 762 F.Supp. 430, 439 (D.N.H.1991); see also, Wright, Miller & Cooper, 15 Federal Practice and Procedure: Jurisdiction § 3848, at 387-388 (2d ed. 1986) (and cases therein cited). Regardless of where this action is tried, should it proceed to trial, either the plaintiff or the defendants will be inconvenienced by having to travel a substantial distance. In deciding § 1404 transfer motions, “substantial weight” is given to plaintiffs choice of forum. S-G Securities v. Fuqua Inv. Co., 466 F.Supp. 1114 (D.Mass. 1978), citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). In Gulf Oil, 330 U.S. 501, 508, 67 S.Ct. 839, 843, the Supreme Court held that “unless the balance is strongly in favor of the defendants, the plaintiffs choice should rarely be disturbed.” Thus, “a plaintiffs choice of forum should not be disturbed unless the reasons for transfer are clear and cogent.” Horwitz v. Southwest Forest Industries, Inc., 612 F.Supp. 179, 182 (D.Nev.1985) citing Williams v. Green Bay & W.R. Co., 326 U.S. 549, 554-555, n. 4, 66 S.Ct. 284, 287, at n. 4, 90 L.Ed. 311 (1946) and Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843. Where the forum chosen by plaintiff is not his place of residence, Horwitz, 612 F.Supp.
2510	his or her patent application; the testimony of an attorney “amounts to no more than legal opinion — it is precisely the process of construction that the court must undertake.” Markman, 52 F.3d at 983, 34 USPQ2d at 1332-33. Once a dispute over claim construction arises, “experts” should also not be heard to inject a new meaning into terms that is inconsistent with what the inventor set forth in his or her patent and communicated, first to the patent examiner and ultimately to the public. Patents should be interpreted on the basis of their intrinsic record, not on the testimony of such after-the-fact “experts” that played no part in the creation and prosecution of the patent. See Southwall Tech., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1578, 34 USPQ2d 1673, 1680 (Fed.Cir.1995) (“[Evidence extrinsic to the patent and prosecution history, such as expert testimony, cannot be relied on to change the meaning of the claims when that meaning is made clear by those documents.”). Use of expert testimony to explain an invention may be useful. But reliance on extrinsic evidence to interpret claims is proper only when the claim language remains genuinely ambiguous after, consideration of the intrinsic evidence, Vitronics, 90 F.3d at 1584, 39 USPQ2d at 1578, i.e., when the intrinsic evidence is “insufficient to enable the court to construe disputed claim terms.” Id. at 1585, 39 USPQ2d at 1579. Accordingly, any expert testimony that is inconsistent with unambiguous intrinsic evidence should be accorded'no weight. Id. at 1584,
4170	proof on a particular issue .may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007) (citation omitted). “The opposing party cannot meet this burden with eonclusory statements or speculation but only with appropriate citations to relevant admissible evidence.” Sink v. Knox County Hosp., 900 F.Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of [the] claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation marks omitted). “[N]either the mere existence of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and quotation marks omitted). III. DISCUSSION The Defendants moved for summary judgment on the Plaintiffs’ Fourth Amendment claims of excessive force and unreasonable seizure, asserting that the Plaintiffs were not “seized” as required by the Fourth Amendment. The Defendants also moved for summary judgment on the Plaintiffs’ state law claims, alleging that Officers Zotz and Ross lacked the necessary intent to be held liable for assault, battery,
3183	performance by their omission of a motion to quash. Petitioner’s standing to assert such a motion was not then recognized by Louisiana law, and it would be more than five years after the trial before the U.S. Supreme Court would squarely recognize that standing in Campbell. Counsel were sensitive to the race issue, shown by their Batson/Powers objections at trial and on appeal. The State court was not unreasonable for failing to find counsel constitutionally deficient because they were not also prescient enough to forecast Campbell. Meanes v. Johnson, 138 F.3d 1007, 1012 (5th Cir.l998)(counsel need not pursue an issue that “would have been futile in light of existing state law and the right was not clearly established under federal law”); Lucas v. Johnson, 132 F.3d 1069, 1078-79 (5th Cir.1998) (“counsel is not required to anticipate subsequent developments in the law”). Granted, the jurisprudence now says Campbell did not announce a new rule, but it was not obvious to all reasonable attorneys at the time of Petitioner’s indictment that white defendants had standing on the foreman issue. When Terry Campbell made the argument to the Supreme Court of Louisiana in 1995 (3 years after Petitioner’s conviction was final), the Court ruled against him 6-1. The lone dissenting justice’s sole objection was that the record was inadequate to decide the issues. It was not until Mr. Campbell took his case to the United States Supreme Court in 1998 that it became express in the jurisprudence that a white citizen has standing
4410	materially false statement or omitted a material fact, with scienter, and that the plaintiffs’ reliance on the defendants’ action caused injury to the plaintiffs. Ganino v. Citizens Utils. Co., 228 F.3d 154, 161 (2d Cir.2000); see also City of Roseville, 814 F.Supp.2d at 409. The plaintiffs allege that the defendants failed to disclose the imminence and amount of the AIG suit and that this omission made BoA’s disclosures about its litigation risk and the specific disclosures about particular risks false and misleading. An alleged omission of fact is material if there is “a substantial likelihood that disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” Basic, Inc. v. Levinson, 485 U.S. 224, 231-32, 108 S.Ct. 978, 99 L.Ed.2d 194 (1988) (citation and internal quotation marks omitted). “Put another way, a fact is to be considered material if there is a substantial likelihood that a reasonable person would con- sider it important in deciding whether to buy or sell shares of stock.” Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 92-93 (2d Cir.2010) (citation and internal quotation marks and brackets omitted). “A[n] omission is actionable under federal securities laws only when the [defendant] is subject to a duty to disclose the omitted facts.” In re Time Warner Inc. Sec. Litig., 9 F.3d 259, 267 (2d Cir.1993). Even though Rule 10b-5 imposes no duty to disclose all material, nonpublic information,
4624	several claims. A magistrate judge recommended that the petition be denied. Over Logsdon’s objections, the district court adopted the report and recommendation in full and denied a COA. Logsdon now seeks a COA from this court. II A petitioner may not appeal the denial of habeas relief under § 2254 without a COA. § 2253(c)(1). We will issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). To meet this standard, Logsdon must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the peti tion should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). To prevail on the merits, Logsdon must show that the OCCA’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law” or “was based on an unreasonable determination of the facts in light of the evidence presented.” § 2254(d)(1), (2). Logsdon argues that the evidence presented at his trial was insufficient to support a conviction for racketeering because the state failed to prove the existence of an enterprise, and that his crimes involved only “garden variety fraud” falling outside the ambit of the racketeering statute. In assessing a claim of insufficient evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any
4831	number of jobs accommodating the claimant’s RFC and vocational characteristics. Knight, 55 F.3d at 313. The ALJ may establish this evidence by applying the Medical- Vocational grid rules or by consulting a vocational resource. SSR 96-9p. The use of the grid rules in determining whether a claimant can perform sedentary work is inappropriate where the claimant’s nonexertional impairments are so severe as to limit the range of work he can perform. Herron v. Shalala, 19 F.3d 329, 336 (7th Cir.1994). If that is the case, the ALJ’s disability determination is made through the “testimony of vocational experts who can indicate what work, if any, the claimant is capable of performing.” Herron, 19 F.3d at 336-337, quoting Nelson v. Secretary of Health and Human Services, 770 F.2d 682, 684 (7th Cir.1985); See also, May v. Apfel, 1999 WL 1011927 * 10 (N.D.Ill.1999) (When a claimant suffers from both exertional and nonexertional impairments the ALJ may not be able to rely solely on the grid rules and may use a vocational expert). The grid rules in 20 C.F.R. Pt. 404, Subpt. P, App. 2, set forth rules that identify whether jobs requiring specific combinations of physical ability, age, education, and work experience exist in significant numbers in the national economy. Heckler v. Campbell, 461 U.S. 458, 461-62, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(b). When a claimant’s RFC and vocational factors coincide with all the criteria of a particular grid rule, the
4984	al., 521 U.S. 591, 612-613, 117 S.Ct. 2231,138 L.Ed.2d 689 (1997), and Ortiz, et al. v. Fibreboard Corp. et al., 527 U.S. 815, 831, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999). In both these cases, the Supreme Court decided whether class certification was proper before considering issues of standing. This was somewhat askance with the previous view that standing was the first inquiry to be made. O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (noting that “if none of the named plaintiffs purporting to represent a class establishes the requisite case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.”); see also, Robinson v. City of Chicago, 868 F.2d 959, 968 (7th Cir.1989) (“[A] class will not be certified unless the named plaintiff has standing at that time.”). Ortiz and Amchem have caused “a great deal of mischief,” as one observer put it. In re Plasma-Derivative Protein Therapies Antitrust Litigation, No. 09-7666, 2012 WL 39766, at *4, 2012 U.S. Dist. LEXIS 2501, at *18 (N.D.Ill. Jan. 9, 2012) (citing Linda S. Mullenix, Standing and Other Dispositive Motions After Amchem and Ortiz: The Problem of “Logically Antecedent” Inquiries, 2004 Mich. St. L. Rev. 703, 707 (Fall 2004)). While some courts and observers suggest Ortiz’s consideration of class status before Article II standing is always appropriate (e.g., Salsitz v. Peltz, 210 F.R.D. 95, 97 (S.D.N.Y.2002)), others read the language of Amchem and Ortiz as mere
2634	stand if the petit jury is drawn from a list similarly composed. In the recent case of Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), decided January 23, 1967, the Supreme Court said that “For over four score years it has been federal statutory law, 18 Stat. 336, 8 U.S.C. § 44 (1875); 18 U.S.C. § 243 (1948), and the law of this Court as applied to the States through the Equal Protection Clause of the Fourteenth Amendment, that a conviction cannot stand if it is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race. Strauder v. [State of] West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880) ; see also Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939).” In Cobb v. Balkcom, 5 Cir., 1964, 339 F.2d 95, this Court held “that a Negro defendant in a criminal case is entitled to indictment by a grand jury and trial before a traverse jury from which Negroes have not been arbitrarily and systematically excluded. A conviction cannot stand where such is established for it constitutes a denial of due process and of the equal protection of the laws.” The burden of proof is on the-person attacking selection procedure to show “the existence of purposeful discrimination” by the exclusion of Negroes on account of race from jury participation. Whitus v. State
711	of law rules. In Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), the Pennsylvania Supreme Court abandoned the traditional lex loci delicti doctrine which dictated application of the law of the place of injury in tort cases. Instead, the court opted for “a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.” Id. 203 A.2d at 805. This method of analysis involves a hybrid approach that “combines the approaches of both Restatement II (contacts establishing significant relationships) and ‘interest analysis’ (qualitative appraisal of the relevant States’ policies with respect to the controversy).” Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir.1991) (quoting Melville v. American Home Assurance Co., 584 F.2d 1306, 1311 (3d Cir.1978)). “Although the Griffith case involved a tort action, subsequent cases have extended the same rationale and approach to contract cases involving a choice of law question.” Gould, Inc. v. Continental Casualty Co., 822 F.Supp. 1172, 1175 (E.D.Pa.1993) (Yohn, J.) (citations omitted); see also United Servs. Auto. Ass’n v. Evangelista, 698 F.Supp. 85, 87 (E.D.Pa.1988) (Giles, J.) (citing Melville, 584 F.2d at 1313, and applying the Griffith analysis “generally to contract actions and specifically to insurance contracts”), aff'd, 872 F.2d 414 (3d Cir.1989). In this case, the two-pronged contacts and interests analysis compels application of Pennsylvania law. With respect to the contacts prong of the Griffith analysis, the actions of Teti and the minor, the underlying civil litigation, and the criminal
1096	or ratified by the defendant; or (c) Arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff’s benefit, by the defendant to deliver or receive within this state or to ship from this state goods, documents of title, or other things of value.” The agreement alleged in the plaintiff’s complaint falls within subsection (c) of the statute, but the court must also determine whether the defendant has had the minimum contacts with the state of Wisconsin required by the due process clause of the 14th Amendment to the United States Constitution. See International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), the Court held that “It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State.” The contract alleged in the plaintiff’s complaint contemplated the sale of cheese in Wisconsin, and it is alleged that delivery was made in Wisconsin. However, it is my belief that the record demonstrates only the barest contacts with Wisconsin on the part of the defendant. The original inquiry was by letter, and none of the negotiations were ever conducted by personnel of the defendant in Wisconsin. The cheese in question would appear to be from the general inventory of the plaintiff, rather than goods especially created by the manufacturer
3054	reasonable under the ADA. Finally, Defendant claims that Plaintiffs FMLA claim is without merit. Summary Judgment Standard Fed.R.Civ.P. 56(b) provides that: “A party against whom a claim ... is asserted ... may, at any time, move with or with out supporting affidavits for a summary judgment in the party’s favor as to all or any part [of the claims asserted against him/her].” The Court may grant the mov-ant’s motion for summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986); NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28 (1st Cir.1994). “The principal judicial inquiry required by Rule 56 is whether a genuine issue of material fact exists.” Charles A. Wright, Aurthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: CM 3d § 2725, p. 401. In this regard, the First Circuit Court of Appeals has noted that for a dispute to be “genuine,” there must be sufficient evidence to permit a reasonable trier of fact to resolve the issue in favor of the non-moving party. U.S. v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992); see also Boston Athletic Assn. v. Sullivan, 867 F.2d 22, 24 (1st Cir.1989); Medinar-Muñoz v.
3392	81 L.Ed. 70, sets forth the essential test to determine the presence of a federal question, where it is said: “* * * To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action. * * * The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. * * * A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto * * * ” . (Citations omitted.) Shulthis v. McDougal, 225 U.S. 561, 569, 32 S.Ct. 704, 706, 56 L.Ed. 1205, was an action brought to determine conflicting claims to a tract of allotted land in the Creek Indian Nation. With reference to federal jurisdiction arising out of federal law, the court said: “A suit to enforce a right which takes its origin in the laws of the United States is not necessarily, or for that reason alone, one arising under those laws, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such a law, upon the determination of which the result depends. This is especially so of a suit involving rights to land ae-quired under a law of the United
2049	"a federal court to consider in determining whether to abstain: (1) which court first assumed jurisdiction over any property involved; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation; and (4) the order in which the two courts obtained jurisdiction. 424 U.S. at 818, 96 S.Ct. at 1246-47. In its Moses H. Cone decision, the Supreme Court added the following two factors: (5) whether state or federal law controls and (6) the adequacy of the state court to protect the parties’ rights. 460 U.S. at 23-27, 103 S.Ct. at 941-43. An additional factor that courts have considered is the issue of whether the federal lawsuit is vexatious or reactive in nature. Elmendorf Grafico, Inc. v. D.S. America (East), Inc., 48 F.3d 46, 50 (1st Cir.1995); Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 947 F.2d 529, 532 (1st Cir.1991) (“Villa Marina II""). No one of these factors is determinative. Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937; Colorado River, 424 U.S. at 818, 96 S.Ct. at 1247. These factors should not be mechanically applied; rather, they require a balancing based on the facts of each case. Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937; Irizarry Pérez v. Mitsubishi Motors Corp., 758. F.Supp. 100, 101 (D.P.R.1991). The balance, however, should be “heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937; Grafica, 48 F.3d at 50. The Court now proceeds"
775	"that district court entered an impermissible default judgment due to the Director’s failure to answer Wads-worth’s claim on the merits. Third, the Director challenges the district court’s grant of relief on the merits. We must first address the question of the district court’s jurisdiction to hear Wadsworth’s petition. We review de novo the district court’s determination of its jurisdiction. Lara v. Trominski, 216 F.3d 487, 491 (5th Cir.2000); see also Royal v. Tombone, 141 F.3d 596, 599 (5th Cir.1998) (reviewing a district court’s determinations of law de novo). Section 2254 confers jurisdiction upon the federal courts to hear collateral attacks on state court judgments. See 28 U.S.C. § 2254. Section 2241 “specifies the court in which the petition must be brought.” Story v. Collins, 920 F.2d 1247, 1250 (5th Cir.1991). For those prisoners confined pursuant to a judgment and sentence by a state court in a state with"" more than one federal judicial district, like Wadsworth, § 2241(d) sets forth the district courts in which the petitioner may file his habeas application: Where an application for a writ of habe-as corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such"
2760	L.Ed.2d 508 (1993) (second alteration in Olano) (quoting Fed. R. Crim. P. 52). Moreover, we do not correct such an error unless it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id, (alteration in original) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). Duong contends that the District Court plainly erred by considering her personal circumstances under a restrictive standard applicable to departures rather than variances. She then argues that the sentence was substantively unreasonable because of that alleged procedural flaw. We disagree. “We expressly distinguish between departures from the guidelines and variances from the guidelines.” United States v. Brown, 578 F.3d 221, 225 (3d Cir. 2009) (citing United States v. Vampire Nation, 451 F.3d 189, 195 n.2 (3d Cir. 2006)). Departures are changes to the guidelines calculation that require a motion by the requesting party and are “based on a specific Guidelines departure provision.” Id. (quoting Vampire Nation, 451 F.3d at 195 n.2). Variances are discretionary changes to the sentencing guidelines range based on a review of the § 3553(a) factors. Id. at 226. In that regard, “[district courts have greater leeway in deciding what to consider in determining whether to vary from the Guidelines.” United States v. Lofink, 564 F.3d 232, 240 (3d Cir. 2009). “[We] review[ ] a variance for reasonableness ... by evaluating the district court’s analysis of the § 3553(a) factors, whereas [we] review[] a departure [by] consulting] the relevant guidelines provision in order
107	IV and V set forth state law negligence claims and seek compensatory damages and damages against the Federal Defendants for McCloskey’s conscious pain and suffering. (Am.Compl.¶¶ 41-51). Count VI asserts a state law claim for punitive damages against the Federal Defendants. (Am.Compl.¶¶ 52-56). Counts VII, VIII, IX, and X assert Massachusetts state law claims against Sampson for McCloskey’s wrongful death and conscious pain and suffering and for punitive damages. II. Discussion For the purposes of a Rule 12(b)(6) motion to dismiss, the court must “accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the plaintiffs favor and determine whether the complaint, so read, sets forth facts sufficient to justify recovery on any cognizable theory.” Giuliano v. Fulton, 399 F.3d 381, 386 (1st Cir.2005) (quoting Martin v. Applied Cellular Tech., 284 F.3d 1, 6 (1st Cir.2002)). A. The tort claims against the Federal Defendants (counts I, FV, V, and VI) Citing Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), the Federal Defendants explain that the Plaintiffs’ claims against federal agencies or federal employees, acting in their official capacities, are in reality claims against the United States. This assertion of the Federal Defendants is not entirely correct, as applied to the amended complaint in this case. The Graham case stands for the proposition that official-capacity suits must be treated as suits against the federal entity. 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114. Therefore, a suit against Mueller
155	42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). As in West, the adequacy and the sufficiency of the Plaintiffs’ showing on the first element are not contested; the only issue before the court is whether the Plaintiffs have established “the second essential element — that [the Federal Defendants] acted under col- or of state law.” 487 U.S. at 48-49, 108 S.Ct. 2250. It is well-established that a Section 1983 action cannot lie against federal officers acting under color of federal law. Carter, 409 U.S. at 424, 93 S.Ct. 602 (explaining that the actions “of the Federal Government and its officers are at least facially exempt from [the] proscriptions” of Section 1983); Behre v. Thomas, 665 F.Supp. 89, 92 (D.N.H.1987); see Wheeldin v. Wheeler, 373 U.S. 647, 650 n. 2, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963) (concluding that an investigator of the United States House of Representatives Un-American Activities Committee was not acting “under color” of state law for purposes of Section 1983); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339, 1346 (2d Cir.1972) (on remand) (noting that the Civil Rights Act does not apply to federal officers). However, one may bring a Section 1983 action against federal employees who conspire or act in concert with state officials to deprive a person of his civil rights under color of state law. See Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984) (explaining that “an otherwise private person acts
4325	the terms expressed in the contract,’ ” Berryman Transfer and Storage Co., Inc. v. New Prime, Inc., 345 Ill.App.3d 859, 863, 280 Ill.Dec. 764, 802 N.E.2d 1285, 1288 (2004) (quoting Jewelers Mut. Ins. Co. v. Firstar Bank Ill., 341 Ill.App.3d 14, 26, 274 Ill.Dec. 906, 792 N.E.2d 1, 11 (2003)). Although the arbitration clause states that Weiner and Tootsie Roll will submit to arbitration “any and all disputes” subject to two stated exceptions, Weiner’s interpretation would create a third exception for all disputes involving the covenant not to compete. Weiner’s argument is inconsistent with and would invalidate the carefully drafted language of the agreement. Courts are bound to “rigorously enforce agreements to arbitrate” consistent with their stated terms. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 1242, 84 L.Ed.2d 158 (1985). The agreement obliges Weiner to submit his action to arbitration. Weiner also argues that the covenant not to compete is unenforceable because Georgia law provides that arbitration is not required in “[a]ny contract relating to terms and conditions of employment unless the clause agreeing to arbitrate is initialed by all signatories at the time of the execution of the agreement,” Ga.Code Ann. § 9-9 — 2(c)(9), but this argument too fails. We need not address whether Georgia law applies to the action because section 9-9-2 does not govern the agreement between Weiner and Tootsie Roll. See Joja Partners, LLC v. Abrams Props., Inc., 262 Ga.App. 209, 212, 585 S.E.2d 168, 171-72 (2003) (discussing the
4496	has the burden of establishing the Court’s jurisdiction over the defendants, and when faced with a properly supported Rule 12(b)(2) motion, the plaintiff must set forth facts establishing personal jurisdiction. Id. at 1458. Where, as in this case, the court does not hold an evidentiary hearing on the matter, “the court must consider the pleadings and affidavits in a light most favorable to the plaintiff.... To defeat such a motion, [the plaintiff] need only make a prima facie showing of jurisdiction.” Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir.1998) (quoting CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996)). A prima facie showing requires the plaintiff to “ ‘demonstrate facts which support a finding of jurisdiction....’” Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir.1980) (quoting Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir.1977), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981)). Furthermore, a court does not weigh the controverting assertions of the party seeking dismissal. Dean, 134 F.3d at 1272 (quoting CompuServe, Inc., 89 F.3d at 1262). Therefore, in order to decide this motion, the Court must ascertain only whether plaintiffs have established a prima facie case of personal jurisdiction. The Court will review the pleadings, including the deposition testimony offered by plaintiffs, in a light most favorable to plaintiffs, to determine whether plaintiffs have adduced sufficient facts on which the Court can conclude it is appropriate to exercise personal jurisdiction over the DNN
3490	government officials enforcing federal laws. See Mesa v. California, 489 U.S. 121, 126, 109 S.Ct. 959, 963, 103 L.Ed.2d 99 (1989). The motivation for the enactment of § 1442(a)(1) was concern that “state governments hostile to duly enacted federal laws would be able to frustrate the implementation of [federal] laws by bringing (or allowing to be brought) civil or criminal actions in state court against the federal officials responsible for their implementation.” Brown & Williamson Tobacco Corp. v. Wigand, 913 F.Supp. 530, 533 (W.D.Ky.1996). By conferring federal subject matter jurisdiction over properly removed actions, Section 1442(a)(1) allows “those whose federal activity may be inhibited by state court actions to remove to the presumably less biased forum of federal court.” Ryan v. Dow Chem. Co., 781 F.Supp. 934, 939 (E.D.N.Y.1992). To successfully remove a case under 28 U.S.C. § 1442(a)(1), Armeo must (1) raise a colorable federal defense to the claims asserted against it; (2) show that it acted under the direction of a federal officer; and (3) demonstrate a causal nexus between the Estate’s claims and the acts it performed under color of federal authority. Mesa, 489 U.S. at 124-25,131-35,109 S.Ct. at 962, 966-67; see also Winters v. Diamond Shamrock Chem. Co., 901 F.Supp. 1195, 1197 (E.D.Tex.1995); Fung v. Abex Corp., 816 F.Supp. 569, 571-72 (N.D.Cal.1992). The removing party is not required to obtain the consent of any other defendant before removing a case under § 1442. Ely Valley Mines, Inc. v. Hartford Accident & Indem. Co., 644 F.2d 1310,
1584	is, a claim that alleges that conduct violates a collective bargaining agreement and also constitutes an unfair labor practice or otherwise violates the NLRA. Instead of forcing courts to shoehorn a hybrid claim into one category or the other, the Supreme Court has held that they retain jurisdiction to hear a contractual claim even if the claim is also representational. William E. Arnold Co. v. Carpenters Dist. Council, 417 U.S. 12, 16, 94 S.Ct. 2069, 40 L.Ed.2d 620 (1974) (“When [conduct allegedly subject to the NLRA] also constitutes a breach of a collective-bargaining agreement, the [NLRB’s] authority ‘is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301 [of the LMRA].’ ” (quoting Smith v. Evening News Ass’n, 371 U.S. 195, 197, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962))). In that event, the “labor case [falls] within the concurrent jurisdiction of the NLRB and the federal courts.” Mack Trucks, Inc. v. Int’l Union, UAW, 856 F.2d 579, 585 (3d Cir.1988); accord Mullins v. Kaiser Steel Corp., 642 F.2d 1302, 1316 (D.C.Cir.1980) (“[F]ederal courts have independent jurisdiction to decide cases alleging the breach of collective bargaining agreements, even though that very breach may also be an unfair labor practice.”), rev’d on other grounds, 455 U.S. 72, 102 S.Ct. 851, 70 L.Ed.2d 833 (1982). In many circuits, a party’s mere assertion that a claim is contractual is not an automatic ticket to federal court; rather, the court must “examin[e] the major issues to be decided” and
4227	980, 92 S.Ct. 446, 30 L.Ed.2d 364 (1971). With respect to the requirement that the mother of an illegitimate child name the putative father, we have concluded that the plaintiffs Doe and Roe do not have standing to attack the validity of that facet of the South Carolina Regulation and this Court expresses no opinion on the merits of that particular attack. See Socialist Labor Party v. Gilligan, 406 U.S. 583, 92 S.Ct. 1716, 32 L.Ed.2d 317 (1972). In the present case, both plaintiffs voluntarily disclosed the names of the putative fathers. It is established law that a federal court does not concern itself with abstract questions posed by parties who lack a personal interest in the outcome of the controversy. Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Litigants have “standing to seek redress for injuries done to them, but may not seek redress for injuries done to others.” Moose Lodge #107 v. Irvis, 407 U.S. 163, at 92 S.Ct. 1965, at 32 L.Ed.2d 627 (1972). Plaintiff Roe was disqualified for benefits under AFDC because of her failure to prosecute the putative father of her illegitimate child. Plaintiff Doe’s AFDC was discontinued after a hearing on the ground that the father of her illegitimate children had not deserted these children, but was, in fact, still available to furnish support. Plaintiff Doe was informed that a decision on her part to prosecute the father for the purpose of obtaining support from him could result in
4990	and the groom perform fellatio, intercourse, and cunnilingus. The determination of whether material is obscene is to be made under the test in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973): “The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” The same test is applicable to federal cases, according to Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). That case said: “The result of the Miller case, therefore, as a matter of constitutional law and federal statutory construction, is to permit a juror sitting in obscenity cases to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion ‘the average person, applying contemporary community standards’ would reach in a given case. Since this case was tried in the Southern District of California, and presumably jurors from throughout that judicial district were available to serve on the panel which tried petitioners, it would be the standards of that ‘community’ upon which the jurors would draw. But this is not to say that a district court would not be at
4773	recognize and articulate any special circumstances justifying admission of evidence of the nature of the predicate offense. In this case, the government has added the claim that admitting evidence of the nature of the predicate crime, if error, was harmless. We cannot agree. The government’s case rested heavily on the testimony of two witnesses, Blake and Hunt, who identified Tavares as the gun-wielding assailant. Tavares’s defense strategy relied on challenging the credibility of these witnesses and suggesting that the actual perpetrators were connected to Blake’s drug dealing. The fact that defendant’s prior conviction involved the unlawful acquisition of a firearm could not help but influence the jurors’ attitude toward his claim that, this time, someone else had the gun. See United States v. Torres, 610 F.Supp. 1089, 1093 (E.D.N.Y.1985) (in felon-in-possession case, evidence of prior convictions for manslaughter with a gun and illegal possession of a gun “would surely prejudice almost any jury, no matter how conscientious”). Adding to our conviction that the error was harmful is the fact that two close eviden-tiary points were resolved against the defendant, resulting in admission of other prejudicial facts about his criminal disposition. Over defendant’s objection, the court allowed testimony from a witness who claimed to have seen defendant steal the car radio and testimony about defendant’s destructive behavior at the police station after his arrest. Whether or not this evidence was properly allowed, there is little doubt that the inadmissible testimony concerning Tavares’s pri- or felony added fuel to an already brewing
4878	opportunity to prove their allegations of misconduct, and defendants received a hearing on the merits. We likewise find no abuse in the trial court’s denial of plaintiffs’ request for a pre-trial evidentiary hearing. See Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 527 (1st Cir.1991) (trial court’s decision not to convene evidentiary hearing normally reviewable for abuse). It is well settled that “ ‘motions do not usually culminate in evidentiary hearings.’ ” United States v. Cannons Engineering Corp., 899 F.2d 79, 94 (1st Cir.1990) (quoting Aoude II, 892 F.2d at 1120). Where the parties have had a “fair opportunity to present relevant facts and argument to the court,” a matter may be “ ‘heard’ on the papers” alone. Aoude v. Mobil Oil Corp., 862 F.2d 890, 894 (1st Cir.1988) (Aoude I). Such was the case here. Plaintiffs submitted extensive pleadings and documentary evidence in support of their fraud on the court claim. In addition to Oses’s letters to Ivan Rodriguez and Agent Leonard, the court had before it copies of his 1977 trial testimony and his 1985 sworn recantation. It had, as well, the government’s written representations that no promise or inducement had been offered Oses and its offer to submit affidavits to this effect on behalf of the Assistant U.S. Attorney and FBI agent who met with Oses in 1985. In denying plaintiffs’ request for a hearing, the court stated for the record that it had given these submissions considerable thought. [6] Finally, plaintiffs contend that, in declining
3550	individual defendants including Chatterton and Birdsall did generally raise this issue in their amended memorandum in support of their motion for summary judgment. They argued that their motion fairly read was addressed to all claims against them, including the FHA claim. Appellate courts will generally not entertain arguments that were not raised in the district court. However, we may exercise our discretion to consider an issue first raised on appeal if it “is a pure question of law and the record is sufficient to review the issue.” United States v. Alisal Water Corp., 431 F.3d 643, 654 n. 4 (9th Cir.2005). Qualified immunity is such an issue. Bibeau v. Pac. Nw. Research Found., Inc., 188 F.3d 1105, 1111 n. 5 (9th Cir.1999), as amended, 208 F.3d 831 (9th Cir.2000) (“Because qualified immunity presents a pure question of law which we review de novo, any decision by the district court would be entitled to no deference.”). We have on occasion considered qualified immunity sua sponte. Graves v. City of Coeur D’Alene, 339 F.3d 828, 846 n. 23 (9th Cir.2003), abrogated on other grounds by Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). CHI will not be prejudiced by our consideration of qualified immunity on the FHA claims because, as we have noted, we assume all disputed facts in CHI’s favor, and the dispositive issue — which was fully addressed during oral argument — is one of law only. We turn now
4400	dismiss the Second Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). This court has subject matter jurisdiction pursuant to 15 U.S.C. § 78aa, and 28 U.S.C. § 1331. For the reasons explained below, the motion to dismiss is granted. I. In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiffs’ favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). A complaint should not be dismissed if the plaintiffs have stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff[s] plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While factual allegations should be construed in the light most favorable to the plaintiffs, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal
3398	* *» must be determined from what necessarily appears in the plaintiff’s statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Taylor v. Anderson, 234 U.S. 74, 75, 34 S.Ct. 724, 58 L. Ed. 1218. Affirmed. . 28 U.S.C.A. § 1331 reads: “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States.” The action was filed prior to the amendment of this section, . Martinez v. Southern Ute Tribe of Southern Ute Reservation, 10 Cir., 249 F.2d 915, certiorari denied 356 U.S. 960, 78 S.Ct. 998, 2 U.Ed.2d 1067. . Section 162 was repealed in 1938 and Section 162a, which dealt with the same subject matter, was passed. Act of June 24, 1938, Oh. 648, § 1, 52 Stat. 1037. . The sole purpose of this action is, in effect, to require the tribe to qualify the plaintiff for benefits referred to in § 676. The plaintiff claims that right by virtue of her presence on the roll established pursuant to § 163. A declaration by this Court that such contention was correct would not require the tribe to do or to refrain from doing anything. It would, as between the parties to this suit, aecom-plish nothing,
3610	a ‘reasonable likelihood of success’ in having its position in the arbitration proceedings accepted by the arbitrator.” Id. at 1077. The district court granted the injunction against Greyhound. On appeal, we affirmed the injunction, holding that “a plaintiff ... seeking to maintain the status quo pending arbitration pursuant to the principles of Boys Markets need only establish that the position he will espouse in arbitration is sufficiently sound to prevent the arbitration from being a futile endeavor.” Id. at 1077-78. In rejecting Greyhound’s contention that the bond should have been conditioned to call for payment on the arbitrator’s decision in favor of Greyhound on the merits, we held: We agree with the court in United States Steel Corporation v. United Mine Workers of America, [456 F.2d 483, 488 (3d Cir.1972) ] when it held that the bond in a Boys Markets proceeding was payable “only if the preliminary injunction is found to have been improvidently or erroneously issued, that is, where the court did not hold a proper hearing or failed to make the factual determinations mandated by Part V of the Boys Markets opinion or where the court erroneously issued a preliminary injunction over a labor dispute not covered by the contract grievance-arbitration provision.” Id. at 1079. On certiorari, the Supreme Court vacated and remanded for reconsideration in light of Buffalo Forge Co. v. United Steelworkers of America, AFL-CIO, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976). On remand, in Greyhound II, we reversed our decision in
2204	a trial process. “A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole.” Hensley, 461 TJ.S. at 440, 103 S.Ct. 1933. In sum, I find that reduction of the lodestar by fifteen percent is appropriate here in light of plaintiffs’ loss on two heartland issues, the lack of success with respect to six defendants, and plaintiffs’ failure to recover- the relief requested from the key defendants. Any greater reduc tion would undermine the modest success achieved. III. Costs “The attorneys’ reasonable and necessary costs and expenses may be awarded to a prevailing party pursuant to 42 U.S.C. § 1988.” Culebras Enters. Corp., 846 F.2d at 103 (citing Palmigiano v. Garrahy, 707 F.2d 636, 637 (1st Cir.1983)). “However, the reasonable costs that can be awarded ... are only those related to plaintiffs’ successful claims.” Id. Plaintiffs request $50,452.31 in costs (including $80 for expenses associated with this fee petition). For the most part, the costs submitted by Attorney Hernandez are within reasonable limits and bear a rational relation to the extent of this litigation. See Gtickenberger, 8 F.Supp.2d at 111. The Court agrees with the City, however, that the following specific costs should be deducted or reduced: (1) The Court eliminates a total of $72.60 in service of process costs for Lisa McLean and the District Attorney’s office, as these costs were associated with plaintiffs’ unsuccessful, severable malicious prosecution claim. The Court also deducts a total of
1264	at trial. Plaintiff apparently is arguing that since the issue of front pay is one to be decided after trial, Rule 26(a)(3)(A) does not apply. This argument does not explain, however, why Defendant would not be prejudiced by the introduction and testimony of a witness on an issue of recovery, when that witness was not disclosed according to the rules of civil procedure. Some prejudice to Defendant could result, if only because Defendant’s counsel would be unable to effectively cross-examine a witness about whom they know nothing. III. Guidelines FOR the June 25, 1998, HEARING As a prospective remedy, front pay “can only be calculated through intelligent guesswork,” even under the best of circumstances. Deloach, 897 F.2d at 822 (citing Sellers v. Delgado College, 781 F.2d 503, 505 (5th Cir.1986)). As a result, district courts are allowed wide latitude in the determination of front pay. Id. In preparing argument, counsel should keep in mind the following guidelines, as well as any other authority that either side may submit at the hearing. The Fifth Circuit has determined that the court should first determine the length of time for which the defendant should be reasonably liable. Second, the plaintiffs present salary should be deducted from his previous salary, and the difference multiplied by the relevant length of time. Third, that sum should then be discounted to present value. Id. (citing Blum v. Witco Chem. Co., 829 F.2d 367, 374 (3d Cir.1987)). Further, front pay may be denied or reduced when the employee
3951	Employment Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq.; the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), 29 U.S.C. § 1161, et seq.; the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq.; and the Illinois Health Insurance Claim Filing Act, 820 ILCS 45. Additionally, the complaint contains a claim for negligent infliction of emotional distress. This matter is now before the Court on cross-motions for summary judgment. II. SUMMARY JUDGMENT-STANDARD OF REVIEW Under Fed. R. Civ. P. 56(c), summary judgment shall be granted if the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Black v. Henry Pratt Co., 778 F.2d 1278, 1281 (7th Cir.1985). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Unquestionably, in determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142
295	her case with respect to which she has the burden of proof,’ the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote omitted). “In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir.1992) (internal citations and quotations omitted). “Summary judgment is justified only for those cases devoid of any need for factual determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir.1987) (citation omitted). “The applicable Rule 56 standard is not affected by the filing of cross-motions for summary judgment.” Godard v. Alabama Pilot, Inc., 485 F.Supp.2d 1284, 1291 (S.D.Ala.2007); see also May v. A Parcel of Land, 458 F.Supp.2d 1324, 1333 (S.D.Ala.2006) (same). Indeed, the Eleventh Circuit has explained that “[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984) (citation omitted); see also Wermager v. Cormorant Tp. Bd., 716 F.2d 1211, 1214 (8th Cir.1983) (“the filing of cross motions for summary judgment does not
1976	F.2d 1020, 1026 (2d Cir.1980) (citing United States v. Brien, 617 F.2d 299, 309 (1st Cir.), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980)). The Fourth Amendment requires that warrants “particularly describ[e] ... the person or things to be seized.” The particularity requirement renders “general searches ... impossible and prevents the seizure of one thing under a warrant describing another.” Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). In reviewing a warrant against a claimed lack of particularity, “the language of a warrant is to be construed in light of an illustrative list of seizable items.” United States v. Riley, 906 F.2d 841, 844 (2d Cir.1990); see also United States v. Young, 745 F.2d 733, 759-60 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). While the purpose of the particularity requirement is to avoid leaving to “the unguided discretion of the officers executing the warrant the decision as to what items may be seized,” (United States v. Riley, supra, citing Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976) and Marron v. United States, supra), the particularity requirement is not so exacting as to eliminate all discretion of the executing officers. United States v. Riley, supra. “Once a category of seizable papers has been adequately described, with the description delineated in part by an illustrative list of seizable items, the Fourth Amendment is not violated because
4875	the case should go to trial and that plaintiffs’ allegations of misconduct ought to be aired before the jury during the examination and cross-examination of Oses. The court also advised plaintiffs to lodge a complaint of governmental abuse with the Department of Justice. Plaintiffs claim that the court committed reversible error in so ruling. We disagree. “[T]here are constitutional limits upon the power of the courts, even in aid of their own valid processes to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause.” Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 209, 78 S.Ct. 1087, 1094, 2 L.Ed.2d 1255 (1958); see also United States v. Pole No. 3172, Hopkinton, 852 F.2d 636, 642 (1st Cir.1988). Thus, we have held that, when deciding a motion for dismissal on the ground of fraud on the court, the trial court must “carefully balance the policy favoring adjudication on the merits with ... the need to maintain institutional integrity and the desirability of deterring future misconduct.” Aoude II, 892 F.2d at 1118. Dismissal, we have cautioned, is “an extreme remedy, and should not lightly be engaged.” Id. Manifestly, the same would be true of a pre-trial motion for judgment such as that sought by plaintiffs here. In denying plaintiffs’ motion, the district court did not abuse its discretion. To the contrary, it forged what strikes us as an acceptable accommodation of competing principles: Plaintiffs were given an opportunity to
3966	has not been addressed by many courts yet: For an employer to refrain from giving COBRA notice by relying on § 1163(2), must the employee actually engage in “gross misconduct” or is it enough that the employer has a good-faith belief that the employee engaged in “gross misconduct?” The Court concludes that the latter approach should govern its analysis — i.e., whether Navistar, at the time of termination, had a good faith belief that Kariotis engaged in “gross misconduct.” As noted recently in dicta by the Seventh Circuit, such an approach has “a certain resonance with both traditional and modern concepts of employment law, particularly discriminatory discharge law.” Mlsna v. Unitel Communications, Inc., 91 F.3d 876, 883 (7th Cir.1996); see, Conery v. Bath Assoc., 803 F.Supp. 1388, 1396 (N.D.Ind.1992) (“Bath responds that the appropriate inquiry should be whether the employer acted on a good faith belief that the employee engaged in gross misconduct. The court leans toward the test proposed by Bath....”). Thus, consistent with discriminatory discharge law, the Court’s analysis is whether Navistar had a good faith belief at the time of termination that Kariotis committed disability fraud — if so, Kariotis was not entitled to notice under the COBRA. As discussed while analyzing Kariotis’ discriminatory discharge claims, Navistar, based on the videotape, believed that Kariotis was committing disability fraud. Consistent with the analysis there, the Court does not believe that Kariot-is has come forward with enough evidence to cast doubt on the truthfulness of Navistar’s belief. Accordingly, the
2213	or reducing an early retirement benefit or retirement-type subsidy (as defined in regulations)” is to be “treated as reducing accrued benefits.” In addition, in the case of a retirement-type subsidy, the provision applies “only with respect to a participant who satisfies (either before or after the amendment) the preamendment conditions for the subsidy.” We have determined that what the “either before or after the amendment” language means is that a participant can “grow into” early retirement benefits and presumably retirement-type subsidies as well. We agreed with other circuits that “as long as an employee satisfies, or will be able to satisfy, the eligibility requirements of the early retirement benefit in effect prior to the amendment, § 204(g) protects the benefit.” Ahng v. Allsteel, Inc., 96 F.3d 1033, 1036 (7th Cir.1996), citing cases from the Third, Fifth, and Eighth Circuits. By living until he is 65, Arndt would grow into the benefits. But that does not answer the underlying question. It may seem that § 204(g)(2) raises more questions than it answers, the basic one being what exactly is a “retirement-type subsidy.” The statute refers to a subsidy “as defined in the regulations.” Unfortunately, there is no regulation yet promulgated which defines the term. We are on our own. One way to approach the question is through Arndt’s analogy to the contrast between “early retirement” and “normal retirement” at the age of 65. If, in an effort to encourage employees to retire early, plans provide that employees who retire at 55
3715	interest based on its marketing rights to the products and because it has agreed to “share the expense and royalties, if any, on any patent litigation.” Opposition at 3. GTS first argues that there is no factual basis for this assertion in the FAC, since this statement appears in a contract attached as an exhibit to the FAC. Reply at 1. “A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.” Fed. R.Civ.P. 10(c). Courts in the Ninth Circuit “may treat such a document as part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003). The contract at issue here is discussed extensively in the FAC, and provides the basis for Plaintiffs first, second, third, and eighth causes of action. FAC ¶¶ 42-45, 78-88, 92-409, & 158-161. Because the FAC necessarily relies upon the contract, and because Defendant does not contest its authenticity, this Court considers it to be incorporated by reference. Tribank Capital Investments, Inc. v. Orient Paper, Inc., 523 Fed.Appx. 484, 485 (9th Cir.2013). Defendant next argues that BECO’s agreement to share the “expenses and royalties” associated with patent litigation does not amount to a concrete interest in the patents in Suit because changing the identities of the inventors on the patents would not generate any direct financial rewards for Plaintiff. MTD at
4335	case, ascertain what factors are most relevant in the circumstances and exercise its discretion in deciding whether approval of the proposed settlement is fair. By far the most important factor is a comparison of the terms of the compromise or settlement with the likely recovery that plaintiffs would realize if the case went to trial. See Thomas v. Albright, 139 F.3d at 231 (“The court’s primary task is to evaluate the terms of the settlement in relation to the strength of plaintiffs’ case”); Isby v. Bayh, 75 F.3d 1191, 1199 (7th Cir.1996) (“the relative strength of plaintiffs’ case on the merits as compared to what the defendants offer by way of settlement, is the most important consideration”); Maywalt v. Parker and Parsley Petroleum Co., 67 F.3d 1072, 1079 (2nd Cir.1995) (“[t]he primary concern is with the substantive terms of the settlement: Basic to this is the need to compare the terms of the compromise with the likely rewards of litigation”) (internal citations and quotations omitted). Having carefully considered all of the objections that have been filed with the Court or expressed at the fairness hearing in relation to the strength of plaintiffs’ case, the Court concludes that the settlement is fair, adequate and reasonable and is not the product of collusion between the parties. A. The Process of Settlement Preliminarily, the Court considers those objections that address the fairness of the way in which the settlement negotiations were conducted, the amount of discovery completed at the time of settlement, the
3730	it is not in a class of conduct that the Federal Circuit or Supreme Court has found to be misuse per se. Therefore, Plaintiff must also allege facts that tend show that on “overall effect” of Defendant’s actions “restrained competition unlawfully in an appropriately defined relevant market.” ' Windsurfing Int’l, 782 F.2d at 1001. Parties did not provide, nor could the Court find, any cases discussing the pleading standards for unlawful restraint of competition in the context of a patent misuse claim or defense. In Sherman Act cases, proving injury to competition “ordinarily requires the claimant to prove the relevant geographic and product markets and to demonstrate the effects of the restraint within those markets.” Thurman Indus., Inc. v. Pay ‘N Pak Stores, Inc., 875 F.2d 1369, 1373 (9th Cir.1989) (internal citations omitted). Because whether a market is relevant is considered a factual issue, antirust claims will survive a motion to dismiss “unless it is apparent from the face of the complaint that the alleged market suffers a fatal legal defect” or is “facially unsustainable.” Newcal Industries, Inc. v. Ikon Office Solution, 513 F.3d 1038, 1044 (9th Cir.2008) (“There is no requirement that [the market definition and market power] elements of the antitrust claim be pled with specificity.”). A plaintiff must allege “injury to competition in the market as a whole, not merely injury to itself, as a competitor.” Gorlick Distribution Centers, LLC v. Car Sound Exhaust Sys., Inc., 723 F.3d 1019, 1024-25 (9th Cir.2013); see also Orchard Supply Hardware
4362	to be litigated again.” 620 F.2d at 412 n. 8. None of these cases, as noted above, involved jurisdictional issues previously litigated in a motion to remand. In a more recent case, our Court of Appeals followed these earlier precedents in determining that a state jury’s damages verdict in a bifurcated trial had the requisite finality for issue preclusion where the case was settléd before a liability determination. While not before it for decision, the court specifically noted in a footnote that “some courts have applied section 28(1) [of the Restatement (Second) of Judgments] to ‘[a] District Court’s jurisdictional findings incident to remand’ because remand orders are wholly unappealable as a matter of law under 28 U.S.C. § 1447(d).” See Greenleaf v. Garlock, Inc., 174 F.3d 352, 361 n. 6 (3d Cir.1999) (citing Nutter v. Monongahela Power Co., 4 F.3d 319, 322 (4th Cir.1993); Southern Leasing Corp. v. Tufts, 167 Ariz. 133, 804 P.2d 1321, 1323 (Ariz.Ct.App.1991)). Other circuits have reached the same conclusion. See, e.g., Health Cost Controls, Inc. v. Washington, 187 F.3d 703, 708-09 (7th Cir.1999); Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 395 (5th Cir.1998). We agree with those decisions and § 28(1) of the Restatement (Second) of Judgments that a remand order does not have the requisite finality for issue preclusion to apply. Finally, there is an additional reason why issue preclusion is inappropriate in the type of situation now before the court. The location of a corporation’s principal place of business, that is,
3042	599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009). CERCLA allows private parties. to recover the costs of. cleaning up hazardous wastes from several categories of PRPs.,42 U.S.C. § 9607(a)(l)-(4). TDY seeks .to recover the cleanup costs it .incurred, and will incur, at the Site from the Government. The Government filed a counterclaim requesting the court determine the allocation of liabilities between them pursuant to CERCLA § 113(f)(1). “In resolving. contribution claims, the court may allocate. response costs among liable parties using such'equitable factors as the court determines appropriate.” 42 U.S.C. § 9613(f)(1). “This language gives district courts discretion to decide what factors ought to be considered, as well as the duty to allocate costs according to those factors.” Boeing Co. v. Cascade Corp., 207 F.3d 1177, 1187 (9th Cir.2000). There is no predetermined list of factors to be applied in determining the equitable allocation of response costs. The “Gore Factors” are frequently referenced as factors to be considered in the equitable allocation of costs. These factors include: 1. The ability of the parties to demonstrate that their contribution to a discharge, release or disposal of a hazardous waste can' be distinguished; 2. The amount of the hazardous waste involved; 3. The degree of toxicity of the hazardous waste involved; 4. The degree of involvement by the parties in the generation,, transportation, treatment, storage, or disposal of the hazardous waste; 5. The degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the
2219	is relevant. A sale by one person cannot be transformed for tax purposes into a sale by another by using the latter as a conduit through which to pass title. To permit the true nature of a transaction to be disguised by mere formalisms, which exist solely to alter tax liabilities, would seriously impair the effective administration of the tax policies of Congress.” Our function is to review the record of the Tax Court to see if there is sufficient evidence to warrant its findings. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Palmer v. Commissioner of Internal Revenue, 354 F.2d 974, 975 (1st Cir. 1965). As stated in United States v. Cumberland Public Service Co., 338 U.S. 451, 456, 70 S.Ct. 280, 282, 94 L.Ed. 251 (1950), a case upon which petitioner relies, “It is for the trial court, upon consideration of an entire transaction, to determine the factual category in which a particular transaction belongs.” In the instant case the Tax Court found, among other things, that the initial objective of this transaction “was to sell the land owned by Massachusetts Enterprises and the negotiations were all carried on in that context.” The evidence shows that from the beginning all the negotiations were for the sale of the real estate and were carried on by Canter acting for American. It was in this capacity that Canter originally listed the real estate for sale, retained the broker, negotiated the terms and
2810	liability.” Lake Tankers, 354 U.S. at 152-53, 77 S.Ct. 1269. Further, the Supreme Court has stressed that to expand the Limitation Act to prevent a claimant from proceeding in his chosen forum “would transform the [Limitation] Act from a protective instrument to an offensive weapon by which the shipowner could deprive suitors of their common-law rights ...” Id. at 153, 77 S.Ct. 1269. Because Maciura has established an independent basis for federal jurisdiction by bringing a Jones Act claim at law and has filed a stipulation acknowledging Trawler’s rights under the Limitation Act, the court finds that he is entitled to proceed with his hybrid action consisting of related law and admiralty claims in the District of New Jersey. See Inland Dredging v. Sanchez, 468 F.3d 864, 867 (5th Cir. 2006) (holding that “a single claimant’s choice of forum is a sufficient interest to warrant the dissolution of an injunction” where a claimant who sought to pursue Jones Act and admiralty claims in a different federal court filed a stipulation protecting the shipowner’s right to limited liability); In re Norfolk Dredging Co., 2003 WL 23335933, at *4 (“ ‘[G]iven adequate protection of the shipowner’s right, a claimant is entitled to proceed in the forum of his or her choice regardless of the judicial inefficiency this decision may cause.’”) (quoting In re Antill, No. Civ. A. 97-578, 1997 WL 399603, at *5 (E.D. La. 1997)). Accordingly, the court will lift the injunction against other proceedings and stay this limitation action pending
3534	bribery and other crimes are enough checks against a legislator’s malfeasance. As a matter of sound public policy, we must not and should not add personal financial liability to that list. IV QUALIFIED IMMUNITY In § 1983 actions, the doctrine of qualified immunity protects city officials from personal liability in their individual capacities for their official conduct so long as that conduct is objectively reasonable and does not violate clearly-established federal rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (citations omitted). Qualified immunity is necessary to “protect[] the public from unwarranted timidity on the part of public officials” and to avoid “dampen[ing] the ardour of all but the most resolute, or the most irresponsible.” Richardson v. McKnight, 521 U.S. 399, 408, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) (citation and internal quotation marks omitted). True to these purposes, the qualified immunity standard “ ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 343, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). “Moreover, because ‘[t]he entitlement is an immunity from suit rather than a mere defense to liability,’ we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter, 502 U.S. at 227, 112 S.Ct. 534 (citation deleted) (emphasis in original). Qualified immunity, however,
1365	in fact. See Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir.2003) (“if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class”). A suit brought by a plaintiff without Article III standing is not a “case or controversy,” and an Article III federal court therefore lacks subject matter jurisdiction over the suit. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “A party invoking the federal court’s jurisdiction has the burden of proving the actual-existence of subject matter jurisdiction.” Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996). If a court determines that it lacks subject matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3). III. DISCUSSION Plaintiff alleges that Defendant violated state and federal labeling laws because foods labeled with the “Og trans fat” and “no cholesterol” labels failed to include required disclosure statements. Plaintiff frames his case as consisting of two facets: (1) the “unlawful” part, claiming that Defendant’s packaging and labels violate state and federal laws, making the products “misbranded” and therefore illegal to sell or possess, lacking economic value, and legally worthless; and (2) the “fraudulent” part, claiming that the labels are misleading, deceptive, unfair, and fraudulent. Dkt. No. 47 ¶ 5. A. Statutory Framework The operative statute in this
2165	petition. In addition, the City has offered affidavits from two Boston-area attorneys to challenge the reasonableness of Attorney Hernandez’s hourly rate. DISCUSSION Under 42 U.S.C. § 1988, this Court has the discretion to “allow the prevailing party [in a civil rights action] ... a reasonable attorney’s fee as part of the costs” to which that party is normally entitled under Fed.R.Civ.P. 54(d). 42 U.S.C. § 1988(b). The parties agree that plaintiffs satisfy the relatively low threshold required to qualify for “prevailing party” status. See, e.g., Farrar v. Hobby, 506 U.S. 103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989); Williams v. Hanover Hous. Auth., 113 F.3d 1294, 1299 (1st Cir.1997). “However, the fact that [plaintiffs] were the prevailing parties does not mean that they can recover for all the time spent in this litigation.” Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94,102 (1st Cir.1988). Instead, the Court calculates a reasonable fee award using the lodestar method, which is “the strongly preferred method by which district courts should determine what fees to award prevailing parties” under ,§ 1988. Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 337 (1st Cir.1997) (citing Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.1992)). To arrive at a reasonable award, the Court “must evaluate the data submitted by the fee-seeker, compute a lodestar, consider the totality of the adjustment factors approved by Congress and
3859	reach the conclusion that CIA owns the Commerce mark within the insurance services industry of southern New Jersey. CIA began using the mark in that industry in 1983; CNIS did not commence its use until 1996. C. Finally, we turn to the issue of reverse confusion. This Court adopted the doctrine of reverse confusion in Fisons Horticulture, Inc. v. Vigoro Industries, Inc., 30 F.3d 466 (3d Cir.1994). In so doing, we explained that “[r]everse confusion occurs when a larger, more powerful company uses the trademark of a smaller, less powerful senior owner and thereby causes likely confusion as to the source of the senior user’s goods or services.” Id. at 474. Quoting the Sixth Circuit’s decision in Ameritech, Inc. v. American Information Technologies Corp., 811 F.2d 960, 964 (6th Cir.1987), we elaborated: the junior user saturates the market with a similar trademark and overwhelms the senior user. The public comes to assume the senior user’s products are really the junior user’s or that the former has become somehow connected to the latter. The result is that the senior user loses the value of the trademark — its product identity, corporate identity, control over its goodwill and reputation, and ability to move into new markets. Id. at 474-75. After adopting the doctrine of reverse confusion, we proceeded to assess the plaintiffs reverse confusion claim in light of the Scott Paper factors. In doing so, we acknowledged that certain of these factors must be reworked in the context of a reverse confusion
4171	with eonclusory statements or speculation but only with appropriate citations to relevant admissible evidence.” Sink v. Knox County Hosp., 900 F.Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of [the] claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation marks omitted). “[N]either the mere existence of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and quotation marks omitted). III. DISCUSSION The Defendants moved for summary judgment on the Plaintiffs’ Fourth Amendment claims of excessive force and unreasonable seizure, asserting that the Plaintiffs were not “seized” as required by the Fourth Amendment. The Defendants also moved for summary judgment on the Plaintiffs’ state law claims, alleging that Officers Zotz and Ross lacked the necessary intent to be held liable for assault, battery, and excessive force. The Defendants assert that the City is entitled to summary judgment because the underlying state law claims fail as a matter of law. A. Excessive Force and Unreasonable Seizure under the Fourth Amendment The Defendants assert that Officers Zotz and Ross are entitled to qualified immunity against the
3725	"Trade Comm’n, 616 F.3d 1318, 1328 (Fed.Cir.2010) (internal quotations omitted). Defendant argues that Plaintiff does not allege the existence of any concrete “anticompetitive effect” because Plaintiff does not allege harm to any other entity besides itself. MTD at 10. Defendant cites to Seaboard Int’l, Inc. v. Cameron Int’l Corp., No. 1:13-CV-00281-MLH-SK, 2013 WL 3936889, at *3 (E.D.Cal. July 30, 2013), for the proposition that an"" allegation of injury to an individual firm is insufficient to plead, an anticompetitive injury. Id. This holding is based on the Ninth Circuit’s opinion that, in the context of an antitrust claim, a Plaintiff must allege an “injury to the market or to competition in general, not merely injury to individuals or individual firms.” McGlinchy v. Shell Chemical Co., 845 F.2d 802, 812 (9th Cir.1988). The Federal Circuit and the Supreme Court have found patent misuse based on evidence from a particular contract where the misuse is a type recognized in the case law. Princo, 616 F.3d at 1328 (collecting cases). For example, a patentee who conditions the license on a patent licensee’s purchase of an unpatented material for use in the invention may, under certain conditions, be impermissibly extending the scope of the subject matter encompassed by the patent grant. Monsanto Co. v. McFarling, 363 F.3d 1336, 1341-42 (Fed.Cir.2004) (internal citations omitted). Similarly, a patentee may not require a licensee to pay licensing fees after a patent has expired. Princo, 616 F.3d at 1327 (citing Brulotte v. Thys Co., 379 U.S. 29, 85 S.Ct."
932	Williams’ [366] Motion for Additional Brady Materials, [367] Motion for Supplemental Expert Discovery, and [368] First Motion in Limine. For the reasons stated below, Defendant’s Motion for Additional Brady Materials is GRANTED, Defendant’s Motion for Supplemental Expert Discovery is GRANTED IN PART and DENIED IN PART, and Defendant’s First Motion in Limine GRANTED IN PART and DENIED IN PART. I. DISCUSSION A. Motion for Additional Brady Materials In his first motion, the Defendant seeks “any statements made by any of his alleged co-conspirators in this case about Mr. Williams himself — such as that they do not know him, or that they never interacted with him,”—pursuant to the Government’s Brady obligations. Def.’s Brady Mot. at 1-2. The Supreme Court held in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. 1194. The Court has since held that disclosure is mandatory regardless of whether or not the defendant requests the information, and that impeachment evidence must also be disclosed to the defendant. United States v. Wilson, 605 F.3d 985, 1004-05 (D.C.Cir.2010) (citations omitted). Here, the Defendant is specifically concerned that factual proffers for pleas agreed to by alleged co-conspirators “discuss, at least in general terms, how these defendants did not know all of
4715	(2d Cir.2013) (alterations and internal quotation marks omitted). Further, “[t]o survive a [summary judgment] motion ..., [a nonmovant] need[s] to create more than a ‘metaphysical’ possibility that his allegations were correct; he need[s] to ‘come forward with specific facts 'showing that there is a genuine issue for trial,’ ” Wrobel v. Cnty. of Erie, 692 F.3d 22, 30 (2d Cir.2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), and “cannot rely on the mere allegations or denials contained in the pleadings,” Walker v. City of New York, No. 11-CV-2941, 2014 WL 1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted) > (citing, inter aha, Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009) (“When a motion for summary judgment is properly supported by documents or other evidentiary materials, thé party opposing summary judgment may not merely rest on the allegations or denials of his pleading....”)). “On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of City of N.Y., 746 F.3d 538, 544 (2d Cir.2014) (internal quotation marks omitted). At summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted); see also
3497	the effect of § 1442(a)(1). See Ryan, 781 F.Supp. at 946. The Court therefore concludes that Armeo is entitled to status as a “person” thereby allowing it to seek removal under § 1442(a)(1). Under the Mesa test, defendants are first required to assert a colorable federal defense to the plaintiff’s claims. “The question is not whether a defendant’s claimed defense is meritorious, but only whether a colorable claim to such a defense has been made.” Ryan, 781 F.Supp. at 944. “‘The validity of the defence [sic] authorized to be made is a distinct subject. It involves wholly different inquiries---- It has no connection whatever with the question of jurisdiction.’ ” Mesa, 489 U.S. at 129, 109 S.Ct. at 964 (quoting The Mayor v. Cooper, 6 Wall. 247, 73 U.S. 247, 254, 18 L.Ed. 851 (1867)). Armeo claims that it is entitled to assert the federal common law government or military contract defense. Under this defense, a defendant who , designs or manufactures products under the direction of the government can evade liability under state law for injuries resulting from the use of those products by demonstrating that (1) the United States approved reasonably precise specifications for the contracted-for equipment; (2) the equipment conformed to those specifications; and (3) the equipment supplier warned the United States about possible dangers in the use of the equipment known to the supplier but unknown to the United States. Boyle v. United Tech. Corp., 487 U.S. 500, 512, 108 S.Ct. 2510, 2518, 101 L.Ed.2d 442
4856	Apfel, 240 F.3d 1157, 1163-64 (9th Cir. 2001) (holding that an ALJ’s hypothetical need not include properly rejected limitations). Moreover, the vocational expert was later presented with an additional hypothetical that included consideration of moderate and controlled limitations. In response, the vocational expert testified that such a person would still be able to perform the unskilled work already identified. Finally, Withrow’s contention that the vocational expert’s testimony deviates from agency policy lacks merit. Withrow points to no actual conflict between agency policy and the vocational expert’s testimony .that a claimant with moderate mental limitations can perform unskilled work. Moreover, this court has upheld determinations that claimants with moderate mental limitations are capable of doing simple unskilled work. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (upholding a denial of benefits where the ALJ found that a claimant with “moderate restrictions of his capacity to concentrate, interact with the public, and carry out detailed work instructions” was not disabled); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008) (the ALJ’s finding of moderate mental limitations was consistent with an RFC for simple, routine, and repetitive work). With-row’s reliance on the Program Operations Manual System (POMS) is misplaced, because POMS “does not impose judicially enforced duties on either this court or the ALJ.” Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R.
1527	"— here, the collective bargaining agreement — is a transaction contemplated by the statute under which the date for determining withdrawal liability may be established, the completion of the transaction could not be a means under the statute to avoid or evade liability. See discussion infra concerning the interrelated provisions of the MPPAA, especially the definition of ""obligation to contribute.” “[S]tatutory language must always be read in its proper context 'In ascertaining the plain meaning of [a] statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.’ ” McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991) (quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988)). . This is not to say that a hypothetical date of withdrawal would not be precluded in cases involving a fraudulent or sham transaction. As the plaintiff pointed out, using a hypothetical date in that situation would not require ignoring a specific statutory provision, such as § 1383(a). That section unequivocally establishes the date of withdrawal, eliminating the option of setting a hypothetical date. . ERISA provides that a complete withdrawal occurs if an employer (1) permanently ceases to have an obligation to contribute under the plan, or (2) permanently ceases all covered operations under the plan. 29 U.S.C. § 1383(a). . The parties raised additional issues before the Arbitrator that are not pursued here"
1704	loan of money or property that may be used by the transferee, who must then return either the actual money transferred, or its equivalent, to the trans-feror. See DeSimon v. Ogden Associates, 88 A.D.2d 472, 454 N.Y.S.2d 721, 726 (N.Y.App.Div.1982). The complaint alleges only that SG Cowen accepted a transfer of funds with a note that the funds were “for the benefit of Mr. Thoedore Rozsa” (Compl.f 14), not that SG Cowen was authorized to “use” the funds. A bailment of money is created under New York law when a special or specific bank account is created, title to the funds remains with the account holder, and the funds are separated from other deposits. See Peoples Westchester Savings Bank v. Federal Deposit Ins. Corp., 961 F.2d 327, 330 (2d Cir.1992). “Whether an account is general or specific depends upon the mutual intent of the parties.” Swan Brewery Co. v. United States Trust Co., 832 F.Supp. 714, 718 (S.D.N.Y.1993). Absent evidence of intent, New York law presumes that deposits are general rather than specific. Id. at 718-19. As the court recognized in Hossain v. Rauscher Pierce Refsnes, Inc., 46 F.Supp.2d 1164 (D.Kan. 1999), an investor does not seek to have the exact same funds returned after depositing them with a clearing broker: When plaintiff [investor] deposited his money with the defendant [clearing agent], he did not intend for the defendant to return the identical money back to him. To the contrary, plaintiff deposited the money with hopes of increasing the amount
735	Settlement Agreement represents an accord and satisfaction of the underlying loan, the Bildmans are precluded from raising the defense of accord and satisfaction by the terms of the guaranty agreement. See United States v. Krochmal, 318 F.Supp. 148, 151 (D.Md.1970) (“[T]he language of the ‘Guaranty’ amounted to a consent by the guarantors that the release of the principal debtor did not discharge the guarantors.”). As part of that agreement, the defendants agreed to remain obligated as guarantors until the full amount of the loan had been repaid, “notwithstanding any act, omission or thing which might otherwise operate as a legal or equitable discharge of the Guarantor.” Generally an accord and satisfaction of the underlying contract will discharge a guarantor. Woods-Tucker Leasing Corp. v. Kellum, 641 F.2d 210, 213 (5th Cir.1981). Thus, this provision in the agreement specifically preserves the Bildmans’ guaranty obligation even in the event that the borrowers should execute an accord and satisfaction with the lender. The Court also rejects the defendants’ assertion that the Settlement Agreement in this case constitutes an accord and satisfaction. “In order to effect an accord and satisfaction, ... the parties must intend that the payments constitute an accord and satisfaction.” Kellum, 641 F.2d at 214. In the Kellum case, the Fifth Circuit held that a settlement between the lender and borrower did not amount to an accord and satisfaction discharging the guarantor’s obligations where the lender expressly reserved its rights against the guarantor in the settlement agreement. Id. The Court found that,
1868	not constitute possession. The illustrations, to which Eaton objected at trial, are underlined. Apart from the illustrations, the instruction given is the standard instruction on constructive possession. District of Columbia Standard Jury Instructions (3d ed. 1978), No. 3.11. Absent the illustrations, there is no question that the instruction accurately states the law on constructive possession. See United States v. Pardo, 636 F.2d 535 (D.C.Cir.1980); United States v. Watkins, 519 F.2d 294 (D.C.Cir.1975); United States v. Holland, 445 F.2d 701 (D.C.Cir.1971); United States v. Bethea, 442 F.2d 790 (D.C.Cir.1971). The question here is whether the illustrations, which were added to the instruction, could cause the jury to disregard the element of intent and focus only on proximity. Appellant relies primarily on United States v. Pinkney, 551 F.2d 1241 (D.C.Cir.1976), where this court held that the trial court’s illustration given in conjunction with an instruction on reasonable doubt “overstate[d] the degree of uncertainty required for reasonable doubt.” Id. at 1244. We find Pinkney distinguishable. There, the illustration was much more extensive than the instruction given in this case. The Pinkney illustration consisted of six paragraphs and followed a correct instruction on reasonable doubt. Here, the illustrations were short and intertwined with a proper instruction. Immediately before the illustrations, the court instructed the jury that constructive possession requires both the power and the intention to exercise dominion and control over an object. Three sentences after the illustrations, the court instructed the jury that mere presence or knowledge does not constitute possession. Although standing
1406	Coamo Knitting Mills, Inc., 150 N.L.R.B. No. 35 (1964), which was on point and controlling. The Board thought otherwise, concluding that Coamo was a much different case. G/M and the Carpenters Union petition for review and the Board cross-applies for enforcement of its orders. We have jurisdiction under 29 U.S.C. § 160(e), (f). II We give “a very high degree of deference to administrative adjudications by the NLRB.” Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011). But our deference is not absolute. We will overturn the Board if its “factual findings are not supported by substantial evidence,” or if it “acted arbitrarily or otherwise erred in applying established law to the facts of the case.” Coman, Inc. v. NLRB, 671 F.3d 1232, 1236 (D.C. Cir. 2012). A decision of the Board that “departs from established precedent without a reasoned explanation” is arbitrary. Id. Of course, the Board need not address “every conceivably relevant line of precedent in [its] archives,” but it must discuss “precedent directly on point.” Lone Mountain Processing, Inc. v. Sec’y of Labor, 709 F.3d 1161, 1164 (D.C. Cir. 2013). G/M and the Carpenters Union argue that the Board’s decision was arbitrary and capricious because the Board did not provide a reasoned justification for its departure from Coamo Knitting Mills. We agree. In Coamo, the General Counsel alleged that the company had provided unlawful assistance and support to a union that the union unlawfully accepted. 150 N.L.R.B. No. 35 at 583, 589. The
1310	that according preclusive effect to an overly broad first-filed complaint would encourage would-be qui tam relators to file nonspecific suits to block other potential rela tors from sharing in their bounty. See Walbum, 431 F.3d at 973. This reasoning, however, does not make sense. Even without grafting a Rule 9(b) requirement onto the first-to-file rule, the first plaintiffs complaint is still subject to the Rule 9(b) pleading requirements in order for a court to hear the case. If the first relator did not plead fraud with particularity, his complaint would be dismissed and he would lose his own shot at monetary reward. The threat of a second application of Rule 9(b) is unnecessary. As observed in United States ex rel. Folliard v. Synnex Corp., 798 F.Supp.2d 66, 74, 2011 WL 2836372, at *5 (D.D.C. July 19, 2011), imposing such a requirement “would not minimize duplicative claims, would encourage opportunistic behavior, and would have a negligible impact on desirable whistle-blowing.” We therefore reject Batiste’s argument that first-filed qui tam complaints must meet a heightened pleading standard under Rule 9(b) in order to'bar later-filed complaints. C. Dismissal with Prejudice Batiste argues that because Zahara’s complaint was dismissed before Batiste’s complaint was dismissed, his complaint should not have been dismissed with prejudice (implying that Batiste would like the opportunity to amend his complaint and bring this case again). Batiste, however, waived this argument. Zahara was dismissed eighteen months prior to the Batiste dismissal. During that time, Batiste never asked for leave to amend
158	United States House of Representatives Un-American Activities Committee was not acting “under color” of state law for purposes of Section 1983); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339, 1346 (2d Cir.1972) (on remand) (noting that the Civil Rights Act does not apply to federal officers). However, one may bring a Section 1983 action against federal employees who conspire or act in concert with state officials to deprive a person of his civil rights under color of state law. See Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984) (explaining that “an otherwise private person acts ‘under color of state law when engaged in a conspiracy with state officials”); Krohn v. United States, 578 F.Supp. 1441, 1447-48 (D.Mass.1983) (noting that, to make federal officers liable under Section 1983 for actions done under color of state law, the plaintiff must show either that “the deprivation of his rights was directly occasioned by acts of federal officials,” or that “federal officials participated in a conspiracy to deprive him of a constitutional right”; emphasizing that, “in either case ... the plaintiff must show that the federal officials acted or conspired to act under color of state law; it is not enough that they simply acted in concert with state officials to deprive plaintiff of a constitutional right” [emphasis in original]), rev’d in part on other grounds, 742 F.2d 24 (1st Cir.1984). In this case, counts II and III are devoid of any
3724	"The email responds to. BECO’s request to be given exclusive rights to market products in China and Russia. Id. GTS responds that it will not grant exclusive rights to these territories to BECO without a minimum expected sales number, and indicated that it would respond similarly to othér companies seeking 'its terms. Id. While this does not appear on the face of the FAC, for the purpose of dealing with the motion to dismiss, the Court considers it incorporated by reference in ¶ 346 of the FAC. See Tribank Capital Investments, 523 Fed.Appx. at 485. Patent misuse is defined as “the patentee’s act of impermissibly broadening the physical or temporal scope of the patent grant with anticompetitive effect.” Princo Corp. v. Int’l Trade Comm’n, 616 F.3d 1318, 1328 (Fed.Cir.2010) (internal quotations omitted). Defendant argues that Plaintiff does not allege the existence of any concrete “anticompetitive effect” because Plaintiff does not allege harm to any other entity besides itself. MTD at 10. Defendant cites to Seaboard Int’l, Inc. v. Cameron Int’l Corp., No. 1:13-CV-00281-MLH-SK, 2013 WL 3936889, at *3 (E.D.Cal. July 30, 2013), for the proposition that an"" allegation of injury to an individual firm is insufficient to plead, an anticompetitive injury. Id. This holding is based on the Ninth Circuit’s opinion that, in the context of an antitrust claim, a Plaintiff must allege an “injury to the market or to competition in general, not merely injury to individuals or individual firms.” McGlinchy v. Shell Chemical Co., 845 F.2d 802, 812"
2803	"exclusively in admiralty in federal court. See Lewis, 531 U.S. at 448, 121 S.Ct. 993. To resolve this conflict, the Supreme Court of the United States has carved out two exceptions to the exclusive admiralty jurisdiction conferred on the district courts by the Limitation Act. The first exception occurs when the value of the limitation fund exceeds the aggregate amount of all possible claims against the vessel owner. See Lake Tankers Corp. v. Henn, 354 U.S. 147, 154, 77 S.Ct. 1269, 1 L.Ed.2d 1246 (1957). The second exception arises .when there is a single claimant whose claims exceed the value of the fund but who stipulates to the district court’s exclusive admiralty jurisdiction to determine any limitation of liability issues. See Langnes v. Green, 282 U.S. 531, 542, 51 S.Ct. 243, 75 L.Ed. 520 (1931) (approving a district court’s conclusion “that, where there was only a single claim, there was no need for the adoption of the peculiar and exclusive jurisdiction of the admiralty court; and that an answer setting up the limitation of liability would give the shipowner the relief to which he is entitled”). ""Where the district court is satisfied that the owner’s right to seek limitation will be protected, it is well within the court’s discretion to dissolve the limitation injunction and allow the claimant to pursue his claims in the forum of his own choosing. Lewis, 531 U.S. at 454, 121 S.Ct. 993. In the instant case, Maciura seeks to dissolve the limitation injunction pursuant to"
3528	acts but on “the character and effect” of the particular act at issue. Cinevision Corp. v. City of Burbank, 145 F.2d 560, 580 (9th Cir.1984). Moreover, the question of the intent of the individual defendants is strictly off-limits in the legislative immunity analysis. As instructed by the Supreme Court, our inquiry into whether the officials’ actions were legislative must be “stripped of all considerations of intent and motive.” Bogan, 523 U.S. at 55, 118 S.Ct. 966. The privilege would be of little value if [legislators] could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of a pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motives. Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). We consider four factors in determining whether an act is legislative in its character and effect: “(1) whether the act involves ad hoc decisionmaking, or the formulation of policy; (2) whether the act applies to a few individuals, or to the public at large; (3) whether the act is formally legislative in character; and (4) whether it bears all the hallmarks of traditional legislation.” Kaahumanu, 315 F.3d at 1220 (citation and internal quotation marks omitted). The first two factors are largely related, as are the last two factors, and they are not mutually exclusive. Kaahumanu, 315 F.3d at 1220; San Pedro Hotel v. City of Los Angeles, 159 F.3d 470, 476 (9th Cir.1998). The third
2949	jury on petitioner’s right not to testify, and (vi) show concern generally for petitioner. Although his brief does not deal with the other points, petitioner further asserts that counsel (vii) failed to properly pursue a motion for a change of venue, (viii) allowed improper jurors to sit on the jury, and (ix) did not take steps to see that the jury took only the proper exhibits with them into the jury room. Respondent contends that Simpson and Tisinger were properly competent and that matters of trial tactics are beyond this court’s scope of review. In determining whether a criminal defendant has been denied his constitutional right to the effective assistance of counsel, this court adheres to the competence standard announced in Marzullo v. State, 561 F.2d 540 (4th Cir. 1977). The Marzullo court, following McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), used this measure: “Was the defense counsel’s representation within the range of competence demanded of attorneys in criminal cases?” 561 F.2d at 543. This court has reviewed the transcript of petitioner’s trial, and the court holds that Simpson’s and Tisinger’s representation was well within the competence of counsel demanded in criminal cases. The effective assistance of counsel has not been denied simply because counsel failed to obtain an acquittal. United States v. Robinson, 502 F.2d 894 (7th Cir. 1974). Rather, the determination of whether counsel met the constitutional minimum requires a more detailed analysis. See generally, Annot., “Modern Status of Rule as to
2618	266-267 & n. 10, infra. . Reliance is also inferred from “a deception inflating the price of stock traded on the open market.” Biackie v. Barrack, supra, 524 F.2d at 906; Harvard Note, supra, 88 Harv.L.Rev. at 592-596. This is not an open-market case in the sense of Biackie v. Barrack because plaintiffs make no contention that the effect which CIS’s allegedly fraudulent brochures had on other clients and prospective clients made its services significantly more expensive, although they may have had some incidental effect. . Many respondents to the SEC questionnaire indicated that they chose CIS primarily because of their brokers’ recommendations. . Plaintiffs may have to establish due diligence, that their reliance was not only actual but justifiable. See Dupuy v. Dupuy, 551 F.2d 1005, 1013-1016 (5 Cir. 1977). There is no substantial evidence that any significant number of class members relied on Performance Chart No. 1 “ ‘in disregard of a risk known to [them] or so obvious that [they] must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’ ” Id., at 1020, quoting W. Prosser, Handbook of the Law of Torts § 34, at 185 (4th ed. 1971). . The Court uses the term damage period to mean the period from when the class member became a client of CIS until that client no longer justifiably relied on the material fraud which induced him to become a client or until he terminated his
4324	489 U.S. 468, 478, 109 S.Ct. 1248, 1255, 103 L.Ed.2d 488 (1989). Weiner and Tootsie Roll agreed that, “except for claims barred by the applicable survival period in [section] 8(a)” and “claims for preliminary or provisional injunctive relief ..., any and all disputes ... that relate[d] to [the] Agreement” would be “determined solely and exclusively by arbitration.” Weiner argues that a provision in the covenant not to compete allows him to litigate its validity in “a court of competent jurisdiction,” and in turn, trumps the agreement to arbitrate, but we disagree. Because the Arbitration Act “creates a presumption in favor of arbitrability,” the “parties must clearly express their intent to exclude categories of claims from their arbitration agreement.” Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1057 (11th Cir.1998). The provision of the covenant not to compete cited by Weiner does not exclude from arbitration an action to declare the covenant wholly unenforceable. The provision instead addresses relief entered by a court of competent jurisdiction to enforce the covenant in whole or in part. The agreement provides that the covenant is enforceable “to the fullest extent permissible” and, if any portion is modified or severed, the revised or remaining portions are enforceable: The Parties hereby agree and acknowledge that the duration, scope and geographic area applicable to each of the restrictions set forth above are fair, reasonable and necessary. The consideration provided for in this Agreement is sufficient and adequate to compensate each Seller and each Stockholder ... for
2502	& Howell appeals to this court, arguing that the district court erred in denying its motion for a preliminary injunction. We have jurisdiction pursuant to 28 U.S.C. § 1292(c)(1) (1994). DISCUSSION The grant or denial of a preliminary injunction pursuant to 35 U.S.C. § 283 (1994) is within the discretion of a district court. Novo Nordisk of N. Am., Inc. v. Genentech, Inc., 77 F.3d 1364, 1367, 37 USPQ2d 1773, 1775 (Fed.Cir.1996), cert. denied, — U.S. -, 118 S.Ct. 397, 139 L.Ed.2d 310 (1997). A court’s decision to deny a preliminary injunction will be overturned on appeal only upon a showing that the court “abused its discretion, committed an error of law, or seriously misjudged the evidence.” Smith Int’l, Inc. v. Hughes Tool Co., 718 F.2d 1573, 1579, 219 USPQ 686, 691 (Fed.Cir.1983). An abuse of discretion may be established by showing that the court made a clear error of judgment in weighing the relevant factors or exercised its discretion based upon an error of law or clearly erroneous factual findings. Novo Nordisk, 77 F.3d at 1367, 37 USPQ2d at 1775; see also Polymer Techs., Inc. v. Bridwell, 103 F.3d 970, 973, 41 USPQ2d 1185, 1188 (Fed.Cir.1996). As the moving party, Bell & Howell had to establish its right to a preliminary injunction based on four factors: (1) a reasonable likelihood of success on the merits; (2) irreparable harm if the injunction were not granted; (3) the balance of relative hardships tips in its favor; and (4) whether and how
4288	in the instant case, however, appears to be a composite of both methods, neither of which satisfy the requirements of the rule. Citing Bankruptcy Rule 704(e), which requires service within 10 days, the Defendant argues that the failure to complete service within the 10-day period is a fatal defect requiring dismissal of this action. The Defendant has neither demonstrated that the defect is fatal, nor has he shown any requirement that the Plaintiffs’ actions must be dismissed. In fact, the Defendant’s argument runs squarely into conflict with the Rules of Bankruptcy Procedure on this point. Bankruptcy Rule 704(e) clearly states that when a summons is not timely served, “another shall be issued and served...” In the case of Couch v. Kanfer (In re Kanfer), 1 B.R. 91 (Bkrtcy. N.D. Georgia 1979), the plaintiff filed a complaint to determine dis-chargeability of a debt on June 15, 1979. A summons was issued on June 20, 1979 but improperly served on June 21, 1979. The bankruptcy court issued a new summons on July 19, 1979, after the last day to file dischargeability complaints. In denying a motion to dismiss (which was based on the ground that reissuance of the summons on the original complaint would be improper), the court held that its action was in compliance with Rule 704(e). Said Rule [704e] requires that service be made within ten (10) days after the issuance of the Summons. However, the Rule goes on to state that ‘if a summons is not timely served in
1768	that a defendant’s conduct evidenced an intent to carry out a threat and will reverse only when that determination is “so inconsistent with the evidence” as to constitute clear error. See United States v. Sullivan, 75 F.3d 297, 302-03 (7th Cir.1996). Throughout his briefs, Siegler attempts to portray the August 31 letter as a solicitation rather than a threat, in effect trying to challenge his conviction for violating 18 U.S.C. § 876. By pleading guilty, however, Siegler admitted both of the elements of Count II (mailing a threatening communication). See McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (“[A] guilty plea is an admission of all the elements of a formal criminal charge.”); United States v. Gilliam, 255 F.3d 428, 433 (7th Cir.2001) (same). In the written plea agreement and during the plea hearing, Siegler admitted that on August 31, 1999, he wrote and mailed to Hester a letter threatening Hauger; no more was required for a conviction under 18 U.S.C. § 876. See United States v. Geisler, 143 F.3d 1070, 1071-72 (7th Cir.1998) (conviction under 18 U.S.C. § 876 requires proof of two elements: (1) a threatening communication (2) was sent through the mail); United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir.1990) (conviction under 18 U.S.C. § 876 does not require proof that defendant intended to carry out threat). By admitting that the letter he sent contained a threat within the meaning of 18 U.S.C. § 876, Siegler waived any
4135	Tr. at 328. As stated above, Major McLean testified that he made two daylight passes around LZ Owl with his pickup truck in search of hazards and did not see the wall or the drop behind it, yet the defendant argues unconvincingly that Dockery should have seen it in the dark. Accordingly, the court finds no comparative negligence on the part of Dockery. Y. Damages In New York, “[a] plaintiff who has been injured by another’s negligence is entitled to a sum of money that will “justly and fairly” compensate [him] for all losses proximately caused by the wrongdoing, to restore [him], to the extent possible, to the position [he] would have been in had the wrong not occurred. NYPJI 2:277.” Kane v. U.S., 189 F.Supp.2d 40, 52 (S.D.N.Y.2002) (citing McDougald v. Garber, 73 N.Y.2d 246, 538 N.Y.S.2d 937, 939, 536 N.E.2d 372 (1989)). “Recovery for noneconomic losses such as pain and suffering and loss of enjoyment of life rests on ‘the legal fiction that money damages can compensate for a victim’s injury.’ We accept this fiction, knowing that although money will neither ease the pain nor restore the victim’s abilities, this device is as close as the law can come in its effort to right the wrong.” Kane, 189 F.Supp.2d at 52-3. Having concluded that the defendant’s acts and/or omissions were the sole cause of Dockery’s injuries, the court is now “in the unenviable position of calculating damages ... the court notes that reaching a number amount in damages
2870	further that he was able to see the defendants sitting at a table in the front room, engaging in what appeared to be the preparation and packaging of heroin. Immediately thereafter he and the officers accompanying him entered the house. Although defendants maintain that the window draperies were completely closed on the night in question, the Court finds that they were as the officer testified, open enough to permit his view. Cases dealing with the “discovery of evidence in plain-view” admittedly require that discovery be “inadvertent”. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). An “inadvertent viewing” has been characterized by one court as “seeing through eyes that are neither accusatory nor criminally investigatory.” Marshall v. United States, 422 F.2d 185, 189 (5th Cir.1970). Since the sole purpose of the agents’ presence on defendants’ porch here was to gain entry to the house to search for heroin and other narcotic drugs, it cannot be concluded that' Agent McCoy “inadvertently” peered through the crack in the window draperies after stepping onto the front porch at 1:30 a.m. and spotted suspected narcotics. What he saw would not have been visible to “any curious passerby.” James v. United States, 135 U.S.App.D.C. 314, 418 F.2d 1150, 1151 n.1 (1969). However, his observation involves more than the search for and seizure of evidence. When the officer peeked into the window he not only saw evidence of an earlier crime but was actually observing a crime being committed. The persons
4198	at -, 117 S.Ct. at 848. In doing so, “[w]e begin with the premise that all parts of the statute must be read together, neither taking specific words out of context, nor interpreting one part so as to render another meaningless.” United States v. Snider, 502 F.2d 645, 652 (4th Cir.1974) (citations omitted). A cardinal rule of statutory construction is that statutes which are originally part of the same Act should be construed together. Cf. Robinson, — U.S. at-, 117 S.Ct. at 849 (interpreting ambiguous statutory term so as to be “more consistent with the broad context of [the Act] and the primary purpose of the [section at issue]”); New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 1677, 131 L.Ed.2d 695 (1995) (“[W]e begin as we do in any exercise of statutory construction with the text of the provision in question, and move on, as need be, to the structure and purpose of the Act in which it occurs.”); United States Nat’l Bank of Oregon v. Independent Ins. Agents of America, Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 2182-83, 124 L.Ed.2d 402 (1993) (“Statutory construction is a holistic endeavor and, at a minimum, must account for a statute’s full text, language as well as punctuation, structure, and subject matter.” (quotation and citation omitted)). More specifically, identical terms within an Act should be given the same meaning. See Estate of Cowart, 505 U.S. at 479, 112
893	see anybody — It was like pulling teeth to get a story from Lynn Richardson when she was on the witness stand. ‘Keep your voice up.’ ‘Keep your voice up.’ Did you ever see anybody more reluctant than she was to tell what Butler had told her? Her whole attitude on that witness stand was going to be and was that she would tell as little as possible about Butler. Wasn’t that obvious as she sat there? “And isn’t her whole performance concerning this matter indicative of the fact that she’s trying to protect Butler, not to frame him, but to protect him?” Record, vol. 2, at 944-45, People v. Butler, 33 A.D.2d 675, 305 N.Y.S.2d 367 (1969) . See United States v. Keogh, 289 F.Supp. 265 (S.D.N.Y.1968), aff’d, 417 F.2d 885 (2d Cir. 1969) ; cf. United States v. Keogh, 391 F.2d 138, 149 (2d Cir. 1968). . Cf. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) ; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) ; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
1687	Cowen filed this motion to dismiss on May 11, 2001, in lieu of filing an answer. Rozsa filed a brief in opposition on May 24, 2001, and the motion was deemed fully submitted after oral argument on June 6, 2001. Discussion I. Legal Standard for Failure to State a Claim In reviewing a motion to dismiss under Rule 12(b)(6), review must be limited to the complaint and documents attached or incorporated by reference thereto. See Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). Courts must “accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993) (citing IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993)). Dismissal is warranted only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). See also Bass v. Jackson, 790 F.2d 260, 262 (2d Cir.1986). “For purposes of a motion to dismiss, [the Second Circuit has] deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference ..., as well as public disclosure documents required by law to be, and that have been, filed with the SEC, and documents that the plaintiffs either possessed or
708	insured parent at public meeting questioning competency of teacher, albeit “unquestionably intentional,” could not trigger presumption of “intent to injure” because parent’s conduct was not “particularly reprehensible”). Teti submits that this case does not rise to the level of “particularly reprehensible” conduct, not only because the sixteen year-old girl consented to the intercourse, but also because Teti is not alleged to have used force or the threat of force to compel her to have intercourse with him. II. DISCUSSION A. Choice of Law This case is before the Court pursuant to its diversity of citizenship jurisdiction. 28 U.S.C. § 1332(a). In a diversity action, “the choice of law rules of the forum state [determine] which state’s law will be applied.” Shuder v. McDonald’s Corp., 859 F.2d 266, 269 (3d Cir.1988) (citing Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941)). Accordingly, the Court will apply Pennsylvania’s choice of law rules. In Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), the Pennsylvania Supreme Court abandoned the traditional lex loci delicti doctrine which dictated application of the law of the place of injury in tort cases. Instead, the court opted for “a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.” Id. 203 A.2d at 805. This method of analysis involves a hybrid approach that “combines the approaches of both Restatement II (contacts establishing significant relationships) and ‘interest analysis’
4459	is no statutory re quirement that a petition be filed in good faith” and that “bankruptcy courts should limit their inquiry into whether the plan has been filed in good faith.” According to the Debtor, the bankruptcy court should not have dismissed the case for lack of good faith since the Debtor proposed a plan that was confirmable and provided for the treatment of Solimini’s claim in a manner permitted by the Bankruptcy Code. JURISDICTION A bankruptcy appellate panel may hear appeals from “final judgments, orders and decrees [pursuant to 28 U.S.C. § 158(a)(1)] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3)].” Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Id. at 646 (citations omitted). An interlocutory order “ ‘only decides some intervening matter pertaining to the cause, and requires further steps to be taken in order to enable the court to adjudicate the cause on the merits.’ ” Id. (quoting In re American Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985)). A bankruptcy appellate panel is duty-bound to determine its jurisdiction before proceeding to the merits even if not raised by the litigants. See In re George E. Bumpus, Jr. Constr. Co., 226 B.R. 724 (1st Cir. BAP 1998). An order
257	to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). Plausibility “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. III.42 U.S.C. § 1983 “Section 1983 imposes liability on anyone who, under color of state law, deprives a person of any rights, privileges, or immunities secured by the Constitution” of the United States. K & A Radiologic Tech. Servs., Inc. v. Comm’r of the Dept. of Health, 189 F.3d 273, 280 (2d Cir.1999) (quoting Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)). “[T]he core purpose of § 1983 is ‘to provide compensatory relief to those deprived of their federal rights by state actors.’” Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 795 (2d Cir. 1999) (quoting Felder v. Casey, 487 U.S. 131, 141, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988)). Section 1983 “does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere.” Morris—Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir.2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). “The purpose of § 1983 is to deter state
4729	portion of his route ... once per month,” but stating that he “did not collect any waste in Connecticut”); see also Cartalemi Deck ¶ 22; id. Ex. E (Google Maps screenshots showing Plain tiffs alleged routes).) Defendants argue that even-this minimal interstate activity is sufficient to. bring Plaintiff within the motor carrier exemption, while Plaintiff argues that such de minimis interstate activities are insufficient. Indeed, courts have applied “[t]he de minimis .rule,” and thus have held that the motor carrier exemption did not apply, “where the employee’s connection with anything affecting interstate motor carrier operations was so indirect and casual as to be trivial.” Crooker v. Sexton Motors, Inc., 469 F.2d 206, 210 (1st Cir.1972) (italics omitted) (citing Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 708, 67 S.Ct. 954, 91 L.Ed. 1184 (1947)). However, “[i]n determining whether an employee’s activities ... are de minimis, it is important to focus on ‘the character of the activities rather'than the proportion of either the employee’s time or of his activities.’ ” Masson v. Ecolab, Inc., No. 04-CV-4488, 2005 WL 2000133, at *7 (S.D.N.Y. Aug. 17, 2005) (quoting Levinson v. Spector Motor Serv., 330 U.S. 649, 674-75, 67 S.Ct. 931, 91 L.Ed. 1158 (1947)). Because courts focus on the character of the activities, instead of the proportion of time involved in interstate activity, in determining whether an employee’s interstate activities are de minimis, courts are hesitant to apply the de minimis exception to drivers who occasionally drive interstate. See Williams, 2015 WL
3363	and specifically stating that the defendant is “neither the successor to nor connected with the maker of ‘Old Taylor’ whiskey” and that its product is “not the product of E. H. Taylor, Jr. & Sons, or its successors.” 31 F. Supp. at 616. In Friend v. H. A. Friend, supra, the defendant was enjoined from using the word “Friend” as a trademark except where preceded by his given name in letters of equal size and coupled with a parenthetical phrase “Not affiliated with H. A. Friend & Co. of Zion, Illinois.” 416 F.2d at 534. . Though the scope of the injunction prohibiting any infringement of trademark rights was not raised on appeal in Grotrian, Helfferich, Schulz, Th. Steinweg Nachf v. Steinway & Sons, 523 F.2d 1331 (2d Cir. 1975), we note that the district court there found that “the ancestral Grotrians candidly adopted the name Steinweg for the sole purpose of exploiting the Steinweg name in exporting pianos to English-speaking countries.” 365 F.Supp. 707 at 714 (emphasis added).
4137	speculative, the court will award $55,000.00 for future medical expenses, the amount quoted as sufficient to cover Dockery’s back surgery, i.e., $50,000.00 to $60,000.00 (Plaintiffs Exh. 19, Deposition of Jack Stern, M.D., page 35), should Dockery choose to have it performed. Should Dockery not elect to have the surgery, the amount awarded will assist Dockery in the event he will need physical therapy or other rehabilitative procedures and/or pain relief. B. Non-Pecuniary Damages “[A] district court reviews the evidence presented at trial in support of the challenged damage award and compares the award to other New York cases in which evidence of similar injuries was presented.” Presley v. U.S. Postal Service, 317 F.3d 167, 173 (2d Cir.2003) (citing Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 437-39, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996)). “When determining a pain and suffering award, it is appropriate for the Court to review awards in comparable cases.” Kolerski v. U.S., 2008 WL 4238924 at *5 (W.D.N.Y.2008) (citing Furey, 458 F.Supp.2d at 56). 1. Past and Future Pain and Suffering Dockery has testified about the excruciating pain on the night of the accident, the pain he suffered throughout his hospital stay and subsequent recuperation, and the continuing pain he suffers to this day. Dockery, his wife, and his son all testified regarding Dockery’s prior enjoyment of life and the litany of activities that he can now no longer enjoy. In New York, “pain and suffering includes the loss of the enjoyment of life which
307	exemptions. 15 U.S.C. § 1702(b)(1); see generally Trotta v. Lighthouse Point Land Co., LLC, 551 F.Supp.2d 1359, 1362 (S.D.Fla.2008) (recognizing that § 1702(b) exempts developments with fewer than 100 units from the Act’s property report requirement). Sanibel maintains that the 108-unit Project consists of fewer than 100 lots which are not exempt from the ILSF-DA, because at least 9 units are exempt for purposes of § 1702(b)(1). Given the statute’s remedial objective, “when faced with an ambiguity regarding the scope of an exemption [in the ILSFDA], the court must interpret the exemption narrowly, in order to further the statute’s purpose of consumer protection.” Taylor v. Holiday Isle, LLC, 561 F.Supp.2d 1269, 1271 n. 5 (S.D.Ala.2008) (citing Meridian Ventures, LLC v. One North Ocean, LLC, 538 F.Supp.2d 1359 (S.D.Fla.2007)); see also Markowitz v. Northeast Land Co., 906 F.2d 100, 105 (3rd Cir.1990) (“exemptions from remedial statutes such as the Act are to be narrowly construed”); Harvey, 568 F.Supp.2d at 1362, 2008 WL 1843909, at *6 (“Under federal law, exemptions under the ILSF-DA must be narrowly and strictly construed.”). The obvious corollary to this principle is that the terms of the ILSFDA must “be applied liberally in favor of broad coverage.” N & C Properties v. Windham, 582 So.2d 1044, 1048 (Ala.1991); see also Olsen v. Lake Country, Inc., 955 F.2d 203, 205 (4th Cir.1991) (“The language of the Act is meant to be read broadly to effectuate” purposes of prohibiting fraud and protecting purchasers of land). B. Plaintiffs ’ Right of
4507	statutes to bestow the broadest possible grant of personal jurisdiction consistent with due process. Sifers v. Horen, 385 Mich. 195, 188 N.W.2d 623, 624(Mich.1971). Where a state’s long-arm statute extends to the constitutional limits of the Due Process Clause, the two inquiries merge; courts must only determine whether an assertion of personal jurisdiction over the defendant violates the Due Process Clause. Nationwide Mut. Ins. Co. v. Tryg Int’l Ins. Co., 91 F.3d 790, 793 (6th Cir.1996). The Due Process Clause requires that plaintiffs establish a defendant’s minimum contacts with the forum state sufficient to comport with “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). The Sixth Circuit requires satisfaction of the following three criteria: First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. Southern Mach. Co. v. Mohasco Indus., 401 F.2d 374, 381 (6th Cir.1968). Because the Court believes that its exercise of personal jurisdiction over the DNN defendants would offend the Due Process Clause, the Court will confine its
4009	Technologies, 6 F.3d at 774. “Liability for either active inducement of infringement or for contributory infringement is dependent upon the existence of direct infringement.” Id. As discussed above, this court has found the existence of direct infringement, both by Defendant, and by Defendant’s customers. Under Section 271(b), one who “actively induces infringement of a patent shall be liable as an infringer....” 35 U.S.C. § 271(b). Inducement of infringement requires intent. Plaintiffs have the burden “of showing that the alleged in-fringer’s actions induced infringing acts and that he knew or should have known his actions would induce actual infringements.” Minnesota Mining and Mfg. Co. v. Chemque, Inc., 303 F.3d 1294, 1305 (Fed.Cir.2002) (citation omitted). As the Federal Circuit noted in MercExchange, LLC v. eBay, Inc., 401 F.3d 1323 (Fed.Cir.2005), We have construed that statute to require proof of intent, although there is a “lack of clarity concerning whether the required intent must be merely to induce the specific acts [of infringement] or additionally to cause an infringement.” [citations omitted.] Nevertheless, a patentee must be able to demonstrate at least that the alleged inducer had knowledge of the infringing acts in order to demonstrate either level of intent. Id. at 1332. Plaintiffs have shown that Defendant had knowledge of the infringing acts. Plaintiffs rely on two notice letters that it sent to Zeppelin shortly after the '833 patent issued, stating that Jet Dock believed Zeppelin was infringing the '833 patent. (See Notice Letters, Pis.’ Ex. 13 and 14, ECF Nos. 257-13 and
3545	To determine whether a right was clearly established, a court turns to Supreme Court and Ninth Circuit law existing at the time of the alleged act. See Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir.1996). In the absence of binding precedent, courts should look to available decisions of other circuits and district courts to ascertain whether the law is clearly established. Id. This inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier, 533 U.S. at 201, 121 S.Ct. 2151. For the law to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). It is not necessary that the “very action in question has previously been held unlawful,” but “in the light of preexisting law the unlawfulness must be apparent.” Id. “The relevant, dispositive inquiry ... is whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted.” Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir.2010) (quoting Saucier, 533 U.S. at 202, 121 S.Ct. 2151) (omission and emphasis in original), petition for cert, filed, April 7, 2010. In addition, “[c]ourts have ... held that the existence of a statute or an ordinance authorizing particular conduct is a factor which militates in favor of the conclusion that a reasonable official
3762	of Casselberry, 239 F.Supp.2d 1245, 1254 (M.D.Fla.2002). In order to show that the instant claims are barred by res judicata, the County must satisfy four elements: “(1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the same parties or their privies; and (4) both cases must involve the same causes of action.” In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir.2001). Determining whether two causes of action are the same for purposes of res judicata requires a court to “compare the substance of the actions, not their form.” Koziara, 239 F.Supp.2d at 1257 (quoting I.A. Durbin, Inc. v. Jefferson Nat’l Bank, 793 F.2d 1541, 1549 (11th Cir.1986)). “If the instant claims arise ‘out of the same nucleus of operative fact/ or are ‘based on the same factual predicate’ as the claims in [prior] court suits, then the causes of action are the same for res judicata purposes.” Id. (quoting Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1269-70 (11th Cir.2002)). If the claims are not absolutely identical, a court may “ask whether the plaintiff could, or rather should, have brought the second claim with the first lawsuit.” Trustmark, 299 F.3d at 1270 (citing Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1239 (11th Cir.1999)). The County identifies two sets of proceedings that it contends qualify as previously adjudicated matters between the parties that preclude at least some
4492	the complaint adequately demonstrates that Catsimatidis and Sloan’s had a motive to maintain Sloan’s appearance of financial health to both its existing shareholders and its potential investors. Furthermore, by failing to disclose the existence of the FTC investigation in the SEC filings or the communications to shareholders, Catsimatidis and Sloan’s had the “opportunity” to commit the alleged fraud. Moreover, even if plaintiff had failed to establish motive to commit fraud and an opportunity to do so, plaintiff has alleged facts that give rise to a strong inference of reckless or conscious behavior. Conscious behavior, for § 10(b) purposes, is found when there is either an “intent to defraud, knowledge of the falsity or a reckless disregard for the truth.” Ades v. Deloitte & Touche, 799 F.Supp. 1493, 1498-99 (S.D.N.Y.1992) (citing Breard v. Sachnoff & Weaver, Ltd., 941 F.2d 142, 144 (2d Cir. 1991)). The inference of recklessness necessary to satisfy the scienter requirement can be shown by “facts demonstrating ... that the defendant disseminated material ‘knowing [it was] false or that the method of preparation was so egregious as to render [the] dissemination reckless.’ ” Ades v. Deloitte & Touche, 799 F.Supp at 1499 (citation omitted). Applying these standards, this Court finds that the complaint satisfies the particularity requirement of Rule 9(b). The following al leged facts meet the requisite Rule 9(b) showing of both “conscious behavior” and “recklessness” and thus give rise to a “strong inference” of fraudulent intent or scienter: (1) Defendants’ knew of the FTC investigation at
4599	"must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’” City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (citations omitted). “It - is well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.’ ” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citation omitted). A case only becomes moot in the context ,of a voluntary cessation, “if subsequent events [make] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. (citing United States v. Concentrated Phosphate Export Ass’n., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)) (emphasis added). “[A] voluntary governmental cessation of possibly wrongful conduct [may be treated] with some solicitude.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009). But courts warn the solicitude should only be applied where the- “self-correction ... appears genuine.” Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir.1988). Arpaio does not contest that he and MCSO filed"" the lawsuits, submitted bar complaints, and performed the arrests the United States alleges. What Arpaio contests is the allegation that these actions were performed in retaliation for criticism he and his office received. In other words, that they were done with retaliatory animus. But the United States’ facts are sufficient to raise"
2171	submitted by the fee-seeker, compute a lodestar, consider the totality of the adjustment factors approved by Congress and the [Supreme] Court, and make specific, reasoned adjustments” to reduce the award if appropriate. Id. at 340 (citation omitted). Although this Court is not required to produce a “painstaking” explanation of its decision, which is reviewed “deferentially, according substantial respect to the trial court’s informed discretion,” id. at 336-37 (citing Brewster v. Dukakis, 3 F.3d 488, 492 (1st Cir.1993)), recent case law demonstrates that the First Circuit examines these “discretionary” decisions extremely closely, see, e.g., McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288, 310-11 (1st Cir.1998), cert. denied, —— U.S.—, 119 S.Ct. 870, 142 L.Ed.2d 772 (1999); Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 858-60 (1st Cir.1998); Williams, 113 F.3d at 1297-98. The First-Circuit has “ ‘never required that [district] courts set forth hour-by-hour analyses of fee requests.’ ” United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 16 (1st Cir.1988) (alteration in original) (quoting Jacobs v. Mancuso, 825 F.2d 559, 562 (1st Cir.1987)). “[A]t a bare minimum,” however, the trial court’s fee determination “must expose [its] thought process and show the method and manner underlying its decisional calculus,” Coutin, 124 F.3d at 337 (citing cases), “especially ... when the fee award departs substantially from the contours shaped by the application,” id. I. Calculating the Lodestar The lodestar approach “contemplates judicial ascertainment of ‘the number of hours reasonably expended on the litigation multiplied by a reasonable hourly
1990	on April 16,1996, the parties submitted supplemental memoranda on April 25 and 26, 1996, with respect to the Supplemental Record filed on April 16, 1996. II. Analysis A. Well-Grounded Claim Section 5107(a) of title 38, U.S.Code, provides in pertinent part: “[A] person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded.” The Court has defined a well-grounded claim as follows: “[A] plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of [section 5107(a) ].” Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded service-connection claim generally requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of nexus between an in-service injury or disease and a current disability. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For purposes of determining whether a claim is well grounded, the evidence is generally presumed to be credible. See Robinette v. Brown, 8 Vet.App. 69, 75-76 (1995) (citing King v. Brown, 5 Vet.App. 19, 21 (1993)). Where the determinative issue involves either medical etiology (such as with respect to a nexus between a current condition and an in-service disease or
2000	or aggravation in such service”. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d) (1996); see Zarycki v. Brown, 6 Vet.App. 91, 97 (1993); Hayes, 5 Vet.App. at 66. Section 1154(b) provides a factual basis upon which a determination can be made that a particular disease or injury was incurred or aggravated in service but not a basis to link etiologically the condition in service to the current condition. See Libertine v. Brown, 9 Vet.App. 521, 524 (1996); Caluza, 7 Vet.App. at 507. Although the provision does not establish service connection for a particular disability of a combat veteran, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. See id. at 508; see also Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) (noting that § 1154(b) “does not create a statutory presumption that a combat veteran’s alleged disease or injury is service-connected”, but “considerably lighten[s] the burden of a veteran who seeks benefits for an allegedly service-connected disease or injury and who alleges that the disease or injury was incurred in, or aggravated by, combat service”); cf. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994) (38 C.F.R. § 3.306, derived from § 1154(b), creates a presumption of aggravation but “not service-connection, or even that the determination of aggravation is irrebuttable”). 1. Requisite elements of PTSD claim. VA regulations in 38 C.F.R. § 3.304 that deal expressly with the adjudication of PTSD claims provide, in pertinent part, as follows: (f) Post-traumatic stress disorder. Service
3952	29 U.S.C. § 2601, et seq.; and the Illinois Health Insurance Claim Filing Act, 820 ILCS 45. Additionally, the complaint contains a claim for negligent infliction of emotional distress. This matter is now before the Court on cross-motions for summary judgment. II. SUMMARY JUDGMENT-STANDARD OF REVIEW Under Fed. R. Civ. P. 56(c), summary judgment shall be granted if the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Black v. Henry Pratt Co., 778 F.2d 1278, 1281 (7th Cir.1985). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Unquestionably, in determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials of the pleadings, which demonstrates that there is a
1898	over appeals from decisions of the PTO to the Federal Circuit. See 15 U.S.C. § 1071(a)(1). However, it also allows an aggrieved party to bring a civil action in district court. See id. § 1071(b)(1). In the latter case, the district court is empowered to adjudge that a trademark should be registered or, conversely, that a registration-granted by the PTO should be canceled. See id. The administrative record is admissible, but'the parties are free to adduce other evidence.- See -id. § 1071(b)(3) (“In suits brought hereunder, the record in the United States Patent and Trademark- Office shall be admitted on motion of any party ,..., without prejudice to the right of any party to take further testimony.”); Goya Foods, Inc. v. Tropicana Prods., Inc., 846 F.2d 848, 853 (2d Cir.1988) (“The record made in the Patent and Trademark Office is admitted in evidence, but the factfinding of that office is not conclusive, nor is the court’s consideration limited to that record.” (internal quotation marks and citation omitted)). The PTO’s conclusions of law aré reviewed de novo. See In re Thrifty, Inc., 274 F.3d 1349, 1351 (Fed.Cir.2001). Its findings of fact, by contrast, are reviewed under the “substantial evidence” standard, under which a court must accept the findings if a “ ‘reasonable mind might accept’ a particulár evidentiary record as ‘adequate to support a cohclusion.’ ” Dickinson v. Zurko, 527 U.S. 150, 162, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59
3416	natural part of the witness’s accounts of the circumstances surrounding the offenses for which the defendant was indicted” is admissible even if it tends to reflect negatively on the defendant’s character. United States v. Foster, 889 F.2d 1049, 1053 (11th Cir.1989). Here, the burglary conviction placed the firearm offense in context. Accordingly, there was no error in the admission of this evidence. B. Motion for a Mistrial A district court’s denial of a motion for mistrial is reviewed for abuse of discretion. United States v. Abraham, 386 F.3d 1033, 1037 (11th Cir.2004). When a curative instruction has been given, this court will reverse only if the evidence “is so highly prejudicial as to be incurable by the trial court’s admonition.” United States v. Harriston, 329 F.3d 779, 787 n. 4 (11th Cir.2003). To justify the grant of a mistrial, the defendant must show that he was substantially prejudiced. United States v. Chastain, 198 F.3d 1338, 1352 (11th Cir. 1999). “[This court] determined whether an error had substantial influence on the outcome by weighing the record as a whole.” See United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.1999). Here, the district court did not abuse its discretion in denying the mistrial. The statement that Terrell was a multiconvicted felon was a single, isolated statement, and the jury was instructed to disregard it. We presume the jury followed the court’s instructions. United States v. Chandler, 996 F.2d 1073, 1088 (11th Cir. 1993). Moreover, Terrell cannot show substantial prejudice from the
4978	ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before TJOFLAT, Chief Judge, CARNES, Circuit Judge, and BRIGHT , Senior Circuit Judge. PER CURIAM: In light of the Supreme Court’s holding in this case, Boca Grande Club, Inc. v. Florida Power & Light Co., Inc., - U.S. -, 114 S.Ct. 1472, 128 L.Ed.2d 165 (1994), that “actions for contribution against settling defendants are neither necessary nor permitted,” we find that Florida Power & Light may not pursue its claim for contribution against Boca Grande Club, Inc. (“Boca Grande”). Accordingly, we AFFIRM the district court’s grant of summary judgment in favor of Boca Grande. IT IS SO ORDERED.
4796	we will, in other and more aggravated circumstances, condone the use by prosecuting attorneys of pre-testimony courtroom confrontations to “firm up” the uncertain memories of potential witnesses. In this respect we agree with the District of Columbia Circuit that, where a normal jailhouse lineup could have been arranged, the use of a non-lineup confrontation “ * * * is, at the least, a practice fraught with perils to a degree suggesting its sparing use as the part of prudence.” Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1240-1241 (1968). Rather, we decide here only that the circumstances of the present case are not so “impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,” Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L.Ed.2d 1247 (1968), quoted in Coleman v. Alabama, supra, 399 U.S. at 5, 90 S.Ct. 1999. With reference to the confrontation incident, defendant Willis invokes not only the Due Process Clause of the Fifth Amendment, but the Assistance of Counsel Clause of the Sixth Amendment. In support of this argument, Willis places primary reliance upon the lineup eases, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L.Ed.2d 1178 (1967). In our view, however, the teaching of those eases does not apply to an inadvertent pretrial courtroom confrontation of the kind which took place in this case. See United
4716	S.Ct. 1348, 89 L.Ed.2d 538 (1986)), and “cannot rely on the mere allegations or denials contained in the pleadings,” Walker v. City of New York, No. 11-CV-2941, 2014 WL 1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted) > (citing, inter aha, Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009) (“When a motion for summary judgment is properly supported by documents or other evidentiary materials, thé party opposing summary judgment may not merely rest on the allegations or denials of his pleading....”)). “On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of City of N.Y., 746 F.3d 538, 544 (2d Cir.2014) (internal quotation marks omitted). At summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., MDL No. 1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court’s goal should be “‘to isolate and dispose of factually unsupported claims.’ ” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir.2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Schatzki v. Weiser Capital Mgmt.,
1678	unless the record shows a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation of some article of war; or “(d) The sentence originally imposed, with a view to increasing its severity, unless such sentence is less than the mandatory sentence fixed by law for the offense or offenses upon which a conviction has been had. “And no court-martial, in any proceedings on revision, shall reconsider its finding or sentence in any particular in which a return of the record of trial for such reconsideration is hereinbefore prohibited, (June 4, 1920, c. 227, sub-chapter II, § 1, 41 Stat. 795.)” Sanford v. Robbins, 6 Cir., 115 F.2d 435, 438; United States ex rel. Innes v. Hiatt, 3 Cir., 141 F.2d 664; Ex parte Quirin, 317 U.S. 1, 62 S.Ct. 1, 2, 87 L.Ed. 3. Cf. Schita v. King, 8 Cir., 133 F.2d 283; Shapiro v. United States, Ct. Cl., 69 F.Supp. 205. Ex parte Milligan, 4 Wall. 2, 123, 71 U.S. 2, 123, 18 L.Ed. 281. Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 754, 51 L.Ed. 1084, 11 Ann.Cas. 640.
3627	unconstitutionally vague. See Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015). Because Eason’s prior convictions can no longer qualify as predicate offenses under the residual clause, the only remaining question is whether any of his prior felonies can qualify as predicate offenses under the ACCA’s force clause. The force clause of the ACCA applies to felony offenses that include “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). “Physical force ‘means violent force — that is, force capable of causing physical pain or injury to another person.’ ” United States v. Schaffer, 818 F.3d 796, 798 (8th Cir. 2016) (quoting Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)). In determining whether a prior conviction qualifies as a predicate offense for. purposes of the ACCA sentencing enhancement, we first apply the categorical approach, looking “only to the fact of conviction and the statutory definition of the prior offense.” Shockley, 816 F.3d at 1063 (quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). One of Eason’s prior convictions was for robbery under Ark. Code Ann. § 5-12-102. The Arkansas robbery statute, § 5-12-102, states “[a] person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ
3755	22.) Plaintiff relies on two pieces of information to support its contention that the County intends to suspend its license. First, attorneys for the MBI have indicated that no decision has been made as to whether the MBI will refer the Cleo’s matter to the County. (Id. ¶¶ 15-17, 21.) Second, a “case progress sheet” reveals that a Cleo’s dancer was offered a plea and a possible probation reduction if she serves as a witness in the “CLEO case” or if her statement about the “management activities” of Cleo’s is helpful. (Id. ¶¶ 19-20.) Ripeness determinations present two relevant inquiries: “1) whether the issues are fit for judicial decision and 2) the hardship to the parties of withholding court consideration.” Konikov v. Orange County, 410 F.3d 1317, 1322 (11th Cir.2005) (citing Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir.1997)). Under this standard, Plaintiffs challenges to the substantive criminal provisions of the AEC and its facial challenges to the suspension provisions are ripe. “[Prospective enforcement of an ordinance has been found sufficient to generate a live case.” D.H.L. Assocs. v. O’Gorman, 199 F.3d 50, 54 (1st Cir.1999). This is particularly so when constitutional claims are at issue. Id.; Sable Commc’ns of Cal., Inc. v. Pac. Tel. & Tel. Co., 890 F.2d 184, 187 (9th Cir.1989) (“A threat that emanates from a regulation, compulsory in nature, to which the plaintiff is currently subject, is real and immediate if the possibility of enforcement is more than hypothetical.”). The
1566	93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, a plaintiff-employee carries the initial burden of establishing, by a preponderance of the evidence, a prima facie case of discrimination. In order to do so in the context of a failure to promote case, the plaintiff must show that: 1) he is a member of a protected class; 2) he was qualified for and applied for a promotion; 3) he was considered for and denied the promotion; and 4) after his rejection, the employer awarded the position to a person no more qualified that the plaintiff. Id. If the plaintiff can establish a prima facie case, the burden shifts to the defendant-employer to “articulate a legitimate, nondiscriminatory reason for its actions.” Stella v. Mineta, 284 F.3d 135, 144 (D.C.Cir.2002) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817, 36 L.Ed.2d 668). If the defendant can provide such a reason, the burden shifts back to the plaintiff, who must then “demonstrate that the employer’s stated reason was pretextual and that the true reason was discriminatory.” Id. (citing McDonnell Douglas at 804, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668). In the case at hand, the defendant contends that OIG selected the other two agents on the basis of their superior organizational, communication and leadership skills and that Mr. Pendleton was not selected because of his weakness in these same areas. Accordingly, defendant argues that even assuming that plaintiff can establish a prima facie case of discrimination, it has proffered
2723	PER CURIAM: In Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir.2006), this court discussed three documents that “apparently reflecte ] the adoption of a new policy in Changle City,” in the Fujian Province of the People’s Republic of China. Id. at 114. Two of the documents, allegedly 2003 decisions from the Changle City Family-Planning Board and Fujian Province Department of Family-Planning Administration (“2003 decisions”), stated, in effect, that foreign-born children will be counted in determining violations of the one-child policy, and that Chinese nationals who have children abroad will be treated the same as those who have children in China. The third document, dated 1999 and entitled “Q & A for Changle City Family-Planning Information Handbook” (“Q & A Handbook”), indicated that, at least in Changle City, the birth of a second
4168	Fed. R. Civ. P. 56. In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). “However, inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, “[a] party who bears the burden of proof on a particular issue .may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007) (citation omitted). “The opposing party cannot meet this burden with eonclusory statements or speculation but only with appropriate citations to relevant admissible evidence.” Sink v. Knox County Hosp., 900 F.Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of [the] claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation marks omitted). “[N]either the mere existence of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is
2471	Lovett v. Gen. Motors Corp., 975 F.2d 518, 522 (8th Cir.1992); 28 U.S.C. § 636 (granting district court judge’s authority to reverse erroneous magistrate orders). In Lovett, the Eighth Circuit Court of Appeals upheld a district court’s reconsideration of its own standing decision. See id. Because the law of the case doctrine applies only to issues decided by final judgments, id., the earlier decision did not bind the court. Here, the Magistrate did permit the Bank to intervene. But the law of the case does not bar this Court’s consideration of the Bank’s standing. 2. Do Plaintiffs Have Standing? Constitutional standing requires that plaintiffs suffer some injury to justify file Court’s entry of a declaratory judgment. Standing requires either actual or threatened injury. Babbitt, 442 U.S. 289, 292, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). “At the summary judgment stage the party invoking federal jurisdiction must have at least alleged specific facts that, taken as true, demonstrate the party suffered an injury in fact, that is one which is ‘(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.’ ” Nat'l Fed’n for the Blind v. Cross, 184 F.3d 973, 979 (8th Cir.1999) (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). Plaintiffs’ primary claim arises out of threatened regulation by Mille Lacs Band ordinances. The Court finds this claimed injury does not meet the constitutional requirement for standing; it is not actual, concrete, or imminent. While actual enforcement of regulatory ordinances is not required by law,
2835	not be used at trial, then they did constitute attorney work product, and were therefore privileged. Here, Davne argues that any surveillance materials, if they exist, may be used at trial for impeachment or rebuttal purposes. Therefore, this case is different from Fisher, in that Fisher involved materials that would not be used at trial under any circumstances, and this ease involves surveillance materials that may be used at trial. Because of this distinction, we hold that the general rule applies and any surveillance materials are discoverable, within the context of the attorney work product doctrine. See Snead v. American Export-Isbrandtsen Lines, 59 F.R.D. 148, 150-51 (E.D.Pa.1973) (surveillance materials discoverable because unavailable by other means and substantial need shown); Blyther v. Northern Lines, Inc., 61 F.R.D. 610 (E.D.Pa. 1973). The general rule states that “[b]efore any of these disclosures, however, the defense must be given an opportunity to depose the plaintiff fully as to [her] injuries, their effects and [her] present disabilities.” Snead, 59 F.R.D. at 151. Accordingly, Plaintiffs Motion to Compel Answers to Document request number 13 and Plaintiffs Surveillance Interrogatories is GRANTED, and Davne must respond within one week of completing Plaintiffs deposition. An appropriate order follows. ORDER AND NOW, this 5th day of October, 1994, upon consideration of Plaintiffs Motion to Compel Full and Complete Discovery Responses from Defendant, Sanford H. Davne, M.D., and responses thereto, the Motion is hereby GRANTED in PART and DENIED in PART. 1. Defendant Davne is hereby ORDERED to answer Interrogatory nos.
4383	F.3d 941, 946 (7th Cir.1994). Therefore, courts have imposed this requirement to protect employees from the potential whim of their employers. By requiring at least two years of employment and rendering post-employment restrictive covenants void if an employee leaves at any time before two years, even if they did so on their own volition, the Fifield court flips this problem on its head. Under this rule, “an employee can void the consideration for any restrictive covenant by simply quitting for any reason.” This creates a reality that “renders all restrictive covenants illusory in [Illinois],” as “[t]hey would be voidable at the whim of the employee.” Brown & Brown, 320 Ill.Dec. 293, 887 N.E.2d at 442 (Schmidt, J., dissenting). See also LKQ Corp. v. Thrasher, 785 F.Supp.2d 737, 744 (N.D.Ill.2011)(concluding that twelvemonths of at-will employment served as adequate consideration for a restrictive covenant when employee resigned voluntarily). Moreover, the Fifield court’s -conclusion that a bright-line rule applies even when the employee voluntarily terminates employment only finds weak support in prior Illinois case law. The Fifield court relied upon two other Illinois appellate court cases to support this proposition: Diederich Insurance Agency, LLC v. Smith, 351 Ill.Dec. 792, 952 N.E.2d 165 (App.Ct.2011) and Brown & Brown, 379 Ill.App.3d 724, 320 Ill.Dec. 293, 887 N.E.2d 437. In both cases, employees ended employment before the two-year mark and the courts held that the consideration was inadequate in spite of the fact that the employees resigned voluntarily. Both cases contain near-identical language, which is devoid
992	On the one hand, “it is for the court to determine whether the terms of an integrated agreement are unambiguous and, if so, to construe them according to plain meaning.” United States Liab. Ins. Co. v. Selman, 70 F.3d 684, 687 (1st Cir.1995). Appellate review of such determinations is, accordingly, de novo. See id. On the other hand, “when the district court’s answers rest not on plain meaning but on differential findings by a trier of fact, derived from extrinsic evidence as to the parties’ intent with regard to an uncertain contract provision, appellate review proceeds under the clearly erroneous standard.” Id. See also ICC v. Holmes Transp., Inc., 983 F.2d 1122, 1126 (1st Cir.1993); Gel Sys. Inc. v. Hyundai Eng’g & Constr. Co., 902 F.2d 1024, 1027 (1st Cir.1990). Servicios Comerciales Andinos, S.A. v. General Electric Del Caribe, Inc., 145 F.3d 463, 469 (1st Cir.1998). As is made clear later in the opinion, the phrase “parties’ intent” refers not to unmanifested states of mind of the separate parties but to, in the idiom of the foreign law applicable in that case, “some outward sign of consent, some declaration of the common will of the parties.” Id., at 473 (applying Peruvian law). See also Boston Gas Co. v. Department of Pub. Util., 368 Mass. 780, 788 n. 4, 336 N.E.2d 713, 718 (1975) (extrinsic evidence must “present an understanding of the parties which would aid in an interpretation of the agreement” in the event of ambiguity). Appellate review of the
3883	evidence to support the nonmoving party’s case,” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986), the nonmoving party responding to a properly made and supported summary judgment motion still must set forth facts showing that there is a genuine issue of material fact and that a reasonable jury could return a verdict in its favor. See Wolf v. City of Fitchburg, 870 F.2d 1327, 1329 (7th Cir.1989); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). Denials contained in the pleadings or bald allegations that an issue of fact exists are insufficient to raise a factual issue. See Shacket v. Philko Aviation, Inc., 681 F.2d 506, 513 n. 8 (7th Cir.1982), rev’d on other grounds, 462 U.S. 406, 103 S.Ct. 2476, 76 L.Ed.2d 678 (1983). “The moving party is ‘entitled to a judgment as a matter of law1 [if] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The Act outlines the “essential elements” for the claim at issue here; it provides in pertinent part: (b) Necessary stabilizing treatment for emergency medical conditions and labor (1) In general If any individual (whether or not eligible for benefits under this subchapter) comes to a hospital and
1852	or even the fact of their acceptance can be a dispute separate from such a claim. In any event, under the present circumstances, the court has before it only the government’s demand for unliquidated progress payments, offset by accepted product. Accordingly, there is no occasion for the court to deal with the question of title to the manufacturing materials. A ruling on that issue would be gratuitous. For similar reasons, however, there is no basis for considering the effect of the Forfeiture Statute, 28 U.S.C. 2514 (1988). In the event a claimant against the United States engages in fraud in the “proof, statement, establishment, or allowance” of a claim, the claim is forfeited. Id. See also Martin J. Simko Const., Inc. v. United States, 852 F.2d 540, 548 (Fed.Cir.1988). The question here is, what constitutes the claim? Defendant urges that the court apply the Forfeiture Statute to two “claims.” The first, it urges, is “the trustee’s assertion that it is entitled to retain progress payments that Triad received as a result of its submission of falsified progress payment requests.” Brief of June 10, 1994, p. 7. Triad suggests that what defendant construes as a claim is really a defense to the government’s claim of a right to default terminate and to its demand for unliquidated progress payments. Defendant is correct that the term “claim” as used in the Forfeiture Statute is more comprehensive than the term used in the Contract Disputes Act. It embraces any claim asserted in this court
4592	"the United States’ retaliation claim must fail because the United States does not and cannot show Arpaio lacked probable cause for the lawsuits"" it claims were retaliatory. - The United States argues it is not required to show lack of probable cause to succeed in a claim'for retaliatory law enforcement action. To prove a claim for retaliation in violation of the First Amendment, a plaintiff must show: (1) the defendant “took action that “would chill or silence a person of ordinary firmness from -future First Amendment activities’ ” and (2) the defendant’s “desire to cause the chilling effect was a but-for cause of the defendant’s action.” Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1232 (9th Cir.2006) (citing Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir.1999); Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)). At the time Skoog was decided, whether a plaintiff had to plead a lack of probable cause in order to satisfy the second requirement was “an open question in [the Ninth Circuit] and the subject of a split in other circuits.” Id. The Skoog court held “a plaintiff need not plead the absence of probable cause in-order to state á claim for retaliation.” Id. The court contrasted this with the Supreme Court’s ruling in Hartman v. Moore, where the Supreme Court held plaintiffs claiming retaliatory prosecution must plead lack of probable cause. 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). The reason, the Hartman Court"
4126	ability to sleep suffers. Tr. at 157. She also testified that due to the accident, the couple’s intimate relationship has diminished to next to nothing. Tr. at 158. II. The Federal Tort Claims Act (FTCA) generally “The United States enjoys sovereign immunity; it cannot be sued without its consent, and such consent is a prerequisite for jurisdiction.” See United States v. Navajo Nation, 537 U.S. 488, 502, 123 S.Ct. 1079, 155 L.Ed.2d 60 (2003). “Congress has given limited consent to suit in the FTCA, which does not create new causes of action, but only waives immunity under circumstances that would create liability ‘in the same manner and to the same extent as a private individual under like circumstances.’ ” Dorking Genetics v. United States, 76 F.3d 1261, 1266 (2d Cir. 1996) (quoting 28 U.S.C. § 2674). To satisfy the elements of the FTCA, a claim must be: against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. Id. at 1264 (quoting F.D.I.C. v. Meyer, 510 U.S. 471, 477, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (quoting 28 U.S.C. § 1346(b))). “The
1326	current ability to pay creditors. Frederickson, 375 B.R. at 833 (recognizing In re Jass, 340 B.R. 411 (Bankr.D.Utah 2006) as an example of this approach). The Jass court found that the significance of the word “projected” was that it “requires the Court to consider both future and historical finances of a debtor in determining compliance with § 1325(b)(1)(B).” Jass, 340 B.R. at 416. According to Jass, the court would presume the figure from Form B22C is the correct projected disposable income unless the debtor can show a substantial change in circumstances to rebut the figure. Id. at 418. Finally, some courts follow a plain-meaning approach and only use Form B22C to determine projected disposable income. Frederickson, 375 B.R. at 833 (recognizing In re Alexander, 344 B.R. 742 (Bankr.E.D.N.C.2006) as an example of this approach). According to Alexander, “in order to arrive at ‘projected disposable income,’ one simply takes the calculation mandated by § 1325(b)(2) and does the math.” Alexander, 344 B.R. at 749. The Bankruptcy Appellate Panel of the Eighth Circuit, in a two to one decision, agreed with the third approach and found that “projected” “merely explains the treatment of ‘disposable income.’ ” Frederickson, 375 B.R. at 833. According to the panel, “ ‘[projected disposable income’ is the disposable income calculated on Form 22C extrapolated over the applicable commitment period. It is the amount to be paid on unsecured claims. The statute requires no more.” Id. at 835. As recognized by another court, “Congress has already determined the fairness
2038	in accordance with this opinion, the Board must explain carefully its conclusions as to the applicability of the benefit-of-the-doubt rule as to each material issue in the case, including the questions whether, according to medical evidence, the corroborated, frequent rocket-and-mortar-attack stressor was a contributing basis for the veteran’s current PTSD symptoms; and, if not, whether the veteran served in combat; whether the asserted landing stressor is corroborated by any further ESG report or other evidence; and whether, according to the medical evidence, the landing stressor if found to have occurred was a contributory basis for the veteran’s current PTSD symptoms. See Williams, supra; Sheets v. Derwinski, 2 Vet.App. 512, 516 (1992); O’Hare v. Derwinski 1 Vet.App. 365, 367 (1991); see also Fletcher v. Derwinski 1 Vet.App. 394, 397 (1991) (“[a] remand is meant to entail a critical examination of the justification of the decision” and is not “merely for the purposes of rewriting the opinion so it will superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C. § 7104(d)(1)”). Also, because the Court holds that the undisputed diagnosis of PTSD by the three mental-health professionals established on the facts of this case, as a matter of law, a current PTSD disability, which necessarily includes the sufficiency of the alleged stressors (although not necessarily their occurrence), the changes brought about in the PTSD diagnostic criteria by VA’s adoption, in 38 C.F.R. §§ 4.125 and 4.130 (Nov 96 amnds), of the DSM-IV nomenclature, effective on November 7, 1996 (61 Fed.Reg.
267	existed at the time of the arrest and provides a source of probable cause independent of any warrant (internal quotation marks and citations omitted)). “A plaintiff who argues that a warrant was based on less than probable cause ‘faces a heavy burden.’ ” Sheikh v. City of New York, 2008 WL 5146645, *7 (E.D.N.Y.2008) (citing Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir.1991)). He must make a “substantial preliminary showing” that the officer “knowingly and intentionally, or with reckless disregard for the truth, made a false statement” that was “necessary to the finding of probable cause.” Id. (internal quotation marks omitted). The validity of an arrest does not depend on an ultimate finding of guilt or innocence. Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). There is no dispute that plaintiff was arrested pursuant to an arrest warrant issued upon the grand jury’s return of an indictment against him. Therefore, plaintiffs arrest is presumptively privileged, and, in order to proceed to trial, he must proffer evidence sufficient for a reasonable jury to find that the indictment was procured by fraud, perjury, or the misrepresentation or falsification of evidence. See Martineta, 12 Fed.Appx. at 33. After full discovery of the defendants, plaintiff offers no basis from which the jury could infer that the officers deliberately lied, misrepresented the evidence, or presented false evidence to the grand jury. See Jenkins v. City of New York, 1999 WL 782509, *8-9 (S.D.N.Y.1999) (bare allegation
4779	be construed to mean, that prejudicial evidence may be admitted at trial only if its harmful effect is substantially outweighed by its relevance. Rather, the presumption works the other way, mandating the admissibility of relevant evidence unless good reason appears for its exclusion. See United States v. Foley, 871 F.2d 235, 238 (1st Cir.1989). The court here seems to reverse this presumption, see, e.g., ante at 4, 5, thereby putting the shoe on the wrong foot. Third: I fervently believe that the Rule 403 balance is best struck on a case by case basis, and that, in almost all instances, the strikers of the balance should be the district courts as opposed to the court of appeals. See, e.g., Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir.1988) (“Only rarely — and in extraordinarily compelling circumstances — will we, from the vista of a cold appellate record, reverse a district court’s on-the-spot judgment concerning the relative weighing of probative value and unfair effect.”). I worry that today’s opinion undervalues this discretion and that the court’s words, though correct in the context of the case before us, may be taken by some as a command that will prompt the district courts to miero-manage trials and thereby dispense justice of a superficial variety (which is to say, dispense injustice). In the last analysis, a trial is not an exercise in computer science, but, rather, a recreation of flesh-and-blood events for the edification of the factfinder. The law is not so
1028	notice was required because no oral notice had been given. Finally, the Union argues that even if it failed to give the FMCS any notice of the Belle Ayr dispute, Section 8(d)(3) is satisfied if the FMCS independently obtained “actual knowledge” of the dispute from other sources. We disagree. Nothing in the statute or in the relevant case law relieves the Union of its statutory duty to notify the FMCS. The purpose of Section 8(d)(3) is “to increase the likelihood that the mediation services will have sufficient time to intervene. The method Congress chose to serve this purpose was to assign to one party, the initiating party, a fixed and definite responsibility for notifying the mediation services.” Hooker Chemicals & Plastics Corp. v. NLRB, 573 F.2d 965, 970 (7th Cir. 1978). This purpose is not fulfilled when the FMCS happens to find out about a dispute on its own. VI. OVERALL FAILURE TO BARGAIN IN GOOD FAITH Amax charged the Union with a failure to bargain in good faith and the Union raised the same claim against Amax as an affirmative defense. The Board held that neither party had engaged in bad faith bargaining. Except for that conduct which we found to constitute violations of the Act, we conclude that as to the remaining issues the Board’s finding that neither party engaged in bad faith bargaining is supported by substantial evidence. VII. For the foregoing reasons the company’s petition for review will be granted and enforcement of the Board’s order
1122	intent of the parties to arbitrate their disputes. See id. (affirming a district court’s severance of a provision in an arbitration clause requiring, contrary to Title VII, that each party pay its own attorney fees, and observing that “[y]ou don’t cut down the trunk of a tree because some of its branches are sickly”); see also Cirino v. L. Gordon Holdings, Inc., No. 13-CV-4800, 2014 WL 2880291, at *6 (E.D.Pa. June 25, 2014) (severing provision denying the arbitrator the ability to award punitive damages under § 1981). As Defendants point out, severance is particularly appropriate where, as here, the agreement contains a provision “calling for the severance of invalid provisions.” Defs.’ Reply 10, ECF No. 13 (quoting Parilla v. IAP Worldwide Servs., VI, Inc., 368 F.3d 269, 288 (3d Cir.2004)). Accordingly, the arbitration clause’s ban on punitive and exemplary damages is severed from the remainder of the clause, with the result that the arbitrator is permitted to 'award punitive damages consistent with Title VII and § 1981. C. The limitation on attorney’s fees can be severed from the clause, and Monfared is entitled to discovery regarding the costs of arbitration. Finally, Monfared contends that the arbitration. agreement is unenforceable because it requires her to pay a portion of the arbitrator’s fees. Pl.’s Mem. Opp’n 18-23. The clause provides that “[a]U costs of mediation or arbitration shall be evenly divided between the parties, exclusive of each party’s legal fees, each of which shall be borne by the party that incurs them.”
4973	2004 Notice of Allowability at 2. Significantly, the Notice of Allowability made no mention of the management layer, or of the position of servers relative to the storage layer, but instead relied on the amendment. Sun contends that this prosecution history demonstrates that both NetApp and the Examiner interpreted claim 1 as requiring a specific software layer arrangement where the storage layer is above the management layer to gain allowance over the prior art. See Rheox, Inc. v. Entact, Inc., 276 F.3d 1319, 1325 (Fed.Cir.2002) (“Explicit arguments made during prosecution to overcome prior art can lead to a narrow claim interpretation because ‘[t]he public has a right to rely on such definitive statements made during prosecution.’ ”) (quoting Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1347 (Fed.Cir.1998)); Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed.Cir.1995) (“Claims may not be construed one way in order to obtain their allowance and in a different way against accused infringers.”). NetApp concedes, as it must, that the prosecuting attorney’s argument was inartfully worded at best and notes that it was ultimately unnecessary for allowance. NetApp argues that the real thrust of the applicants’ argument was that it would not have been obvious to combine the “management” layer in Tzelnic with the system disclosed in Thekkath, because the “management” functions described in Thekkath and Tzelnic are in different places relative to the storage layer. While the prosecuting attorney did appear to place the management layer under the storage layer,
4416	disclosure that the plaintiffs demand was not required because that information was not materially different from the information that was already publicly disclosed, because the defendants’ made no incomplete or inaccurate statements, and because no regulatory provision created an affirmative duty to disclose the allegedly omitted information. The plaintiffs thus fail to allege actionable omissions under Rule 10b-5. B. The defendants argue correctly that the alleged omissions did not mislead investors because information about BoA’s exposure to MBS litigation generally, and AIG’s claim in particular, was in the public domain. “Although the underlying philosophy of federal securities regulation is that of full disclosure, there is no duty to disclose information to one who reasonably should be aware of it.” Seibert v. Sperry Rand Corp., 586 F.2d 949, 952 (2d Cir.1978) (internal citations and quotation marks omitted). ‘Where allegedly undisclosed material information is in fact readily accessible in the public domain, ... a defendant may not be held liable for failing to disclose this information.” In re KeySpan Corp. Sec. Litig., 383 F.Supp.2d 358, 377 (E.D.N.Y.2003); see also In re Merrill Lynch & Co., Inc. Research Reports Sec. Litig., 272 F.Supp.2d 243, 249-250 (S.D.N.Y.2003) (“[T]he Defendants cannot be held liable for failing to disclose ... publicly available information.”). In this case, the plaintiffs allege only that AIG was “considering” a suit, “planned” to sue, or would probably sue. (SAC ¶¶ 58, 63, 108.) These probabilities were plainly within the public domain because, as the plaintiffs acknowledge, The New York Times disclosed
4013	Inc. v. Robert H. Peterson Co., 365 F.3d 1054, 1061 (Fed.Cir.2004) (citation omitted). Plaintiffs must also “show that [Defendant’s] components have no substantial noninfringing uses.” Id. (citing Alloc, Inc. v. ITC, 342 F.3d 1361, 1374 (Fed.Cir.2003)). Plaintiffs have shown that Defendant knew of the '833 patent at least since the notice letters were sent in January 1998, and such letters are enough to satisfy the intent requirement of § 271(c). See Trell v. Marlee Electronics Corp., 912 F.2d 1443, 1447 (1990) (explaining that “the knowledge requirement of section 271(c) limited an alleged contributory infringer’s liability to sales made after it received a letter from the patent holder informing it of the existence of the patent.” (quoting Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964))). Plaintiff also points to Rueckert’s statement that his Ultra was “designed to permit drive on docking for personal water crafts and small boats.” (Rueckert Decl. ¶ 3, Pis.’ Ex. D, ECF No. 268-5.) Plaintiff argues that this statement is conclusive of the no-other-use issue. Additionally, Plaintiffs point to Defendant’s advertising, none of which suggests that the Ultra has any purpose or use beyond use as a floating drive-on dry dock. {See Zeppelin’s Consumer Ads, Pis.’ Ex. 6.) Considering this evidence, Plaintiffs have met their burden of showing that Defendant “knew that the combination for which its components were especially made was both patented and infringing” and that the Ultra has “no substantial noninfringing uses.” See
1978	one thing under a warrant describing another.” Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). In reviewing a warrant against a claimed lack of particularity, “the language of a warrant is to be construed in light of an illustrative list of seizable items.” United States v. Riley, 906 F.2d 841, 844 (2d Cir.1990); see also United States v. Young, 745 F.2d 733, 759-60 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). While the purpose of the particularity requirement is to avoid leaving to “the unguided discretion of the officers executing the warrant the decision as to what items may be seized,” (United States v. Riley, supra, citing Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976) and Marron v. United States, supra), the particularity requirement is not so exacting as to eliminate all discretion of the executing officers. United States v. Riley, supra. “Once a category of seizable papers has been adequately described, with the description delineated in part by an illustrative list of seizable items, the Fourth Amendment is not violated because the officers executing the warrant must exercise some minimal judgment____” United States v. Riley, supra, at 845. Here, the Government sought the seizure of waste product records, records of manifested wastes, work orders and invoices, drum tally sheets, waste receiving reports, waste evaluation logs, drum tally-drum storage logs, waste-tracking reports and logs, certificates of destruction of hazardous
1722	water unsafe and/or non-potable, and cause significant expenses to remove from private wells.”). . R & R at 9 (citing MTBE III, 342 F.Supp.2d at 153-54). . See id. at 6 (finding that the “federal issues involved” did not create a substantial question of federal law under Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 813, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986)). . See id. at 12. Specifically, the Judge found that the first three Complaints did not allege any “federal direction behind the spill or Defendant's purported negligence in its response to the spill.” Id. .R & R at 12. . R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir.1979) (quoting McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). . Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1046 (2d Cir.1991) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)). Accord Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 31, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002) (noting that ''statutory procedures for removal are to be strictly construed”). . See, e.g., Kings Choice Neckwear, Inc. v. DHL Airways, Inc., No. 02 Civ. 9580, 2003 WL 22283814, at *2 (S.D.N.Y. Oct.2, 2003) (citation omitted). . See 28 U.S.C. § 1441(a). . See Merrell Dow Pharm., Inc., 478 U.S. at 808, 106 S.Ct. 3229; Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S.
4563	implied system of enforcement permits substantial liability without regard to the recipient’s knowledge.or its corrective actions upon receiving notice.”) (emphasis in original). This sort of “deliberate indifference” is a form of intentional discrimination by the employer/principal directly, not a form of vicarious liability. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 182, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). An institution is also directly .liable for its “own official decision[s].” Gebser, 524 U.S. at 290-291, 118 S.Ct. 1989. The Ninth Circuit and others have held a separate finding of “deliberate indifference” is not necessary when an institutional policy violates the statute. Mansourian v. Regents of Univ. of California, 602 F.3d 957, 967-969 (9th Cir.2010). See also Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170, 1178 (10th Cir.2007) (“[A] funding recipient can be said to have ‘intentionally ácted in clear violation of Title IX,’ when the violation is caused by official policy.”) (citing Davis, 526 U.S. at 642, 119 S.Ct. 1661). Because a “policymaker” is not acting individually, but on behalf of the institution/entity, and his policies are the policies of the entity, no imputation takes place in charging the entity with violations stemming .from those policies — they are the policies of the entity, not merely the individual. This logic parallels the reasoning that undergirds- the law establishing “policymaker” liability under § 1983 and applies with equal- force to Title VI. Maricopa County is directly liable for violations resulting from its official policy, which includes policy promulgated
807	Opinion and Order the 9th of July, 1984.” The short answer to this inarticulate allegation is that the disqualification statutes were never meant to serve as a substitute for reexamination, review, or appeal, where the alleged bias is predicated on adverse ruling or decision in the past or possible expectation that a pending or present matter might be decided adversely. Sperry Rand Corp. v. Pentromix, Inc., 403 F.Supp. 367 (D.C.Pa.1975). It is significant that the motion for disqualification comes on the eve of a hearing to assess attorney’s fees against plaintiff. The insufficiency of plaintiff’s affidavit as to timeliness, facts, and form mandates denial of the motion to recuse. Plaintiff’s affidavit of judicial prejudice is procedurally incorrect and legally insufficient. Selfridge v. Gynecol, Inc., 564 F.Supp. 57 (D.C.Mass.1983). To borrow the words of Judge Nelson in Selfridge v. Gynecol, Inc., supra, the conduct of plaintiff — a pro se litigant — “manifests an appalling degree of irresponsibility.” During oral argument plaintiff stated that he did not know the nature of the relationship between counsel Nachman and counsel Estrella, even though he asserted under oath that they have been law partners; that he had just read in the June 28, 1984 edition of the newspaper El Mundo, that there was a $50,000 jury award in a prisoner’s case where the complaint was filed by Mr. Nachman and Mr. Estrella; that said case was totally unrelated to this case and tried before another judge of this Court. As to the alleged relationship
309	in order to further the statute’s purpose of consumer protection.” Taylor v. Holiday Isle, LLC, 561 F.Supp.2d 1269, 1271 n. 5 (S.D.Ala.2008) (citing Meridian Ventures, LLC v. One North Ocean, LLC, 538 F.Supp.2d 1359 (S.D.Fla.2007)); see also Markowitz v. Northeast Land Co., 906 F.2d 100, 105 (3rd Cir.1990) (“exemptions from remedial statutes such as the Act are to be narrowly construed”); Harvey, 568 F.Supp.2d at 1362, 2008 WL 1843909, at *6 (“Under federal law, exemptions under the ILSF-DA must be narrowly and strictly construed.”). The obvious corollary to this principle is that the terms of the ILSFDA must “be applied liberally in favor of broad coverage.” N & C Properties v. Windham, 582 So.2d 1044, 1048 (Ala.1991); see also Olsen v. Lake Country, Inc., 955 F.2d 203, 205 (4th Cir.1991) (“The language of the Act is meant to be read broadly to effectuate” purposes of prohibiting fraud and protecting purchasers of land). B. Plaintiffs ’ Right of Rescission. The question of whether Sanibel was or was not obligated to furnish plaintiffs with an ILSFDA property report is of much more than merely casual interest. If a property report is not furnished to purchasers in advance of the signing of a purchase agreement for a lot covered by the ILSFDA, “[t]he plain language of the statute gives them the right to rescind that agreement.” Law, 578 F.2d at 101. Indeed, the Act provides that, as to any purchase agreement for a lot “for which a property report is required by this
4130	80 (2d Cir.2005). “Under the FTCA, the liability of the United States for the negligence acts of its agents is governed by the law of the state in which the alleged negligence occurred.” Gerace v. U.S., 2006 WL 2376696 (N.D.N.Y.2006). In other words, “the court [should] apply the substantive law of the place where the events occurred.” Giordano v. U.S., 2009 WL 1362979 (N.D.N.Y.2009) (citing Castro v. United States, 34 F.3d 106, 110 (2d Cir.1994)). III. Negligence / Duty To Warn / Reasonable Care “Under New York law, the elements of a negligence claim are: (i) a duty owed to the plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially caused by that breach.” Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 215 (2d Cir.2002). In this state, “negligence is defined as conduct which falls ‘below that of a reasonably prudent person under similar circumstances judged at the time of the conduct at issue.’ Thus, a plaintiff who asserts a negligence claim against the United States pursuant to the FTCA ‘must prove by a preponderance of the evidence that: (1) the Government owed a duty to [him or her]; (2) the Government breached that duty by its negligent conduct; and (3) as a result of that breach, plaintiff suffered injury.’” Rambert v. U.S., 1996 WL 583392 (S.D.N.Y. 1996) (internal cites omitted). “With regard to premises liability, New York has adopted a single standard of liability, requiring an owner to maintain reasonably safe conditions in view
4178	any other type of seizure.” Stainback v. Dixon, 569 F.3d 767, 771 (7th Cir. 2009). The Fourth Amendment protects against the use of force that is not “objectively reasonable.” Kinney v. Ind. Youth Ctr., 950 F.2d 462, 465 (7th Cir. 1991). The “right to make an arrest.. .necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). However, this right is not without limits; a “police officer’s use of force is unconstitutional if, judging from the totality of circumstances at the time of the arrest, the officer used greater force than was reasonably necessary to make the arrest.” Payne v. Pauley, 337 F.3d 767, 778 (7th Cir. 2003) (citation and quotation marks omitted). Fourth Amendment unreasonable seizure claims, like excessive force claims, are analyzed in light of the totality of the circumstances to determine the objective reasonableness of the seizure. To determine the reasonableness and therefore the constitutionality of a seizure, courts must “balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (citation and quotation marks omitted). In considering this balance, whether under an excessive force or unreasonable seizure claim, the court considers the severity of the crime at issue, whether the suspect posed an immediate
570	sustained by the simple fact that the word ‘will’, while obviously well known to both parties to the contract, was not used.” We think the defendant here cannot so evade the force of the Williams opinion. As the able trial judge points out, the agreement was “inartistically drawn”. He determined that an ambiguity existed —that the contract was susceptible of more than one meaning, and with that we agree. This court said in United States v. Northern Pacific Ry. Co., 8 Cir., 1951, 188 F.2d 277, 280: “The question as to whether an ambiguity exists in a contract is to be determined by the court as a matter of law. 17 C.J.S. Contracts § 617; Whiting Stoker Company v. Chicago Stoker Company, 7 Cir., 171 F.2d 248; Golden Gate Bridge & Highway District of California v. United States, 9 Cir., 125 F.2d 872.” Having so determined and we think rightly, the matter became an issue of fact and, as Judge Thomas, speaking for this court in Floyd v. Ring Construction Corp., 8 Cir., 1948, 165 F.2d 125, 129, said: “The law is ‘that the terms of a contract, if it be ambiguous, are matters of fact to be determined in the same manner as other facts; by the jury, if it be a jury case, or by the court, if the jury be waived; while the construction of the contract and its legal effect are questions of law for the court.’ Pike Rapids Power Co. v. Minneapolis, St. P. &
4107	the Feggestads then perfected this appeal. II.ISSUE Whether the district court erred in granting Kerzner’s motion to dismiss on the basis of a valid forum selection clause. III.STANDARDS OF REVIEW This court reviews de novo the enforceability of a forum selection clause. Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279, 1281 (11th Cir. 2009). We review a district court’s ruling on a motion to dismiss for forum non conveniens for a clear abuse of discretion only. Aldana v. Del Monte Fresh Produce N.A., 578 F.3d 1283, 1288 (11th Cir. 2009). As long as the district court considered all relevant factors, and its balancing of the factors was reasonable, we will give substantial deference to the district court’s decision. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981). IV.ANALYSIS “Forum selection clauses are presumptively valid and enforceable unless the plaintiff makes a ‘strong showing’ that enforcement would be unfair or unreasonable under the circumstances.” Krenkel, 579 F.3d at 1281. A forum selection clause will be invalidated if (1) its formation was induced by fraud or overreaching; (2) the plaintiff would be deprived of his day in court because of inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of the clause would contravene public policy. Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285, 1296 (11th Cir. 1998). When the parties do not negotiate the forum selection clause, as was the case here, this
1322	trial Court is authorized to direct a verdict only where the evidence is without dispute, or if conflicting, is of such nature as to warrant but one conclusion as a matter of law. See: Central Surety & Ins. Corporation v. Murphy (10 CA), 103 F.2d 117; National Mut. Casualty Co. of Tulsa, Old. v. Eisenhower (10 CA), 116 F.2d 891; and Kansas Transport Company v. Browning (10 CA), 219 F.2d 890. A corollary to that rule is the equally well settled Kansas substantive rule that “the existence of contributory negligence is a question of fact for the jury’s consideration unless reasonable minds could reach but a single conclusion from the established facts with all reasonable inferences favoring the plaintiff.” Young v. Vincent (10 CA), 310 F.2d 709, 711. It would serve no purpose to delineate the evidence of contributory negligence here. Suffice it to say that it is sufficiently conflicting to require its submission to the jury, and our judicial inquiry ends there. Indeed, appellants concede as much and attempt to negate the probative value of their own driver’s testimony as being contrary to the physical facts. But, the litigants are bound by their own evidence and the inferences to be drawn therefrom. See: Kansas Transport Company v. Browning (10 CA), supra. Appellants’ contention in support of a directed verdict is merely a re-assertion of their argument to the trial Court and the defense presented to the jury. The remaining question is whether the trial Court’s challenged instructions properly submitted
4506	Inc., 106 F.3d 147, 149 (6th Cir.1997). The Michigan Supreme Court has construed Michigan’s long-arm statutes to bestow the broadest possible grant of personal jurisdiction consistent with due process. Sifers v. Horen, 385 Mich. 195, 188 N.W.2d 623, 624(Mich.1971). Where a state’s long-arm statute extends to the constitutional limits of the Due Process Clause, the two inquiries merge; courts must only determine whether an assertion of personal jurisdiction over the defendant violates the Due Process Clause. Nationwide Mut. Ins. Co. v. Tryg Int’l Ins. Co., 91 F.3d 790, 793 (6th Cir.1996). The Due Process Clause requires that plaintiffs establish a defendant’s minimum contacts with the forum state sufficient to comport with “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940)). The Sixth Circuit requires satisfaction of the following three criteria: First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. Southern Mach. Co. v. Mohasco Indus., 401 F.2d 374, 381 (6th Cir.1968). Because the Court believes that its exercise of personal jurisdiction
4786	the District Court of the District of Columbia.” Cyc. of Federal Procedure, 2d Ed., Sec. 7098. The court, in United States v. Malmin, 3 Cir., 1921, 272 F. 785, 790, indicated that quo warranto is the proper remedy to try the title of a judge of a court of the United States but did not indicate in what court it could be entertained. In a suit to enjoin defendant city from levying taxes the court noted that the state law provided the exclusive remedy in an action for quo warranto and stated, “* * * the federal courts, * * * have not the right to exercise the quo warranto jurisdiction * * *.” (our emphasis). Morin v. City of Stuart, 5 Cir., 1940, 111 F.2d 773, 775. Doubt was expressed that federal courts have quo warranto jurisdiction, except as specifically authorized by statute in Cleveland Cliffs Iron Co. v. Village of Kinney, 8 Cir., 1919, 262 F. 980, 984, and In re Yancey, 6 Cir., 1886, 28 F. 445, 451. A parallel may be drawn between quo warranto and mandamus on this question of jurisdiction of the federal district courts. It has been repeatedly held that mandamus may not issue in the district court unless it is necessary for the exercise of independently conferred jurisdiction. In the case of Marshall v. Crotty, 1 Cir., 1950, 185 F.2d 622, 626, 627, the leading cases are cited to this effect. The court goes on to point out that in Title 28
4603	him to summary judgment on all counts. The United States argues the Court has broad discretion to shape remedies and it “would be premature to determine the availability of any injunctive relief without first hearing the evidence in dispute.” (Doc. 350 at 17). Under the federal rules, “[e]very order granting an injunction and every restraining order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail — and not by referring to the complaint or other document — the act or acts restrained or required.” Fed,R.Civ.P. 65(d). As such, “blanket injunctions to obey the law are disfavored.” Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F.Supp.2d 1197, 1226 (C.D.Cal. 2007) (quoting Mulcahy v. Cheetah Learning LLC, 386 F.3d 849, 852 n. 1 (8th Cir.2004)) (internal quotation marks omitted). But district courts have broad discretion to shape equitable remedies. See Monsanto Co. v. Geertson Seed Farms, 561 U.S, 139, 175, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010). When an appellate court finds a trial court abused its discretion by issuing an 'overly broad order, it may strike those provisions “dissociated from those [acts] which a defendant has committed.” N.L.R.B. v. Express Pub. Co., 312 U.S. 426, 435, 61 S.Ct. 693, 85 L.Ed. 930 (1941). See, e.g., S.E.C. v. Smyth, 420 F.3d 1225, 1233 (11th Cir.2005) (holding general “obey-the-law” injunctions unenforceable). The purpose of Rule 65(d) is to ensure defendants have, fair notice of what conduct is prohibited and to avoid undue restraint. The-
1120	For this reason, the Court finds that the language of the arbitration clause creates doubt concerning the scope of arbitrable issues. Because the Court is required to resolve any doubts concerning the clause in favor of arbitration, the Court finds that Monfared’s claims are arbitra-ble. B. The limitation of damages in the arbitration clause can be severed from the rest of the clause. Monfared contends that even if the arbitration clause encompasses her claims, the clause nevertheless should not be enforced “because doing so would preclude Plaintiff from seeking and obtaining exemplary or punitive damages.” Pl.’s Br. Opp’n 18. “It is well established that arbitration is merely a choice of dispute resolution and does not infringe upon statutory protections.” Spinetti v. Serv. Corp. Int’l, 324 F.3d 212, 216 (3d Cir.2003). For this reason, “arbitration is to offer claimants the full scope of remedies available under Title VII.” Id. (quoting Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 673 n.15 (6th Cir.2003)). This arbitration clause’s ban on punitive and exemplary damages runs counter to statutory provisions under Title VII permitting punitive damages. Nevertheless, the presence of this provision does not require the Court to decline to enforce the arbitration agreement. Rather, this provision represents only a part of the agreement and can be severed without disturbing the primary intent of the parties to arbitrate their disputes. See id. (affirming a district court’s severance of a provision in an arbitration clause requiring, contrary to Title VII, that each party pay its
3065	on summary judgment may not adopt the inference least favorable to the non-moving party. Casas Office Machines, 42 F.3d at 684. While the moving party has the burden of initially establishing that there is “an absence of evidence to support the non-moving party’s case,” Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1984); the nonmovant has a “corresponding obligation to offer the court more than steamy rhetoric and bare conclusions.” Lawton v. State Mutual Life Assurance Company of America, 101 F.3d 218, 223 (1st Cir.1996). Furthermore, “the nonmovant must produce specific facts, in suitable evidentiary form sufficient to limn a trialworthy issue ... Failure to do so allows the summary judgment engine to operate at full throttle.” Id.; see also Kelly v. United States, 924 F.2d 355, 358 (1st Cir.1991) (warning that “the decision to sit idly by and allow the summary judgment proponent to configure the record is likely to prove fraught with conse quence.”); Medina Muñoz, 896 F.2d at 8, (quoting Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989)) (“The evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve.”) Applicable Law/Analysis The Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.A. §§ 12101, et seq., prohibits discrimination against qualified individuals with disabilities. To set forth a prima facie case of discrimination under the ADA, the Plaintiff must show: (1) that she
3536	and does not violate clearly-established federal rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (citations omitted). Qualified immunity is necessary to “protect[] the public from unwarranted timidity on the part of public officials” and to avoid “dampen[ing] the ardour of all but the most resolute, or the most irresponsible.” Richardson v. McKnight, 521 U.S. 399, 408, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) (citation and internal quotation marks omitted). True to these purposes, the qualified immunity standard “ ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 343, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). “Moreover, because ‘[t]he entitlement is an immunity from suit rather than a mere defense to liability,’ we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter, 502 U.S. at 227, 112 S.Ct. 534 (citation deleted) (emphasis in original). Qualified immunity, however, is a defense available only to government officials sued in their individual capacities. It is not available to those sued only in their official capacities. Eng v. Cooley, 552 F.3d 1062, 1064 n. 1 (9th Cir.2009); Kentucky v. Graham, 473 U.S. 159, 165-68, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). We recognize that public employees — such as Birdsall and Chatterton-— carrying out the express
4235	Patent litigation, of which the case at bar is an instance, furnishes a good example of the use of lawsuits as an economic weapon to harass competitors. The abuses of patent infringement suits, particularly in the glass industry, were exhaustively ventilated in the TNEC hearings, and led to antitrust prosecutions marked, among other features, by disciplinary proceedings against lawyers connected with prominent metropolitan firms for deceptions practiced on the courts handling those cases. United States v. Hartford-Empire Co., 46 F. Supp. 541, 612 (N.D.Ohio W.D.1942); Hartford-Empire Co. v. United States, 323 U.S. 386, 400, 65 S.Ct. 373, 89 L.Ed. 322 (1945); Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 241-243, 64 S.Ct. 997, 88 L.Ed. 1250 (1944); Hartford-Empire Co. v. Shawkee Mfg. Co., 163 F.2d 474, 475-476 (C.A. 3, 1947); Hatch v. Ooms, 69 F.Supp. 788, 794-801 (D.C.1947). In the words of Justice Black: “Where the patent owner has ample resources to bear the costs of repeated litigation, the power of the infringement suit to stifle competition is increased. And where potential competitors are weak and few, it may afford a practically complete protection for the preservation of undeserved monopoly.” Williams Mfg. Co. v. United Shoe Machinery Corp., 316 U.S. 364, 381, 62 S.Ct, 1179, 1188, 86 L.Ed. 1537 (1942). See also United States v. Hartford-Empire Co., 46 F.Supp. 541, 565 (N.D.Ohio W.D. 1942). It must never be forgotten that the primary policy of the patent laws is to promote invention for the benefit of the public. Private gain
108	damages and damages against the Federal Defendants for McCloskey’s conscious pain and suffering. (Am.Compl.¶¶ 41-51). Count VI asserts a state law claim for punitive damages against the Federal Defendants. (Am.Compl.¶¶ 52-56). Counts VII, VIII, IX, and X assert Massachusetts state law claims against Sampson for McCloskey’s wrongful death and conscious pain and suffering and for punitive damages. II. Discussion For the purposes of a Rule 12(b)(6) motion to dismiss, the court must “accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the plaintiffs favor and determine whether the complaint, so read, sets forth facts sufficient to justify recovery on any cognizable theory.” Giuliano v. Fulton, 399 F.3d 381, 386 (1st Cir.2005) (quoting Martin v. Applied Cellular Tech., 284 F.3d 1, 6 (1st Cir.2002)). A. The tort claims against the Federal Defendants (counts I, FV, V, and VI) Citing Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), the Federal Defendants explain that the Plaintiffs’ claims against federal agencies or federal employees, acting in their official capacities, are in reality claims against the United States. This assertion of the Federal Defendants is not entirely correct, as applied to the amended complaint in this case. The Graham case stands for the proposition that official-capacity suits must be treated as suits against the federal entity. 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114. Therefore, a suit against Mueller and Anderson in their respective official capacities is to be treated as
2172	340 (citation omitted). Although this Court is not required to produce a “painstaking” explanation of its decision, which is reviewed “deferentially, according substantial respect to the trial court’s informed discretion,” id. at 336-37 (citing Brewster v. Dukakis, 3 F.3d 488, 492 (1st Cir.1993)), recent case law demonstrates that the First Circuit examines these “discretionary” decisions extremely closely, see, e.g., McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288, 310-11 (1st Cir.1998), cert. denied, —— U.S.—, 119 S.Ct. 870, 142 L.Ed.2d 772 (1999); Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 858-60 (1st Cir.1998); Williams, 113 F.3d at 1297-98. The First-Circuit has “ ‘never required that [district] courts set forth hour-by-hour analyses of fee requests.’ ” United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 16 (1st Cir.1988) (alteration in original) (quoting Jacobs v. Mancuso, 825 F.2d 559, 562 (1st Cir.1987)). “[A]t a bare minimum,” however, the trial court’s fee determination “must expose [its] thought process and show the method and manner underlying its decisional calculus,” Coutin, 124 F.3d at 337 (citing cases), “especially ... when the fee award departs substantially from the contours shaped by the application,” id. I. Calculating the Lodestar The lodestar approach “contemplates judicial ascertainment of ‘the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate’ as the starting point in constructing a fee award.” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Though the prevailing party is under an obligation
748	(4 Cir. 1965). There, it is stated that “a juror may after verdict be queried as to information, whether documentary or oral in nature, introduced into the jury room but not put before them at trial”. Id. at 865. Appellant Downey points to United States v. McKinney, supra, 429 F.2d 1019 (5 Cir. 1970), ordering a remand for inquisition on the possible deprivation of a defendant’s rights by the jury’s noticing of news stories about his pretrial escape which were included in courtroom proceedings. Respondent argues that McKinney permits scrutiny solely of Federal court trials, and does not empower a Federal court by habeas corpus to examine State court jury-room occurrences. However, we find clear authority in United States ex rel. Owen v. McMann, 435 F.2d 813 (2 Cir. 1970), for United States court review of State trials, on habeas corpus, where there is “ ‘such a probability that prejudice will result that it [the verdict] is deemed inherently lacking in due process’ ”, id. at 818 (citing Estes v. Texas, 381 U.S. 532, 542-43, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965)). Downey’s further defiance of the jury is the partisanship of one juror because he is the son of the jailer who was beaten in the escape attempt. Petitioner’s allegations on this complaint, as well as on the jury deliberations, prima facie present deviations beyond the province, duties and impartiality of jurymen. As they raise the specter of taint in the jury’s fixing of punishment, we direct the District
4320	v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir.2003) (quoting Cohen v. Office Depot, Inc., 204 F.3d 1069, 1077 (11th Cir.2000)). Tootsie Roll was not “required to prove the amount in controversy beyond all doubt or to banish all uncertainty about it.” Pretka, 608 F.3d at 754. Instead, Tootsie Roll had only to present “evidence combined with reasonable deductions, reasonable inferences, or other reasonable extrapolations,” id., that the value of restoring Weiner’s right to compete exceeded $75,000. The district court did not clearly err when it found that the value of the object of Weiner’s complaint against Tootsie Roll exceeded $75,000. Although a covenant not to compete “generally [is] not susceptible to an abstract fair market valuation,” Better Beverages, Inc. v. United States, 619 F.2d 424, 429 (5th Cir.1980), Tootsie Roll does not seek to “tether[] [value] to the fact of the transaction,” id. at 430. In contrast to the situation in Better Beverages, where a taxpayer sought to assign a value to his covenant not to compete when there was no allocation made for the components of the business he sold, Weiner and Tootsie Roll assigned millions of dollars of value to the goodwill of the companies transferred to Tootsie Roll, and Weiner acknowledged in paragraph 52 of his complaint that his agreement not to compete was a component of that goodwill. Although Weiner alleged in his complaint that the “goodwill associated with [his] reputation is de minimis,” Weiner was compensated handsomely for the goodwill transferred to Tootsie
1611	prosecutor adds (ibid): “It is hard to believe that defendant Karp does not suspect this and hopes to confuse a petit jury by having a co-defendant invoke the Fifth Amendment during her trial, a tactic which would fail in any event. United States v. Maloney, 262 F.2d 535 (2d Cir. 1959).” This is the most interesting of the Government’s contentions. It does not serve, upon analysis, to defeat the arguments for severance. It may be questioned, first of all, whether the prediction about another defendant’s disposition to testify — even where the prediction rests upon the advice of that defendant’s counsel, who may not have unqualified reasons for sharing confidences with the prosecution — is “properly the Government’s to interpose.” United States v. Echeles, 352 F.2d 892, 898 (7th Cir. 1965). Passing this, as the argument of the motion demonstrated, the matter is surely in the realm of speculation. If Pitkin is tried separately and first, he may plead, or be found, guilty. He may choose to testify in his own defense. He may, as the law presumes, be acquitted, whether or not he takes the stand. One way or another, it is possible that he will come to lack a subsequent basis for invoking the privilege. Cf. Namet v. United States, 373 U.S. 179, 188-189, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963). On the other hand, if Karp (with or without Gleason) is tried first, Pitkin may by then have changed his mind— or he may, even foolishly, reject
2840	narcotics pick-up was to be made from the Newport address early in the morning of October 20, 1970. Indeed, the Newport address was discovered at about 8:30 or 9:00 a.m. that morning from information provided by the telephone' company as to the name and address of the subscriber listed for the intercepted calls. The law governing this situation has been long established. Nearly half a century ago, in Tynan v. United States, 297 F. 177, 179 (9th Cir.), cert. denied, 266 U.S. 604, 45 S.Ct. 91, 69 L.Ed. 463 (1924), the court stated: “No doubt a general search warrant for an entire building . . . occupied by different families or different tenants, is ordinarily null and void.” See also, United States v. Mitchell, 274 F. 128 (N.D.Cal. 1921); Hogrefe v. United States, 30 F.2d 640 (9th Cir.1929). In United States v. Barkouskas, 38 F.2d 837 (M.D.Pa. 1930), the search warrant in question authorized the search of the premises “located at 1919 Jackson St., Scranton, Pa.” The warrant did not include the name of the defendant or the occupants of the premises nor any designation of any part of the premises. The facts were that the owner of the building and his family occupied the second floor while the defendant leased the first floor. The court held that, “under these facts, there were two places included in the description, and the description was a general and not a ‘particular’ description.” Id. at 838. The search was ruled illegal and the
1524	agreement. In fact, there are few cases construing § 1392(c)in any context. For the reasons detailed below, the court is nonetheless convinced that the arbitrator erred in disregarding the date of withdrawal specified in the collective bargaining agreement considered here. 1. The Statutory Framework Because this appeal turns on the underlying purpose and the interpretation of the MPPAA, the court looks first to the broad goals of the Act and the scheme designed to achieve them. ERISA took effect in 1974 to ensure that “if a worker has been promised a defined pension benefit upon retirement — and if he has fulfilled whatever conditions are required to obtain a vested benefit — he actually will receive it.” Nachman Corp. v. Pension Ben. Guar. Corp., 446 U.S. 359, 375, 100 S.Ct. 1723, 64 L.Ed.2d 354 (1980). In the years immediately following its enactment, ERISA’s shortcomings became apparent. The primary criticism leveled at the Act was its failure to “protect plans from the adverse consequences that resulted when individual employers terminate[d] their participation in, or [withdrew] from multiem-ployer plans.” R.A. Gray, 467 U.S. at 723, 104 S.Ct. 2709. In order to remedy this flaw, Congress amended ERISA by enacting the MPPAA in 1980. The MPPAA changed the strategic considerations for an employer contemplating withdrawal: It transformed what was only a risk (that a withdrawing employer would have to pay a fair share of underfunding) into a certainty. That is to say, it imposed a withdrawal charge on all employers withdrawing from an
3404	held that the musical works rates set the upper bound of reasonable rates for PSS. Music Choice’s Opening Brief (“MC Br.”) 19-22; Determination of Reasonable Rates and Terms for the Digital Performance of Sound Recordings, 63 Fed.Reg. 25,394 (May 8, 1998). Music Choice maintains that the Judges violated the precedent, established by the Librarian in the first PSS ratemaking, when they did not rely on musical works rates as persuasive benchmarks. We disagree. The Librarian did not determine, as a matter of law, that future rate-makers must begin with the musical works rate. See Final Determination, 78 Fed.Reg. at 23,055. To the extent the PSS determination is precedential, the Judges have adequately explained their departure. Cf. Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 574 F.3d 748, 762 (D.C.Cir.2009) (“The Judges are free to depart from precedent if they provide reasoned explanations for their departures.”). The Judges stated that Music Choice “fail[ed] to place” the initial PSS determination “in its historical context.” Final Determination, 78 Fed.Reg. at 28,055. “The Librarian had before him for consideration only the musical works fees and the Music Choice partnership license agreement. The Judges have more evidence in this proceeding upon which to base a decision.” Id. Thus, the Judges properly distinguished the Librarian’s initial PSS determination from the proceedings below. Music Choice maintains that even if the Librarian’s PSS determination is not binding precedent, the Judges erred when they rejected the musical works rate evidence in the record. MC Br. 28-31. We disagree. The
1363	requirement of Article III of the U.S. Constitution. To satisfy Article III standing, a plaintiff must allege: (1) an injury in fact that is concrete and particularized, as well as actual and imminent; (2) that the injury is fairly traceable to the challenged action of the defendant; and (3) that it is likely (not merely speculative) that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). At least one named plaintiff must have suffered an injury in fact. See Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir.2003) (“if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class”). A suit brought by a plaintiff without Article III standing is not a “case or controversy,” and an Article III federal court therefore lacks subject matter jurisdiction over the suit. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “A party invoking the federal court’s jurisdiction has the burden of proving the actual-existence of subject matter jurisdiction.” Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996). If a court determines that it lacks
612	Whether the transfers were made in such contemplation is in this case, as it is in all cases, a factual question. After hearing evidence, the Board of Tax Appeals made findings of fact, quite in detail, which included the following: “24. The transfer of lot 34 in Square 454 of July 2, 1947, referred to-in Finding of Fact numbered 8, and the transfer of the $25,000 promissory note, referred to in Finding of Fact numbered 16, were made by decedent in contemplation of death.” The Board then concluded as a matter of law that the two transfers were subject to-the inheritance tax. Our appellate function in a case-like this was clearly defined when the Supreme Court said, in District of Columbia v. Pace, 1944, 320 U.S. 698, 703, 64 S.Ct.. 406, 408, 88 L.Ed. 408, that this court “ * * * has power to review decisions of the Board of Tax Appeals as under the equity practice in which t-he whole case, both facts and law, is open for consideration in the appellate court, subject .to the longstanding rule that findings of fact are treated as presumptively correct and are accepted unless clearly wrong.” No purpose would be served by reciting the somewhat conflicting proof which was before the Board. Suffice it to say we have carefully considered the evidence and find in it ample support for the factual findings filed by the trial tribunal. Since we cannot say the Board was clearly wrong, we must accept its findings
3965	disability fraud. The parties’ positions raise an interesting issue, one which has not been addressed by many courts yet: For an employer to refrain from giving COBRA notice by relying on § 1163(2), must the employee actually engage in “gross misconduct” or is it enough that the employer has a good-faith belief that the employee engaged in “gross misconduct?” The Court concludes that the latter approach should govern its analysis — i.e., whether Navistar, at the time of termination, had a good faith belief that Kariotis engaged in “gross misconduct.” As noted recently in dicta by the Seventh Circuit, such an approach has “a certain resonance with both traditional and modern concepts of employment law, particularly discriminatory discharge law.” Mlsna v. Unitel Communications, Inc., 91 F.3d 876, 883 (7th Cir.1996); see, Conery v. Bath Assoc., 803 F.Supp. 1388, 1396 (N.D.Ind.1992) (“Bath responds that the appropriate inquiry should be whether the employer acted on a good faith belief that the employee engaged in gross misconduct. The court leans toward the test proposed by Bath....”). Thus, consistent with discriminatory discharge law, the Court’s analysis is whether Navistar had a good faith belief at the time of termination that Kariotis committed disability fraud — if so, Kariotis was not entitled to notice under the COBRA. As discussed while analyzing Kariotis’ discriminatory discharge claims, Navistar, based on the videotape, believed that Kariotis was committing disability fraud. Consistent with the analysis there, the Court does not believe that Kariot-is has come forward with enough evidence
4500	ascertain only whether plaintiffs have established a prima facie case of personal jurisdiction. The Court will review the pleadings, including the deposition testimony offered by plaintiffs, in a light most favorable to plaintiffs, to determine whether plaintiffs have adduced sufficient facts on which the Court can conclude it is appropriate to exercise personal jurisdiction over the DNN defendants. Plaintiffs argue for the presence of both general and limited jurisdiction. The Due Process clause permits a Court to exercise both general and limited jurisdiction. However, “[i]n analyzing the due process limits of personal jurisdiction, a distinction is made between ‘general’ jurisdiction and ‘specific’ jurisdiction.” Conti v. Pneumatic Prod. Corp., 977 F.2d 978, 981 (6th Cir.1992) (citing Third Nat’l Bank in Nashville v. WEDGE Group, Inc., 882 F.2d 1087, 1089 (6th Cir.1989)). “General jurisdiction exists when a defendant has ‘continuous and systematic contacts with the forum state sufficient to justify the state’s exercise of judicial power with respect to any and all claims.’ ” Aristech Chem. Int’l, Ltd. v. Acrylic Fabricators, 138 F.3d 624, 627 (6th Cir.1998) (quoting Kerry, 106 F.3d at 149). By contrast, “[s]pecific jurisdiction ... subjects the defendant to suit in the forum state only on claims that ‘arise out of or relate to’ a defendant’s contacts with the forum” Id. (quoting Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 & n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). In Michigan, general personal jurisdiction over a corporate defendant is governed by Mich.Comp.Laws § 600.711 which provides:
1907	addresses those contentions in turn. A. Laches Because trademark infringement is a continuing wrong, “a statute of limitations is no bar except as to damages beyond the statutory period.” 6 McCarthy on Trademarks § 31:1. Thus, “it is almost always laches, not the statute of limitations, that is invoked to determine the availability of both injunctive and monetary relief.” Id. Without that defense, “a plaintiff could delay filing suit indefinitely.” Id. To prevail on a laches defense, the defendant must show “that plaintiff had knowledge of defendant’s use of its marks, that plaintiff inexcusably delayed in taking action with respect thereto, and that defendant will be prejudiced by permitting plaintiff inequitably to assert its rights at this time.” Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1040 (2d Cir.1980) (quoting Cuban Cigar Brands, N.V. v. Upmann Int’l, Inc., 457 F.Supp. 1090, 1096 (S.D.N.Y.1978)). When the delay is longer than the analogous statute of limitations, “a presumption of laches will apply and plaintiff must show why the laches defense ought not be applied in the case.” Conopeo, Inc. v. Campbell Soup Co., 95 F.3d 187, 191 (2d Cir. 1996). The analogous limitations period here is New York’s six-year period for fraud claims. See id. Since Merkos’s delay is substantially longer — 17 years elapsed between its 1994 letter to Vaad and the assertion of its counterclaims— Vaad is entitled to the presumption. Merkos argues that laches ought not to bar its counterclaims for two reasons. First, it notes that laches
3618	with a defendant’s requested disclosures, the defense must provide the government, upon request, similar items “within the defendant’s possession, custody, or control,” if “the defendant intends to use the item in the defendant’s case-in-chief at trial.” Fed. R. Crim. P. 16(b)(1)(A)’s requirements for disclosure of evidence, however, do not apply to impeachment evidence. Medearis, 380 F.3d at 1057. Thus, the fact that defense counsel did not turn over the video to the government prior to trial is not grounds to prohibit the defense from using the video for impeachment purposes. But when reviewing an evidentiary ruling, we will reverse “only when an improper evi-dentiary ruling affected the defendant’s substantial rights or had more than a slight influence on the verdict.” United States v. Picardi, 739 F.3d 1118, 1124 (8th Cir. 2014) (quoting United States v. Summage, 575 F.3d 864, 877 (8th Cir. 2009)). In this case, Eason has failed to show how not playing the video affected his substantial rights or had more than a slight influence on the verdict. See United States v. Yarrington, 634 F.3d 440, 447 (8th Cir. 2011). While the district court prevented Eason from showing the video during additional cross examination, the court expressly permitted the defense to “call him back, and ask him if he didn’t go back and look [at the scene of arrest]” as well as about whether he was “searching the ground with a flashlight with his headlights on with a dash cam that he testified he didn’t have or he
1372	to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Relevancy is interpreted “broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). A party may take the deposition of “any person, including a party” pursuant to the procedures outlined in the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 30(a)(l)-(2). “Only a party to litigation may be compelled to give testimony pursuant to a notice of deposition.” U.S. v. Afram Lines (USA), Ltd., 159 F.R.D. 408, 413 (S.D.N.Y. 1994). III. Entry of Protective Orders The Court may issue a protective order to shield any party from undue burdens arising from discovery. Fed. R. Civ. P. 26(c). Specifically, Rule 26 provides: The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; (E) designating the persons who may be present
3196	if no administrative review is sought, under the EPA’s view, the right to judicial review would be cut off. We decline to change the statutory “may” to a “must.” We recognize that this issue is far from clear-cut. The EPA’s position is not implausible and, quite frankly, neither side advances an entirely satisfactory construction of a statute that obviously was the product of some controversy and considerable compromise. The courts have long recognized, however, a presumption in favor of judicial review of administrative actions. See Block v. Community Nutrition Inst., 467 U.S. 340, 350-51, 104 S.Ct. 2450, 2456-57, 81 L.Ed.2d 270 (1984) (presumption only overcome when “the congressional intent to preclude judicial review is ‘fairly discernible in the statutory scheme’ ”); Ruff v. Hodel, 770 F.2d 839, 840 (9th Cir.1985) (“[t]he bar to judicial review ... requires a ‘persuasive reason to believe’ that Congress intended to preclude judicial review”) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967)); Moapa Band of Paiute Indians v. Department of Interior, 747 F.2d 563, 565 (9th Cir.1984) (“[pjreclusion of judicial review is not lightly inferred, and usually will not be found absent a clear command of the statute”). Moreover, we construe prohibitions against judicial review narrowly. Cf. Wallace v. Christensen, 802 F.2d 1539 (9th Cir.1986) (en banc); Moapa Band, 747 F.2d at 565. In light of these considerations, we find plaintiffs’ interpretation the most plausible, and hold that the district court had jurisdiction to review the
259	the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. III.42 U.S.C. § 1983 “Section 1983 imposes liability on anyone who, under color of state law, deprives a person of any rights, privileges, or immunities secured by the Constitution” of the United States. K & A Radiologic Tech. Servs., Inc. v. Comm’r of the Dept. of Health, 189 F.3d 273, 280 (2d Cir.1999) (quoting Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)). “[T]he core purpose of § 1983 is ‘to provide compensatory relief to those deprived of their federal rights by state actors.’” Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 795 (2d Cir. 1999) (quoting Felder v. Casey, 487 U.S. 131, 141, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988)). Section 1983 “does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere.” Morris—Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir.2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992). Malicious prosecution, false arrest, and abuse of process give rise
4976	Office error in the printing of the patent, and through no fault of NetApp’s, the word “inode” was mistakenly printed as “mode” in several places in the claims and the specification of the '417 patent, see '417 patent, col. 4:45^8, 11:26-31, 11:62-12:2, although it was correctly spelled in others, such as where NetApp provided image copies of the figures, id., Fig. 3. After this action was filed, these and other mistaken printings of “mode” were corrected by the PTO to substitute “inode.” Nathan Decl., Ex. 14 (Aug. 26, 2008, Certificate of Correction). However, the PTO’s corrections do not apply retroactively to the claims for damages in this lawsuit because it was filed before the corrections were made. Novo Industries, L.P. v. Micro Molds Corp., 350 F.3d 1348, 1355-56 (Fed.Cir.2003). District Courts may correct errors when “(1) the correction is not subject to reasonable debate based on consideration of the claim language and the specification and (2) the prosecution history does not suggest a different interpretation of the claims.” Novo Industries, 350 F.3d at 1354. The District Court may only correct minor errors that are “evident on the face of the patent.” Group One, Ltd. v. Hallmark Cards, Inc., 407 F.3d 1297, 1303 (Fed.Cir.2005). If an error is not subject to correction by the Court, the claim is invalid for indefiniteness. Id. For the reasons stated by NetApp in its papers and at the hearing, the Court determines that the “mode” error is plainly evident on the face of the patent,
142	(1st Cir.1997) (explaining that “violation of a federal statute by governmental actors does not create liability unless state law would impose liability on a ‘private individual under like circumstances,’ 28 U.S.C. § 2674”). To prevail on a negligence claim under Massachusetts law, the plaintiff must establish that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached that duty, (3) proximately or legally causing (4) the plaintiffs actual injury or damages. Fithian v. Reed, 204 F.3d 306, 308-09 (1st Cir.2000) (explaining that, while “such matters most often comprise grist for the jury’s mill, they may be resolved on summary judgment when the facts lead ineluctably to a particular outcome”); see Primus v. Galgano, 329 F.3d 236, (1st Cir.2003); Magarian v. Hawkins, 321 F.3d 235, 238 (1st Cir.2003); Jorgensen v. Massachusetts Port Auth., 905 F.2d 515, 522 (1st Cir.1990). In the context of an FTCA claim, a legal duty of care exists where there is “some relationship between the governmental employee[s] and the plaintiff to which state law would attach a duty of care in purely private circumstances.” Sea Air Shuttle Corp., 112 F.3d at 537 (quoting Myers v. United States, 17 F.3d 890, 899 (6th Cir.1994)). In defining the duty of care in tort actions, Massachusetts follows the Restatement (Second) Of Torts § 315 (1965) (“Section 315”). Mosko v. Raytheon Co., 416 Mass. 395, 400 n. 7, 622 N.E.2d 1066 (1993); Jean v. Commonwealth, 414 Mass. 496, 513, 610 N.E.2d 305 (1993); see Rakes, 352 F.Supp.2d at
492	in response to the filing of the declaratory judgment action by the United States, et al., in this Court. The parties agree that Count II of the complaint for injunctive relief is now moot. Accordingly, the Motion to Dismiss Count II of the complaint is GRANTED. To sustain dismissal of a complaint under Fed.R.Civ.P. 12(b)(6), the Court must take all well-pleaded allegations as true and construe the complaint in the light most favorable to the plaintiffs to determine whether they are entitled to relief. Conley v. Gibson, 355 U.S. 41, 45-56, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1975). “The issue is not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support his claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). I — FACTS Southwestern is an Illinois not-for-profit corporation formed in 1939 to distribute electrical power to its members in the rural service area. Soyland is an Illinois not-for-profit corporation which serves as a regional generation and transmission cooperative (G & T) engaged in the wholesale production and supply of electricity to its members. Soyland’s members consist of fifteen (15) rural Illinois power cooperatives. The REA is a United States Government lending agency which, pursuant to the Rural Electrification Act of 1936 (Act), 7 U.S.C. § 901 et seq., makes or guarantees loans to rural electrical facilities. CFC is a private, not-for-profit cooperative association which serves as a source of financing for its members
1460	BVA did not reach the issue of an increased disability rating based on “clear and unmistakable error.” II. ANALYSIS A. Clear and Unmistakable Error Appellant specifically claimed that the VA committed “clear and unmistakable error” by failing to rate the through-and-through gunshot wound to his leg 30% disabling. That being so, the Board was obligated to determine whether or not the VARO committed “clear and unmistakable error” in the December 1970 rating decision. Russell v. Principi, 3 Vet.App. 310, 319 (1992) (en banc); of. Mingo v. Derwinski, 2 Vet.App. 51, 54 (1992) (The BVA “must review all issues which are reasonably raised from a liberal reading of the appellant’s substantive appeal.”); see also Azurin v. Derwinski, 2 Vet.App. 489, 492 (1992); Myers v. Derwinski, 1 Vet.App. 127, 129 (1991). Both parties request that the Court remand this claim to the BVA for adjudication. The Court will remand appellant’s appeal with respect to this claim. B. 38 U.S.C. § 1159 Appellant contends that the Board severed service connection for residuals of a gunshot wound to his right thigh when it corrected the December 1970 rating decision to reflect the actual situs of his injury. Pursuant to 38 U.S.C. § 1159, service connection, once established and in effect for more than ten years, can be severed only under limited circumstances: Service connection for any disability or death granted under this title which has been in force for ten or more years shall not be severed on or after January 1,1962, except upon
4608	"it may strike those provisions “dissociated from those [acts] which a defendant has committed.” N.L.R.B. v. Express Pub. Co., 312 U.S. 426, 435, 61 S.Ct. 693, 85 L.Ed. 930 (1941). See, e.g., S.E.C. v. Smyth, 420 F.3d 1225, 1233 (11th Cir.2005) (holding general “obey-the-law” injunctions unenforceable). The purpose of Rule 65(d) is to ensure defendants have, fair notice of what conduct is prohibited and to avoid undue restraint. The- Ninth Circuit has “not adopted.a rule-against ‘obey the law injunctions per se.” F.T.C. v. EDebitPay, LLC, 695 F.3d 938, 944 (9th Cir.2012). Instead the court recognizes, in certain circumstances, “injunctioh[s] ... framed in language almost identical to the statutory mandate ... [are"" not] vagué” because they “adequately describe' the impermissible conduct.” United States v. Miller, 588 F.2d 1256, 1261 (9th Cir.1978). See also E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 842 (7th Cir.2013) (holding “obey-the-law” injunctions may be an “appropriate” form of equitable relief where evidence suggests the proven illegal conduct may continue or be resumed, for example,-when those responsible for workplace discrimination remain with the same employer or some other factor “convinces the court that voluntary compliance with the law will not be forthcoming”). A request for an injunction is not determinative of the type of relief the court will ultimately'issue. Only if the court ultimately issues an inappropriately broad or non-specific injunction might a defendant be entitled to relief from that order. Hence, an overbroad request does not entitle the defendant to judgment as a matter of law on"
2516	Is There a Valid Arbitration Agreement? Plaintiffs argue that they do not recall receiving the Notice or the New Agreement and, therefore, defendants cannot establish that a valid arbitration agreement exists. In response, defendants proffer the affidavits of Ms. Koehler and argue that under the “mailbox rule” plaintiffs are presumed to have received the Notice and New Agreement, and therefore by making purchases after February 14, 2000, they entered into the New Agreement and are subject to its arbitration provision. “Proof that a letter properly directed was placed in a U.S. post office mail receptacle creates a presumption that it reached its destination in the usual time and was actually received by the person to whom it was addressed.” Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir.1989); see also U.S. v. Wilson, 322 F.3d 353, 362-63 (5th Cir.2003). Defendants need not prove actual receipt of the Notice or New Agreement; rather, proof of receipt “may be accomplished by presenting circumstantial evidence, including evidence of customary mailing practices used in the sender’s business.” Marsh v. First USA Bank, N.A., 103 F.Supp.2d 909, 918 (N.D.Tex.2000) (citing Wells Fargo Bus. Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir.1983)); Myer v. Callahan, 974 F.Supp. 578, 584 n. 7 (E.D.Tex.1997). In addition, the affiant in support of the mailing need not have personal knowledge of the letter’s mailing, but “at a minimum the affiant must have personal knowledge of the procedures in place at the time of mailing.” Burton
3758	is helpful. (Id. ¶¶ 19-20.) Ripeness determinations present two relevant inquiries: “1) whether the issues are fit for judicial decision and 2) the hardship to the parties of withholding court consideration.” Konikov v. Orange County, 410 F.3d 1317, 1322 (11th Cir.2005) (citing Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir.1997)). Under this standard, Plaintiffs challenges to the substantive criminal provisions of the AEC and its facial challenges to the suspension provisions are ripe. “[Prospective enforcement of an ordinance has been found sufficient to generate a live case.” D.H.L. Assocs. v. O’Gorman, 199 F.3d 50, 54 (1st Cir.1999). This is particularly so when constitutional claims are at issue. Id.; Sable Commc’ns of Cal., Inc. v. Pac. Tel. & Tel. Co., 890 F.2d 184, 187 (9th Cir.1989) (“A threat that emanates from a regulation, compulsory in nature, to which the plaintiff is currently subject, is real and immediate if the possibility of enforcement is more than hypothetical.”). The criminal provisions challenged here regulate the very movements an erotic dancer can make during a performance. Dancers at Cleo’s have been arrested for violating these provisions. Because the ordinances criminalize the protected expression conveyed through erotic dance, the ordinances chill the dancers’ exercise of free expression. See Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville, 274 F.3d 377, 399-400 (6th Cir.2001). Thus, those claims are ripe for review even though the County has not yet sought to suspend or revoke Plaintiffs license based on the 2004 arrests.
2865	York, N. Y.” The defendant argued that this description was insufficient for- the reason that the premises were a multi-unit apartment house in which there were located more than one basement apartment. While the search warrant was upheld in both Ramos and Goméz, those cases 'are factually distinguishable from the situation presented here. As in Owens, supra, the external appearance of the building gave no clue that there was more than one basement apartment. Furthermore, as stated by the court in Ramos, 282 F. Supp. at 355, “[I]t would have been impossible to discover that there was more than one basement apartment until after the rooms in the basement had been searched.” In United States v. Santore, 290 F.2d 51 (2d Cir.1960), cert. denied, 365 U.S. 834, 81 S.Ct. 749, 5 L.Ed.2d (1961), the defendant also moved to have certain evidence suppressed on the grounds that the search warrant under which Federal agents had entered his apartment and seized the material was invalid for failure to particularly describe the place to be searched. The description contained in the warrant identified “the premises known as 164 Hill Street, Elmont, Long Island, New York, being a one family house.” The defendant contended that since the house was not a one-family house, but two-family, being occupied by two families, the warrant was fatally defective. While the warrant was held not to be invalid, and while the facts are, in general, quite similar to those presented here, the following excerpt from the court’s opinion
4375	"decides an issue of state law in the case that will end the controversy without need for a resolution of a federal consti tutional question, or that, at least, will make resolution of the federal question somewhat easier.” Bath Memorial Hospital v. Maine Health Care Finance Commission, 853 F.2d 1007, 1012 (1st Cir.1988) (citing Railroad Commission of Texas v. Pullman Co., 812 U.S. 496, 501, 61 S.Ct. 643, 85 L.Ed. 971 (1941)); see also, 17A Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 4242, at 30 (2d ed.1988). The Supreme Court has admonished, however, that “abstention from the exercise of federal jurisdiction is the exception, not the rule.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 14, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (citations omitted). Because the Court is persuaded that it is reasonably clear that the Supreme Judicial Court would decide the state law issue in favor of Plaintiff, the Court finds that abstention is not appropriate in this case. The Court, accordingly, denies Defendants’ Motion for Abstention. IV. CONCLUSION For the reasons set forth above, the Court denies Defendants’ Motion for Certification, or in the alternative, for Abstention. SO ORDERED. . In their formulation of the proposed question for certification and memoranda, Defendants describe Plaintiff as a ""federally regulated dealer.” The Court assumes that by ""federally regulated” Defendants mean ""fully federally regulated,” because Defendants do not dispute that Plaintiff became fully subject to federal regulation in"
4970	Court concludes that the claim language and specification do not require the management layer to be below the storage layer. See Primos Inc. v. Hunter’s Specialties Inc., 451 F.3d 841, 848 (Fed.Cir.2006) (“[W]e ... should not normally interpret a claim term to exclude a preferred embodiment.”). c. Prosecution History Sun further argues that NetApp’s representations to the PTO about the layered architecture of the '417 patent during its prosecution compel the adoption of Sun’s construction. “Arguments and amendments made during the prosecution of a patent application and other aspects of the prosecution history, as well as the specification and other claims, must be examined to determine the meaning of terms in the claims.” E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1438 (Fed.Cir.1988). “The prosecution history limits the interpretation of claim terms so as to exclude any interpretation that was disclaimed during prosecution. [Citations omitted.]” Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed.Cir.1995). On June 24, 2003, the Examiner rejected claim 1 as well as claims 12, 18 and 19 under 35 U.S.C. § 103 as unpatentable over U.S. Patent No. 6,173,293 to Thek-kath et al. (“Thekkath”) in view of U.S. Patent No. 5,944,789 to Tzelnic et al. (“Tzelnic”). '417 Patent File History, June 24, 2003 Office Action at 2-3. The applicants responded by arguing that the prior art combination did not teach the specific layered architecture set forth in claim 1, referring to a management layer that is below
2182	oppositions filed by representatives of the media; rather, plaintiffs presented a valid First Amendment claim on their own behalf. The Court did not reduce as unreasonable in themselves the very long hours that Attorney Hernandez billed on each of three single days (December 20, 1998; December 21,1998; and January 12, 1999), because Attorney Hernandez was working on the case largely by himself and trial was approaching or had begun at the time. 2. Imprecision As First Circuit law permits me to do, I eliminated a significant number of hours for which Attorney Hernandez’s records are “not sufficiently precise” as to the tasks accomplished or the claim pursued to allow the Court to assess whether the time spent was reasonable. Deary v. City of Gloucester, 9 F.3d 191, 197-98 (1st Cir.1993) (instructing that, in the absence of “specific information about ... the nature of the work performed,” the requested fees “should be reduced or even denied altogether” (citing Calhoun v. Acme Cleveland Corp., 801 F.2d 558, 560 (1st Cir.1986), and Grendel’s Den, 749 F.2d at 952)); see also Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir.1994) (requiring “ ‘a full and specific accounting of the tasks performed’ ” and upholding a thirty-percent reduction in the fee award for over-general time sheets (quoting Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 527 (1st Cir.1991))); Lipsett, 975 F.2d at 938; Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir.1978) (suggesting that “counsel’s records ... [should]
585	plaintiffs amended complaint. DISCUSSION: I. MOTION FOR LEAVE TO AMEND ANSWER In their motion for leave to amend their answer to plaintiffs amended complaint, served March 10, 1994, defendants seek to add spoliation of evidence as an affirmative defense. In response, plaintiff argues that spoliation of evidence is not an affirmative defense but a subject for an evidentiary ruling by the court, and so leave to amend should not be granted. A. Standard for Leave to Amend Amendment of pleadings is governed by Federal Rule of Civil Procedure 15, which provides in part that “leave shall be freely given when justice so requires.” Fed. R.Civ.P. 15(a). Amendment under Rule 15(a) would include amendment of an answer to include an affirmative defense. Charpen-tier v. Godsil, 937 F.2d 859, 863-64 (3d Cir. 1991). “Unless the opposing party will be prejudiced, leave to amend should generally be allowed.” Charpentier, 937 F.2d at 864. An exception to this general rule would be that “leave to amend may be denied where amendment would be futile because the defenses sought to be added are legally insufficient.” United States v. Fleetwood Enterprises, Inc., 702 F.Supp. 1082, 1085 (D.Del. 1988). B. Pleading of Affirmative Defenses A party defending a claim is required to plead a matter which constitutes avoidance or an affirmative defense. Fed. R.Civ.P. 8(c). Failure to plead an affirmative defense leads to waiver of the defense, supra note 2, unless amendment to the responsive pleading is permitted. Charpentier, 937 F.2d at 863-64. “Matters treated as affirmative
1950	the wastes in question were “mostly solvent wastes” thereby constituting “F” or “D” listed wastes under 40 C.F.R., Pt. 261. 6. Authorities Relied on by Defendants. The court has reviewed the authorities in the Memorandum of Law of Richard I. Johnson, Sr., filed December 29, 1993, and finds that they support the conclusion that the Indictment, in this case, is sufficient, and that specific reference to regulatory definitions of hazardous waste is not required in the Indictment. The cited eases are directed to the sufficiency of the proof after trial, specifically the defendants’ knowledge of the hazardous nature of the substances involved, and the charge to the jury. See United States v. Goldsmith, 978 F.2d 643, 646 (11th Cir.1992) (quoting United States v. Dee, 912 F.2d 741, 745 (4th Cir.1990), cert. denied, 499 U.S. 919, 111 S.Ct. 1307, 113 L.Ed.2d 242 (1991)) (“a defendant need not know the exact identity of the chemicals disposed of, but only that the chemicals have ‘the potential to be harmful to others or to the environment’”); United States v. Goodner Bros. Aircraft, Inc. 966 F.2d 380 (8th Cir.1992) (jury instructed on listed wastes and the invalid “mixture” rule; case remanded), cert. denied,—U.S.-, 113 S.Ct. 967, 122 L.Ed.2d 123 (1993); United States v. Bay-tank (Houston), Inc., 934 F.2d 599, 613 (5th Cir.1991) (statute requires that defendant know factually what he is doing, not “that he know that there is a regulation which says what he is storing is hazardous under the RCRA”); United States v.
4415	duty to disclose the omitted facts.” In re Time Warner Inc. Sec. Litig., 9 F.3d 259, 267 (2d Cir.1993). Even though Rule 10b-5 imposes no duty to disclose all material, nonpublic information, once a party chooses to speak, it has a “duty to be both accurate and complete.” Caiola v. Citibank, N.A, N.Y., 295 F.3d 312, 331 (2d Cir.2002). “[A]n entirely truthful statement may provide a basis for liability if material omissions related to the content of the statement make it ... materially misleading.” In re Bristol Myers Squibb Co. Sec. Litig., 586 F.Supp.2d 148, 160 (S.D.N.Y.2008). However, corporations are “not required to disclose a fact merely because a reasonable investor would very much like to know that fact.” In re Optionable Sec. Litig., 577 F.Supp.2d 681, 692 (S.D.N.Y.2008) (quoting In re Time Warner Inc. Sec. Litig., 9 F.3d 259, 267 (2d Cir.1993)); see also City of Roseville, 814 F.Supp.2d at 410. A. This case is about BoA’s disclosure obligations with respect to a potential lawsuit by AIG against BoA based on BoA’s sale of MBS to AIG. At the outset, the plaintiffs concede that the possibility of MBS litigation brought by AIG against BoA was publicly disclosed. (Pl.s’ Mem. in Opp. to Def.s’ Mot. to Dismiss (“Plaintiffs’ Opposition”) at 24.) The plaintiffs thus argue only that the defendants were required to disclose the imminence and amount of AIG’s suit. (Plaintiffs’ Opposition at 21 n. 25, 24, 26.) With respect to imminence, the plaintiffs allege, at most, that at some
3034	PER CURIAM: Amadeo Jaimes appeals his 300-month, within-guidelines-range sentence, imposed after he pleaded guilty to one count of conspiracy to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846. Jaimes contends that his sentence is substantively unreasonable in light of the 18 U.S.C. § 3553(a) factors, particularly considering his substance abuse, difficult family circumstances, and lack of criminal history. Jaimes also challenges his sentence as unreasonable in relation to the sentences of his co-conspirators. In reviewing the substantive reasonableness of the sentence, we apply a deferen tial abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The district court must impose a sentence “sufficient, but not greater than necessary” to comply with the purposes of 18 U.S.C. § 3553(a)(2). 18 U.S.C. § 3553(a). Those purposes include the need for a sentence to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offender, deter criminal conduct, and protect the public from future criminal conduct. Id. § 3553(a)(2). Additional considerations include the nature and circumstances of the offense, the history and characteristics of the defendant, the kinds of sentences available, the applicable guideline range, the pertinent policy statements of the Sentencing Commission, and the need to avoid unwarranted sentencing disparities. Id. § 3553(a)(1), (3)-(6). Weighing
1934	States v. Kuchinski, 469 F.3d 853, 863 (9th Cir.2006). However, in view of the properly admitted evidence that Jackson exercised dominion and control over thirteen videos of child pornography, any error was harmless. See United States v. Schales, 546 F.3d 965, 976 (9th Cir.2008) (holding that a district court’s erroneous ruling “will be reversed only if such error more likely than not affected the verdict”). Additionally, the district court did not abuse its discretion by questioning Agent Weg, and therefore, did not commit judicial misconduct. See Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir.1995) (holding that it “is perfectly appropriate for a judge to take part where necessary to clarify testimony and assist the jury in understanding the evidence”); United States v. Parker, 241 F.3d 1114, 1119 (9th Cir.2001). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
2886	the BIA affirmed the IJ’s finding that Duan did not establish eligibility for protection under CAT because he did not show that he is “more likely than not” to be tortured if returned to China. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. 1. The BIA’s findings are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Whistleblowing “may constitute political activity sufficient to form the basis of persecution where petitioner[] whistle blew against corrupt government officials and he was targeted for persecution on account of that political opinion, whether actual or imputed.” Lkhagvasuren v. Lynch, 849 F.3d 800, 802 (9th Cir. 2016) (per curiam) (internal quotation marks and citations omitted). Duan has not shown that his actions were directed towards government actors. Id. Duan failed to establish an imputed political opinion because he failed to demonstrate a political link between his actions against the general manager and the police actions against him. See Garcia-Milian v. Holder, 766 F.3d 1026, 1031-34 (9th Cir. 2014). Thus, Duan failed to make the compelling showing necessary for relief. 2. An alien who is unable to meet the burden of proof for asylum necessarily fails to meet the more stringent standard for withholding of removal. Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004). Because Duan failed to meet the lower burden of proof for
1353	fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985). To that end, the allegations must contain “an account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (citation omitted). Averments of fraud must be accompanied by the “who, what, when, where, and how” of the misconduct charged. Vess v. Ciba-Geigy Corp. USA 317 F.3d 1097, 1106 (9th Cir.2003) (citation omitted). Additionally, “the plaintiff must plead facts explaining why the statement was false when it was made.” Smith v. Allstate Ins. Co., 160 F.Supp.2d 1150, 1152 (S.D.Cal.2001); see also In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1549 (9th Cir.1994) (en banc) (superseded by statute on other grounds). C. Rule 12(b)(1) A party may file a motion to dismiss with the Court for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion may be either facial or factual. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004). A facial 12(b)(1) motion involves an inquiry confined to the allegations in the complaint, whereas a factual 12(b)(1) motion permits the court to look beyond the complaint to extrinsic evidence. Id. When a defendant makes a facial challenge, all material allegations in the complaint are assumed true, and the court must determine whether lack of
4190	is pertinent to this action, restricts the availability and amount of attorney’s fees recoverable by prisoners under 42 U.S.C.A. § 1988, see 42 U.S.C.A. § 1997e(d). III. This appeal presents three issues. First, are the PLRA’s limitations on attorney’s fees applicable to juveniles incarcerated in juvenile facilities? Second, if applicable to juveniles, are the limitations applicable to fee awards for work performed, but not compensated, prior to the enactment of the PLRA? And third, do the PLRA’s limitations on at tomeys’ fees impose new standards for determining the appropriateness of a fee award in a prison conditions suit? We address these issues in turn. Although we generally review a district court’s award of attorney’s fees for an abuse of discretion, see Plyler v. Evatt, 902 F.2d 273, 277-78 (4th Cir.1990), we review the applicability of statutory amendments de novo, see United States v. Murphy, 35 F.3d 143, 145 (4th Cir.1994) (“Interpreting a statute is a legal issue that successive courts freely review, and hence our review is plenary.”). A. The State contends that the PLRA’s limitations on attorney’s fees apply to the district court’s award of attorney’s fees to the Plaintiffs arising from the Plaintiffs’ successful § 1983 action alleging unconstitutional conditions of confinement in South Carolina’s juvenile facilities. Section 1988 provides that “[i]n any action or proceeding to enforce a provision of section[ ] ... 1983 ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee.” 42 U.S.C.A. § 1988(b) (West Supp.1997). Therefore,
4236	instance, furnishes a good example of the use of lawsuits as an economic weapon to harass competitors. The abuses of patent infringement suits, particularly in the glass industry, were exhaustively ventilated in the TNEC hearings, and led to antitrust prosecutions marked, among other features, by disciplinary proceedings against lawyers connected with prominent metropolitan firms for deceptions practiced on the courts handling those cases. United States v. Hartford-Empire Co., 46 F. Supp. 541, 612 (N.D.Ohio W.D.1942); Hartford-Empire Co. v. United States, 323 U.S. 386, 400, 65 S.Ct. 373, 89 L.Ed. 322 (1945); Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 241-243, 64 S.Ct. 997, 88 L.Ed. 1250 (1944); Hartford-Empire Co. v. Shawkee Mfg. Co., 163 F.2d 474, 475-476 (C.A. 3, 1947); Hatch v. Ooms, 69 F.Supp. 788, 794-801 (D.C.1947). In the words of Justice Black: “Where the patent owner has ample resources to bear the costs of repeated litigation, the power of the infringement suit to stifle competition is increased. And where potential competitors are weak and few, it may afford a practically complete protection for the preservation of undeserved monopoly.” Williams Mfg. Co. v. United Shoe Machinery Corp., 316 U.S. 364, 381, 62 S.Ct, 1179, 1188, 86 L.Ed. 1537 (1942). See also United States v. Hartford-Empire Co., 46 F.Supp. 541, 565 (N.D.Ohio W.D. 1942). It must never be forgotten that the primary policy of the patent laws is to promote invention for the benefit of the public. Private gain is secondary. Pennock v. Dialogue, 2 Pet. 1, 19, 7
1303	A. Same Material Elements of Fraud Appellate courts review de novo the dismissal of a complaint for lack of jurisdiction. United States ex rel. Findley v. FPC-Boron Emps. ’ Club, 105 F.3d 675, 681 (D.C.Cir.1997). Applying that standard in this case, we reason as follows: The FCA’s first-to-file rule provides that “[w]hen a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5). This furthers the statute’s “twin goals of rejecting suits which the government is capable of pursuing itself, while promoting those.which the government is not equipped to bring on its own.” United States ex rel. Hampton v. Columbia/HCA Healthcare Corp., 318 F.3d 214, 217 (D.C.Cir.2003) (quoting United States ex rel. Springfield Terminal Ry. v. Quinn, 14 F.3d 645, 651 (D.C.Cir.1994)). Therefore, the rule “bar[s] ‘actions alleging the same material elements of fraud’ as an earlier suit, even if the allegations ‘incorporate somewhat different details.’ ” Id. (quoting United States ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1189 (9th Cir.2001)). Under this standard, two complaints need not allege identical facts for the first-filed complaint to bar the later-filed complaint. Id. at 218. As a preliminary matter, Batiste urges this Court to interpret the statute to mean a later-filed complaint must be both “a related action” to and “based on the facts” underlying the first-filed complaint. He argues the district court incorrectly read the statute
2745	by a discriminatory animus.”) (quotations omitted). Finally, Plaintiff argues simply that the Admissions Committee’s application of a subjective standard to the evaluation of his average LSAT score evidences a discriminatory intent. The only evidence in the record on this issue is that the Admissions Committee considers an applicant’s average LSAT score in addition to a number of other factors when evaluating applications. This fact simply does not permit a reasonable inference that the admissions process is discriminatory in any way. See Judge v. City of Lowell, 160 F.3d 67, 72 (1st Cir.1998) (plaintiff must “ ‘put forward specific, nonconclusory factual allegations’ that establish improper motive causing cognizable injury in order to survive a ... motion for ... summary judgment.”); Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.1994) (summary judgment appropriate “ ‘[ejven in cases where elusive concepts such as motive or intent are at issue ... if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.’ ”) (quoting Goldman v. First Nat’l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993)). In light of the Court’s determination that Plaintiff has failed to raise a genuine issue of fact as to Defendants’ motivation, the Court need not address Defendants’ arguments relating to rational basis review and qualified immunity. IY. CONCLUSION In the end, what Plaintiff asserts to be “evidence” actually constitutes nothing more than unsupported and conclusory allegations about the decision to reject his application. For the reasons outlined above, Defendant’s Motion for Summary
3304	738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel for Meredith filed a brief certifying that there are no meritorious grounds for appeal but questioning whether the district court (1) wrongly increased the base offense level for Meredith’s Guidelines range for substantially interfering with the administration of justice, (2) clearly erred in increasing the base offense level for Meredith’s Guidelines range because the offense was extensive in scope, planning, or preparation, or (3) imposed an unreasonable sentence. Although advised of her right to do so, Meredith did not file a pro se supplemental brief. We affirm. In determining whether the district court properly applied a sentencing enhancement, this court “review[s] factual findings for clear error and legal conclusions de novo.”' United States v. Adepoju, 756 F.3d 250, 256 (4th Cir.2014). Meredith first questions whether the district court improperly enhanced her sentence because “the offense resulted in substantial interference with the administration of justice.” U.S. Sentencing Guidelines Manual (USSG) § 2J1.2(b)(2). “ ‘Substantial interference with the administration of justice’ includes ... the unnecessary expenditure of substantial governmental or court resources.” USSG § 2J1.2 cmt. n. 1. Our review of the record reflects that the district court properly increased Meredith’s offense level for substantial interference with the administration of justice. Because significant government resources were invested to resolve Meredith’s attempts at obstruction, the district court did not clearly err in this conclusion. Nor did the district court erroneously “double-count” by applying the enhancement even though she was convicted of obstruction of justice.
4895	Freight, Inc., 832 F.2d 702, 703 (1st Cir.1987)). Plaintiffs sought to establish § 1983 liability against Brookline on the theory that Mr. Fernandez’s death resulted from its “failure to provide hostage training to the members of its police force.” The town defended itself on the ground that plaintiffs had failed to prove, among other things, “a direct causal link,” City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989), between the alleged failure to train and any constitutional deprivation suffered as a result of Mr. Fernandez’s death. See id. at 1205 (“a municipality can be liable under § 1983 only where its policies are the ‘moving force [behind] the constitutional violation.’ ”) (quoting Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981)). Having reviewed the record ourselves, we can discern no basis for disturbing the Brookline verdict. Plaintiffs adduced no meaningful evidence of causation, while the town presented evidence tending to preclude such a finding. Most significant, we think, was testimony to the effect that — whatever the level of training provided by the town — the defendant police officers, at all times relevant to plaintiffs’ suit, were acting under the supervision of FBI Agent Leonard, a trained and experienced expert in hostage situations. We conclude that the verdict in favor of the town was neither contrary to the weight of the evidence, nor otherwise “seriously mistaken.” Accordingly, we sustain the district court’s denial of plaintiffs’
2166	prevailing party [in a civil rights action] ... a reasonable attorney’s fee as part of the costs” to which that party is normally entitled under Fed.R.Civ.P. 54(d). 42 U.S.C. § 1988(b). The parties agree that plaintiffs satisfy the relatively low threshold required to qualify for “prevailing party” status. See, e.g., Farrar v. Hobby, 506 U.S. 103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989); Williams v. Hanover Hous. Auth., 113 F.3d 1294, 1299 (1st Cir.1997). “However, the fact that [plaintiffs] were the prevailing parties does not mean that they can recover for all the time spent in this litigation.” Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94,102 (1st Cir.1988). Instead, the Court calculates a reasonable fee award using the lodestar method, which is “the strongly preferred method by which district courts should determine what fees to award prevailing parties” under ,§ 1988. Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 337 (1st Cir.1997) (citing Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.1992)). To arrive at a reasonable award, the Court “must evaluate the data submitted by the fee-seeker, compute a lodestar, consider the totality of the adjustment factors approved by Congress and the [Supreme] Court, and make specific, reasoned adjustments” to reduce the award if appropriate. Id. at 340 (citation omitted). Although this Court is not required to produce a “painstaking” explanation of its decision, which is
3720	pleading standards required to allege inequitable conduct under Rule 9(b). Doc. 64 at 15-16. Thus, there is no reason to believe that further opportunity to amend would not be futile. 2. Concealment Allegations Plaintiff also alleges that Defendant is hable under an inequitable conduct theory because it, as a corporation, “attempted to conceal Lininger’s co-inventorship of the Meter from the PTO.” FAC ¶67. Defendant argues that this claim must fail because a corporation cannot commit inequitable conduct. MTD at 20. Plaintiff asserts that Defendant may be liable for the inequitable conduct of its employees under an agency theory. Opposition at 22. Plaintiff is correct that an individual’s actions may be imputed to a corporate patent owner. Avid Identification Sys., Inc. v. Crystal Imp. Corp., 603 F.3d 967, 973 (Fed.Cir.2010) (“If an individual who is substantively involved in the preparation or prosecution of an application fails to comply with his duty of candor, then that individual’s misconduct is chargeable to the applicant for the patent, and the applicant’s patent is held unenforceable.”). While liability may be imputed to a corporate entity, the conduct itself must be attributed to an individual. Delano Farms Co. v. California Table Grape Comm’n, 655 F.3d 1337, 1350 (Fed.Cir.2011). As discussed in the Court’s previous order, a plaintiff “must recite facts which the court may reasonably infer that each individual a) knew of invalidating information that was withheld from the PTO and b) withheld that information with a specific intent to deceive.” Doc. 64 at 16 (citing
2276	distinguished a cleanup order where payment in lieu of action was not authorized from an order under which reimbursement could have been sought. 8 F.3d at 150-51. The distinguishing factor between the instant matter and Torwico is that in the instant matter PLC holds a claim. No regulatory authority is asserting a nondischargeable cleanup order. The Torwico decision is inapposite on the issue of the appropriate priority to be given to a cleanup reimbursement claim. The Torwico court explicitly stated that in order to find a cleanup obligation unavoidable, the wastes at issue must present an ongoing hazard. Id. at 150 (in order to not be a claim, the cleanup order must remedy, “an ongoing and continuing threat”), citing In re CMC Heartland Partners, 966 F.2d 1143, 1146-47 (7th Cir.1992). The instant case lacks these dispositive elements. Rather, the court finds that the expense PLC seeks to impose upon the estate is part of its rejection damages and thus a pre-petition claim, not a nondischargeable cleanup' obligation. The contamination in Torwico presented a serious and ongoing threat to the public health. In the instant matter, the contamination did not pose the sort of threat to the public such that an immediate response was required, nor for that matter, was one performed. CONCLUSION The court finds that the record before it does not support a finding that the contamination of the PLC property posed an imminent danger to the public. Accordingly, there is no basis to treat PLC’s claim for reimbursement
947	sentencing he conceded that the mischaracterization, had no impact on his Guideline computation. See United States v. Rizzo, 349 F.3d 94, 99 (2d Cir.2003) (“[I]f a defendant fails to challenge factual matters contained in the presentence report at the time of sentencing, the defendant waives the right to contest them on appeal.”). Finally, Hernandez argues that sentencing guideline U.S.S.G. § 4A1.2(j) violates due process because it requires district courts to look to state law when determining whether a sentence is expunged, resulting in disparate treatment of “similar” defendants. However, it is clearly established that “[t]o sustain a federal sentencing statute against a due process challenge, courts need only find that Congress had a rational basis for its choice of penalties.” United States v. Meskini, 319 F.3d 88, 91 (2d Cir.2003) (internal citations and punctuation omitted, alteration in original). Since a wide variety of decisions under the Guidelines are driven by the laws of the various states, it is clear to us that looking to them when analyzing youth and juvenile offenses is rational. See generally United States v. Driskell. Accordingly, the judgment of the District Court is hereby affirmed.
2900	Generally, in civil litigation, the party seeking to change the status quo has the ultimate burden of proving his allegations are true. See Joseph A. Bass Co. v. United States, 340 F.2d 842, 844 (8th Cir.1965) (“[i]t is fundamental that the burden of proof * * * rests upon the party who, as determined by the pleadings or the nature of the case, asserts the affirmative of an issue”). Since a Chapter 13 plan that meets the requirements of section 1325(a) would be confirmed absent the objections of the creditor, the creditor has, at minimum, “the initial burden of producing satisfactory evidence to support the contention that the debtor is not applying all of his disposable income” to the plan payments. In re Fries, 68 B.R. 676, 685 (Bkrtcy.E.D.Pa.1986); see also In re Mendenhall, 54 B.R. 44, 45-46 (Bkrtcy.W.D. Ark.1985). EAC presented no evidence to support its claim that Zellner overestimated his expenses. The record shows that Zellner is about fifty-one years old and has a wife and two young children. He requires daily insulin shots for his diabetes. He has glaucoma, a mild heart condition, and has been hospitalized for back problems. The bankruptcy court also found EAC’s evidence on the likelihood or amount of future raises or tax refunds to be speculative. We cannot conclude that the bankruptcy court’s determination of projected income was clearly erroneous. If, in the future, EAC can show a substantial change in Zellner’s ability to pay, it may request modification of the plan.
2001	service to the current condition. See Libertine v. Brown, 9 Vet.App. 521, 524 (1996); Caluza, 7 Vet.App. at 507. Although the provision does not establish service connection for a particular disability of a combat veteran, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. See id. at 508; see also Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) (noting that § 1154(b) “does not create a statutory presumption that a combat veteran’s alleged disease or injury is service-connected”, but “considerably lighten[s] the burden of a veteran who seeks benefits for an allegedly service-connected disease or injury and who alleges that the disease or injury was incurred in, or aggravated by, combat service”); cf. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir.1994) (38 C.F.R. § 3.306, derived from § 1154(b), creates a presumption of aggravation but “not service-connection, or even that the determination of aggravation is irrebuttable”). 1. Requisite elements of PTSD claim. VA regulations in 38 C.F.R. § 3.304 that deal expressly with the adjudication of PTSD claims provide, in pertinent part, as follows: (f) Post-traumatic stress disorder. Service connection for posttraumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in[-]service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in[-]service stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded
4368	requirements established by the Federal Order and the Northeast Interstate Dairy Compact, and additionally paid a certain amount in voluntary premiums to its dairy farmer patrons and its cooperative supplier, Agri-Mark. III. DISCUSSION A. Certification The question Defendants wish to certify to the Supreme Judicial Court is, essentially, whether the Commission is authorized to enforce upon a dealer fully regulated under the Federal Order “the State’s minimum milk prices to be paid to Maine’s dairy farmers for milk produced, processed and sold in Maine.” Defs.’ Mot. Certify at 2. The decision whether or not to certify a question of state law to the state’s highest court rests within the “sound discretion of the federal court.” E.G. Fischer v. Bar Harbor Banking and Trust Co., 857 F.2d 4, 6 (1st Cir.1988). In Maine, certification to the Supreme Judicial Court is authorized by 4 M.R.S.A. § 57, which provides, in relevant part: When it shall appear to the Supreme Court of the United States, or to any court of appeals or district court of the United States, that there are involved in any proceeding before it one or more questions of law of this State, which may be determinative of the cause, and there are no clear controlling precedents in the decisions of the Supreme Judicial Court, such federal court may certify any such questions of law of this State to the Supreme Judicial Court for instructions concerning such questions of state law, which certificate the Supreme Judicial Court sitting as a
3155	the question of any alleged violation of the Administrative Procedure Act was not raised by any pleading filed by plaintiff before the Commission. Equally untenable is the argument that the certificate in question is “ambiguous,” “meaningless,” or “without definition.” Particular attack is made on the words “round trip sightseeing or pleasure tour” and “special or charter operations.” This last phrase is found in the proviso of section 207(a) of the Interstate Commerce Act, 49 U.S.C.A. § 307(a), and has been frequently used by the Commission. The difference between “special operations” and “charter operations” has often been passed upon by the courts. See, particularly, Fordham Bus Corporation v. United States, D. C., 41 F.Supp. 712, 717. Said Mr. Justice Frankfurter in United States v. Maher, 307 U.S. 148, 155, 59 S.Ct. 768, 771, 83 L.Ed. 1162: “The recognized practices of an industry give life to the dead words of a statute dealing with it.” And, in Sproles v. Binford, 286 U.S. 374, 393, 52 S.Ct. 581, 587, 76 L.Ed. 1167, Chief Justice Hughes remarked: “The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.” If by chance White House should indulge in operations not fairly within the ambit of the certificate, adequate remedy is available. Section 204(c), 49 U.S.C.A. § 304(c), of the Interstate Commerce Act clearly provides: “Upon complaint in writing to the Commission by any person, State board, organization, or body politic, or upon
4947	term in the absence of an express intent to the contrary. York Products, Inc. v. Central Tractor Farm & Family Ctr., 99 F.3d 1568, 1572 (Fed.Cir.1996). Generally speaking, the words in a claim are to be interpreted “in light of the intrinsic evidence of record, including the written description, the drawings, and the prosecution history, if in evidence.” Teleflex, Inc. v. Ficosa North Am. Corp., 299 F.3d 1313, 1324-25 (Fed.Cir.2002) (citations omitted); see also Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313, 1319 (Fed.Cir.2005) (court looks at “the ordinary meaning in the context of the written description and the prosecution history”). “Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). With regard to the intrinsic evidence, the court’s examination begins, first, with the claim language. See id. Specifically, “the context in which a term is used in the asserted claim can be highly instructive.” Phillips, 415 F.3d at 1314. As part of that context, the court may also consider the other patent claims, both asserted and unasserted. Id. For example, as claim terms are normally used consistently throughout a patent, the usage of a term in one claim may illuminate the meaning of the same term in other claims. Id. The court may also consider differences between claims as a guide to understanding the meaning of particular claim terms. Id. Second, the claims “must [also] be read in view of the
4792	process. The motion was denied. At the trial the five eyewitnesses repeated their in-eourt identifications of defendants. While witness Welch was making her identification the court again, without objection, had all of the defendants stand. During the trial defendants several times renewed their motions to suppress the in-court identifications, but the motions were denied. All of the defendants here contend that the in-court identifications described above deprived them of due process of law. Defendants are entitled to reversal if the confrontation on September 1, 1970, “was so unnecessarily suggestive and conducive to irreparable mistaken identification” as to amount to a denial of due process of law. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L. Ed.2d 1199 (1967); Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 22 L. Ed.2d 402 (1969); Coleman v. Alabama, 399 U.S. 1, 3-6, 90 S.Ct. 1999, 26 L.Ed. 2d 387 (1970). See Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed. 2d 1267 (1968). As observed in Stovall, 388 U.S. at 302, 87 S.Ct. 1967, such a claimed violation of due process of law depends upon the totality of the circumstances surrounding the confrontation at issue. Stovall further indicates that the relevant considerations are not limited to those bearing upon the suggestive character of the confrontation itself, but include those pertaining to the reasons why the confrontation occurred. In addition, Foster, supra, 394 U.S. at 443, 89 S.Ct. 1127, indicates that the spontaneity of the witness’ identification at
2918	MEMORANDUM 1. Neither the failure to define certain terms in a jury instruction nor the failure to give an additional instruction sua sponte “so infected the entire trial that the resulting conviction” violated John Joseph’s due process rights. See Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (citations omitted). 2. Joseph’s ineffective assistance of counsel claims fail as he has not shown “that there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 4. After our independent review of the record, we conclude that the state court decision denying Joseph’s habeas petition was not “objectively unreasonable.” Pham v. Terhune, 400 F.3d 740, 742 (9th Cir.2005) (citation omitted). 5. To the extent Joseph raises arguments not encompassed within the certificate of appealability (COA), we construe this as a motion to expand the COA and deny the motion because Joseph fails
1210	Corp. v. United States, 508 U.S. 200, 207, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993). Accordingly, “removal jurisdiction exists in a given case only when that jurisdiction is expressly conferred on the courts by Congress.” Fed. Ins. Co. v. Tyco Int’l Ltd., 422 F.Supp.2d 357, 367 (S.D.N.Y.2006) (internal quotation marks omitted); see also Irving Trust Co. v. Century Exp. & Imp., S.A., 464 F.Supp. 1232, 1234 (S.D.N.Y.1979) (noting that the right of removal is “a matter of legislative grace” (citing Great N. Ry. Co. v. Alexander, 246 U.S. 276, 280, 38 S.Ct. 237, 62 L.Ed. 713 (1918))). Judicial scrutiny is especially important “in the context of removal, where considerations of comity play an important role.” Johnston v. St. Paul Fire & Marine Ins. Co., 134 F.Supp.2d 879, 880 (E.D.Mich.2001). Indeed, “[o]ut of respect for the independence of state courts, and in order to control the federal docket, federal courts construe the removal statute narrowly, resolving any doubts against removability.” Stan Winston Creatures, Inc. v. Toys “R” Us, Inc., 314 F.Supp.2d 177, 179 (S.D.N.Y.2003) (internal quotation marks omitted); see also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) (noting that federalism concerns call for “the strict construction” of the removal statute); Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269, 274 (2d Cir.1994) (“In light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal
3114	primary argument that this action cannot be categorized as a “minor dispute” falling under the exclusive jurisdiction of the system board of adjustment. Opp’n at 2-3. If this is such a dispute, though, she claims it is a “major” one and not a “minor” one. Opp’n at 3. Certainly, the RLA does not vest jurisdiction in system boards of adjustment of all disputes related to employ ment. The Supreme Court has expressly-rejected the idea that “all employment-related disputes, including those based on statutory or common law” fall under the exclusive jurisdiction of the system board of Adjustment; “the RLA’s mechanism for resolving minor disputes does not preempt causes of action to enforce rights that are independent of the CBA.” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 253, 265, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). To determine if they have jurisdiction, courts are to examine the relationship of the dispute to the CBA; “ ‘minor disputes’ are those that are ‘grounded’ in the collective bargaining agreement.” Felt v. Atchison, Topeka & Santa Fe Ry. Co., 60 F.3d 1416 (9th Cir.1995), citing Hawaiian Airlines v. Norris 512 U.S. 246, 256, 114 5. Ct. 2239, 129 L.Ed.2d 203 (1994). “A minor dispute cannot involve rights that emanate from sources outside the agreement.” Id. at 1419. The burden of establishing that a dispute is not minor lies with the party seeking to bring a RLA-related claim in federal court. Plaintiff faces a high burden, as “courts should characterize a dispute as minor
1489	under ERISA. Hartford contends that the benefits sought by Prince are “employee welfare benefits” within the meaning of ERISA and that ERISA preempts the state common-law claims that Prince asserts here. In fact, Hartford maintains that plaintiff’s failure to state a claim under ERISA is itself sufficient basis for dismissing this action. ERISA’s express preemption clause provides for preemption of “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. § 1144(a). Relying upon a 1979 federal district court opinion, plaintiff argues against the application of ERISA on the notion that “general principles of contract law may be applied where there is no inconsistency with the Congressional purpose in enacting ERISA.” Shaw v. Kruidenier, 470 F.Supp. 1375 (S.D.Iowa 1980), aff'd without opinion, 620 F.2d 307 (8th Cir.1980). Shaw is not the controlling law on this point, however, as the Supreme Court has since held that the statutory preemption provision “was intended to displace all state laws that fall within its sphere, even including state laws that are consistent with ERISA’s substantive requirements.” Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728 (1985), citing Shaw v. Delta Airlines, Inc., 463 U.S. 85, 98-99, 103 S.Ct. 2890, 2900-01, 77 L.Ed.2d 490 (1983); see also Salomon v. Transamerica Occidental Life Ins. Co., 801 F.2d 659 (4th Cir.1986) (holding that Virginia state law claims for breach of contract are preempted by ERISA in suit involving deceased
1371	court may order discovery of any matter relevant to the subject matter involved in the accident. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b). Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R. Evid. 401. Relevancy is interpreted “broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). A party may take the deposition of “any person, including a party” pursuant to the procedures outlined in the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 30(a)(l)-(2). “Only a party to litigation may be compelled to give testimony pursuant to a notice of deposition.” U.S. v. Afram Lines (USA), Ltd., 159 F.R.D. 408, 413 (S.D.N.Y. 1994). III. Entry of Protective Orders The Court may issue a protective order to shield any party from undue burdens arising from discovery. Fed. R. Civ. P. 26(c). Specifically, Rule 26 provides: The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including
153	acted under “color of state law.” Section 1983 is based on the Fourteenth Amendment and is, therefore, limited in scope. District of Columbia v. Carter, 409 U.S. 418, 423-24, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973) (explaining that the legislative history and purpose of Section 1983 was to enforce the Fourteenth Amendment). It “deals only with those deprivations of rights that are accomplished under the color of the law of ‘any state or Territory.’ ” Carter, 409 U.S. at 424, 93 S.Ct. 602. To state a claim under Section 1983, the plaintiff must allege (1) “the violation of a right secured by the Constitution and laws of the United States” (2) committed by “a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). As in West, the adequacy and the sufficiency of the Plaintiffs’ showing on the first element are not contested; the only issue before the court is whether the Plaintiffs have established “the second essential element — that [the Federal Defendants] acted under col- or of state law.” 487 U.S. at 48-49, 108 S.Ct. 2250. It is well-established that a Section 1983 action cannot lie against federal officers acting under color of federal law. Carter, 409 U.S. at 424, 93 S.Ct. 602 (explaining that the actions “of the Federal Government and its officers are at least facially exempt from [the] proscriptions” of Section 1983); Behre v. Thomas, 665 F.Supp. 89, 92 (D.N.H.1987); see Wheeldin v. Wheeler,
2039	applicable law and regulation, and issuance of a readjudicated decision supported by an adequate statement of reasons or bases, see 38 U.S.C. §§ 1154(b), 5107(a), (b), 7104(a), (d)(1), 7261; 38 C.F.R. §§ 3.304(f), 4.125 (Nov 96 amnds), 4.126 (1996), 4.130 (Nov 96 amnds); applicable Manual M21-1 provisions; Fletcher, supra — all consistent with this opinion and in accordance with section 302 of the Veterans’ Benefits Improvements Act, Pub.L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide for “expeditious treatment” for claims remanded by BVA or Court). See Allday, 7 Vet.App. at 533-34. “On remand, the appellant will be free to submit additional evidence and argument” on the remanded claim. Quarles v. Derwinski 3 Vet.App. 129, 141 (1992). A final decision by the Board following the remand herein ordered will constitute a new decision which, if adverse, may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the new Board final decision is mailed to the appellant. REVERSED IN PART; VACATED IN PART; REMANDED. NEBEKER, Chief Judge, concurring, by way of synopsis: I compliment the author of this opinion for his time-consuming, detailed treatment of the issues raised or apparent in this appeal. However, the opinion’s prolixity and, I fear as to other readers, its convolution may cause the holdings of the Court to be obscured or misunderstood.
4195	examining the literal and plain language of the statute. See Robinson v. Shell Oil Co., — U.S. -, -, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997); Williams v. U.S. Merit Sys. Protection Bd., 15 F.3d 46, 49 (4th Cir.1994). If the “statutory language is unambiguous and the statutory scheme is coherent and consistent,” our inquiry ends. Robinson, — U.S. at -, 117 S.Ct. at 846 (quotation omitted); Murphy, 35 F.3d at 145. “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson, — U.S. at -, 117 S.Ct. at 846 (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477, 112 S.Ct. 2589, 2595, 120 L.Ed.2d 379 (1992)). In interpreting statutory language, words are generally given their common and ordinary meaning. See Murphy, 35 F.3d at 145. Although Congress did not define the phrase “jail, prison, or other correctional facility” in § 803 of the PLRA, the plain meaning of the phrase undoubtedly encompasses juvenile detention facilities. “Jail” is commonly defined as a “place for the lawful confinement of persons” or a “prison.” Webster’s II New Riverside University Dictionary 650 (1988). It is also defined as a “prison” or a place “usually used to hold persons either convicted of misdemeanors (minor crimes) or persons awaiting trial or as a lockup for intoxicated and disorderly persons.” Black’s Law Dictionary 834 (6th ed.1990). “Correctional
1217	on its face. (Id. at 11-13.) Furthermore, Plaintiffs argue that removability was not ascertainable because no amount in controversy was provided in the Summons with Notice. (Id. at 13.) Defendants, on the other hand, argue that removability was ascertainable on the face of the Summons with Notice, making it an initial pleading subject to removal. (Defs.’ Mem. 7-8.) Specifically, Defendants claim that the Summons with Notice provided all the information needed to reasonably ascertain removability, referencing the specific addresses of both Defendants, Plaintiffs’ principal places of business, and the specific contracts alleged to have been breached. (Id.) Additionally, Defendants argue that Plaintiffs cannot “credibly deny” that they seek damages greater than the jurisdictionally required amount. (Id. at 7) In Whitaker v. American Telecasting, Inc., 261 F.3d 196 (2d Cir.2001), the Second Circuit held that a summons with notice filed in accordance with New York State law “may constitute an initial pleading for purposes of the federal removal statute,” because New York law requires “the summons to provide notice stating the nature of the action and the relief sought — that is, information from which a defendant can ascertain removability.” Id. at 202-04. In Whitaker, the court further explained that “[a] case is removable when the initial pleading enables the defendant to intelligently ascertain removability from the face of such pleading, so that in its petition for removal[, the] defendant can make a short and plain statement of the grounds for removal as required [by] 28 U.S.C. § 1446(a).” Id. at
4399	§ 78t(a), against the four BoA officers: Chief Executive Officer Brian Moynihan, Chief Financial Officer and Vice Chairman Charles Noski, Chief and Principal Accounting Officer Neil Cotty, and Chief Risk Officer Bruce Thompson (collectively the “individual defendants”). The defendants move to dismiss the Second Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). This court has subject matter jurisdiction pursuant to 15 U.S.C. § 78aa, and 28 U.S.C. § 1331. For the reasons explained below, the motion to dismiss is granted. I. In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiffs’ favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). A complaint should not be dismissed if the plaintiffs have stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff[s] plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
305	2008 WL 1843909, *2 (M.D.Fla. Apr.22, 2008). It is undisputed that Sanibel provided none of the eight plaintiffs in this case with a printed property report prior to their signing of the respective Purchase Agreements. As such, if the Project is not exempt from the ILSFDA’s disclosure requirements, then Sanibel is in violation of that statute. Ultimately, then, plaintiffs’ disclosure-related claims hinge on whether or not the Project is exempt. In general, the ILSFDA excludes from the registration and disclosure requirements (including the property report) “the sale or lease of lots in a subdivision containing fewer than one hundred lots which are not exempt” under any of eight recognized statutory exemptions. 15 U.S.C. § 1702(b)(1); see generally Trotta v. Lighthouse Point Land Co., LLC, 551 F.Supp.2d 1359, 1362 (S.D.Fla.2008) (recognizing that § 1702(b) exempts developments with fewer than 100 units from the Act’s property report requirement). Sanibel maintains that the 108-unit Project consists of fewer than 100 lots which are not exempt from the ILSF-DA, because at least 9 units are exempt for purposes of § 1702(b)(1). Given the statute’s remedial objective, “when faced with an ambiguity regarding the scope of an exemption [in the ILSFDA], the court must interpret the exemption narrowly, in order to further the statute’s purpose of consumer protection.” Taylor v. Holiday Isle, LLC, 561 F.Supp.2d 1269, 1271 n. 5 (S.D.Ala.2008) (citing Meridian Ventures, LLC v. One North Ocean, LLC, 538 F.Supp.2d 1359 (S.D.Fla.2007)); see also Markowitz v. Northeast Land Co., 906 F.2d 100, 105 (3rd
3380	in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. See Major v. Benton, 647 F.2d 110, 112 (10th Cir.1981); Burnett v. Western Resources, Inc., 929 F.Supp. 1349, 1360 (D.Kan.1996). A motion to reconsider is not a second opportunity for the losing party to make its strongest case, to rehash arguments, or to dress up arguments that previously failed. See Voelkel v. General Motors Corp., 846 F.Supp. 1482, 1483 (D.Kan.), aff'd, 43 F.3d 1484, 1994 WL 708220 (10th Cir.1994). Such motions are not appropriate if the movant only wants the Court to revisit issues already addressed or to hear new arguments or supporting facts that could have been presented originally. See Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991). ANALYSIS A. Familial Status Defendant asserts that the Court erred in concluding that “[w]hen the City denied the special use permit, it relied upon an ordinance which discriminated against Keys’ residents on the basis of familial status.” See Memorandum And Order (Doc. # 54) p. 38. Defendant points out that the Court also stated that at the hearings before the Planning Commission and the City Council, Keys did not directly argue that it had the parental-type custody set forth in the FHA family status provision. Thus, the Planning Commission’s denial of the special use permit for ten residents cannot be seen as overt discrimination on the basis of familial status. Id. at p. 36. Defendant goes on to argue
4889	diminish the likelihood that the challenged items had particular probative value. Were we to find substantial and unfair prejudice, we might conclude that the district court improperly admitted the prior convictions and information relating to the cache of weapons. By the same token, though, the evidence may be viewed as cumulative, and therefore not unfairly prejudicial. Conceivably, the evidence of the Fernandezes’ rather lukewarm cooperation with the FBI and of their relationship with one of the kidnappers, see supra note 11, would have damaged the family’s reputation, with or without- amplification by the prior convictions and the cache of weapons. Our review of a district court’s weighing of the probative value and prejudicial ef- feet of evidence is notoriously constrained. See Pinkham v. Burgess, 933 F.2d 1066, 1071 (1st Cir.1991) (“ ‘Only rarely — and in extraordinarily compelling circumstances— will we, from the vista of a cold appellate record, reverse a district court’s on the spot judgment....”’) (quoting Freeman v. Package Machinery Co., 865 F.2d 1331, 1340 (1st Cir.1988)). This is especially so where, as here, the record admits of more than one reasonable interpretation. Extending the district court’s decision the great deference it deserves, and finding no harm after reviewing the record as a whole, we must affirm. D. The Post-Judgment Motions Following a twelve-day trial, and roughly an hour of deliberation, the jury returned a verdict for the defendants. Plaintiffs subsequently moved for relief from the adverse judgment and for a new trial under Fed.R.Civ.P. 59 and 60(b)(3)
296	106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote omitted). “In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir.1992) (internal citations and quotations omitted). “Summary judgment is justified only for those cases devoid of any need for factual determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir.1987) (citation omitted). “The applicable Rule 56 standard is not affected by the filing of cross-motions for summary judgment.” Godard v. Alabama Pilot, Inc., 485 F.Supp.2d 1284, 1291 (S.D.Ala.2007); see also May v. A Parcel of Land, 458 F.Supp.2d 1324, 1333 (S.D.Ala.2006) (same). Indeed, the Eleventh Circuit has explained that “[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984) (citation omitted); see also Wermager v. Cormorant Tp. Bd., 716 F.2d 1211, 1214 (8th Cir.1983) (“the filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits”). Nonetheless, “cross-motions
4039	subject to time or numerical limitations, to obtain rescission an alien must demonstrate that he had reasonable cause for his failure to appear. See 8 C.F.R. § 1003.23(b)(4)(iii)(B); Matter of N-B-, 22 I. & N. Dec. 590, 591 (B.I.A. 1999). Contrary to Jassi’s argument that the agency did not take his affidavit into account in reaching its decision, both the IJ and the BIA referred to the claims Jassi made in his affidavit in their decisions on the motion. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006) (“[W]e presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise.”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (holding that the BIA does not abuse its discretion by giving summary consideration to evidence presented in a motion to reopen). Jassi further argues that the agency abused its discretion in reaching a decision based solely on a finding that he failed to exercise due diligence, because he successfully demonstrated that he failed to appear for his May 1997 hearing due to ineffective assistance of counsel, and he adequately explained why he waited over 12 years to move to reopen his proceedings. This argument is unpersuasive. Although Jassi was in exclusion proceedings, and thus the usual 90-day time limit on motions to reopen did not apply, see 8 C.F.R. § 1003.23(b)(4)(iii)(D), the BIA was not foreclosed from denying the motion
2408	U.S. 506, 508, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). Nevertheless, he must allege sufficient facts to put the defendant on notice of the claim against it, see Kangethe v. District of Columbia, 953 F.Supp.2d 194, 199 (D.D.C.2013), which in this case means allegations that plaintiff suffered an adverse employment action because of his age, see Montgomery v. Omnisec Int’l Sec. Servs., Inc., 961 F.Supp.2d 178, 183 (D.D.C.2013) (citing Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008)). A 'pro se plaintiff is héld to “less stringent [pleading] standards”' than lawyers are, Erickson, 551 U.S. at 94, 127 S.Ct. 2197, but still must plead facts permitting an inference of “more than the mere possibility of misconduct,” Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 681-82 (D.C.Cir.2009) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937); see Brown v. Whole Foods Market Group, Inc., 789 F.3d 146, 150, 2015 WL 3634672, at *4 (D.C.Cir. June 12, 2015). However, a pro se litigant’s complaint must be considered in light of all other filings, including those responding to a motion to dismiss. Brown, 789 F.3d at 151, 2015 WL 3634672, at *5; see also Richardson v. United States, 193 F.3d 545, 548 (D.C.Cir.1999). Plaintiff, who was 67 years of age when he submitted his application to the DCHA, alleges that the DCHA declined to hire him as either a police officer or a special police officer. By mentioning his G.E.D. and college credit hours earned, plaintiff appears to assert that
4697	an exemption under the FLSA.”). In support of their argument that the motor carrier exemption is jurisdictional, Defendants cite one, pm-Arbaugh, case, Cariani v. D.L.C. Limousine Service, Inc., 363 F.Supp.2d 637 (S.D.N.Y.2005). In that case, the court ruled that because either the motor carrier exemption to the FLSA or the taxicab exemption to the FLSA applied, the “court lack[ed] subject matter jurisdiction over the plaintiffs federal claim.” Id. at 649. However, the court in that case decided the issue on a Rule 12(b)(1) motion “without addressing the jurisdiction-merits distinction and after allowing further discovery on the exemption issues.” Casares v. Henry Limousine Ltd., No. 09-CV-458, 2009 WL 3398209, at *1 (S.D.N.Y. Oct. 21, 2009) (discussing Cariani); see also Saca v. Dav-El Reservation Sys., Inc., 600 F.Supp.2d 483, 485 (E.D.N.Y.2009) (“The district court in Car-iani ... assumed without any explicit analysis that the FLSA exemption issue went to the court’s jurisdiction over the controversy rather than the merits thereof.”). Moreover, as Plaintiff notes, this reasoning has not been followed by other courts in the Second Circuit, which have held that whether an employer fits into an FLSA exemption goes to, the merits of the claim, not to the Court’s jurisdiction. See Benitez v. F & V Car Wash, Inc., No. 11-CV-1857, 2012 WL. 1414879, at . *1 (E.D.N.Y. Apr. 24, 2012) (“[A]fter review of recent case law in [the Second] Circuit, '“the court concurs with [the] [plaintiffs and concludes that the question of whether a defendant qualifies as an enterprise under
1056	Legal Analysis The majority’s point of departure were the principles established in Casey. First, before fetal viability, “the woman has a right to choose to terminate her pregnancy.” Casey, 505 U.S. at 870, 112 S.Ct. 2791. Second, a law enacted to further a State’s interest in fetal life is unconstitutional if it “imposes an undue burden on the woman’s decision before fetal viability.” Id. at 877, 112 S.Ct. 2791. Third, “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life and health of the mother.” Id. at 879, 112 S.Ct. 2791 (quoting Roe v. Wade, 410 U.S. 113, 164-65, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)). It is the third of these principles that guided the Stenberg Court in striking down the Nebraska statute. According to the Court, because “a State may promote but not endanger a woman’s health when it regulates the methods of abortion,” any statute that regulates abortion must contain an exception when appropriate medical judgment believes it necessary to protect the mother’s life or health. Stenberg, 530 U.S. at 931, 120 S.Ct. 2597. The Court also rejected the argument that the state interests meant to be furthered by the statute eliminated the need for a health exception. See id. at 930-31, 120 S.Ct. 2597. Those interests were: to show concern for the life of the unborn, to
2746	average LSAT score in addition to a number of other factors when evaluating applications. This fact simply does not permit a reasonable inference that the admissions process is discriminatory in any way. See Judge v. City of Lowell, 160 F.3d 67, 72 (1st Cir.1998) (plaintiff must “ ‘put forward specific, nonconclusory factual allegations’ that establish improper motive causing cognizable injury in order to survive a ... motion for ... summary judgment.”); Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.1994) (summary judgment appropriate “ ‘[ejven in cases where elusive concepts such as motive or intent are at issue ... if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.’ ”) (quoting Goldman v. First Nat’l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993)). In light of the Court’s determination that Plaintiff has failed to raise a genuine issue of fact as to Defendants’ motivation, the Court need not address Defendants’ arguments relating to rational basis review and qualified immunity. IY. CONCLUSION In the end, what Plaintiff asserts to be “evidence” actually constitutes nothing more than unsupported and conclusory allegations about the decision to reject his application. For the reasons outlined above, Defendant’s Motion for Summary Judgment is GRANTED as to Count II, and Count VI is DISMISSED. SO ORDERED. . An applicant has an “average LSAT score” if he or she took the exam on more than one occasion and the scores from those exams have been averaged. . Plaintiff appears to contest
1175	of School Directors, Etc., 616 F.2d 305, 312-13 (7th Cir.1980). Although such settlements must be approved by the district court, its inquiry is limited to the consideration of whether the proposed settlement is lawful, fair, reasonable, and adequate. Hiram Walker, 768 F.2d at 889. Our appellate review is even more narrow, as we review the determination of the district court only for an abuse of discretion. Id. at 890. As we engage in this limited review, we are mindful that the district courts have been admonished “to refrain from resolving the merits of the controversy or making a precise determination of the parties’ respective legal rights,” a directive that applies to our own inquiry as well. Id. at 889. See also Dawson v. Pastrick, 600 F.2d 70, 75 (7th Cir.1979); Bryan v. Pittsburgh Plate Glass Co. (PPG Industries, Inc.), 494 F.2d 799, 801 (3d Cir.1974), cert. denied, 419 U.S. 900, 95 S.Ct. 184, 42 L.Ed.2d 146 (1974). Our focus, then, is upon “the general principles governing approval of class action settlements” and not upon the “substantive law governing the claims asserted in the litigation.” Armstrong, 616 F.2d at 315. Where, as here, constitutional claims are asserted, we recognize that public interests may potentially conflict with the desire of the parties to settle their dispute. Id. at 319. The presence of constitutional claims does not, however, prevent us from applying the principles that guide our review which allow “ample room for settlement and compromise.” Id. We must, however, “apply these principles
2368	47 F.3d 97, 99 (3d Cir.1995). Defendant Allstate does not oppose an award of costs to plaintiff, and even if it did, no equitable considerations weigh against an award of costs. Accordingly, the judgment of $4,654.50 in favor of plaintiff and against Defendant Allstate will be modified to include an award of costs taxed in the amount of $826.67. C. Attorneys’Fees “As a general matter, attorneys’ fees are not available in admiralty cases unless the court determines in its equitable discretion that one party has acted in bad faith.” Sosebee v. Rath, 893 F.2d 54, 56 (3d Cir.1990) (citing F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974); Vaughan v. Atkinson, 369 U.S. 527, 530-31, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962)); see also Inland Tugs Co., 709 F.2d at 1074 (“Equity principles applicable in admiralty permit attorney fees where there is a factual finding of ‘callous disregard and indifference’ of the party against whom the fees are allowed.”). Although this case involves a contractual dispute over a grand total of $4,654.50, plaintiff is requesting an award of attorneys’ fees in an amount in excess of $7,913.98. Plaintiff presents three arguments in favor of his request for attorneys’ fees. First, plaintiff requested that this Court “recognize the law of this District and this Circuit regarding the award of attorneys’ fees in salvage cases, which clearly allows the award of salvor’s fees in cases where the salvor prevails
3436	MEMORANDUM Xin He appeals her felony conviction, following a bench trial, of misbranding of a drug held for sale, with intent to defraud or mislead, in violation of 21 U.S.C. §§ 331 (k) and 333(a)(2). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. We find sufficient indicia in the record to support a conclusion that the district judge properly interpreted 21 U.S.C. § 333(a)(2). Thus, we review whether there was sufficient evidence to support Appellant’s felony conviction. Our review of the sufficiency of evidence is governed by Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir.2010). First, we consider “the evidence presented at trial in the light most favorable to the prosecution.” Id. at 1164. We then “determine whether this evidence, so viewed, is adequate to allow ‘any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.’ ” Id. (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). Reversal is appropriate only “if the evidence of innocence, or lack of evidence of guilt, is such that all rational fact finders would have to conclude that the evidence of guilt fails to establish every element of the crime beyond a reasonable doubt.” Nevils, 598 F.3d at
2542	trial preparation, Bridgeport’s motive must certainly have been retribution, and/or an effort to extract settlement dollars without any basis for doing so. Id. at 6-7. This case presents one of the rare instances in which a district court orders a party to pay attorneys’ fees and costs in spite of finding that the party advanced an objectively reasonable legal claim or theory. As this court explained in Rhyme Syndicate, “[I]t generally does not promote the purposes of the Copyright Act to award attorney fees to a prevailing defendant when the plaintiff has advanced a reasonable, yet unsuccessful claim.” 376 F.3d at 628 (citing Matthew Bender & Co. v. West Publ’g Co., 240 F.3d 116, 122 (2d Cir.2001); Lotus Dev. Corp. v. Borland Int'l, Inc., 140 F.3d 70, 75 (1st Cir.1998)). Yet, other than being a prevailing party under the Copyright Act, there is no single factor that must weigh in favor of an award of fees and costs — i.e., no factor is a necessary condition. Diamond Time, 371 F.3d at 894 (“The district court in this case correctly observed that because the Fogerty factors are nonexclusive, not every factor must weigh in favor of the prevailing party and other factors may be considered as well.”). The court recognized this when it remanded the case in spite of the district court’s earlier finding that Bridgeport’s theory was objectively reasonable. Thus, the question boils down to the following: despite the objective reasonableness of Bridgeport’s royalty-receipt theory, are there other factors that
3452	The district court then reviewed the § 3553(a) factors to choose a discretionary sentence within that range. But Lister argues that the district court’s sentence failed to adequately consider the factors set forth in § 3553(a). As noted above, Booker does command such a review. Booker, 125 S.Ct. at 764-65, 67. This Court, however, has held that a point-by-point analysis of each factor listed in § 3553(a) is not necessary to meet the Booker requirement. Dean, 414 F.3d at 729. “Judges need not rehearse on the record all of the considerations that 18 U.S.C. § 3553(a) lists; it is enough to calculate the range accurately and explain why (if the sentence lies outside it) this defendant deserves more or less.” United States v. George, 403 F.3d 470, 472-73 (7th Cir.2005). Furthermore, § 3553(a) may be met where the district judge offers an “adequate statement” of his reasoning that a particular sentence is appropriate for the defendant. Dean, 414 F.3d at 729. The district court’s sentencing procedure met these requirements. In choosing a sentence within the 324-405 month range, the district judge explicitly considered § 3553(a). Judge Shabaz reviewed Lister’s history with drugs and attempts at rehabilitation, his criminal history, and the overall quantity of cocaine base he had admitted distributing. Moreover, he announced that Lister’s term would “achieve the societal interest of punishing and deterring the defendant as well as protecting the community.” Sentencing Hr’g Tr. 15, Dec. 16, 2004. In light of these statements, we cannot agree that the
1380	as an “apex” deposition, may be precluded by the Court under Rule 26(e) where the discovery sought “can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Apple Inc. v. Samsung Electronics Co., Ltd., 282 F.R.D. 259, 263 (N.D. Cal. 2012). Heads of government agencies, in particular, “are not normally subject to deposition,” “absent extraordinary circumstances.” Green v. Baca, 226 F.R.D. 624, 648 (C.D. Cal. 2005) (quoting Kyle Eng. Co. v. Kleppe, 600 F.2d 226, 231-32 (9th Cir. 1979)). As an initial matter, an individual objecting to a deposition must first demonstrate he “is sufficiently ‘high-ranking1 to invoke the deposition privilege.” Thomas v. Cate, 715 F.Supp.2d 1012, 1049 (E.D. Cal. 2010) (citing United States v. Sensient Colors, Inc., 649 F.Supp.2d 309, 320 (D. N.J. 2009)). Upon this showing, the Court then should consider: “(1) whether the deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the case and (2) whether the party seeking the deposition has exhausted other less intrusive discovery methods.” Apple, Inc., 282 F.R.D. at 263; see also Coleman v. Schwarzenegger, 2008 WL 4300437 at *2 (E.D. Cal. Sept. 15, 2008) (“The extraordinary circumstances test may be met where high-ranking officials ‘have direct personal factual information pertaining to material issues in an action,’ and ‘the information to be gained is not available through any other sources.’ ” [citations omitted]), The Plaintiffs dispute that they are obligated to show that there are other, lesser intrusive means to discover the information
1121	the clause in favor of arbitration, the Court finds that Monfared’s claims are arbitra-ble. B. The limitation of damages in the arbitration clause can be severed from the rest of the clause. Monfared contends that even if the arbitration clause encompasses her claims, the clause nevertheless should not be enforced “because doing so would preclude Plaintiff from seeking and obtaining exemplary or punitive damages.” Pl.’s Br. Opp’n 18. “It is well established that arbitration is merely a choice of dispute resolution and does not infringe upon statutory protections.” Spinetti v. Serv. Corp. Int’l, 324 F.3d 212, 216 (3d Cir.2003). For this reason, “arbitration is to offer claimants the full scope of remedies available under Title VII.” Id. (quoting Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 673 n.15 (6th Cir.2003)). This arbitration clause’s ban on punitive and exemplary damages runs counter to statutory provisions under Title VII permitting punitive damages. Nevertheless, the presence of this provision does not require the Court to decline to enforce the arbitration agreement. Rather, this provision represents only a part of the agreement and can be severed without disturbing the primary intent of the parties to arbitrate their disputes. See id. (affirming a district court’s severance of a provision in an arbitration clause requiring, contrary to Title VII, that each party pay its own attorney fees, and observing that “[y]ou don’t cut down the trunk of a tree because some of its branches are sickly”); see also Cirino v. L. Gordon Holdings, Inc., No.
4835	as they apply to Tennessee corporations. Tennessee recently joined a growing number of states seeking to protect their local economies and shareholders through corporate takeover legislation. The Commerce Clause limits the power of states to regulate or interfere with the free flow of interstate commerce. The Commerce Clause prohibits Tennessee’s attempt to regulate tender offers for non-Tennessee corporations. A. The ACPA Tennessee’s ACPA violates the Commerce Clause for three reasons: it directly regulates interstate commerce; it creates a risk of inconsistent regulation; and its burden on interstate commerce is excessive in relation to its local benefits. 1. Direct Regulation of Interstate Commerce “The Commerce Clause permits ... only incidental regulation of interstate commerce by the States; direct regulation is prohibited.” Edgar v. MITE Corp., 457 U.S. 624, 640, 102 S.Ct. 2629, 2639, 73 L.Ed.2d 269 (1982) (plurality opinion) (citing Shafer v. Farmers Grain Co., 268 U.S. 189, 199, 45 S.Ct. 481, 485, 69 L.Ed. 909 (1925)). See also Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970). The ACPA is an undisguised attempt to insulate from competition management of foreign corporations doing business in Tennessee by directly regulating nationwide tender offers. The Supreme Court recently upheld an Indiana statute similar in certain respects to Tennessee’s CSAA but applying to Indiana corporations only. See CTS Corp. v. Dyanamics Corp. of Am., 481 U.S. 69, 107 S.Ct. 1637, 95 L.Ed.2d 67 (1987). The CTS Court found that the burdens on interstate commerce created by
4692	"Tavarez, No. 09-CV-5192, 2010 WL 3325203, at *1 (E.D.N.Y. Aug. 19, 2010). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005). In deciding a Rule 12 motion to dismiss, the Court “‘must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,’ ” Morrison, 547 F.3d at 170 (quoting Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir.2006) (citation and internal quotation marks omitted)), but “ ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it,’” id. (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003)). In deciding the motion, the court “may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits.” J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir.2004); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (“In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ... may refer to evidence outside the pleadings.”). b. Afialysis Addressing first the issue of "" subject matter jurisdiction, 28 U.S.C. § 1331 provides that “[t]he district courts .... have original jurisdiction of all civil actions arising under the Constitution, laws, or"
402	v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 760, 142 L.Ed.2d 881 (1999). “[U]nless there is some ambiguity in the language of a statute, a court’s analysis must end with the statute’s plain language.” Coggin Automotive Corp. v. Comm’r of Internal Revenue, 292 F.3d 1326, 1332 (11th Cir.2002). When we examine the meaning of statutory words or phrases, however, we cannot examine statutory provisions in isolation. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 1300-01, 146 L.Ed.2d 121 (2000). “It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Mich. Dep’t of Treas., 489 U.S. 803, 809,109 S.Ct. 1500, 1504, 103 L.Ed.2d 891 (1989). Nyaga and Kibarra have asked the Attorney General to adjust their status to that of a lawful permanent resident pursuant to 8 U.S.C. § 1255(a). Section 1255(a) states: The status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time
1237	alter ego of another corporation. See Sheridan Broad. Corp. v. Small, 19 A.D.3d 331, 798 N.Y.S.2d 45, 45 (2005) (stating that “[parent and subsidiary or affiliated corporations” are generally “not [to] be held liable for the contractual obligations of the other absent a demonstration that there was an exercise of complete dominion and control” (emphasis added)); Rivera v. Citgo Petroleum Corp., 181 A.D.2d 818, 583 N.Y.S.2d 159, 159 (1992) (noting, without mentioning a parent-subsidiary relationship, that the court could pierce the corporate veil and “hold two corporations to constitute a single legal unit, where one is so related to, or organized, or controlled by, the other as to be its instrumentality or alter ego” (internal quotation marks omitted)); accord In re Typhoon Indus., Inc., 6 B.R. 886, 890 (Bankr.E.D.N.Y.1980) (finding that, “notwithstanding the absence of a parent-subsidiary relationship,” affiliate companies of a bankrupt corporation were “mere instrumentalities or alter egos of the bankrupt”). However, New York courts recognize that a non-signatory can be liable for a contract by manifesting an intent to be bound without being an “alter ego” of a signatory to the contract. See RUS, Inc. v. Bay Indus., Inc., No. 01-CV-6133, 2004 WL 1240578, at *20-21 (S.D.N.Y. May 25, 2004) (applying New York law and finding that nonsignatory was liable for breach of contract when its conduct “manifested an unequivocal intent to be bound” by the contract). In RUS, the plaintiff sought to hold a parent corporation liable for a breach of its subsidiary’s contract. Id. at
1147	exist when pretrial confinement exceeds three months. In such cases, this presumption will place a heavy burden on the Government to show diligence, and in the absence of such a showing the charges should be dismissed.” (21 U.S.C. M.A. at 118, 44 C.M.R. at 172). Also, of significant applicability here is what the court there had to say where, as here, demand for a speedy trial is made: “Similarly, when the defense requests a speedy disposition of the charges, the Government must respond to the request and either proceed immediately or show adequate cause for any further delay. A failure to respond to a request for a prompt trial or to order such a trial may justify extraordinary relief. See Petition of Provoo, D.C., 17 F.R.D. 183, 200 (1955), affirmed, 350 U.S. 857, 76 S.Ct. 101, 100 L.Ed. 761 (1955).” (21 U.S.C.M.A. at 118, 44 C.M.R. at 172). In the instant case it is readily apparent that a heavy burden was placed on the government to show that it had diligently pursued prosecution of the case. For, as earlier noted, on 17 March 1975, trial defense counsel made a specific request that the appellant be afforded a speedy trial or in the alternative, charges should be dismissed, and yet the appellant was not brought to trial until 22 May 1975, 66 days later. As depicted in the record, the case was scheduled for hearing on the 85th day of the appellant’s pretrial confinement. On the day before the scheduled trial,
2016	only on the basis of independent medical evidence, accompanied by an adequate statement of reasons or bases, and only after first seeking clarification of an incomplete examination report (whether or not such clarification is actually provided by the original examiner) pursuant to applicable VA regulatory provisions discussed above. See Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); see also 38 U.S.C. § 7104(d)(1); Caluza, supra; Gabrielson v. Brown, 7 Vet.App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). In Zarycki, the Court held that it is the distressing event, rather than the mere presence in a “combat zone”, that may constitute a valid stressor for purposes of supporting a diagnosis of PTSD. Zarycki, 6 Vet.App. at 99; cf. Swann v. Brown, 5 Vet.App. 229, 233 (1993) (holding that “[a]ppellant’s account of two mortar attacks ... and of a Viet Cong corpse hanging in the tree, even if true, do not portray situations where appellant was exposed to more than an ordinary stressful environment, particularly where there is no evidence that the mortar attacks’ impact areas were close to appellant or resulted in any casualties” (emphasis added)). In Swann, the Court rejected doctors’ diagnoses of PTSD, made almost 20 years after the appellant’s separation from service, because there were discrepancies in the appellant’s narratives as to whether he was caught in mortar fire “numerous” times or on only two occasions. Id. at 233. Additionally, the Manual M21-1 provisions applicable to the PTSD claim before the Court in that
2635	case of Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967), decided January 23, 1967, the Supreme Court said that “For over four score years it has been federal statutory law, 18 Stat. 336, 8 U.S.C. § 44 (1875); 18 U.S.C. § 243 (1948), and the law of this Court as applied to the States through the Equal Protection Clause of the Fourteenth Amendment, that a conviction cannot stand if it is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race. Strauder v. [State of] West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880) ; see also Pierre v. State of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939).” In Cobb v. Balkcom, 5 Cir., 1964, 339 F.2d 95, this Court held “that a Negro defendant in a criminal case is entitled to indictment by a grand jury and trial before a traverse jury from which Negroes have not been arbitrarily and systematically excluded. A conviction cannot stand where such is established for it constitutes a denial of due process and of the equal protection of the laws.” The burden of proof is on the-person attacking selection procedure to show “the existence of purposeful discrimination” by the exclusion of Negroes on account of race from jury participation. Whitus v. State of Georgia, supra; Fay v. People of State of New York, 332 U.S. 261, 285,
3548	the defense of qualified immunity with respect to the FHA claims. CHI thus urges that we find the issue forfeited and refuse to consider it. We do note, however, that the individual defendants including Chatterton and Birdsall did generally raise this issue in their amended memorandum in support of their motion for summary judgment. They argued that their motion fairly read was addressed to all claims against them, including the FHA claim. Appellate courts will generally not entertain arguments that were not raised in the district court. However, we may exercise our discretion to consider an issue first raised on appeal if it “is a pure question of law and the record is sufficient to review the issue.” United States v. Alisal Water Corp., 431 F.3d 643, 654 n. 4 (9th Cir.2005). Qualified immunity is such an issue. Bibeau v. Pac. Nw. Research Found., Inc., 188 F.3d 1105, 1111 n. 5 (9th Cir.1999), as amended, 208 F.3d 831 (9th Cir.2000) (“Because qualified immunity presents a pure question of law which we review de novo, any decision by the district court would be entitled to no deference.”). We have on occasion considered qualified immunity sua sponte. Graves v. City of Coeur D’Alene, 339 F.3d 828, 846 n. 23 (9th Cir.2003), abrogated on other grounds by Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). CHI will not be prejudiced by our consideration of qualified immunity on the FHA claims because, as we
1327	mandated by § 1325(b)(2) and does the math.” Alexander, 344 B.R. at 749. The Bankruptcy Appellate Panel of the Eighth Circuit, in a two to one decision, agreed with the third approach and found that “projected” “merely explains the treatment of ‘disposable income.’ ” Frederickson, 375 B.R. at 833. According to the panel, “ ‘[projected disposable income’ is the disposable income calculated on Form 22C extrapolated over the applicable commitment period. It is the amount to be paid on unsecured claims. The statute requires no more.” Id. at 835. As recognized by another court, “Congress has already determined the fairness of application of the means test, and a major objective of the legislation was to remove judicial discretion from the process.” In re Hartwick, 352 B.R. 867, 870 (Bankr.D.Minn.2006). Because Fred-erickson requires the disposable income of an above median family income debtor to be calculated based on Form B22C and extrapolated over the 60 month plan period, the debtors’ plans in the cases before the Court cannot be confirmed. But that is not the end of the story. In a case decided after Frederickson, the dissenting judge in Frederickson denied confirmation of a debtor’s plan because, like here, the debtor proposed to pay less than the amount required by Form B22C. In re Riding, 377 B.R. 239 (Bankr.W.D.Mo.2007). Although the debt- or offered to demonstrate that she was not capable of making the monthly payment dictated by Form B22C, the court did not allow her that opportunity. Id. at 241.
547	to offenses committed in foreign territory. Bin Laden, 92 B.Supp.2d at 209. The notion that the United States could exercise exclusive leg islative jurisdiction over lands in a foreign nation — a notion that is difficult to sustain even today, see, e.g., 1 Restatement (THIRD) OF THE FOREIGN RELATIONS LAW OF the United States §§ 402-403 (1987)— would have been virtually inconceivable in 1790. Indeed, until at least the early part of the twentieth century, it was generally accepted that “every nation possesses exclusive sovereignty and jurisdiction within its own territory.” Joseph Story, Commentaries on the Conflict of Laws § 18, at 21 (Boston, Little, Brown, and Co. 6th ed. 1865) (1834); see The Schooner Exchange v. McFaddon, 11 U.S. (7 Crunch) 116, 136, 3 L.Ed. 287 (1812) (Marshall, C.J.) (“The jurisdiction of the nation, within its own territory, is necessarily exclusive and absolute; it is susceptible of no limitation, not imposed by itself.”); Story, supra, § 20, at 22 (“[N]o state or nation can, by its laws, directly affect, ... or bind persons not resident therein, whether they are natural-born subjects or others.... [I]t would be wholly incompatible with the equality and exclusiveness of the sovereignty of all nations, that any one nation should be at liberty to regulate either persons or things not within its own territory.”); Letter from Thomas Jefferson, Secretary of State, to Gouverneur Morris, United States Minister to France (Aug. 16, 1793), reprinted in 1 American State Papers: Foreign Relations 167, 169 (photo, reprint 1998)
2995	1015; see also id., at 1035 (Kennedy, J., concurring); Agins v. City of Tiburon, 447 U. S. 255, 261 (1980). Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action. Penn Central, supra, at 124. These inquiries are informed by the purpose of the Takings Clause, which is to prevent the government from “forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U. S. 40, 49 (1960). Petitioner seeks compensation under these principles. At the outset, however, we face the two threshold considerations invoked by the state court to bar the claim: ripeness, and acquisition which postdates the regulation. A In Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), the Court explained the requirement that a takings claim must be ripe. The Court held that a takings claim challenging the application of land-use regulations is not ripe unless “the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” Id., at 186. A final decision by the responsible state agency informs the constitutional determination whether a
3414	1302 (11th Cir.1998) (presuming that a jury follows the court’s instructions). Moreover, any potential error in the admission of this evidence was harmless. Compare Matthews, slip op. at 2535-41 (finding error not harmless when the government needed the extrinsic evidence to meet its “heavy burden” of proving the defendant’s intent to conspire). The government presented sufficient evidence at trial, aside from the burglary conviction, from which a reasonable jury could have determined that Terrell stole the firearm that was found in his possession. Evidence that forms an “integral and natural part of the witness’s accounts of the circumstances surrounding the offenses for which the defendant was indicted” is admissible even if it tends to reflect negatively on the defendant’s character. United States v. Foster, 889 F.2d 1049, 1053 (11th Cir.1989). Here, the burglary conviction placed the firearm offense in context. Accordingly, there was no error in the admission of this evidence. B. Motion for a Mistrial A district court’s denial of a motion for mistrial is reviewed for abuse of discretion. United States v. Abraham, 386 F.3d 1033, 1037 (11th Cir.2004). When a curative instruction has been given, this court will reverse only if the evidence “is so highly prejudicial as to be incurable by the trial court’s admonition.” United States v. Harriston, 329 F.3d 779, 787 n. 4 (11th Cir.2003). To justify the grant of a mistrial, the defendant must show that he was substantially prejudiced. United States v. Chastain, 198 F.3d 1338, 1352 (11th Cir. 1999). “[This court]
4402	& Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). A complaint should not be dismissed if the plaintiffs have stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff[s] plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While factual allegations should be construed in the light most favorable to the plaintiffs, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. A claim under Section 10(b) of the Securities Exchange Act sounds in fraud and must meet the pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure and the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-4(b). Rule 9(b) requires that the complaint “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements
747	1970); cf. Mattox v. United States, 146 U.S. 140, 147-51, 13 S.Ct. 50, 36 L.Ed. 917 (1892); United States v. Beach, 296 F. 2d 153, 160 (4 Cir. 1961); Rakes v. United States, 169 F.2d 739, 745-746 (4 Cir. 1948), cert. denied, 335 U.S. 826, 69 S.Ct. 51, 93 L.Ed. 380 (1948); Young v. United States, 163 F.2d 187 (10 Cir. 1947), cert. denied, 332 U.S. 770, 68 S.Ct. 83, 92 L.Ed. 355 (1947). Petitioner’s challenge raises only the question of whether events not adduced in evidence were talked about in the jury room. This is a determination which can be made without calling jurors to give evidence on their evaluation of the proof. Such a factual inquiry is sanctioned in Rees v. Peyton, 341 F.2d 859 (4 Cir. 1965). There, it is stated that “a juror may after verdict be queried as to information, whether documentary or oral in nature, introduced into the jury room but not put before them at trial”. Id. at 865. Appellant Downey points to United States v. McKinney, supra, 429 F.2d 1019 (5 Cir. 1970), ordering a remand for inquisition on the possible deprivation of a defendant’s rights by the jury’s noticing of news stories about his pretrial escape which were included in courtroom proceedings. Respondent argues that McKinney permits scrutiny solely of Federal court trials, and does not empower a Federal court by habeas corpus to examine State court jury-room occurrences. However, we find clear authority in United States ex rel. Owen v.
2197	the lodestar” only “in accordance with accepted principles.” Coutin, 124 F.3d at 337 (citing Hensley, 461 U.S. at 429-31, 103 S.Ct. 1933). As the City points out, a “preeminent consideration in the fee-adjustment process” is the “results obtained” by the plaintiffs. Id. at 338 (citing Hensley, 461 U.S. at 432, 440, 103 S.Ct. 1933); see also, e.g., Rodriguez-Hernandez, 132 F.3d at 859 (“In a civil rights lawsuit, ‘[t]he result is what matters’.... ” (alteration in original) (quoting Hensley, 461 U.S. at 435,103 ,S.Ct. 1933)). In adjusting the lodestar for the results obtained, a court “ ‘may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success.’ ” Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1191 (1st Cir.1996) (quoting Hensley, 461 U.S. at 436, 103 S.Ct. 1933). The guiding principle, nonetheless, is that a court “should award only that amount of fees that is reasonable in relation to the results obtained” at trial. Id. (citing Hensley, 461 U.S. at 435, 438-4, 103 S.Ct. 1933); see also, e.g., id. (“Hensley makes clear that where multiple claims are interrelated and a plaintiff has achieved only limited success, awarding her the entire lodestar amount would ordinarily be excessive.” (citing Hensley, 461 U.S. at 436, 103 S.Ct. 1933)). The First Circuit considers, in combination, three “meanings” of the term “results obtained”: “a plaintiffs success claim by claim,” “the relief actually achieved,” and “the societal importance of the right which has been vindicated.”
444	Mr. Gardner alleged that Kmart was liable under this theory because certain individuals at Kmart discriminated and retaliated against him by issuing, or causing others to issue, the negative evaluations, notices and performance plans that led to his resignation or alleged constructive discharge. But the district court concluded that “[s]ince the Court has found that Defendants are entitled to summary judgment on all of [Mr. Gardner’s] underlying claims that Defendants discriminated and retaliated against him, Defendants may not be found liable based on the hiring, supervision, or retention of the individuals who allegedly harmed [him].” Id. at 214. IV. “We review the district court’s grant of summary judgment de novo, applying the same legal standard used by the district court.” Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir.2005) (quotation omitted). “When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Id. (quotation omitted). Mr. Gardner was represented by counsel in the district court, but he is proceeding pro se on appeal. Liberally construing his pro se briefs, see Cummings v. Evans, 161 F.3d 610, 613 (10th Cir.1998), Mr. Gardner challenges the district court’s decision based on his contention that there are material facts in dispute regarding his performance and the circumstances surrounding his retaliation, race discrimination, and age discrimination claims. Having reviewed the briefs, the record, and the applicable law, we conclude that Mr. Gardner has not shown any reversible error. We therefore AFFIRM the judgment
3846	the mark that extend to the insurance services industry. More specifically, CIA argues that the District Court committed clear error in finding that as of 1983 CBI had established: (1) secondary meaning in the Commerce mark within the insurance services industry; (2) ownership of the Commerce mark within the insurance services industry; and (3) that CIA’s use of the Commerce mark was likely to create confusion in the minds of reasonable consumers.. CIA requests this Court to reverse these findings and remand the case for consideration of its claim for in-junctive relief against CNIS. III. “The law of trademark protects trademark owners in the exclusive use of their marks when use by another would be likely to cause confusion.” Interpose Corp. v. Lapp, Inc., 721 F.2d 460, 462 (3d Cir.1983). A claim of trademark infringement is established when the plaintiff proves that: (1) its mark is valid and legally protectable; (2) it owns the mark; and (3) the defendant’s use of the mark to identify its goods or services is likely to create confusion concerning the origin of those goods or services. See Opticians Ass’n of Am. v. Independent Opticians of Am., 920 F.2d 187,192 (3d Cir.1990). If the mark at issue is federally registered and has become incontestible, then validity, legal protectability, and ownership are proved. See Ford Motor Co. v. Summit Motor Prods., 930 F.2d 277, 292 (3d Cir.1991). If the mark has not been federally registered or, if registered, has not achieved incontestability, then “validity depends on
4192	by negative implication that since the PLRA attorney’s fee limitations in § 803(d) of the Act (codified at 42 U.S.C.A. § 1997e), apply only to prisoners confined to a “jail, prison, or other correctional facility,” and since 42 U.S.C.A. § 1997(1) distinguishes between a “jail, prison, or other correctional facility” and a juvenile facility, the PLRA’s limitations on attorney’s fees do not apply to juvenile Plaintiffs. Plaintiffs argue that if Congress had intended for the all-encompassing definition of “prison” in § 802 to apply to the attorney’s fees limitations in § 803, it would have modified the definition of “institution” in § 1997 to omit the three'separate categories of facilities and to keep the terminology in Title 42 consistent. See United States v. Langley, 62 F.3d 602 (4th Cir.1995) (“[I]t is proper to consider that Congress acts with knowledge of existing law, and that absent a clear manifestation of contrary intent, a newly-enacted or revised statute is presumed to be harmonious with existing law and its judicial construction.” (quotations omitted)), cert. denied, — U.S. -, 116 S.Ct. 797, 133 L.Ed.2d 745 (1996). Therefore, Plaintiffs urge this court to adopt the more limited definition of “jail, prison, or other correctional facilities” found in § 1997, which, by implication, does not include juvenile facilities. Second, Plaintiffs rely upon the fact that, while both §§ 802 and 803 of the PLRA contain definitions of “prisoner,” which includes juveniles, Congress defined “prison” to include juvenile facilities only in § 802. The district court agreed,
4627	with the district court that Miskovsky dooms Logsdon’s insufficient evidence claim. As in that case, the evidence presented at Logsdon’s trial shows that he used a number of legitimate businesses, including several travel agencies, to facilitate his fraudulent schemes. Under Miskovsky, the use of a legitimate business in this manner constitutes an enterprise and removes a defendant’s crimes from the garden-variety category. See id. at 1059,1063. Logsdon also argues that the Glenn and Miskovsky opinions interpret the racketeering statute so inconsistently as to violate the Due Process Clause. “[A] deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language.” Bouie v. City of Columbia, 378 U.S. 347, 352, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). However, the OCCA meaningfully distinguished the circumstances present in Glenn and Miskovsky and reasonably applied that distinction to the facts at hand. Logsdon has not shown that the OCCA’s interpretation of the racketeering statute “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” Id. at 351, 84 S.Ct. 1697 (quotation omitted). Accordingly, his due process claim fails. Ill Because we conclude that the district court’s denial of Logsdon’s § 2254 petition is not reasonably debatable, his application for a COA is DENIED. This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be
4430	motive is not apparent, “the strength of the circumstantial allegations must be correspondingly greater.” Kalnit v. Eichler, 264 F.3d 131, 142 (2d Cir.2001) (internal quotation marks omitted). Plaintiffs typically allege conscious misbehavior or recklessness by pleading with specificity that the defendants had “knowledge of facts or access to information contradicting their public statements.” Novak v. Kasaks, 216 F.3d 300, 308 (2d Cir.2000). As the Second Circuit Court of Appeals has explained, “[r]eckless conduct is, at the least, conduct which is highly unreasonable and which represents an extreme departure from the standards of ordinary care ... to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.” Chill v. Gen. Elec. Co., 101 F.3d 263, 269 (2d Cir.1996) (alteration in original and internal quotation marks omitted). The facts must support a strong inference with regard to each defendant. See Plumbers and Pipefitters Local Union No. 630 Pension-Annuity Trust Fund v. Arbitron Inc., 741 F.Supp.2d 474, 488 (S.D.N.Y.2010). Further, “in determining whether the pleaded facts give rise to a ‘strong’ inference of scienter, the court must take into account plausible opposing inferences.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). A complaint sufficiently alleges scienter when “a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.” Id. at 324, 127 S.Ct. 2499;
4996	the right to sell APUs to customers. “Law of the case is an amorphous concept. As most commonly defined, the doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Law of the case directs a court’s discretion, it does not limit the tribunal’s power.” Harlow v. Children’s Hosp., 432 F.3d 50, 55 (1st Cir.2005) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)). Moreover, the doctrine does not strictly apply to interlocutory orders. “Interlocutory orders, including denials of motions to dismiss, remain open to trial court reconsideration, and do not constitute the law of the case.” Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994) (holding that trial court was free to enter an order dismissing claims as time barred after prior ruling to the contrary). Given the picture developed in the course of discovery and presented to the Court in both parties’ summary judgment statements, Fitzpatrick’s claim under the Franchise Laws is time barred. Mr. Fitzpatrick contests this outcome on the ground that a mere refusal to perform under the agreement is not “sufficiently positive until the effective termination date,” because a contrary approach to the issue “would defeat the protections provided by statute for the terminated dealer.” (PL’s Opp’n at 4.) This argument is not persuasive. Fitzpatrick understood that he could no longer obtain APUs from Teleflex to fill orders from customers and
3633	force clause after Johnson. “It is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel.” United States v. Anderson, 771 F.3d 1064, 1066-67 (8th Cir. 2014) (quoting United States v. Betcher, 534 F.3d 820, 823 (8th Cir. 2008)). “This rule, however, does not apply when the earlier panel decision is cast into doubt by an intervening Supreme Court decision.” Id. (citing Williams, 537 F.3d at 975). Johnson “elevated the necessary quantum of force from de [minimis] to ‘violent,’ ” United States v. Winston, No. 3:01-cr-00079, 2016 WL 2757451, at *5 (W.D. Va. May 11, 2016), and thereby “casts sufficient doubt on the reasoning” of some pre-Johnson holdings regarding crimes of violence, United States v. Holloway, 630 F.3d 252, 254-55 (1st Cir. 2011). Therefore, Sawyer’s “rule that the boilerplate charging language of [robbery] alone establishes a violent felony” may be rightfully reevaluated. Id. While the reasoning of Sawyer “is no longer sound, its conclusion may still be correct if robbery under [Arkansas] law” meets the Johnson standard. Winston, 2016 WL 2757451, at *5. It does not. The Supreme Court of Arkansas has held that the degree of force used was sufficient to support a robbery conviction even where there was no threat of force and no actual injury befell the victim. See Fairchild v. State, 269 Ark. 273, 600 S.W.2d 16, 17 (1980) (“[J]erking the door from [a victim], cornering [her] in the back hallway and grabbing her dress [lightly] is sufficient
1962	the sufficiency of the Government’s evidence that the wastes handled by Defendants were in fact hazardous is more appropriately addressed to the trial court after the close of the Government’s proof. 7. Dismissal Motion based on Duplicitousness. Turning to the arguments of Defendant Rosinski, a review of the Indictment indicates that Count I alleges a single conspiracy and is, therefore, not duplicitous. “An indictment is duplicitous if it joins two or more distinct crimes in a single count.” United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir.1992) (citing United States v. Murray, 618 F.2d 892, 896 (2d Cir.1980)). However, “[a] single count is not duplicitous merely because it contains several allegations that could have been stated as separate offenses.” United States v. Sugar, 606 F.Supp. 1134, 1146 (S.D.N.Y.1985). The issue is whether the “policy considerations underlying the doctrine” are offended. See Sugar, supra. Those considerations include avoiding the uncertainty of whether a general verdict of guilty conceals a finding of guilty as to one crime and a finding of not guilty as to another, avoiding the risk that the jurors may not have been unanimous as to any of the crimes charged, assuring the defendant adequate notice, providing the basis for appropriate sentencing, and protecting against double jeopardy in a subsequent prosecution. United States v. Margiotta, 646 F.2d 729, 733 (2d Cir.1981) (citing Murray, supra, at 896). Upon a review of Count I of the Indictment, the court finds that none of these policy concerns is implicated, nor does
712	injury in tort cases. Instead, the court opted for “a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.” Id. 203 A.2d at 805. This method of analysis involves a hybrid approach that “combines the approaches of both Restatement II (contacts establishing significant relationships) and ‘interest analysis’ (qualitative appraisal of the relevant States’ policies with respect to the controversy).” Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir.1991) (quoting Melville v. American Home Assurance Co., 584 F.2d 1306, 1311 (3d Cir.1978)). “Although the Griffith case involved a tort action, subsequent cases have extended the same rationale and approach to contract cases involving a choice of law question.” Gould, Inc. v. Continental Casualty Co., 822 F.Supp. 1172, 1175 (E.D.Pa.1993) (Yohn, J.) (citations omitted); see also United Servs. Auto. Ass’n v. Evangelista, 698 F.Supp. 85, 87 (E.D.Pa.1988) (Giles, J.) (citing Melville, 584 F.2d at 1313, and applying the Griffith analysis “generally to contract actions and specifically to insurance contracts”), aff'd, 872 F.2d 414 (3d Cir.1989). In this case, the two-pronged contacts and interests analysis compels application of Pennsylvania law. With respect to the contacts prong of the Griffith analysis, the actions of Teti and the minor, the underlying civil litigation, and the criminal prosecution of Teti occurred in Pennsylvania. Moreover, the minor resides in Pennsylvania. By contrast, the only contact with New Jersey is the plaintiffs’ residence. As to the governmental interests at stake, the interests of Pennsylvania and those of
3140	“Section 105(a) [does not] authorize courts to create substantive rights that are otherwise unavailable under the Code, or to expand the contractual obligations of parties.” The First Circuit also warned in Jamo v. Katahdin Fed. Credit Union (In re Jamo), 283 F.3d 392, 403 (1st Cir.2002), that the bankruptcy court’s equitable powers pursuant to Section 105 must be exercised cautiously: [S]ection 105(a) does not provide bankruptcy courts with a roving writ, much less a free hand. The authority bestowed thereunder may be invoked only if, and to the extent that, the equitable remedy dispensed by the court is necessary to preserve an identifiable right conferred elsewhere in the Bankruptcy Code. Id. at 403. Also see Hann v. Educ. Credit Mgmt. Corp. (In re Hann), 476 B.R. 344, 359 (1st Cir. BAP 2012) (“Section 105(a) provides the bankruptcy court broad authority to exercise its equitable powers — where necessary or appropriate — to facilitate the implementation of other Bankruptcy Code provisions.”) (D) Critical Vendor Orders in the First Circuit In the First Circuit, the only published decision discussing critical vendor orders is In re Zenus Is Jewelry, Inc., 378 B.R. 432 (Bankr.D.N.H.2007). In Zenus, the debtor, a jewelry retailer, sought to pay the prepetition claims of five vendors in return for extensions of credit. Id. at 433. The court declined to allow the payments, explaining that the case did not pose a critical vendor question because the evidence showed that vendors would provide inventory on a cash-on-delivery basis (“COD”). Id. at
1912	457 F.Supp. at 1097 n. 28)). Although Vaad points out that Merkos did not initiate any other litigation until 2001 — after the six-year period had run— Merkos is, at this stage, entitled to the reasonable inference that at least some preparation for the litigation fell within the period. B. Money Damages Consumer confusion is the cornerstone of trademark infringement. Injunctive relief — “the usual and standard remedy,” 5 McCarthy on Trademarks § 30.1 — is appropriate when there is a likelihood of confusion; such a likelihood exists, as a matter of law, “when a junior user has affixed a senior user’s mark to ‘substantially identical products directed at the same market and sold through the same outlets.’ ” Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 966 (2d Cir.1981) (quoting Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44, 47-48 (2d Cir.1978)). To recover damages, by contrast, a plaintiff must show either “actual consumer confusion or deception resulting from the violation,” or “or that the defendant’s actions were intentionally deceptive thus giving rise to a rebuttable presumption of consumer confusion.” George Basch Co. v. Blue Coral, Inc., 968 F.2d 1532, 1537 (2d Cir.1992). As noted, whether Vaad engaged in intentionally deceptive conduct presents a question of fact. Therefore, the Court cannot say, as a matter of law, that Merkos is limited to only injunctive relief. IV The PTO’s decision approving Merkos’s application for registration of the Kehot logo as a trademark is affirmed. Accordingly, Vaad’s motion for summary
2690	foregoing limitations on res judicata principles are particularly apropos when secured claims are involved. Absent some action by the representative of the bankruptcy estate, hens ordinarily pass through bankruptcy unaffected, regardless whether the creditor holding that lien ignores the bankruptcy case, or files an unsecured claim when it meant to file a secured claim, or files an untimely claim after the bar date has passed. See Bisch v. United States (In re Bisch), 159 B.R. 546, 550 (9th Cir.BAP1993) (“there is no duty on the part of the secured party to object to the confirmation of the [Chapter 13] plan, and failure to do so does not somehow constitute a waiver of the party’s secured claim”); Work v. County of Douglas (In re Work), 58 B.R. 868, 869 (Bankr. D.Or.1986). See also Enewally, 368 F.3d at 1168-72 and n. 2 (noting implications of “Fifth Amendment’s prohibition against taking private property without compensation”) (citation and quotations marks omitted). There is no dispute that Ventura’s assessments are secured by a lien because California law provided as of the filing date of the Second Case that “[e]very tax on real property is a lien against the property assessed.” Cal. Rev. & Tax.Code § 2187 (West 1998). Applying the above principles to this case, Debtors have not met their burden to establish that their Plan had any res judi-cata effect on Ventura’s lien rights or the amount of its assessments. a. The Plan only pmports to affect Ventura’s claim against the estate, not the
1869	Eaton contends that the cross-examination on Eaton’s prior conviction and prior drug use was unfairly prejudicial. We agree with the district court that Eaton’s direct examination opened the door for the Government’s cross-examination and hold that the court did not abuse its discretion in allowing the Government’s cross-examination. Both the challenged lines of inquiry involve what has been called “bad acts” evidence. Rule 404(b) of the Federal Rules of Evidence prohibits the use of other bad acts to prove bad character and conforming conduct. Such evidence, however, is admissible for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). Rule 404(b) is read in light of Rule 403. United States v. James, 555 F.2d 992, 999 (D.C.Cir.1977). Rule 403 precludes the introduction of otherwise admissible evidence where “its probative value is substantially outweighed by the danger of unfair prejudice.” In United States v. Bailleaux, 685 F.2d 1105 (9th Cir.1982), the court addressed the question of whether the circumstances of a prior conviction could be used to rebut the same type of direct testimony as was given in this case. The court held that there was no need to determine whether the circumstances of the prior conviction might be unfairly prejudicial because the defendant brought the prior conviction into the case during his direct examination. Id. at 1110. “[H]aving opened the subject in his direct testimony, [the defendant could] not object to the Government’s subsequent inquiries into the relevant
1902	was the Rebbe, and not Merkos. The TTAB. rejected the argument, finding that “Merkos is the owner of the KEHOT logo and is the proper applicant for this trademark.” Vaad, 2010 WL 3597243, at *7. Vaad argues that this finding was not supported by substantial evidence. The principal evidence of ownership is the transfer of the right to use the trade names “Kehot” and “Kehot Publication Society” to Merkos. That evidence is undisputed. Vaad points out, however, that the transfer did not explicitly mention the right to use the logo. That omission is of no consequence because courts and commentators agree that the transfer of a going concern implicitly entails the transfer of trademarks and other goodwill. See Speed Prods. Co. v. Tinnerman Prods., 179 F.2d 778, 782 (2d Cir.1949) (“The goodwill of the business, though unmentioned, passed with the transfer of the business.”); J. Thomas McCarthy, 3 McCarthy on Trademarks and Unfair Competition § 18:37 (4th ed.1994) (“When a business is sold as a going concern, trademarks and the good will of the business that they symbolize are presumed to pass with the sale of the business.”). This has been called an “old and clear rule,” 3 McCarthy on Trademarks § 18:37, and its longevity is due to its logic. The contrary proposition — that the names “Kehot” and “Kehot Publication Society” were assigned to Merkos, but the logo bearing the very same words (in Hebrew) was not — is untenable. Cf. Oklahoma Beverage Co. v. Dr. Pepper Love
32	Corp., 302 F.3d 515, 521-22 (5th Cir.2002). We take up both considerations in order. 1 The Superintendent contends that at the time of the district court’s grant of summary judgment, jurisdiction over Callon’s claim had vested exclusively in the New York Supreme Court. That is, by virtue of commencement of rehabilitation proceedings in the New York state courts, the federal district court in Louisiana no longer maintained jurisdiction over the action. Callón correctly points out that because federal courts regulate the scope of their own jurisdiction, a Rule 60(b)(4) challenge to jurisdiction should be sustained only where there is a “clear usurpation of power” or “total want of jurisdiction.” Nemaizer v. Baker, 793 F.2d 58, 64-65 (2d Cir.1986); see also United States v. Tittjung, 235 F.3d 330, 335 (7th Cir.2000) (“Only when the jurisdictional error is ‘egregious’ will courts treat the judgment as void.”). Here, the district court clearly had diversity jurisdiction over the litigation between Callón and Frontier; moreover, the jurisdictional error, if any, in entering judgment after the Order to Show Cause does not appear to be “egregious.” The Superintendent argues, however, that insurance regulation should be an exception to the general rule that state courts are powerless to restrain federal courts sitting in diversity jurisdiction : “Congress has evinced a strong federal policy in favor of deferring to state regula tion of insolvent insurance companies as reflected in the McCarran-Ferguson Act and the express exclusion of insurance companies from the federal Bankruptcy Code.” Munich American Reinsurance Co.
464	expressly so held by the Supreme Court■ of the United States: “The mere use of the word ‘tax,’ in an act primarily designed to define and suppress crime, iá not enough to show that within the true in-tendment of the term a tax was laid. Child Labor Tax Case, ante, 20. * * * When by its very nature the imposition is a penalty, it must be so regarded. Helwig v. United States, 188 U. S. 605, 613. * * * It Lacks all the ordinary characteristics of a tax, whose primary function ‘is to provide for the support of the government,’ and clearly involves the idea of punishment for infraction of the law — the definite function of a penalty. O’Sullivan v. Felix, 233 U. S. 318, 324.” Lipke v. Lederer, 259 U. S. 557, 561, 42 S. Ct. 549, 551 (66 L. Ed. 1061). See, also, Regal Drug Co. v. Wardell, 260 U. S. 386, 391, 43 S. Ct. 152, 67 L. Ed. 318. (2) Evidence of crime — the violation of section 29 of title 2 of the act (Comp. St. Ann. Snpp. 1923, § 10138%p), either by manufacturing or selling intoxicating liquor in violation of the act — is a condition precedent and essential to the imposition of the penalty prescribed. Lipke v. Lederer, supra; Regal Drug Co. v. Wardell, supra. (3) No particular character of evidence of guilt is prescribed, nor is the quantum of proof necessary to establish guilt stated, and prior conviction of
2763	the waiver with respect to both the attorney-client privilege and work product protections and what effect, if any, the following factors have on those waivers: (1) the filing of suit; (2) the alleged ongoing nature of the patent infringement; (3) the fact that the opinion counsel and trial counsel are the same; and (4) Reilly’s purported change of opinion with respect to its position on non-infringement. Not surprisingly, these considerations are intertwined. A. Pre-Suit Attorney-Client Privilege. At the outset, with respect to the attorney-client privilege, it is generally agreed that a “defendant asserting an adviee-of-counsel defense must be deemed to have waived the privilege as to all communications between counsel and client concerning the subject matter of the opinion.” Steelcase, Inc. v. Haworth, Inc., 954 F.Supp. 1195, 1198 (W.D.Mich.1997). “Documents and testimony relating to that advice are relevant in that they are probative of the alleged infringer’s intent. They are admissible because the alleged infringer has waived the privilege as to the subject matter of the advice.” Thorn EMI North America, Inc. v. Miaron Technology, Inc., 837 F.Supp. 616, 621 (D.Del.1993). Therefore, the Court finds that Reilly has waived the attorney-client privilege with respect to pre-suit communications and, to the extent it has not already done so, Reilly must disclose all communications, including documents that were exchanged between Reilly and counsel, regarding the subject matter of the original opinion letter. This waiver includes the time period after Reilly received the opinion letter through the filing of this action. B. Pre-Suit
1117	the Supreme Court has repeatedly warned against “over-read[ing its] precedent []” concerning the presumption of arbitrability. E.g. Granite Rock, 130 S.Ct. at 2857. The presumption in favor of arbitration does not “take[ ] courts outside (the] settled framework” - of using principles of contract interpretation to determine the scope of an arbitration clause. Id. at 2859. Quite the contrary, the presumption “derives its legitimacy from” the judicial supposition “that arbitration of a particular dispute is what the parties intended because their express agreement to. arbitrate was validly formed and (absent a provision clearly and validly committing such issues' to an arbitrator) is legally enforceable and best construed to encompass the dispute.” Id. at 2859-60; see also Sweet Dreams Unlimited, Inc. v. Dial-A-Mattress Int’l, Ltd., 1 F.3d 639, 641 (7th Cir.1993). Indeed, while the FAA “embodies a strong federal policy in favor of arbitration, ... the duty to arbitrate remains one assumed by contract.” Sweet Dreams Unlimited, 1 F.3d at 641. Thus, the presumption of arbitrability applies only where an arbitration agreement is ambiguous about whether it covers the dispute at hand. See Granite Rock, 130 S.Ct. at 2858-59. Otherwise, the plain language of the contract controls. CardioNet, Inc., 751 F.3d at 172-73. Defendants emphasize the fact that, under Third Circuit precedent, “when phrases such as ‘arising under’ and ‘arising out of appear in arbitration provisions, they are normally given broad construction ....” Defs.’ Mem. 8 (quoting Battaglia v. McKendry, 233 F.3d 720, 727 (3d Cir.2000)); see also Medtronic AVE Inc.
1178	principles governing approval of class action settlements” and not upon the “substantive law governing the claims asserted in the litigation.” Armstrong, 616 F.2d at 315. Where, as here, constitutional claims are asserted, we recognize that public interests may potentially conflict with the desire of the parties to settle their dispute. Id. at 319. The presence of constitutional claims does not, however, prevent us from applying the principles that guide our review which allow “ample room for settlement and compromise.” Id. We must, however, “apply these principles with particular care and state [our] reasoning with particular clarity.” Id. In addition, we cannot approve a class action settlement “which either initiates or authorizes the continuation of clearly illegal conduct.” Id.; Grunin v. International House of Pancakes, 513 F.2d 114, 123-24 (8th Cir.1975), cert. denied, 423 U.S. 864, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975). As we apply this principle, however, we are mindful that “the court must not decide unsettled legal questions; any illegality or unconstitutionality must appear as a legal certainty on the face of the agreement before a settlement can be rejected on this basis.” Armstrong, 616 F.2d at 320. Moreover, in determining whether to reject a settlement as initiating or authorizing a “clearly illegal or unconstitutional practice, prior judicial decisions must have found that practice to be illegal or unconstitutional as a general rule.” Id. at 321. Here, objecting members contend that the district court abused its discretion when it approved the settlement because that agreement allegedly contains unlawful
2808	was not triggered for plaintiffs in rem claims, “the clause [was] triggered for [plaintiffs] in personam claims, and she exercised the clause by bringing her claims in diversity rather than in admiralty”). In his complaint, Maciura states that he seeks to proceed in admiralty on his in personam maritime claims, at law on his Jones Act claim, and to have a trial by jury on all of his claims pursuant to Fitzgerald, 374 U.S. 16, 83 S.Ct. 1646. (Compl., DE #24-2, ¶¶ 33, 36.) The Jones Act provides a seaman a statutory right to “bring a civil action at law, with the right of a trial by jury, against the employer.” 46 U.S.C. § 30104; see also Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 451 (4th Cir. 2012) (“Federal courts, sitting at law, have subject matter jurisdiction to hear and resolve Jones Act claims under federal question jurisdiction, 28 U.S.C. § 1331.”). In Fitzgerald, the Supreme Court established that where a plaintiff brings a Jones Act claim at law for which he is entitled to a jury trial, and joins with it general maritime claims at law, the right to a jury extends to the maritime claims when “both arise out of one set of facts.” 374 U.S. at 21, 83 S.Ct. 1646. The Fourth Circuit has extended the Fitzgerald rule to authorize a jury trial of maritime claims brought under the district court’s admiralty jurisdiction when joined with a factually-related Jones Act claim brought on the
1128	been met. The stay in this case was not granted to permit the prior determination of an equitable defense or counterclaim asserted by the appellee; rather, the District Court stayed proceedings until the pending law action between the parties in the state court could be finally determined. The state action involved simply a legal claim for breach of contract, and it presented essentially the same legal issues as were raised by the pleadings in the federal action. Since there was “no equitable defense or counterclaim to support the fiction that the power of a court of equity has been invoked by a defendant to restrain the prosecution of a suit at law against him”, Turkish State Railways Administration v. Vulcan Iron Works, 3 Cir., 230 F.2d 108, 109-110, there is no basis for holding that the stay order issued by the District Court was equivalent to an injunction and, as such, appealable under § 1292(a) (1). Neither City of Thibodaux v. Louisiana Power & Light Company, 5 Cir., 255 F.2d 774, rev’d 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058, nor Glen Oaks Utilities, Inc. v. City of Houston, 5 Cir., 280 F.2d 330, is contrary to the conclusion we have reached in this case. In Thibodaux, the stay order which we held to be appealable under § 1292(a) (1) was granted so that the parties could first proceed in a state court, under the state’s declaratory judgment procedure, to obtain a definitive ruling with respect to a state
3472	to be treated, for purposes of computation of the tax, in the same manner as losses upon a sale or exchange of the stock. Section 115(c) provides: “Amounts distributed in complete liquidation of a corporation shall be treated as in full payment in exchange for the stock * * *. The gain or loss to the distributee resulting from such exchange shall be determined under section 111, but shall be recognized only to the extent provided in section 112. Despite the provisions of section'117(a), 100 per centum of the gain so recognized shall be taken into account in computing net income. * * *” In two cases, White v. United States, 59 S.Ct. 179, 83 L.Ed. -, and Helvering v. Chester N. Weaver Co., 59 S.Ct. 185, 83 L.Ed. -, both decided December 5, 1938, the Supreme Court in construing the quoted section as it appeared in the Revenue Act of 1928 and 1932, respectively, has held that it placed stockholders’ gains and losses from liquidations on the same basis as gains and losses from sales of stock. The cited cases are controlling here. The scheme of the 1934 Act, insofar as here pertinent, is similar to that of the 1928 and 1932 Acts. In the Act here under consideration, as in the earlier Acts, the ultimate reference from § 115(c) is to § 112, 26 U.S.C.A. § 112, for “recognition” of gain or loss on liquidation. And it is true as to the 1934 Act, likewise as to the
2200	failed.” (citing Hensley, 461 U.S. at 440, 103 S.Ct. 1933)). In addition, the size of any discrepancy between “the damages requested in the complaint and the damages awarded,” though relevant, does not “amount to more than one element in the constellation of factors that the court considers when determining the quality of the results obtained.” Id. at 338. C. Societal Importance of the Right Vindicated The third meaning attached to the term “results obtained” refers more broadly to the impact of the case on others similarly situated. Attorneys’ fees should be awarded in a way consistent with “the recognized principle that even small damage awards may mean a substantial victory for ‘a policy that Congress considered of the highest importance.’ ” Lewis v. Kendrick, 944 F.2d 949, 955 (1st. Cir.1991) (quoting City of Riverside v. Rivera, 477 U.S. 561, 575, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986)). A substantial attorneys’ fee award may be maintained, even in the case of -limited or nominal damages, based on “the importance of providing an incentive to attorneys to represent litigants ... who seek to vindicate constitutional rights but whose claim may not result in substantial monetary compensation” and on “the deterrent impact” of litigation. O’Connor v. Huard, 117 F.3d 12, 18 (1st Cir.1997), cert. denied, 522 U.S. 1047, 118 S.Ct. 691, 139 L.Ed.2d 636 (1998). D.The Bottom Line Based on its application of the three meanings of “results obtained,” see Coutin, 124 F.3d at 338, the Court concludes that the failure of plaintiffs
3787	regulations that “are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” Id. at 47, 106 S.Ct. 925. Renton’s application has largely been relegated to judicial review of zoning ordinances or ordinances which on their face are time, place, and manner restrictions. The second test was handed down in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), a case which considered the constitutionality of a ban on draft card burning enacted during the Vietnam War protests. Since O’Brien was decided, a four-part test has been used “to analyze the constitutionality of government regulation of expressive conduct, that is, conduct that contains both ‘speech’ and ‘nonspeech’ elements.” Brownell v. City of Rochester, 190 F.Supp.2d 472, 485 (W.D.N.Y.2001) (citing O’Brien, 391 U.S. at 376, 88 S.Ct. 1673). Under the O’Brien test, a regulation is permitted if: (1) “it is within the constitutional power of the Government”; (2) “it furthers an important or substantial governmental interest”; (3) “the governmental interest is unrelated to the suppression of free expression”; and (4) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” O’Brien, 391 U.S. at 376-77, 88 S.Ct. 1673. The O’Brien test applies to ordinances that directly regulate nude dancing, while Renton governs challenges to ordinances that may affect nude dancing, but that do not directly regulate it. Lady J. Lingerie, 176 F.3d at 1364-65 (applying Renton to ordinances dictating the
2035	applied to his case. Br. at 21. The Secretary contends that this rule does not apply because the veteran’s testimony is insufficiently corroborated and the Board is the factfinder as to the credibility of evidence. As indicated above, according to the benefit-of-the-doubt rule in 38 U.S.C. § 5107(b), a VA claimant need have only an “approximate balance of positive and negative evidence in order to prevail”. Gilbert, 1 Vet.App. at 54. Further, the reasons-or-bases requirement of 38 U.S.C. § 7104(d)(1) applies to the Board’s application of the benefit-of-the-doubt rule. See id. at 58. Where “there is significant evidence in support of an appellant’s claim, the Board must provide a satisfactory explanation as to why the evidence was not in equipoise.” Williams (Willie) v. Brown, 4 Vet.App. 270, 273-74 (1993). In its May 1994 decision, the Board found that the “preponderance of the evidence is against the veteran’s claim” and did not specifically discuss the benefit-of-the-doubt rule. R. at 14. In this case, there is significant evidence in favor of the PTSD service-connection claim: His undisputed testimony that he had been assigned to guard and convoy duty (R. at 181-83, 223-24); his undisputed testimony that he had been exposed to frequent rocket and mortar attacks (R. at 183-86, 224, 226, 243), which was corroborated by his comrade (R. at 195) and generally corroborated by the ESG report (R. at 150-51); and undisputed diagnoses of PTSD by both VA and non-VA mental-health professionals (R. at 98, 100-101, 128, 130, 215-16) that relate
3779	Alternatively, Plaintiff argues that intermediate scrutiny should apply to all of the criminal provisions. The County, on the other hand, argues that sections 3-129(3), (6), and (9) should be subjected to rational basis review because the ordinances regulate non-expressive conduct. In the alternative, the County submits that intermediate scrutiny should control the analysis. The parties agree to the correct standard in each of their alternative propositions — intermediate scrutiny is the proper standard of review as to all three provisions. Nude dancing is protected as “expressive conduct within the outer perimeters of the First Amendment, though ... only marginally so.” Barnes v. Glen Theatre. Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); see also City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). Sections 3-129(3) and (6) of the AEC regulate a dancer’s movements and restrict the manner in which a dancer crafts an erotic dance for the audience. Section 3-129(9) may apply to a dancer’s performance (for example, as during a lap or straddle dance), but the intentional touching provision also regulates the conduct of workers who are not engaged in constitutionally protected conduct. If this Court were asked only to consider the constitutionality of section 3-129(9) as it applies to pure conduct in isolation from a dancer’s protected expression, then the County may have correctly cited the rational basis test as the governing standard of review. See, e.g., Willis v. Town of Marshall, 426 F.3d 251,
407	at 502 (Flaum, J., concurring) (concluding that the plaintiffs are no longer eligible to receive visas); Fornalik v. Perryman, 223 F.3d 523, 526 (7th Cir.2000); Vladagina v. Ashcroft, 2002 WL 1162426 (S.D.N.Y. Apr. 8, 2002) (unpublished); Iddir v. INS, 166 F.Supp.2d 1250, 1259 (N.D.Ill.2001) (holding that “[t]he end of fiscal year 1998 was September 30, 1998, which means that plaintiffs are no longer eligible to receive visas”), aff'd on other grounds, 301 F.3d 492 (7th Cir.2002); Zapata v. INS, 93 F.Supp.2d 355, 358 (S.D.N.Y.2000) (“The plain meaning of § 1154 is that after the fiscal year has ended on September 30, no diversity visas may be issued nunc pro tunc based on the results of the previous fiscal year’s visa lottery.”); Diallo v. Reno, 61 F.Supp.2d 1361, 1368 (N.D.Ga.1999). The Plaintiffs contend that when the phrase “shall remain eligible to receive such visa” is construed in light of its context, the phrase actually means “shall remain eligible to apply for such visa.” The Plaintiffs rely on the fact that § 1154(a)(l)(I)(ii)(II) sets forth the procedure for applying for a diversity visa; the Plaintiffs contend that when this section is read as a whole, it is clear that a lottery winner “has until the end of the fiscal year to be eligible to apply for such visa.” (Pis.’ Br. at 29.) We disagree. Although § 1154(a)(l)(I) establishes the procedure for submitting a diversity visa petition, there is nothing in this section, when read in its entirety, that leads us to believe
2111	appreciated property converted into cash and avoided the Federal income tax. Since the enactment of section 367, as section 112(k) of the Revenue Act of 1932, Congress has never indicated what it meant by a tax-avoidance purpose. This lack of guidance, notwithstanding, the reports of both the House and Senate committees stated that the pertinent nonrecognition provisions of the statute, as applied to transactions involving foreign corporations, were to be inoperative “unless prior to the exchange the commissioner is satisfied that the transaction does not have as one of its principal purposes the avoidance of Federal income taxes.” H. Rept. 708, 72d Cong., 1st Sess. 20 (1932); S. Rept. 665, 72d Cong., 1st Sess. 26-27 (1932). See also H. H. Robertson Co. v. Commissioner, 59 T.C. 53, 68 (1972). This delegation to respondent of such wide discretion to grant rulings under section 367 and test transactions thereunder for a tax-avoidance purpose was carried forward into the 1954 Code. See H. Rept. 1337, 83d Cong., 2d Sess. A131 (1954); S. Rept. 1622, 83d Cong., 2d Sess. 272 (1954). Within the boundaries of this delegation, respondent has formulated administrative guidelines in an effort to furnish some indication to the parties who seek to make an expatriating transfer of property as to whether such transfer would be a valid nontaxable transfer. The existing section 367 guidelines are found in Rev. Proc. 68-23, 1968-1 C.B. 821. It is this administrative guideline which is at issue in the instant case. Under the 1968 revenue procedure,
1255	further argues that he sufficiently alleged that the defendants’ failure to issue the 1999 and 2005 checks amounted to an unconstitutional confiscation, and that the district court erred in dismissing his complaint before process had been served on the defendants. We review de novo a dismissal for failure to state a claim under § 1915(e)(2)(B)(ii), viewing the allegations in the complaint as true. Mitchell v. Farcass, 112 F.3d 1483, 1489-90 (11th Cir.1997). Section 1915(e)(2)(B)(ii) requires the district court to dismiss an informa pauperis action if, at any time, the court determines that it fails to state a claim on which relief may be granted. “Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). The district court may dismiss the action sua spónte under § 1915(e) prior to service of process on the defendants. The Eleventh Amendment bars § 1983 claims against the States in federal court. Cross v. Alabama, 49 F.3d 1490, 1502 (11th Cir.1995). Florida has not waived its immunity with respect to § 1983 suits. Gamble v. Fla. Dep’t of Health & Rehabilitative Svcs., 779 F.2d 1509, 1514-15 (11th Cir.1986). This immunity extends to the Florida Department of Corrections. See Zatler v. Wainwright, 802 F.2d 397, 400 (11th Cir.1986) (per curiam). Marsh is therefore barred by the Eleventh Amendment from bringing a § 1983 suit against the Bureau with respect to either the 1999 or
1231	non-diverse defendant. Rosenberg v. Carnival Cruise Lines, No. 83-CV-6985, 1984 WL 535, at *1 (S.D.N.Y. June 27, 1984) (internal quotation marks omitted). However, “[i]n making [a fraudulent joinder] inquiry, courts can look beyond the pleadings to determine if the pleadings can state a cause of action.” In re Consol. Fen-Phen Cases, No. 03-CV-3081, 2003 WL 22682440, at *3 (E.D.N.Y. Nov. 12, 2003); see also Pampillonia, 138 F.3d at 461-62 (considering affidavit to determine whether defendant was fraudulently joined); Audi of Smithtown, Inc. v. Volkswagen of Am., Inc., No. 08-CV-1773, 2009 WL 385541, at *3 (E.D.N.Y. Feb. 11, 2009) (“In analyzing the fraudulent joinder issue, the court is permitted to look beyond the pleadings to resolve this jurisdictional question.”); Sherman v. A.J. Pegno Constr. Corp., 528 F.Supp.2d 320, 327 n. 10 (S.D.N.Y.2007) (stating that the court is permitted to look beyond the pleadings to resolve jurisdictional question of fraudulent joinder); Arseneault, 2002 WL 472256, at *6 (considering “deposition testimony and other material outside of the pleadings” in analyzing fraudulent joinder claim). In fraudulent joinder cases, “[p]ost-removal filings may not be considered, however, when or to the extent that they present new causes of action or theories not raised in the controlling petition filed in state court.” Griggs v. State Farm Lloyds, 181 F.3d 694, 700 (5th Cir.1999); see also Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 263 (5th Cir. 1995) (stating that although the court could consider affidavits or deposition testimony in analyzing fraudulent joinder claim, the
3004	purchasers with notice have no compensation right when a claim becomes ripe is too blunt an instrument to accord with the duty to compensate for what is taken. Direct condemnation, by invocation of the State’s power of eminent domain, presents different considerations from cases alleging a taking based on a burdensome regulation. In a direct condemnation action, or when a State has physically invaded the property without filing suit, the fact and extent of the taking are known. In such an instance, it is a general rule of the law of eminent domain that any award goes to the owner at the time of the taking, and that the right to compensation is not passed to a subsequent purchaser. See Danforth v. United States, 308 U. S. 271, 284 (1939); 2 Sack-man, Eminent Domain, at § 5.01[5][d][i] (“It is well settled that when there is a taking of property by eminent domain in compliance with the law, it is the owner of the property at the time of the taking who is entitled to compensation”). A challenge to the application of a land-use regulation, by contrast, does not mature until ripeness requirements have been satisfied, under principles we have discussed; until this point an inverse condemnation claim alleging a regulatory taking cannot be maintained. It would be illogical, and unfair, to bar a regulatory takings claim because of the post-enactment transfer of ownership where the steps necessary to make the claim ripe were not taken, or could not have been
4607	"to shape equitable remedies. See Monsanto Co. v. Geertson Seed Farms, 561 U.S, 139, 175, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010). When an appellate court finds a trial court abused its discretion by issuing an 'overly broad order, it may strike those provisions “dissociated from those [acts] which a defendant has committed.” N.L.R.B. v. Express Pub. Co., 312 U.S. 426, 435, 61 S.Ct. 693, 85 L.Ed. 930 (1941). See, e.g., S.E.C. v. Smyth, 420 F.3d 1225, 1233 (11th Cir.2005) (holding general “obey-the-law” injunctions unenforceable). The purpose of Rule 65(d) is to ensure defendants have, fair notice of what conduct is prohibited and to avoid undue restraint. The- Ninth Circuit has “not adopted.a rule-against ‘obey the law injunctions per se.” F.T.C. v. EDebitPay, LLC, 695 F.3d 938, 944 (9th Cir.2012). Instead the court recognizes, in certain circumstances, “injunctioh[s] ... framed in language almost identical to the statutory mandate ... [are"" not] vagué” because they “adequately describe' the impermissible conduct.” United States v. Miller, 588 F.2d 1256, 1261 (9th Cir.1978). See also E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 842 (7th Cir.2013) (holding “obey-the-law” injunctions may be an “appropriate” form of equitable relief where evidence suggests the proven illegal conduct may continue or be resumed, for example,-when those responsible for workplace discrimination remain with the same employer or some other factor “convinces the court that voluntary compliance with the law will not be forthcoming”). A request for an injunction is not determinative of the type of relief the court will ultimately'issue."
2928	S.Ct. 469, 84 L.Ed. 1005 (1940). Both parties agree that if the property had not been sold, the gift would be valued at fair market value less the outstanding mortgage. The government contends, however, that the real estate contract and accompanying escrow agreement imposed a binding legal obligation upon the Alexanders to continue to make the mortgage payments, which the donees could enforce, and hence that the fair value of the property would not be reduced by the amount of the mortgage. The government asserts that “a taxable gift is made at the time that a binding obligation to make future payments is incurred.” It relies upon such cases as Rosenthal v. Commissioner, 205 F.2d 505 (2d Cir. 1953), and Commissioner v. Copley’s Estate, 194 F.2d 364 (7th Cir. 1952), where in different circumstances the court held that a legally binding promise to make future payments constituted a present gift of the amount of those payments. In the present case, however, we ^conclude that the Alexanders’ agreement to continue to make the mortgage payments did not constitute a legally binding promise that the donees could enforce. Accordingly, the value of the Alexanders’ gift to the donees did not include the amount of the mortgage. Both before and after the sale the Alexanders, and only the Alexanders, were liable to make the mortgage payments. The only difference was that after the sale the Alexanders’ obligation to do so ran not only to the mortgage but also to the Blacks. In agreeing
420	for determination by this court of the Debtor’s interest expense liability.” We agree wholeheartedly, with the bankruptcy court’s determination that a debtor’s obligation with respect to post-petition interest terminates only “if and when” the debtor obtains a discharge from the bankruptcy court. See 11 U.S.C. §§ 727(b), 1141(d). As the Supreme Court stated over eighty years ago, although as a general rule postpetition interest is not allowed on undersecured debts, “that is not because the [debts] had lost their interest-bearing quality during that period.... and if, as a result of good fortune or good management, the estate proved sufficient to discharge the claims in full, interest as well as principal should be paid.” American Iron & Steel Mfg. Co. v. Seaboard Air Line Ry., 233 U.S. 261, 266, 34 S.Ct. 502, 58 L.Ed. 949 (1914); see Kellogg v. United States (In re West Tex. Marketing Carp.), 54 F.3d 1194, 1203 (5th Cir.1995) (Smith, J., dissenting) (stating that a debtor’s obligation to pay interest during bankruptcy “is not extinguished, but, for purposes of the bankruptcy proceedings, is ignored until the time the court determines whether the debtor’s assets can meet the obligation. Only upon discharge, see § 727, is the state law obligation to pay extinguished.”) (footnote omitted). We fail to understand, however, why the bankruptcy court determined from these conclusions regarding the timing of 'the potential discharge of a debtor’s obligation to pay postpetition interest that an injunction was necessary -to carry out the provisions of the Bankruptcy Code. The
4567	jailing.” (Doc. 334 at 18). This argument was addressed in Part 11(B), supra. Maricopa County has sufficient authority to provide some redress for violations committed--by Arpaio and MCSO. Therefore, the argument is without merit. Maricopa County further claims its contractual assurances under Title VI must be read in accordance’with Arizona law, including' statutory limitations on the Board of Supervisors’ authority regarding the Sheriff. To the extent Maricopa County entered into-a contract for which it lacked the authority'to agree, Maricopa County argues, the contract is void. (Doc. 351 at 13). The ' Unitéd States has the power to sue to enforce its contracts. See Cotton v. United States, 52 U.S. 229, 231, 11 How. 229, 13 L.Ed. 675 (1850); Rex Trailer Co. v. United States, 350 U.S. 148, 151, 76 S.Ct. 219, 100 L.Ed. 149 (1956). And “jjf]ederal law governs the interpretation of contracts entered pursuant to federal law where the federal government is a party.” Chickaloon-Moose Creek Native Ass’n., Inc. v. Norton, 360 F.3d 972, 980 (9th Cir.2004). . Neither party offered authority addressing how courts.treat the enforcement of an ultra vires contract between a county and the federal government. But the Court rejected the contention that Maricopa County lacked any authority to enforce the nondiscrimination mandate that at taches to federal funds under Title VI. See Part 11(B), supra; (Doc. 56). Even if “persons dealing with public officers are bound, at their peril, to know the extent and limits of their power,” the United States is, at the. very
2062	which described an individual resembling Juanito Fiel and identified the Eagle Caribe. Once the note was found, the agent informed agent Andaluz, who then ordered the other agent to read Fernandez Santana his Miranda rights for the second time, and retained custody over him. Defendants seek to suppress the evidence obtained from them and to dismiss the indictment. They claim that the agent Andaluz conducted a custodial interrogation without advising the defendants of their Miranda rights, and thus any statements proffered pursuant to that interrogation are inadmissible. Defendants also argue that the agents lacked probable cause to arrest the defendants, and accordingly, any evidence obtained pursuant to that illegal arrest should be suppressed as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We examine each of the arguments seriatim. Applicable Law/Analysis Investigatory Stop/Reasonable Suspicion Defendants claim that agent Andaluz’s initial questioning of the defendants in the area near the Hawaiian Hut prior to their formal arrest constituted a custodial interrogation which triggered the obligation to read defendants their Miranda rights. Consequently, defendants seek to suppress all of the defendants’ statements prior to the arrest, as well as the evidence obtained subsequent to the arrest, pursuant to the agents’ failure to provide the constitutionally-required Miranda warnings. The Court must determine whether the questioning of the defendants was conducted within the context of an investigatory stop, and thus did not require the agent to read Miranda warnings, or whether the
2631	“absurd or mischievous consequences” to rewrite the statute, it must demonstrate that the plain meaning of the statutory text “ ‘defies rationality' by ‘rendering] a statute nonsensical [and] superfluous.’ ” United States v. Cook, 594 F.3d 883, 891 (D.C.Cir.2010) (quoting Landstar Express Am., Inc. v. Fed. Maritime Comm’n, 569 F.3d 493, 498-99 (D.C.Cir.2009)). The Commission has not met this high threshold. There is nothing patently unreasonable in favoring any and all municipalities over private applicants when “ ‘the chief purpose’ ” of the FPA was “to ‘provide conditions under which capital can be secured [to develop hydropower] while at the same time fully to protect the paramount interests of the public in its last great national resource.’ ” Clark-Cowlitz Joint Operating Agency v. FERC, 775 F.2d 366, 377 (D.C.Cir.1985), vacated and reh’g en banc granted, 787 F.2d 674 (D.C.Cir.1986) (quoting O.C. Merrill, Benefits Accruing to Municipalities Through the Federal Water Power Act, THE AMERICAN CITY, Yol. XXIII, No. 5 (Nov. 1920)). Even when Congress limited the municipal preference in 1986 to “original” as distinct from relicensing proceedings, when it would have been aware of modern long-distance transmission, it did not add a proximity requirement. See Oconto Falls, 41 F.3d. at 672 (citing the Electric Consumers Protection Act, Pub.L. No. 99-495, 100 Stat. 1246 (1986) (codified at 16 U.S.C. §§ 791a-828c)). To the extent the Commission is concerned that granting a preference to a too-distant municipality seeking a preliminary permit could have “undesirable consequences,” Rehearing Order ¶ 20, the Commission may
1605	order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute.” Id, (emphasis in original); see also AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (“[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960))). In considering how to apply this framework, we have used “[a] trichotomy among the disputes that arise in arbitrability cases.” Nat'l R.R. Passenger Corp. v. Bos. & Me. Corp., 850 F.2d 756, 761 (D.C.Cir.1988). There are (1) “disputes over the formation of an agreement to arbitrate”; (2) “disputes over the breadth of an arbitration clause, where the parties disagree over whether a certain issue falls within or without the subject matter coverage of an undoubted agreement to arbitrate”; and (3) disputes that “relate[] to the length, rather than the breadth, of an arbitration clause.” Id. at 761. In other words, three types of arbitrability disputes typically arise: (1) formation disputes; (2) breadth disputes; and (3) duration disputes. It is settled that a formation dispute is “generally for courts to decide.” Granite Rock, 561 U.S. at 296, 130 S.Ct. 2847; Nat'l R.R., 850 F.2d at 761 (“[I]f the parties disagree as to whether they ever entered
4131	Government owed a duty to [him or her]; (2) the Government breached that duty by its negligent conduct; and (3) as a result of that breach, plaintiff suffered injury.’” Rambert v. U.S., 1996 WL 583392 (S.D.N.Y. 1996) (internal cites omitted). “With regard to premises liability, New York has adopted a single standard of liability, requiring an owner to maintain reasonably safe conditions in view of all the circumstances ‘including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.’ ” Id. “The question of whether a hazard is open and obvious is normally one that goes to the [trier of fact] unless only one possible conclusion may be drawn from the undisputed facts.” Tuthill v. U.S., 270 F.Supp.2d 395, 399 (S.D.N.Y. 2003) (citing Pelman v. McDonald’s Corp., 237 F.Supp.2d 512, 541 (S.D.N.Y.2003)). In New York, “it is well settled that a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances. The nature and scope of that duty and the persons to whom it is owed require consideration of the likelihood of injury to another from a dangerous condition on the property, the seriousness of the potential injury, the burden of avoiding the risk and the foreseeability of a potential plaintiffs presence on the property.” Furey v. U.S., 458 F.Supp.2d 48, 53 (N.D.N.Y.2006) (emphasis in original). In addition, under New York law, Generally, a party who, in possession of premises, throws
2370	this suit. Unlike the yacht, however, this argument is not salvageable. In light of plaintiffs lack of precedential support and Sosebee’s direction contrary to plaintiffs position, plaintiffs first argument must be jettisoned. Second, notwithstanding the Sosebee court’s declaration that attorneys’ fees are not available in admiralty cases absent a showing of bad faith, 893 F.2d at 56, plaintiff contends that in salvage actions such as this one (a subset of admiralty cases), a court has discretion to award attorneys’ fees even absent a showing of bad faith. The Court disagrees. None of plaintiffs cited authority constitutes valid prece-dential support for this argument; in fact, they contradict his argument. In particular, plaintiff points to a salvage case, Compania Galeana, S.A. v. Motor Vessel Caribbean Mara, 565 F.2d 358, 360 (5th Cir.1978), which summarily stated that the award of “attorneys’ fees is discretionary in admiralty actions and in salvage cases specifically.” (citations omitted). The precedential value of this case is minimal for two reasons. One, the case dedicated only two sentences to the question of attorneys’ fees and ultimately declined to award them. Two, the Fifth Circuit, in a subsequent salvage case, clarified that Compañía Galeana referred to an exception to the general rule against an award of attorneys’ fees in admiralty cases: In admiralty cases, however, it is the general rule that attorneys’ fees are not awarded. Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724 (5th Cir.1980). Platoro cites Compania Galeana, S.A. v. M/V Caribbean Mara, 565 F.2d 358 (5th
2208	1988). Finally, I also allow the $80 that plaintiffs requested for anticipated costs associated with this fee petition. IV. Effect of the Rule 68 Offer of Judgment Defendants’ offer of judgment pursuant to Fed.R.Civ.P. 68 does not affect the Court’s award of fees or costs in this case. The City argues that plaintiffs cannot recover any attorneys’ fees or costs incurred after June 1, 1998, the date of defendants’ Rule 68 offer of judgment. Under Rule 68, if a plaintiff rejects a defendant’s settlement offer and “the judgment finally obtained by the [plaintiff] is not more favorable than the offer,” then the plaintiff “must pay the costs incurred [by the defendant] after the making of the offer.” Fed.R.Civ.P. 68; see also Marek v. Chesny, 473 U.S. 1, 9-10, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) (holding that the term “costs” in Rule 68 includes attorneys’ fees and that, therefore, prevailing civil rights plaintiffs “who reject an offer more favorable than what is thereafter recovered at trial will not recover attorney’s fees for services performed after the offer is rejected”). The City invokes this cost-shifting provision with regard to defendants’ June 1, 1998, offer to allow judgment against the City in the total amount of $35,000, which included costs and attorneys’ fees accrued through that date. Plaintiffs contend that the City cannot satisfy its burden of establishing that defendants’ settlement offer was more favorable than the jury’s award of $15,676, see Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075-76 (7th
2401	S.Ct. 2932, 92 L.Ed.2d 209 (1986). The Court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). The complaint “is construed liberally in [plaintiffs] favor, and [the Court should] grant [plaintiff] the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). However, the Court need not accept inferences that are not supported by the facts alleged and legal conclusions drawn by plaintiff. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Under the ADEA it is .“unlawful for an employer ... to fail or refuse to hire ... any individual ... with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). A successful claim under the ADEA requires a plaintiff to demonstrate that he “(1) ... is a member of the protected class (i.e., over 40 years of age); (2) ... was qualified for the position for ’which [he] applied; (3) ... was not hired; and (4) ’... was disadvantaged in favor of a younger person.” Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1155 (D.C.Cir.2004) (citations
500	seek declaration by this Court that the contract between Soyland and Southwestern is valid, that repudiation of the contract would result in a breach of the mortgage between the REA and Southwestern, and between CFC and Southwestern which are related to the procurement of loans to Southwestern under the Act, and that the repudiation of the contract would violate 7 U.S.C. § 907, together with further relief. The plaintiffs seek declaratory judgment, costs and attorneys fees. The standard for declaratory judgment actions “is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Casualty Co. v. Pacific Co, 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). It is clear, from the facts as alleged, that an actual controversy exists. Southwestern has made an attempt, first by filing a state court action, and now by filing a counterclaim, to invalidate the wholesale power contract it has with Soy-land. The plaintiffs seek to prevent this repudiation. The controversy is not remote, the issues are ripe for litigation, and a cause of action has been stated. Clearly, the controversy here is not an abstract one. The plaintiffs have a direct interest in the controversy, and, as discussed below, are proper parties to this litigation. See Diamond Shamrock Cory. v. Lumbermans Mutual Cas. Co., 416 F.2d 707, 709 (7th Cir.1969). The REA and CFC
3631	wrote in Johnson v. United States that “in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force — that is, force capable of causing physical pain or injury to another person.” 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Because Sawyer was pre-Johnson, we had no occasion to address whether or not the “physical force” required by the Arkansas robbery statute and elucidated by Arkansas’s statutory definition of that term was equivalent to the violent force sufficient to qualify ás a crime of violence under the force clause after Johnson. “It is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel.” United States v. Anderson, 771 F.3d 1064, 1066-67 (8th Cir. 2014) (quoting United States v. Betcher, 534 F.3d 820, 823 (8th Cir. 2008)). “This rule, however, does not apply when the earlier panel decision is cast into doubt by an intervening Supreme Court decision.” Id. (citing Williams, 537 F.3d at 975). Johnson “elevated the necessary quantum of force from de [minimis] to ‘violent,’ ” United States v. Winston, No. 3:01-cr-00079, 2016 WL 2757451, at *5 (W.D. Va. May 11, 2016), and thereby “casts sufficient doubt on the reasoning” of some pre-Johnson holdings regarding crimes of violence, United States v. Holloway, 630 F.3d 252, 254-55 (1st Cir. 2011). Therefore, Sawyer’s “rule that the boilerplate charging language of [robbery] alone establishes a violent felony” may be rightfully reevaluated. Id. While the reasoning
4549	through interpretation of the phrase “any other means authorized by law” in Title VI. 42 U.S.C. § 2000d-1. Under Title VI, compliance may be effected “by termination of or refusal to grant or to continue assistance” or “by any other means authorized by law.” 42 U.S.C. § 2000d-l. The parties focus-, on the interpretation of the phrase “any other means authorized by law.” The United States relies on National Black Police Association Inc. v. Velde, 712 F.2d 569, 575 (D.C.Cir.1983) and United States v. Baylor University Medical Center, 736 F.2d 1039, 1050 (5th Cir.1-984), each of which recognizes “any other means authorized by law” as including enforcement options beyond administrative action. See also Guardians Ass’n v. Civil Serv. Comm’n of City of New York, 463 U.S. 582, 630, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) (J. Marshall, dissenting) (“[I]n extending grants the United States has always retained an inherent right to sue for enforcement of the recipient’s obligation.”). Maricopa County claims Velde and Baylor University Medical Center do not represent the current approach to statutory interpretation which was abandoned by the Supreme Court in Alexander v. Sandoval. 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). In Sandoval, the Supreme Court condemned lower courts’ liberal implication of private rights of action “to provide remedies as are necessary to make effective [ ] congressional purpose” and established a stricter standard requiring more explicit findings of congressional intent to support such causes of action. 532 U.S. 275, 287, 121 S.Ct. 1511,
2096	defendant’s petition to suppress the note taken from Fernandez Santana’s wallet is DENIED. SO ORDERED. . The First Circuit recently noted in United States v. Meade, 110 F.3d 190, 193 (1st Cir.1997): “Under the ‘fellow-officer’ rule, law enforcement officials cooperating in an investigation are entitled to rely upon each other's knowledge of facts when forming the conclusion that a suspect has committed or is committing a crime. See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ... Thus, when a law enforcement officer with information amounting to probable cause directs an officer who lacks the knowledge to make the arrest, we ‘impute’ to the arresting officer the directing officer's knowledge. (citations omitted).” . In United States v. Trullo, 809 F.2d 108, 113 (1st Cir.1987), the Court took into account the location of the stop, an area notorious for its high crime rate and drug transactions to uphold an officer's display of his gun.
1321	of her husband, resulting from a collision between a bus driven by the deceased and appellants’ tractor-trailer on a Kansas bridge. The primary contention is that the trial Court erroneously refused to direct a verdict for appellants, on the ground that the decedent was, as a matter of law, contributorily negligent. Under applicable federal law, the trial Court is authorized to direct a verdict only where the evidence is without dispute, or if conflicting, is of such nature as to warrant but one conclusion as a matter of law. See: Central Surety & Ins. Corporation v. Murphy (10 CA), 103 F.2d 117; National Mut. Casualty Co. of Tulsa, Old. v. Eisenhower (10 CA), 116 F.2d 891; and Kansas Transport Company v. Browning (10 CA), 219 F.2d 890. A corollary to that rule is the equally well settled Kansas substantive rule that “the existence of contributory negligence is a question of fact for the jury’s consideration unless reasonable minds could reach but a single conclusion from the established facts with all reasonable inferences favoring the plaintiff.” Young v. Vincent (10 CA), 310 F.2d 709, 711. It would serve no purpose to delineate the evidence of contributory negligence here. Suffice it to say that it is sufficiently conflicting to require its submission to the jury, and our judicial inquiry ends there. Indeed, appellants concede as much and attempt to negate the probative value of their own driver’s testimony as being contrary to the physical facts. But, the litigants are bound by their
2629	between a distant and a nearby municipality where a tiebreaker drawing results in depriving the nearby municipality of the right to utilize a local water resource. Id.; see Permit Order ¶ 17. In the Commission’s view, “these types of consequences were not likely intended, or anticipated, by Congress in enacting FPA section 7(a)” in 1920. Rehearing Order ¶ 20. The statutory issue for the court, however, is not whether the Commission’s interpretation of Section 7(a)’s municipal preference is the better public policy. Before the Commission can invoke the doctrine of “absurd or mischievous consequences” to rewrite the statute, it must demonstrate that the plain meaning of the statutory text “ ‘defies rationality' by ‘rendering] a statute nonsensical [and] superfluous.’ ” United States v. Cook, 594 F.3d 883, 891 (D.C.Cir.2010) (quoting Landstar Express Am., Inc. v. Fed. Maritime Comm’n, 569 F.3d 493, 498-99 (D.C.Cir.2009)). The Commission has not met this high threshold. There is nothing patently unreasonable in favoring any and all municipalities over private applicants when “ ‘the chief purpose’ ” of the FPA was “to ‘provide conditions under which capital can be secured [to develop hydropower] while at the same time fully to protect the paramount interests of the public in its last great national resource.’ ” Clark-Cowlitz Joint Operating Agency v. FERC, 775 F.2d 366, 377 (D.C.Cir.1985), vacated and reh’g en banc granted, 787 F.2d 674 (D.C.Cir.1986) (quoting O.C. Merrill, Benefits Accruing to Municipalities Through the Federal Water Power Act, THE AMERICAN CITY, Yol. XXIII, No. 5 (Nov.
4553	-It argues Maricopa County’s policymakers constitute the County under the statute and that Maricopa County violated Title VI in two ways: First, through the Board, by failing to live up to its contractual obligations, and second, through the pattern, practice, and policy of discrimination prpmulgated by Arpaio, the County’s policymaker. Section 1983 explicitly provides liability for government entities which cause others to violate constitutional rights. 42 U.S.C. §. 1983. Under § 1983, municipal liability for officers’ actions is not automatic but attaches “when execution of [the] government’s, policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In other words, a violation caused by a municipal policy, e.g. a policy made by a. municipal policymaker, is a violation by the municipality. See Flanders v. Maricopa Cnty., 203 Ariz. 368, 378, 54 P.3d 837, 847. (Ariz.Ct.App.2002) (“Liability [under § 1983] is imposed, not on the grounds of respondeat superior, but because the agent’s status cloaks him with the governmental body’s authority.”). “To hold a local government liable for an official’s conduct [under § 1983], a plaintiff, must first establish that the official (1) had final policymaking authority ‘concerning the action alleged to have caused the particular constitutional or statutory violation at issue’ and (2) was the policymaker for the local governing body for
4359	to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded [when] [t]he party against whom preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action. Restatement (Second) of Judgments § 28(1). Although this section of the Restatement clearly advises against applying issue preclusion to unappealable orders for remand, such as the remand order in Agostini, our Court of Appeals has not had occasion to rule on this specific question. In one fine of cases, it has determined that finality for purposes of issue preclusion “does not require the entry of a judgment final in the sense of being appealable.” Burlington N. R.R. v. Hyundai Merck Marine Co., 63 F.3d 1227, 1233 n. 8 (3d Cir.1995) (citing In re Brown, 951 F.2d 564, 569 (3d Cir.1991) and Dyndul v. Dyndul, 620 F.2d 409, 412 n. 8 (3d Cir.1980)). It has further stated that issue preclusion, instead applies “whenever an action is sufficiently firm to be accorded conclusive effect.” Id. In Dyndul, it noted that finality “may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.” 620 F.2d at 412 n. 8. None of these cases, as noted above, involved jurisdictional issues previously litigated in a motion to remand. In a more recent case, our Court of Appeals followed these earlier precedents in
2081	circumstances surrounding the interrogation. This test is objective: the only relevant inquiry is ‘how a reasonable [person] in the suspect’s shoes would have understood this situation’.” Fernández Ventura, 85 F.3d at 711, quoting Stansbury, 511 U.S. at 324, 114 S.Ct. at 1529. Among the factors which are usually taken into account in determining whether a defendant was in custody are: (a) whether he was questioned in a familiar or neutral surrounding; (b) the number of law enforcement agents that were present at the scene; (c) the degree of physical restraint which was placed upon the subject, i.e., whether the subject was free to leave; (d) and .the duration and character of the interrogation. Fernández Ventura, 85 F.3d at 711, quoting United States v. Masse, 816 F.2d 805, 809 (1st Cir.1987). A defendant is, on the other hand, said to be under interrogation when he or she is subjected to “words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Fernández Ventura, 85 F.3d at 711, quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). As with the custody determination, the test is objective: the Court must determine whether a reasonable person would, given the same circumstances, perceive such questioning to constitute an attempt to elicit an incriminating response. Fernandez Ventura, 85 F.3d at 711 (quoting United States v.
3500	507, 108 S.Ct. at 2515-16. Use of the government contract defense, however, was limited to only those situations where this federal interest significantly conflicted with the operation of state law. Id., 487 U.S. at 507-09,108 S.Ct. at 2516. The Estate claims that this defense is applicable only in cases where the plaintiff claims the injuries resulted from the equipment’s or product’s defective design and not from the supplier’s failure to warn about dangers associated with the product’s use. While the test enunciated by the Boyle Court was specifically tailored for use in design defect cases, the Fifth Circuit has held that it could also be applied in failure to warn eases. Garner v. Santoro, 865 F.2d 629, 635 (5th Cir.1989); Bynum v. FMC Corp., 770 F.2d 556, 574 n. 24 (5th Cir.1985). In doing so, however, the court recognized the difficulty a defendant will have under Boyle in “establishing an identifiable federal interest or policy in the existence or method of warning and a significant conflict between that federal interest or policy and the operation of state law.” Gamer, 865 F.2d at 635-36; see also In re Hawaii Fed. Asbestos Cases, 960 F.2d 806, 813 (9th Cir.1992) (“Boyle displaces state law only when the Government, making a discretionary, safety-related military procurement decision contrary to the requirements of state law, incorporates this decision into a military contractor’s contractual obligations, thereby limiting the contractor’s ability to accommodate safety in a different fashion.”); Dorse v. Eagle-Picher Indus. Inc., 898 F.2d 1487, 1489 (11th
3690	74 F.3d 941, 944 (9th Cir.1996). We also affirm the district court’s ruling that the County did not violate the Jensens’ substantive due process rights. Because the Jensens do not assert that they belong in a protected class, they must establish that: 1) they are a member of an identifiable class; 2) that they were intentionally treated differently from others similarly situated; and 3) that there is no rational basis for the difference in treatment. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). The County’s actions comport with equal protection if there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.” See Seariver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir.2002) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). Even assuming the Jensens could satisfy the other requirements under the test, they failed to establish that the County lacked a rational basis for having complaint-driven enforcement of an ordinance or for prohibiting the outdoor storage of non-operative vehicles while allowing the indoor storage of such vehicles, the outdoor storage of operative vehicles, and the outdoor storage of historic vehicles. While a complaint-driven system of enforcement could theoretically leave some unreported violations unabated, an efficient allocation of limited enforcement resources provides a rational basis for a complaint-based system. Cf. Rosenbaum v. City and Cnty. of San Francisco, 484 F.3d 1142, 1155 (9th Cir.2007)
683	transferred will also be postponed until the Collins-Crain stock is disposed of. We find no permanent escape from taxation of any of this gain. We do not believe the fact alone that the income which will be used to pay off the liabilities to which the securities were subjected will be taxed at a lower rate falls within the tax-avoidance purpose contemplated in section 357 (b).” 43 T.C. at 917. In Simpson, supra, the Tax Court held the exchange there made to be tax free and in seeking to distinguish Simpson from its earlier decision of the Dry-brough case which we now review, said: “Unlike in the Drybrough case, and in W. H. Weaver, 32 T.C. 411 (1959) affirmed sub nom. Bryan v. Commissioner, 281 F.2d 238 (C.A. 4, 1960), petitioner did not incur the liabilities to which the transferred securities were subject immediately prior to the transfer and solely in anticipation thereof.” 43 T.C. at 917. (Emphasis supplied.) But in the case before us the 1953 mortgage liability of Drybrough had not been incurred “immediately prior to the transfer” and was not incurred “solely in anticipation” of the forming of the corporations in 1957. While the Tax Court did not with desirable clarity give separate treatment to the tax avoidance purpose as distinguished from the need of Drybrough to prove also that his 1957 incorporations had “a bona fide business purpose,” we read its decision as a finding that Drybrough did not have “a bona fide business purpose” for
4404	complaint “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir.2007). The PSLRA similarly requires that the complaint “specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading,” and it adds the requirement that “if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(l); ATSI, 493 F.3d at 99; see also City of Roseville Emps’ Ret. Sys. v. EnergySolutions, Inc., 814 F.Supp.2d 395, 401 (S.D.N.Y.2011). When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiffs relied on in bringing suit and that are either in the plaintiffs’ possession or that the plaintiffs knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002). Matters of which judicial notice can be taken include press coverage establishing what information existed in the public domain during periods relevant to the plaintiffs’ claims. Staehr v. Hartford Fin. Serv. Grp., Inc., 547 F.3d 406, 425 (2d Cir.2008). The Court can also take judicial notice of public disclosure documents that must
3805	a remedy for this otherwise unconstitutional statute. It is certainly conceivable that two adult performers might convey a message that is different, but nonetheless protected, from the message portrayed by a solo dancer. The activities that the dancers may permissibly engage in are already constrained by the AEC’s remaining provisions, including the other definitions of actual SSA. The County has offered no justification for why a single dancer may not be prevented from engaging in non-obscene simulated sexual activities during a performance but why two performers may be so prevented. The Court was unable to locate authority holding that touching between two dancers can be constitutionally proscribed, but the district court in Threesome Entertainment v. Strittmather suggested that such a prohibition would be unconstitutional. 4 F.Supp.2d 710, 723 n. 8 (N.D.Ohio 1998) (“It is less clear whether a prohibition of non-overtly sexual touching between two dancers while performing, even if it included a scienter requirement, would also be constitutional; the Court has been unable to locate any case law addressing this specific question, which may implicate the suppression of protected expression.”) The “other person” requirement does not save the ordinance. The other qualifier in section 3-129(6) requires that a dancer display or expose a specified anatomical area in order to be criminally culpable under the statute. While a municipality may permissibly require dancers to don G-strings and pasties while performing because the burden that requirement places on free expression is only de minimis, see Pap’s A.M., 529 U.S. at 279,
1610	motions for severance under Rule 14. This helps to define the problem. It is not, nor is it claimed to be, sufficient ground for decision either way. c. The Assistant United States Attorney reports that he has spoken to Pit-kin’s attorney, who says “he would advise the defendant Pitkin to invoke his privilege under the Fifth Amendment” if Pitkin were called to testify “before a final disposition of his case * * Affidavit in Opposition, par. 9. Accordingly, the prosecutor adds (ibid): “It is hard to believe that defendant Karp does not suspect this and hopes to confuse a petit jury by having a co-defendant invoke the Fifth Amendment during her trial, a tactic which would fail in any event. United States v. Maloney, 262 F.2d 535 (2d Cir. 1959).” This is the most interesting of the Government’s contentions. It does not serve, upon analysis, to defeat the arguments for severance. It may be questioned, first of all, whether the prediction about another defendant’s disposition to testify — even where the prediction rests upon the advice of that defendant’s counsel, who may not have unqualified reasons for sharing confidences with the prosecution — is “properly the Government’s to interpose.” United States v. Echeles, 352 F.2d 892, 898 (7th Cir. 1965). Passing this, as the argument of the motion demonstrated, the matter is surely in the realm of speculation. If Pitkin is tried separately and first, he may plead, or be found, guilty. He may choose to testify in his own
2160	Cir.2005), et al. 500 Associates has failed to establish that its costs were, in fact, response costs. The findings in the record belie 500 Associates’ statement that it “[p]aid its officers for their time as they, among other things, investigated the extent of the contamination of the Property, developed removal plans to contain the hazardous substances, and carried out the removal plan to provide a temporary response until Vermont American remediates the property.” (Response to VAC’s Mo. for Summary Judg., p. 7). 500 Associates asserted unwaveringly throughout the proceedings that it was an “innocent purchaser” entitled to an exemption from liability. In rejecting the defense, the hearing officer noted that CERCLA “does not sanction willful or negligent blindness.” (quoting, United States v. Monsanto Co., 858 F.2d 160, 169 (4th Cir.1988)). The court found ample evidence in the record to support the hearing officer’s conclusion that, despite its knowledge of the contamination, it did nothing to respond or remediate the problem. The hearing officer’s report reflects 500 Associates’ unreasonable reliance upon a cursory environmental audit when it purchased the property. This audit did, in fact, inform 500 Associates that hazardous materials had been handled on the site by VAC and that there was at least one hazardous substance, chromium, on the property. 500 Associates chose, unwisely, to rely on its auditor and do nothing further to investigate. It claims to have had no knowledge of any spills and therefore took no precautions when demolishing buildings in the area of VAC’s former
3205	the question whether an injunction was properly issued, once the facts and law are established, we review for abuse of discretion. Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 849 (9th Cir.1985). A. As a preliminary matter, the EPA argues that the district court improperly considered evidence beyond the four corners of the administrative record. Generally, judicial review of agency action is limited to review of the record on which the administrative decision was based. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973), quoted in Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985); Friends of the Earth v. Hintz, 800 F.2d 822, 828-29 (9th Cir.1986). We have recognized, however, certain exceptions to this general rule. The court may find it necessary to review additional material to explain the basis of the agency’s action and the factors the agency considered. Friends of the Earth, 800 F.2d at 829; Asarco, Inc. v. EPA, 616 F.2d 1153, 1159-60 (9th Cir.1980). Moreover, the court may consider, particularly in highly technical areas, substantive evidence going to the merits of the agency’s action where such evidence is necessary as background to determine
292	likewise undisputed that Sanibel declined to honor plaintiffs’ requests, refused to rescind the Purchase Agreements, and failed to return or release plaintiffs’ cash deposits or letters of credit. A flurry of federal and state lawsuits followed, all of which have been consolidated in the instant case. III. Summary Judgment Standard. Summary judgment should be granted only if “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of ‘ law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). Once the moving party has satisfied its responsibility, the burden shifts to the nonmovant to show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof,’ the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote omitted). “In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all
3895	unexpired lease “the court shall set a hearing on notice to the other party to the contract [lease] and to other parties in interest as the court may direct.” Bankruptcy Rule 6006(c). The assumption procedure mandated by applicable bankruptcy rules recognizes and protects the due process rights of a lessor and other affected entities. Mullane v. Central Hanover Bank and Trust Company, 339 U.S. 306, 314, 70 S.Ct. 652, 657 [94 L.Ed. 865] (1950) (“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”); Cf. Verba v. Ohio Casualty Ins. Co., 851 F.2d 811, 815 (6th Cir.1988) (judgment creditor’s specific judicial lien on real estate is constitutionally protected within the meaning of the due process clause of the fifth amendment); 11 U.S.C. § 102(1). (Emphasis added.) In affirming this decision the Honorable Benjamin Gibson succinctly stated: Having reviewed the record and being otherwise advised in the premises, the court finds that the appellant did not meet the procedural requirements of title 11 United States Code § 365(d)(4) nor the substantive requirements of § 365(b)(1) with respect to the assumption of unexpired leases. In re Cybernetics Services, Inc., No. G89-30051 CA (W.D.Mich. July 6, 1989). The Debtor argues that the factual differences between Cybernetics and this case are such that Cybernetics may not apply. While the facts of
4334	test” that the Court must use to determine whether a settlement is fair, adequate and reasonable. Osher v. SCA Realty I, Inc., 945 F.Supp. 298, 303-04 (D.D.C.1996). Instead the Court must consider the facts and circumstances of the case, ascertain what factors are most relevant in the circumstances and exercise its discretion in deciding whether approval of the proposed settlement is fair. By far the most important factor is a comparison of the terms of the compromise or settlement with the likely recovery that plaintiffs would realize if the case went to trial. See Thomas v. Albright, 139 F.3d at 231 (“The court’s primary task is to evaluate the terms of the settlement in relation to the strength of plaintiffs’ case”); Isby v. Bayh, 75 F.3d 1191, 1199 (7th Cir.1996) (“the relative strength of plaintiffs’ case on the merits as compared to what the defendants offer by way of settlement, is the most important consideration”); Maywalt v. Parker and Parsley Petroleum Co., 67 F.3d 1072, 1079 (2nd Cir.1995) (“[t]he primary concern is with the substantive terms of the settlement: Basic to this is the need to compare the terms of the compromise with the likely rewards of litigation”) (internal citations and quotations omitted). Having carefully considered all of the objections that have been filed with the Court or expressed at the fairness hearing in relation to the strength of plaintiffs’ case, the Court concludes that the settlement is fair, adequate and reasonable and is not the product of collusion between
4824	reviewed by the district court is the decision of the ALJ. Eads v. Secretary of the Dept. Of Health & Human Serv., 983 F.2d 815, 816 (7th Cir.1993). A reviewing court may not decide facts anew, reweigh the evidence, or substitute its own judgment for that of the Commissioner. Knight v. Chater, 55 F.3d 309, 313 (7th Cir.1995). Judicial review is limited to determining whether the ALJ applied the correct legal standards in reaching its decision and whether there is substantial evidence in the record to support his findings. Scivally v. Sullivan, 966 F.2d 1070, 1075 (7th Cir.1992); 42 U.S .C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). The court may reverse the Commissioner’s decision only if the evidence “compels” reversal, not merely because the evidence supports a contrary decision. INS v. EliasZacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815 n. 1, 117 L.Ed.2d 38 (1992). The SSA gives a court the power to enter a judgment “affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). III. THE DECISION OF THE ALJ The ALJ found York was disabled from his date of onset, July 11, 1991, through December 23, 1993. (R. 13-22). She found York’s impairment was severe precluding him from returning to past work
1563	decision within 180 days, Mr. Pendleton brought suit in this Court alleging two counts of employment discrimination. Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(c) arguing, inter alia, that it has offered a legitimate, non-discriminatory explanation for Mr. Pendleton’s non-selection. The Court agrees. Accordingly, the Court GRANTS defendant’s motion for summary judgment. II. STANDARD OF REVIEW Under Rule 56, summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In deciding whether there is a disputed issue of material fact, the Court must draw all justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where the court finds that facts material to the outcome of the case are at issue, a ease may not be disposed of by summary judgment. Id. at 248,106 S.Ct. 2505. III. ANALYSIS Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions,
1515	Star Telegram, 5 E.B.C. 1193 (Arbit.1984), and Cuyamaca Meats, Inc. v. San Diego and Imperial Counties Butchers’and Food Employer’s Pension Trust Fund, 827 F.2d 491 (9th Cir.1987). Again, the court disagrees. The magistrate judge expressly addressed the factual differences in these decisions, and explained why, despite those differences, the legal analysis in each was persuasive and applicable to this case. The Fund turns next to 29 U.S.C. § 1392(c), arguing that the magis trate judge ignored the section’s “plain meaning.” “It is axiomatic that ‘[t]he starting point in every case involving construction of a statute is the language itself.’ ” Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S.Ct. 2297, 85 L.Ed.2d 692 (1985) (quoting Blue Chip Stamps v. Manor Drug Stores, 95 S.Ct. 1917, 421 U.S. 723, 756, 44 L.Ed.2d 539 (1975) (Powell, J., concurring)). In other words, the threshold question is whether the “language is clear and unambiguous.” 2a Norman J. Singer, Sutherland Statutory Construction § 46.01, at 121-22 (6th ed. 2000). The “plain meaning rule” has been articulated many ways. The court finds the following formulation helpful: What has come to known as the plain meaning rule has been given expression in a variety of ways. When the intention of the legislature is so apparent from the face of the statute that there can be no question as to its meaning, there is no room for construction. Id. at 118-19 (quoting Meeks v. West, 12 Vet.App. 352 (1999)). The Fund argues that the magistrate judge
2301	United States v. Richman (In re Talbot), 124 F.3d 1201, 1206 (10th Cir.1997). However, this court is bound by the factual findings of the bankruptcy court unless such findings are clearly erroneous. Securities Investor Protection Corp. v. Stellatos (In re Blinder, Robinson & Co.), 124 F.3d 1238, 1241 (10th Cir.1997); Richman, 124 F.3d at 1206. “A finding is clearly erroneous if it is unsupported by any facts of record or if the appellate court after reviewing all the evidence is left with the definite and firm belief that a mistake was made.” In re Smith, 195 B.R. 468, 470 n. 1 (D.Kan.1996). Thus, if there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous. In re Stanton, 136 B.R. 562, 563 (D.Kan.1992). In addition, “due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses.” Wittman v. Toll (In re Cordry), 149 B.R. 970, 974 (D.Kan.1993). II. Factual Background The debtor, dot, previously operated a chain of retail drugstores throughout the United States. Jerry Gaddis was a shareholder and officer of dot. On December 6, 1991, he acquired all of dot’s outstanding common stock from the other existing shareholders and became the company’s sole shareholder, officer and director. As an employee and officer of dot, Gaddis was paid $75,000.00 per year, plus a $25,000.00 bonus. At the time Gaddis acquired dot’s outstanding stock, dot was suffering from extreme financial difficulty. As of November 30, 1991,
1791	Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 607, 70 S.Ct. 854, 94 L.Ed. 1097 (1950). Under the doctrine of equivalents, a product can infringe an asserted patent claim if it includes parts that are equivalent to the limitations recited in the claim. If the accused product is missing an equivalent element to even one limitation recited in the asserted patent claim, it cannot infringe the claim under the doctrine of equivalents. AquaTex Indus., Inc. v. Techniche Solutions, 419 F.3d 1374, 1382 (Fed.Cir.2005). A claim limitation is present in an accused product under the doctrine of equivalents if the differences between the claim limitation and a comparable element of the accused product are insubstantial. Depuy Spine, Inc. v. Med-tronic Sofamor Danek, Inc., 469 F.3d 1005, 1017-18 (Fed.Cir.2006). In making that determination, the court examines whether the comparable element of the accused device “ ‘performs substantially the same function, in substantially the same way to obtain the same result’ as the claim limitation.” AquaTex Indus., Inc., 419 F.3d at 1382 (quoting Graver Tank & Mfg. Co., 339 U.S. at 608, 70 S.Ct. 854). Nonetheless, the doctrine of equivalents cannot be used to vitiate a claim limitation, nor can it expand a limitation to the point that it embraces a structure explicitly or implicitly excluded from the claim. Asyst Techs., Inc. v. Emtrak, Inc., 402 F.3d 1188, 1195 (Fed. Cir.2005). In the main, the parties do not dispute the meaning of the term “remov-ably supported.” Both parties agree that the
4523	809 F.2d 626, 630 (9th Cir.1987). Once the moving party establishes the absence of genuine disputes of material fact, 'the burden shifts to the nonmoving party to set forth facts showing a genuine dispute remains. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The nonmoving party cannot oppose a properly supported summary’ judgment motion by “resting] on mere allegations. or .denials of his pleadings.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. The party opposing summary judgment must also establish the admissibility of the evidence on which it relies. Orr v. Bank of America, NT & SA, 285 F.3d 285 F.3d 764, 773 (9th Cir.2002) (a court deciding summary judgment motion “can only consider admissible evidence”); see also Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1181 (9th Cir.1988) (“It is well settled that only admissible evidence may be considered by the trial court in ruling ón a motion for summary judgment.”); Fed. R. Civ. P. 56, 2010 Advisory Committee Notes (“The burden is on the proponent to show- that the material is admissible as presented or to explain the admissible form that is anticipated.”). ‘ When ruling on a summary judgment motion, the court must' view every inference drawn from the Underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 601, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court does not make credibility determinations with'respect to evidence offered. See T.W. Elec., 809 F.2d at
3732	Thurman Indus., Inc. v. Pay ‘N Pak Stores, Inc., 875 F.2d 1369, 1373 (9th Cir.1989) (internal citations omitted). Because whether a market is relevant is considered a factual issue, antirust claims will survive a motion to dismiss “unless it is apparent from the face of the complaint that the alleged market suffers a fatal legal defect” or is “facially unsustainable.” Newcal Industries, Inc. v. Ikon Office Solution, 513 F.3d 1038, 1044 (9th Cir.2008) (“There is no requirement that [the market definition and market power] elements of the antitrust claim be pled with specificity.”). A plaintiff must allege “injury to competition in the market as a whole, not merely injury to itself, as a competitor.” Gorlick Distribution Centers, LLC v. Car Sound Exhaust Sys., Inc., 723 F.3d 1019, 1024-25 (9th Cir.2013); see also Orchard Supply Hardware LLC v. Home Depot USA, Inc., 967 F.Supp.2d 1347, 1358 (N.D.Cal.2013). A plaintiff must also' identify the market by its constituent products. Newcal Industries, 513 F.3d at 1045 (complaint adequately identified the following product markets: (1) “replacement Copier Equipment for IKON and GE customers with Flexed IKON Contracts,” (2) “Copier Service for IKON and GE customers with Flexed IKON Contracts,” (3) “Copier Service for Canon and Ricoh brand' Copier Equipment,” and (4) “Copier Equipment.”). Here Plaintiff does not even identify which market it alleges that Defendant suppresses. As Defendant points out, Plaintiff alleged that Defendant’s actions “threatened” Plaintiff, creating a “reasonable apprehension” that Plaintiff will be subject to “ongoing threats of infringement suits”, FAC ¶
498	was upheld and found not to be against public policy). This Court is persuaded that the long term all-requirements contract which the REA and CFC required Southwestern and Soyland to enter into served as the primary security to ensure the repayment of the massive loans which the REA and CFC made to Soyland as well as to Southwestern. The defendant makes no attempt to assert that this contract is against public policy, and the Court finds that it is not. Moreover, requiring Southwestern and Soy-land to enter into the contract, as a method of securing their loans, was well within the power of the Administrator of the REA. 7 U.S.C. § 904. Ill — STANDING TO SUE The Supreme Court in Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) addressed the requirements of standing under Article III. The Court stated that “in essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Id. at 3325 (quoting Worth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)). Allen discussed the various elements of the complaint which are to be considered'in determining the existence of standing: A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief (citations omitted).... The injury must be, for example, “distinct and palpable,” ... and not “abstract” or “conjectural” or
2206	Pram’s invoice submitted with the petition how a number of the individuals he contacted or services he performed are related to the successful claims in this case. Therefore, I deduct $4351.32 from the costs associated with Prum. I did not deduct costs for delivery service, travel (parking and mileage), faxes, or postage. The City argues that these and other like items should be absorbed as part of overhead in the attorney’s reasonable hourly rate. However, identifiable, out-of-pocket costs such as these, which are normally billed separately to the client, “are not properly treated as overhead éxpenses for purposes of a fee award.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir.1998) (citing numerous cases); see also, e.g., West Virginia Univ. Hosps., Inc. v. Casey, 898 F.2d 357, 366 (3d Cir.1990) (finding that telephone and photocopying charges are not part of overhead and are allowable under 42 U.S.C. § 1988); International Woodworkers, Local 5-376 v. Champion Int’l Corp., 790 F.2d 1174, 1183 (5th Cir.1986) (Rubin, J., concurring and dissenting) (distinguishing general “office overhead and secretarial expense, normally paid by the attorney out of his fee,” from travel costs, long-distance telephone bills, consultant fees, and the like, “normally bill[ed] separately to the client” and awarded under § 1988). Finally, I also allow the $80 that plaintiffs requested for anticipated costs associated with this fee petition. IV. Effect of the Rule 68 Offer of Judgment Defendants’ offer of judgment pursuant to Fed.R.Civ.P. 68 does not affect the Court’s award of fees or costs
4578	a final adjudication of the issue in controversy.” Id. at 403, 60 S.Ct. 907. The Ninth Circuit ’ and other courts' subsequently went further, holding that when interests are sufficiently aligned, there may even be privity between “governmental authorities as public enforcers of ordinances and private parties suing for enforcement as private attorneys general.” In re Schim-mels, 127 F.3d 875, 881 (9th Cir.1997). In Sturgell, the Supreme Court reframed its precedent as “endeavoring] to delineate discrete exceptions [to the bar against nonparty preclusion] that apply in ‘limited circumstances.’ ” Sturgell, 553 U.S. at 888, 128 S.Ct. 2161. The parties in Melendres jointly stipulated to dismiss Maricopa County as “ ‘not ... necessary’ to obtain ‘complete relief.’” See (2:07-CV-02513-GMS, Doc. 178); Ortega Melendres v. Arpaio, 598 F.Supp.2d 1025, 1039 (D.Ariz.2009). But the stipulation was made before the Arizona Court of Appeals ruled on MCSO’s status as a non-jural entity. The stipulation was likely related to the County’s funding structure. Because Maricopa County funds MCSO, “[w]hether the County or the Sheriff is hable fe of no practical consequence ... they both lead to the same money.” Payne v. Arpaio, No. CV09-1195-PHX-NVW, 2009 WL 3756679, at *6 (D.Ariz. Nov. 4, 2009). MCSO is not a separate legal entity from the County. Braillard v. Maricopa County, 224 Ariz. 481, 232 P.3d 1263, 1269 (Ariz. Ct.App.2010). In its motion to dismiss in Melendres, Maricopa County called MCSO its political subdivision. (Doc. 355-1 at 20). Therefore, there is little doubt Mari-copa County would qualify for the
4191	1988, see 42 U.S.C.A. § 1997e(d). III. This appeal presents three issues. First, are the PLRA’s limitations on attorney’s fees applicable to juveniles incarcerated in juvenile facilities? Second, if applicable to juveniles, are the limitations applicable to fee awards for work performed, but not compensated, prior to the enactment of the PLRA? And third, do the PLRA’s limitations on at tomeys’ fees impose new standards for determining the appropriateness of a fee award in a prison conditions suit? We address these issues in turn. Although we generally review a district court’s award of attorney’s fees for an abuse of discretion, see Plyler v. Evatt, 902 F.2d 273, 277-78 (4th Cir.1990), we review the applicability of statutory amendments de novo, see United States v. Murphy, 35 F.3d 143, 145 (4th Cir.1994) (“Interpreting a statute is a legal issue that successive courts freely review, and hence our review is plenary.”). A. The State contends that the PLRA’s limitations on attorney’s fees apply to the district court’s award of attorney’s fees to the Plaintiffs arising from the Plaintiffs’ successful § 1983 action alleging unconstitutional conditions of confinement in South Carolina’s juvenile facilities. Section 1988 provides that “[i]n any action or proceeding to enforce a provision of section[ ] ... 1983 ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee.” 42 U.S.C.A. § 1988(b) (West Supp.1997). Therefore, § 1988 is the statutory mechanism under which Plaintiffs sought attorney’s fees before the district court. Section 803 of the
1656	under 28 U.S.C. §§ 1915A and 1915(e)(2). Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order). We affirm. The district court properly dismissed Garrett’s action because Garrett failed to allege facts sufficient to show that the deprivation of food resulted in any pain or injury to his health. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir.2010) (although pro se pleadings are to be liberally construed, a plaintiff still must present factual allegations sufficient to state a plausible claim for relief); Foster v. Runnels, 554 F.3d 807, 814 (9th Cir.2009) (“The sustained deprivation of food can be cruel and unusual punishment when it results in pain without any penological purpose.”); LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir.1993) (“The Eighth Amendment requires only that prisoners receive food that is adequate to maintain health.... ”). We reject Garrett’s contention concerning the three-strike law, 28 U.S.C. § 1915(g). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
580	Federal Rules of Civil Procedure, 28 U.S.C.A. In Cleo Syrup Corp. v. Coca-Cola Co., 8 Cir., 1943, 139 F.2d 416, at page 418, 150 A.L.R. 1056, certiorari denied 321 U.S. 781, 64 S.Ct. 638, 88 L.Ed. 1074, this court said: “In a non-jury case, this Court may not set aside a finding of fact of a trial court unless there is no substantial evidence to sustain it, unless it is against the clear weight of the evidence, or unless it was induced by an erroneous view of the law. Aetna Life Ins. Co. v. Kepler, 8 Cir., 116 F.2d 1, 4, 5; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 138 F.2d 197, 199; Travelers Mutual Casualty Co. v. Rector, supra [8 Cir., 138 F.2d 396]. * * * ” We have carefully examined the record in the light of the contentions of the defendant and must conclude that the trial court’s findings are based on substantial evidence, are not clearly erroneous, or induced by an erroneous view of the law and accordingly may not be set aside. In his exhaustive opinion, the able trial judge has with meticulous care commented on each of the defendant’s contentions. It would serve no good purpose for us to reiterate the trial court’s statements, which, as we have stated, are published and available, 160 F.Supp. 7. The judgment appealed from is affirmed. . “This contract .and agreement made and entered into this 15th day of March, 1954, by and between Charles F.
1450	have understood these consequences when they applied it to this Brobdingnagian package, the three-ton press. Their contract states their agreement. Having specified that the press was ‘One (1)’ package, they must abide by its meaning as a word of liability limitation.” 407 F. 2d at 156. In the instant ease as well, the parties must abide by the description of the items in the Bill of Lading which clearly specified “NO. OF PEGS — 6” so as to require limitation of liability. See also, Nichimen Company v. M.V. Farland, 462 F.2d 319, 335 (2d Cir. 1972), where the Court of Appeals again stated that “[w]hile the description on the bill of lading is not controlling, Middle East Agency, Inc. v. The John B. Waterman, 86 F.Supp. 487, 491 (S.D.N.Y. 1949), it is important evidence of the parties’ understanding, see Standard Electrica S.A. v. Hamburg Sudamerikanische Dampfschifffahrts-Gesellschaft, 375 F.2d 943, 946 (2d Cir.), cert. denied, 389 U.S. 831, 88 S.Ct. 97, 19 L.Ed.2d 89 (1967).” The Court also concludes that “some packaging preparation for transportation has been made [to the six circuit breakers] which facilitates handling;” i. e., the crating of the instrument panels. In reaching this conclusion, the Court is cognizant of the contrary holding of Gulf Italia Company v. American Export Lines, Inc., 263 F.2d 135 (2d Cir. 1959). Although never expressly overruled, it appears to this Court that the reasoning which lay behind the opinion of the Court in Gulf Italia, supra, has been substantially undercut by later
4602	prayer for relief is an improper “obey the law” injunction, which entitles him to summary judgment on all counts. The United States argues the Court has broad discretion to shape remedies and it “would be premature to determine the availability of any injunctive relief without first hearing the evidence in dispute.” (Doc. 350 at 17). Under the federal rules, “[e]very order granting an injunction and every restraining order must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail — and not by referring to the complaint or other document — the act or acts restrained or required.” Fed,R.Civ.P. 65(d). As such, “blanket injunctions to obey the law are disfavored.” Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F.Supp.2d 1197, 1226 (C.D.Cal. 2007) (quoting Mulcahy v. Cheetah Learning LLC, 386 F.3d 849, 852 n. 1 (8th Cir.2004)) (internal quotation marks omitted). But district courts have broad discretion to shape equitable remedies. See Monsanto Co. v. Geertson Seed Farms, 561 U.S, 139, 175, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010). When an appellate court finds a trial court abused its discretion by issuing an 'overly broad order, it may strike those provisions “dissociated from those [acts] which a defendant has committed.” N.L.R.B. v. Express Pub. Co., 312 U.S. 426, 435, 61 S.Ct. 693, 85 L.Ed. 930 (1941). See, e.g., S.E.C. v. Smyth, 420 F.3d 1225, 1233 (11th Cir.2005) (holding general “obey-the-law” injunctions unenforceable). The purpose of Rule 65(d) is to ensure defendants have, fair
2305	period of November 1, 1997 through July 31, 1998. With respect to all three applications, Gad-dis did not object to the amount of the fees, but rather objected to the payment of the fees, claiming the estate did not have sufficient funds to pay the fees. Gaddis argued the only funds in the estate were the $330,000.00 he claimed were his. On all three occasions, the bankruptcy court found good cause for granting the compensation applications and overruled Gaddis’s objection. A bankruptcy court has broad discretion in awarding fees and costs. In re Roberts, 75 B.R. 402, 412 (D.Utah.1987). The decision to award fees and costs will be reversed on appeal only if there was an abuse of discretion. In re Cascade Oil Co., 126 B.R. 99, 103 (D.Kan.1991). “Discretion is abused when the judge does not apply the proper legal standards, does not follow the proper procedures, or bases an award on findings of fact that are clearly erroneous.” Id. In light of the bankruptcy court’s broad discretion in determining whether to award special counsel fees, the court finds the bankruptcy court did not abuse that discretion. The bankruptcy court’s decision to award special counsel fees is therefore affirmed. IV. Conclusion For the reasons set forth above, the bankruptcy court’s finding that Gaddis fraudulently transferred $655,000.00 to himself from dot is affirmed; its finding that Gaddis’s counterclaim is barred by the doctrine of res judicata is reversed, and the court finds the money belongs to the bankruptcy estate; and
4407	suit and that are either in the plaintiffs’ possession or that the plaintiffs knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002). Matters of which judicial notice can be taken include press coverage establishing what information existed in the public domain during periods relevant to the plaintiffs’ claims. Staehr v. Hartford Fin. Serv. Grp., Inc., 547 F.3d 406, 425 (2d Cir.2008). The Court can also take judicial notice of public disclosure documents that must be filed with the Securities and Exchange Commission (“SEC”) and documents that both “bear on the adequacy” of SEC disclosures and are “public disclosure documents required by law.” Kramer v. Time Warner, Inc., 937 F.2d 767, 773-74 (2d Cir.1991). II. The following facts are undisputed or accepted as true for purposes of this motion. A. BoA is a Delaware company with its principal place of business in North Carolina. (SAC ¶ 23.) BoA underwrote “increasingly risky loans” to securitize and sell a significant number of MBS. (SAC ¶ 33.) BoA publicly disclosed that during 2004-2008, it and its subsidiaries originated, securitized, and sold nearly $2.1 trillion in MBS. (See Declaration of Newman A. Nahas in Supp. of Def.’s Mot. to Dismiss (“Nahas Decl.”) Ex. 1 (“Annual Report”) at 53-54.) BoA reported in February, 2011 that it had sold $963 billion in MBS to private parties from 2004 through 2008; however, the mortgages underlying $216 billion of that total were
4858	court has upheld determinations that claimants with moderate mental limitations are capable of doing simple unskilled work. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (upholding a denial of benefits where the ALJ found that a claimant with “moderate restrictions of his capacity to concentrate, interact with the public, and carry out detailed work instructions” was not disabled); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008) (the ALJ’s finding of moderate mental limitations was consistent with an RFC for simple, routine, and repetitive work). With-row’s reliance on the Program Operations Manual System (POMS) is misplaced, because POMS “does not impose judicially enforced duties on either this court or the ALJ.” Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
2093	policeman searched appellant’s wallet and reproduced with a photocopy machine several papers, including a piece of paper with several names and telephone numbers, then returned the originals to the wallet. The policeman sent the copies to an FBI agent, who checked on the information and determined that the paper constituted evidence that linked the appellant to a bank robbery. After his conviction, appellant argued that seizure of the list of names and phone numbers from his wallet was illegal, since it was “mere evidence of an unrelated crime.” The Court of Appeals rejected this argument, noting that the police had sufficient cause to believe that the evidence sought would aid in a particular apprehension or conviction. The Court relied on United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), noting that “the Supreme Court has made it increasingly clear that a lawful arrest justifies a special latitude of both search and seizure of things found on the arrestee’s person.” Id. at 32. The First Circuit continued: “[t]he breadth of the power of warrantless seizure in eases of search incident to lawful arrest is suggested by the concluding passage in Edwards, 415 U.S. at 808-09, 94 S.Ct. at 1239: In upholding this search and seizure, we do not conclude that the Warrant Clause of the Fourth Amendment is never applicable to postarrest seizures of the effects of an arrestee, (footnote omitted) But we do think that the Court of Appeals for the First Circuit captured the
2286	be overturned unless clearly erroneous. United States v. Nelson, 851 F.2d 976, 978 (7th Cir.1988). In Lawless, we held that “[wjhen information is transmitted to an attorney with the intent that the information will be transmitted to a third party ... such information is not confidential.” Lawless, 709 F.2d at 487. There, the defendant had provided information to be used in the preparation of an estate tax return. Apparently, some of the information transmitted to the attorney for this purpose never made it onto the return. We concluded, “[i]f the client transmitted the information so that it might be used on the tax return, such a transmission destroys any expectation of confidentiality which might have otherwise existed.” Id.; see also United States v. Windfelder, 790 F.2d 576 (7th Cir.1986). We also noted that “disclosure of tax information effectively waives the privilege ‘not only to the transmitted data but also as to the details underlying that information.’ ” Lawless, 709 F.2d at 488 (citation omitted). Here, the district court found that the information in the documents obtained by Mr. Center from the firm was not privileged. The court also noted that Mr. White had not asserted that any particular information or document was privileged. The court suggested that some of the information would not even fall into the category of client communications. When information is disclosed for the purpose of assembly into a bankruptcy petition and supporting schedules, there is no intent for the information to be held in confidence because
3364	31 F. Supp. at 616. In Friend v. H. A. Friend, supra, the defendant was enjoined from using the word “Friend” as a trademark except where preceded by his given name in letters of equal size and coupled with a parenthetical phrase “Not affiliated with H. A. Friend & Co. of Zion, Illinois.” 416 F.2d at 534. . Though the scope of the injunction prohibiting any infringement of trademark rights was not raised on appeal in Grotrian, Helfferich, Schulz, Th. Steinweg Nachf v. Steinway & Sons, 523 F.2d 1331 (2d Cir. 1975), we note that the district court there found that “the ancestral Grotrians candidly adopted the name Steinweg for the sole purpose of exploiting the Steinweg name in exporting pianos to English-speaking countries.” 365 F.Supp. 707 at 714 (emphasis added).
2789	they will suffer irreparable injury and that “the balance of hardships tips decidedly in [their] favor,” the requirement of showing a substantial probability of success on the merits is satisfied by raising “questions going to the merits so serious, substantial, difficult and doubtful as to make them a fair ground for litigation and thus for more deliberate inquiry.” Lundgrin, 619 F.2d at 63 (quoting Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 781-82 (10th Cir.1964)). Irreparable Injury 2. Mere threatened, speculative harm, without more, does not amount to irreparable injury for purposes of justifying preliminary injunctive relief such as that sought by plaintiffs. E.g., Mullis v. United States Bankruptcy Court, 828 F.2d 1385 (9th Cir.1987), appeal dismissed, cert. denied, 486 U.S. 1040, 108 S.Ct. 2031, 100 L.Ed.2d 616 (1988); Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (movant must show that irreparable injury is “both certain and great; it must be actual and not theoretical”). Unlike most cases alleging violations of NEPA, plaintiffs in this case do not assert the sort of environmental harm due to construction which is usually seen as irreparable. TOCDEF is already fully constructed, so all of Plaintiffs’ asserted irreparable harm in this case is related to the alleged health risks of incineration, due to either emissions from normal operations, or agent releases due to accidents. Dioxin exposure risks 3. The harm cited by plaintiffs resulting from increased dioxin exposure is based on extrapolations from conservative hypothetical scenarios used by the Utah
4688	Standard of Review “Where a Rule 12(c) motion asserts that a court lacks subject matter jurisdiction, the motion is governed by the same standard that applies to a Rule 12(b)(1) motion.” Xu v. City of New York, No. 08-CV-11339, 2010 WL 3060815, at *2 n. 2 (S.D.N.Y. Aug. 3, 2010); see also S.E.C. v. Rorech, 673 F.Supp.2d 217, 220 (S.D.N.Y.2009) (“The standards to be applied to a motion for judgment on the pleadings pursuant to Rule 12(c) are the same as those applied to a motion to dismiss pursuant to Rule 12(b).”). On a motion to dismiss pursuant to Rule 12(b)(1), a court must dismiss a claim if it “lacks the statutory or constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (internal quotation marks omitted), aff'd, 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). Additionally, the difference between a motion made under Rule 12(b)(1) and one made under Rule 12(h)(3) “is largely academic, and the same standards are applicable to both types of motions.” Greystone Bank v. Tavarez, No. 09-CV-5192, 2010 WL 3325203, at *1 (E.D.N.Y. Aug. 19, 2010). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005). In deciding a Rule 12 motion to dismiss, the Court “‘must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,’ ” Morrison, 547
1158	of his supervised release by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3); see also Johnson v. United States, 529 U.S. 694, 700, 120 S.Ct. 1795, 1800, 146 L.Ed.2d 727 (2000). Possession can be either actual or constructive. United States v. Faust, 456 F.3d 1342, 1345-46 (11th Cir.2006) (controlled substance), cert. denied, — U.S. -, 127 S.Ct. 615, 166 L.Ed.2d 456 (2006); United States v. Gunn, 369 F.3d 1229, 1235 (11th Cir.) (firearm possession), cert. denied, Cantillo v. U.S., 543 U.S. 937, 125 S.Ct. 324, 160 L.Ed.2d 244 (2004). Constructive possession need not be exclusive and “can be established by showing ownership or dominion and control over the drugs or over the premises on which the drugs are concealed.” United States v. Poole, 878 F.2d 1389, 1392 (11th Cir. 1989) (holding evidence sufficient to prove constructive possession where, although defendant did not have exclusive control over house where substance was found, she owned, exercised dominion, and control over the house). After reviewing the record, we conclude that the district court did not abuse its discretion by revoking Thompson’s supervised release. The evidence showed that authorities discovered a fanny pack, containing crack cocaine, and a firearm, in the driver’s seat of Thompson’s vehicle, shortly after he had been driving it in circumstances suggesting that he may have been involved in a drug deal. This evidence established that, more likely than not, Thompson constructively possessed the contraband. Thompson next argues that the district court failed to give adequate consideration to evidence
4648	statutes allowing expungement in particularized instances are not applicable here. Nevertheless, “federal courts have inherent authority to expunge criminal records in appropriate and extraordinary cases.” Id. at 793. District courts, however, do not “have the power ‘to expunge a record of a valid arrest and conviction solely for equitable considerations.’ ” Id. (quoting United States v. Sumner, 226 F.3d 1005, 1014 (9th Cir.2000)). If a person who has been lawfully convicted wishes to expunge the records of conviction, that person must first obtain a judgment that the conviction was unlawful. Id. However, “even where a conviction has been held unlawful and vacated, expungement remains a ‘narrow, extraordinary exception,’ one ‘appropriately used only in extreme circumstances.’ ” Id. at 795 (quoting United States v. Smith, 940 F.2d 395, 396 (9th Cir.1991) (per curiam)). As the Ninth Circuit explained in Crowell: Once a petitioner has succeeded in getting her conviction vacated, a district court may then determine whether the petitioner has asserted circumstances extraordinary and unusual enough that would merit expungement of her criminal judicial records. We underscore what our cases have clearly held: even where a conviction has been held unlawful and vacated, expungement remains a “narrow, extraordinary exception,” one “appropriately used only in extreme circumstances.” Crowell, 374 F.3d at 796 (citation and footnote omitted). The government’s interest in protecting criminal records may be outweighed only under “extraordinary circumstances.” Smith, 940 F.2d at 396. In United States v. Payne, 1998 WL 426135 (D.Or.1998), the Honorable Helen J. Frye of this Court
3087	Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Nevertheless, where, as here, all federal claims warrant dismissal prior to trial, the district court should decline to exercise supplemental jurisdiction. It has been stated that the holding in Gibbs “seems to clearly require dismissal without action on the merits and without any exercise of discretion if all the federal claims ... are found to be short of trial, deficient.” Snowden v. Millinocket Regional Hosp., 727 F.Supp. 701, 709 (D.Me.1990). Such a result is warranted in view that “[t]he power of a federal court to hear and to determine state-law claims in non-diversity cases depends upon the presence of at least one ‘substantial’ federal claim in the law suit.” Newman v. Burgin, 930 F.2d 955, 963 (1st Cir.1991). Although District Courts are not obliged to dismiss pendent state law claims, in the usual case in which all federal law claims are dismissed before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness and comity-will point toward declining to exercise jurisdiction over the remaining state law claims. In such a case, state-law claims should be dismissed. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 5, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); citing Gibbs, 383 U.S. at 726-27, 86 S.Ct. 1130; see also Mercado-Garcia v. Ponce Federal Bank, 979 F.2d 890, 896 (1st Cir.1992); Rivera v. Murphy, 979 F.2d 259, 264 (1st Cir.1992); Figueroa Ruiz v. Alegria, 896 F.2d 645 (1st
276	Because of my ruling that the officers are entitled to summary judgment on plaintiffs false arrest, malicious prosecution, abuse of process, and fair trial claims, it is unnecessary to address the defense of qualified immunity. IV. Municipal Liability Defendant City of New York moves under Rule 12(c) for judgment on plaintiffs municipal liability claim under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization’s failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006). Because I have determined above that plaintiff has not established any underlying constitutional violations, his Monell claims are dismissed. V. Supplemental Jurisdiction for State Law Claims Federal courts may exercise supplemental jurisdiction when the state and federal claims are part of “a common nucleus of operative fact.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). When retaining jurisdiction over a state claim, a court must consider “the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction.” Carnegie—Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). Plaintiffs federal and state law claims are part of the common nucleus
3535	their individual capacities for their official conduct so long as that conduct is objectively reasonable and does not violate clearly-established federal rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (citations omitted). Qualified immunity is necessary to “protect[] the public from unwarranted timidity on the part of public officials” and to avoid “dampen[ing] the ardour of all but the most resolute, or the most irresponsible.” Richardson v. McKnight, 521 U.S. 399, 408, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) (citation and internal quotation marks omitted). True to these purposes, the qualified immunity standard “ ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 343, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). “Moreover, because ‘[t]he entitlement is an immunity from suit rather than a mere defense to liability,’ we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter, 502 U.S. at 227, 112 S.Ct. 534 (citation deleted) (emphasis in original). Qualified immunity, however, is a defense available only to government officials sued in their individual capacities. It is not available to those sued only in their official capacities. Eng v. Cooley, 552 F.3d 1062, 1064 n. 1 (9th Cir.2009); Kentucky v. Graham, 473 U.S. 159, 165-68, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).
3397	to determine all questions of its own membership, as a political entity.” [249 F.2d 920.] Plaintiff’s statement of her claim plainly discloses that it is one entirely between plaintiff and the tribe, and has no relation to Federal statutes except insofar as they might apply if the tribe recognizes and designates her as a member. “Whether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute * * *» must be determined from what necessarily appears in the plaintiff’s statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Taylor v. Anderson, 234 U.S. 74, 75, 34 S.Ct. 724, 58 L. Ed. 1218. Affirmed. . 28 U.S.C.A. § 1331 reads: “The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States.” The action was filed prior to the amendment of this section, . Martinez v. Southern Ute Tribe of Southern Ute Reservation, 10 Cir., 249 F.2d 915, certiorari denied 356 U.S. 960, 78 S.Ct. 998, 2 U.Ed.2d 1067. . Section 162 was repealed in 1938 and Section 162a, which dealt with the same subject matter, was passed. Act of June 24, 1938, Oh. 648, § 1, 52 Stat. 1037.
3017	become the functional equivalent of a direct taking. Ultimately, the Court’s regulations-are-different principle rests on the Confusion of two dates: the time an injury occurs and the time a claim for compensation for that injury becomes cognizable in a judicial proceeding. That we require plaintiffs making the claim that a regulation is the equivalent of a taking to go through certain prelitigation procedures to clarify the scope of the allegedly infringing regulation does not mean that the injury did not occur before those procedures were completed. To the contrary, whenever the relevant local bodies construe their regulations, their construction is assumed to reflect “what the [regulation] meant before as well as after the decision giving rise to that construction.” Rivers v. Roadway Express, Inc., 511 U. S. 298, 312-318 (1994). This point is the subject of significant dispute, as the State of Rhode Island has presented substantial evidence that limitations on coastal development have always precluded or limited schemes such as Palazzolo’s. See Brief for Respondents 11-12, 41-46. Nonetheless, we must assume that it is true for the purposes of deciding this question. Likewise, we must assume for the purposes of deciding the discrete threshold questions before us that petitioner’s complaint states a potentially valid regulatory takings claim. Nonetheless, for the sake of clarity it is worth emphasizing that, on my view, even a newly adopted regulation that diminishes the value of property does not produce a significant Takings Clause issue if it (1) is generally applicable and (2) is
2393	extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination, the cumulative effect of which is a dominant tendency to appeal to prurient interest, when the appeal to such interest is primarily for its own sake or for commercial exploitation, rather than for a genuine scientific, educational, sociological, moral, or artistic purpose.” Ohio Rev. Code Ann. § 2905.34 (Supp. 1972), now Ohio Rev. Code Ann. § 2907.01 (1975). It is my view that “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (Brennan, J., dissenting). It is clear that, when tested by that constitutional standard, § 2905.34, is unconstitutionally over-broad and therefore facially invalid. For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973), suppression of any materials whatever on the basis of the definition of obscenity in § 2905.34 is, in my view, impermissible. Because the judgment of the District Court was rendered after Miller, I would reverse.
4710	be dismissed. B. Rule 56 Motion 1. Standard of Review Summary judgment shall be granted where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgmént as a matter of law.” Fed. R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir.2014) (same). “In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (internal quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cnty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314 (S.D.N.Y.2014) (same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004); see also Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at *2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would’ fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.”
2538	514, 522 (6th Cir.2006) (brackets and internal quotation marks omitted), cert. denied, — U.S. -, 127 S.Ct. 2886, 167 L.Ed.2d 1153 (2007). The Copyright Act provides that in civil suits the district court, in its discretion, may award costs, including reasonable attorneys’ fees, to the prevailing party. 17 U.S.C. § 505. This discretion must be exercised in an evenhanded manner with respect to prevailing plaintiffs and prevailing defendants, and in a manner consistent with the primary purposes of the Copyright Act. Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). The grant of fees and costs “is the rule rather than the exception and [they] should be awarded routinely.” Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 380 (5th Cir.2004); see also Thoroughbred Software Int’l, Inc. v. Dice Corp., 488 F.3d 352, 362 (6th Cir.2007) (same). Rejecting both a “dual standard” under which a prevailing defendant is required to show frivolousness or bad faith and the “British Rule” of automatic recovery of attorneys’ fees and costs by the prevailing party, the Fogerty Court explained: “There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the considerations we have identified.” 510 U.S. at 534, 114 S.Ct. 1023 (internal quotation marks and citation omitted). The Court approved several nonexclusive factors to weigh when considering a request for fees and costs, including “frivolousness, motivation, objective unreasonableness (both in the factual and legal
3970	"the right to ask for a second opinion,"" not that it is “required ” to. Moreover, the cited deposition testimony does not even concern the issue. . On July 12, 1995 — six days after Kariotis was terminated — Kariotis’ doctor wrote a letter to Goldie claiming that Navistar’s position that Ka-riotis had committed disability fraud was ""inaccurate” and “preposterous.” . As stressed by the Seventh Circuit, no federal law ""requires just cause for discharges.” Pollard v. Rea Magnet Wire Co., Inc., 824 F.2d 557, 558 (7th Cir.1987), cert. denied, 484 U.S. 977, 108 S.Ct. 488, 98 L.Ed.2d 486 (1987). . Kariotis concedes that disability fraud qualifies as ""gross misconduct” for purposes of § 1163(2). . See, Burke v. Am. Stores Employee Benefit Plan, 818 F.Supp. 1131, 1137 (N.D.Ill.1993) (“[T]he inquiry into the propriety of an employer’s determination should be limited to the evidence which was available to the employer at the time of the employee's termination.”). . Neither party has addressed the ERISA preemption issue. . It should be noted that the negligent infliction of emotional distress claim may likely be preempted by the Illinois Human Rights Act (“IHRA”). Several judges in this district have held that if the state tort claim is “inextricably linked” to the underlying discrimination claim, the claim falls within the exclusive jurisdiction of the Illinois Human Rights Commission and thus is preempted hy the IHRA. For a discussion of this issue, see Daulo v. Commonwealth Edison, 938 F.Supp. 1388, 1404-05 (N.D.Ill.1996)."
1126	"Ry. Express Agency, Inc., 421 U.S. 454, 460, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). . The Letter Agreement provides that ""[i]f any term or provision of this letter agreement ... to any extent be invalid or unenforceable, the remainder of this letter agreement ... shall not be affected hereby, and each term and provision of the letter agreement shall be valid and enforceable to the fullest extent permitted by law.” Pinel Aff. Ex. B, at 9. . In Great Western Mortgage Co. v. Peacock, the Third Circuit held that “[t]he availability of punitive damages is not relevant to the nature of the forum in which the complaint will be heard. Thus, availability of punitive damages cannot enter into a decision to compel arbitration,” 110 F.3d 222, 232 (3d Cir. 1997), However, Great Western does not prevent a court from severing provisions in arbitration clauses that contravene federal statutes and controlling case law. See Spinetti, 324 F.3d at 216 n. 1 (3d Cir.2003)."
4802	of a person in the Fourth Amendment sense, even where there is no formal arrest. The legality of such a seizure depends not upon whether there was probable cause to make an arrest, but upon whether there was a violation of the general proscription against unreasonable searches and seizures. Terry, at 20, 88 S.Ct. 1868. In determining whether such a seizure is “unreasonable,” the judicial inquiry “ * * * is a dual one — -whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, at 19-20, 88 S.Ct. at 1879. The Terry Court also called attention to the observation in Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), that there is “no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.” In Terry the Court also announced this general test: « * *- * jn justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880. Applying these considerations to the circumstances concerning the April 24, 1970 stopping and interrogation of defendants, we conclude that the action of the police officers on that occasion was reasonable and hence not violative
2174	that [district] courts set forth hour-by-hour analyses of fee requests.’ ” United States v. Metropolitan Dist. Comm’n, 847 F.2d 12, 16 (1st Cir.1988) (alteration in original) (quoting Jacobs v. Mancuso, 825 F.2d 559, 562 (1st Cir.1987)). “[A]t a bare minimum,” however, the trial court’s fee determination “must expose [its] thought process and show the method and manner underlying its decisional calculus,” Coutin, 124 F.3d at 337 (citing cases), “especially ... when the fee award departs substantially from the contours shaped by the application,” id. I. Calculating the Lodestar The lodestar approach “contemplates judicial ascertainment of ‘the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate’ as the starting point in constructing a fee award.” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Though the prevailing party is under an obligation to submit a request for fees that includes its calculations of hours expended multiplied by a requested hourly rate, the Court “has a right — indeed, a duty — ‘to see whether counsel substantially exceeded the bounds of reasonable effort.’ ” Metropolitan Dist. Comm’n, 847 F.2d at 17 (quoting Pilkington v. Bevilacqua, 632 F.2d 922, 925 (1st Cir.1980)). “[T]he [attorney’s] bill need not be swallowed whole by the client’s litigation adversary just because it is the [attorney’s] bill.” Id. The. Court, then, must engage in a thoughtful analysis of the number of hours expended and the hourly rates charged to ensure that both are reasonable. In this
1307	of herein” originated at Sallie Mae headquarters in the District of Columbia). Both Zahara and Batiste allege the fraud began in late 2004. Zahara Complaint ¶¶ 18, 31; Batiste Complaint ¶ 16. Zahara alleges the fraud ended at his subsidiary in June 2005. Zahara Complaint ¶ 29. Batiste alleges the fraud was still continuing at his subsidiary at the time of the complaint. Batiste Complaint ¶ 16. Putting aside how Batiste might know the fraud continued through the date he filed his complaint, given that he had not worked at SLM for two years at that point, these temporal differences are immaterial, especially since both complaints allege almost exactly the same starting date. See United States ex rel. Branch Consultants v. Allstate Ins. Co., 560 F.3d 371, 378 (5th Cir.2009) (“[A] relator cannot avoid § 3730(b)(5)’s first-to-file bar by simply adding factual details or geographic locations to the essential or material elements of a fraud claim against the same defendant described in a prior complaint.”). If the government investigated the facts alleged in Zahara’s complaint on a nationwide basis, it would discover continuing fraud in the New Jersey offices, as well as the completed fraud in the Nevada offices, if such fraud existed. Finally, Zahara and Batiste broadly allege that the same fraudulent activities occurred at each of their offices, for the same reasons, and that similar SLM corporate policies promoted the fraudulent behavior. They both allege SLM fraudulently increased its profits and promoted its standing with the Department of
3583	he be restored to equivalent benefits. Whether the City of Omaha required Mr. Chubb to take paid annual or sick leave is unclear from the record. Omaha’s form for requesting FMLA leave asks employees to select either paid sick leave or annual leave to run concurrently with FMLA leave and states that employees “may not use unpaid leave until all paid leave is exhausted.” But a letter sent to Mr. Chubb after he filed his request promised that Omaha would “not require that [Mr. Chubb] substitute accrued paid leave for unpaid FMLA leave.” Because Mr. Chubb appeals from the grant of summary judgment, “we view the facts ... in the light most favorable to [him].” Kraft v. St. John Lutheran Church of Seward, Neb., 414 F.3d 943, 945 (8th Cir.2005). Therefore we will assume without deciding that Omaha required Mr. Chubb to substitute paid leave for FMLA leave. Mr. Chubb’s contention nonetheless fails. Omaha permitted Mr. Chubb to take either paid sick leave or paid annual leave concurrently with his FMLA leave, and had Mr. Chubb chosen annual leave rather than sick leave he would not have forfeited his annual leave bonus. Thus, by electing paid sick leave he voluntarily ceded his claim to the annual leave bonus. And even if Mr. Chubb had no paid annual leave remaining when he took FMLA leave (we cannot tell from the record), the FMLA allows Omaha to require that Mr. Chubb substitute paid sick leave for FMLA leave, see 29 U.S.C. §
4752	"the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? Later Supreme Court opinions indicate that the four factors set forth in Cort are ""guides to discerning [Congressional] intent."" Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988). See also Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979) (“the first three factors discussed in Cort — the language and focus of the statute, its legislative history, and its purpose — are ones traditionally relied upon in determining legislative intent”); Miller v. United States, 710 F.2d 656, 667 (10th Cir.), cert. denied, 464 U.S. 939, 104 S.Ct. 352, 78 L.Ed.2d 316 (1983) (“Subsequent formulation and refinement of the Cort criteria have indicated that a Congressional intent to create or deny the private remedy asserted is the weightiest factor.”). . MountainWest Financial argues that an implied federal right of action ought to be found to exist in Section 471 because in Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979), the Supreme Court found an implied private action. The statute at issue in Transamerica was Section 215 of the Investment Advisors Act of 1940, which provides that contracts whose formation or performance would violate the act ""shall be void” as to the violator and"
4179	this right is not without limits; a “police officer’s use of force is unconstitutional if, judging from the totality of circumstances at the time of the arrest, the officer used greater force than was reasonably necessary to make the arrest.” Payne v. Pauley, 337 F.3d 767, 778 (7th Cir. 2003) (citation and quotation marks omitted). Fourth Amendment unreasonable seizure claims, like excessive force claims, are analyzed in light of the totality of the circumstances to determine the objective reasonableness of the seizure. To determine the reasonableness and therefore the constitutionality of a seizure, courts must “balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Tennessee v. Garner, 471 U.S. 1, 8-9, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (citation and quotation marks omitted). In considering this balance, whether under an excessive force or unreasonable seizure claim, the court considers the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of others, and whether the suspect was actively resisting arrest or attempting to evade arrest by flight. Gra ham, 490 U.S. at 396, 109 S.Ct. 1865. When considering this balance, the court views the circumstances “from the perspective of a reasonable officer on the scene.” Id. The alleged excessive force and unreasonable seizure consists of the initial traffic stop, Officers Zotz pointing a gun toward the crowded backseat and ordering the Plaintiffs to show their hands as
3708	or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). As explained in Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir.2004): In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the. challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. “If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of jurisdiction contained in the. complaint are insufficient on their face to demonstrate the existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made.” Cervantez v. Sullivan, 719 F.Supp. 899, 903 (E.D.Cal.1989), rev’d on other grounds, 963 F.2d 229 (9th Cir.1992). “The factual, allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Id.; see also Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1052 n. 2 (9th Cir.2009), rev’d on other grounds en banc, 616 F.3d 1019 (9th Cir.2010) (applying Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), to a facial motion to dismiss for lack of subject matter jurisdiction). V. ANALYSIS A. Whether Plaintiff Has Standing to Bring Its Inventorship Claim Plaintiffs tenth cause of action seeks a declaratory judgment stating that Lininger is a co-inventor of patents
1694	contends that SG Cowen had a fiduciary duty to him because it was a stockbroker with whom he deposited funds (Comply 11). A fiduciary relationship exists under New York law “ ‘when one [person] is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation.’ ” Mandelblatt v. Devon Stores, Inc., 132 A.D.2d 162, 168, 521 N.Y.S.2d 672, 676 (1987) (citation omitted). Under ordinary circumstances, a broker owes no fiduciary duties to a purchaser of securities, see Perl v. Smith Barney Inc., 230 A.D.2d 664, 666, 646 N.Y.S.2d 678, 680 (N.Y.App.Div.1996), except those duties necessarily attendant to the “narrow task of consummating the transaction requested.” Press v. Chemical Inv. Servs. Corp., 166 F.3d 529, 536 (2d Cir.1999) (citations omitted). The complaint alleges that May Davis had direct contact with Rozsa and coordinated the opening and use of the account at SG Cowen. (CompLIffl 12, 13, 15, 16.) Assuming these facts to be true, May Davis was functioning as an “introducing broker,” which but needed the assistance of a third party, or “clearing broker,” to settle and complete the investor’s transactions. See In re Adler Coleman Clearing Corp., 198 B.R. 70, 73 (Bkrtcy.S.D.N.Y. 1996); Katz v. Financial Clearing & Services Corp., 794 F.Supp. 88, 90 (S.D.N.Y. 1992). As Rozsa’s agent, May Davis may well have assumed a fiduciary relationship with Rozsa in connection with the agreed upon transaction. See Press v. Chemical Investment Services Corp., 166 F.3d 529,
1376	the parties. United States v. CBS, Inc., 666 F.2d 364, 369 (9th Cir. 1982) (internal quotation marks omitted). In general, it is rare for a court to disallow the taking of a deposition. See Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (“strong showing is required before a party will be denied entirely the right to take a deposition”); see also Apple Inc. v. Samsung Electronics Co., 282 F.R.D. 259, 263 (N.D. Cal. 2012) (“it is very unusual for a court to prohibit the taking of a deposition altogether absent extraordinary circumstances”). In general, under Rule 26 “the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” Phillips v. GMC, 307 F.3d 1206, 1210-1211 (9th Cir. 2002). However, when an apex deposition is at issue, courts are inconsistent as to whether the party resisting the discovery or the party seeking to depose the high-ranking official bears the burden related to whether the deposition should go forward. See In re Transpacific Passenger Air Transportation Antitrust Litig., 2014 WL 939287, at *2 (N.D. Cal. Mar. 6, 2014). IV. “Apex” Depositions The deposition of a high-level official or executive, often referred to as an “apex” deposition, may be precluded by the Court under Rule 26(e) where the discovery sought “can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Apple Inc. v. Samsung Electronics Co., Ltd., 282 F.R.D. 259, 263 (N.D. Cal. 2012).
1271	defamation claim failed because it was based solely on inadmissible hearsay evidence. The hearsay evidence in question consisted of statements allegedly made to Nichols by Valerie Brittingham, an Allen’s employee. According to Nichols, Brittingham told Nichols that, in the wake of Nichols’s altercation with Whiteman, Raymond Miller, the manager of human resources for Allen’s Harbeson plant, was “telling everybody” that Nichols had caused the altercation and that Nichols was incapable of doing her job. ER 49. Brittingham also allegedly stated that Miller was “a racist.” ER 49. In deposition testimony, Brittingham stated that she did not recall the conversation and denied making the statements. II. “We exercise plenary review over the District Court’s grant of summary judgment.” See In re Flat Glass Antitrust Litig., 385 F.3d 350, 356 n. 6 (3d Cir.2004). “!W]e review the district court’s decisions to admit or exclude evidence for abuse of discretion, although our review is plenary as to the interpretation or application of a legal standard underlying such a decision.” Id. at 372 (internal quotation marks omitted). III. In support of her argument that the District Court erred in granting summary judgment, Nichols claims: (1) that the District Court erroneously applied the summary judgment standard because it “failed to construe the facts in a light most favorable to Plaintiff! ], and ... erroneously determined that certain disputed facts were immaterial”; (2) that the District Court erroneously excluded Nichols’s account of Valerie Brittingham’s statements from the summary judgment record on hearsay grounds; and (3) that
4350	from a list of names submitted by the parties. See Consent Decree at U 12(a). The Monitor is removable only for “good cause.” A number of objections also noted that the original proposed Consent Decree appeared to prevent the Court from exercising jurisdiction in the event that the USDA did not comply with the terms of the decree. The law is clear that the Court retains jurisdiction to enforce the terms of the Consent Decree. See Spallone v. United States, 493 U.S. 265, 276, 110 S.Ct. 625, 107 L.Ed.2d 644 (1990); Beckett v. Air Line Pilots Ass’n, 995 F.2d 280, 286 (D.C.Cir.1993) (principle is well-established that trial court “retains jurisdiction to enforce consent decrees and settlement agreements”); Twelve John Does v. District of Columbia, 855 F.2d 874, 876 (D.C.Cir.1988) (in action to enforce terms of consent decree, district court “unquestionably had power to hold the District of Columbia in civil contempt for violations of the consent decree”). The parties also have clarified that the Court retains jurisdiction to enforce the terms of the Decree. D. Absence of Provisions Preventing Future Discrimination The stated purpose of the Consent Decree is to “ensur[e] that in their dealings with the USDA, all class members receive full and fair treatment that is the same as the treatment accorded to similarly situated white persons.” Consent Decree at 2. The Consent Decree does not, however, provide any forward-looking injunctive relief. It does not require the USDA to take any steps to ensure that county commissioners who
4598	the “voluntary cessation” exception to mootness doctrine applies, maintaining this claim’s justiciability. In order for a case to be justicia-ble, “[t]he plaintiff must show that, he ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged official conduct and the injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’” City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (citations omitted). “It - is well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.’ ” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citation omitted). A case only becomes moot in the context ,of a voluntary cessation, “if subsequent events [make] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. (citing United States v. Concentrated Phosphate Export Ass’n., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)) (emphasis added). “[A] voluntary governmental cessation of possibly wrongful conduct [may be treated] with some solicitude.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009). But courts warn the solicitude should only be applied where the- “self-correction ... appears genuine.” Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir.1988). Arpaio does not contest that he and MCSO
2602	presumption of reliance in omissions cases involves “the difficulty of proving reliance on the negative.” Harvard Note, supra, 88 Harv.L. Rev. at 590; Blackie v. Barrack, supra, 524 F.2d at 908. Although proof of reliance on a representation that was made may be easier than proof of reliance on a representation that was not made, the burden of proof in the former case would be carried by a simple affirmation of reliance. A presumption of reliance from the materiality of a misrepresentation makes sense because it “is more straightforward than requiring an empty pleading and proof, or playing word games with nondisclosure.” 3 A. Bromberg, Securities Law § 8.6(2), at 212 (1971). Contra, Harvard Note, supra, 88 Harv.L.Rev. at 589; cf. Holdsworth v. Strong, 545 F.2d 687, 695 (10 Cir. 1976) (en banc), cert. denied, 430 U.S. 955, 97 S.Ct. 1600, 51 L.Ed.2d 805 (1977). Reliance must still be proved, and the presumption from materiality simply establishes another means to prove it. This presumption of reliance does not necessarily mean that common issues of reliance predominate because the presumption is rebuttable. Blackie v. Barrack, supra, 524 F.2d at 906 n. 22. If it seems likely that a substantial number of investors did not rely despite the presumption, the individual questions would predominate. See Arthur Young & Co. v. United States District Court, supra, 549 F.2d at 683 n. 10 and 695. However, there is no reason to believe that a significant number of CIS clients failed to act like reasonable
4712	the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004); see also Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at *2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would’ fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir.2013) (alterations and internal quotation marks omitted). Further, “[t]o survive a [summary judgment] motion ..., [a nonmovant] need[s] to create more than a ‘metaphysical’ possibility that his allegations were correct; he need[s] to ‘come forward with specific facts 'showing that there is a genuine issue for trial,’ ” Wrobel v. Cnty. of Erie, 692 F.3d 22, 30 (2d Cir.2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), and “cannot rely on the mere allegations or denials contained in the pleadings,” Walker v. City of New York, No. 11-CV-2941, 2014 WL 1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted) > (citing, inter aha, Wright
2638	a criminal case is entitled to indictment by a grand jury and trial before a traverse jury from which Negroes have not been arbitrarily and systematically excluded. A conviction cannot stand where such is established for it constitutes a denial of due process and of the equal protection of the laws.” The burden of proof is on the-person attacking selection procedure to show “the existence of purposeful discrimination” by the exclusion of Negroes on account of race from jury participation. Whitus v. State of Georgia, supra; Fay v. People of State of New York, 332 U.S. 261, 285, 67 S.Ct. 1613, 1626, 91 L.Ed. 2043 (1947). Purposeful discrimination may not be assumed or merely asserted, it must be proven. Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). “When Negro representation on venire lists is not extremely disproportionate to the Negro population in the parish [county], the burden may be a heavy one.” Labat v. Bennett, 5 Cir., 1966, 365 F.2d 698, 712. However, juries must be drawn from a fair cross section of the community. Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ; Thiel v. Southern Pac. Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); Scott v. Walker, 5 Cir., 1966, 358 F.2d 561, 564. The jury must, therefore, be “drawn from a pool of persons broadly representative
1239	employees, the possibility remain[ed] that the doctrine [would] be available” to the plaintiff in state court). Thus, Defendants have failed to show that no possibility exists that a New York court would find RBCCMC liable for breach of contract because it manifested an intent to be bound. D. Attorneys’ Fees “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). “Assessment of costs and fees against the removing defendants is within the court’s discretion and does not require a finding of bad faith or frivolity.” Kupersteien, 457 F.Supp.2d at 472 (footnote omitted); see also Morgan Guar. Trust Co. of New York v. Republic of Palau, 971 F.2d 917, 923-24 (2d Cir.1992) (stating that § 1447(c) “affords a great deal of discretion and flexibility to the district courts in fashioning awards of costs and fees”). “Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005); see also Kuperstein, 457 F.Supp.2d at 472 (stating that courts have awarded costs when “defendants ... failed to establish a reasonable basis for removal,” but that the “mere fact that the defendant fail[ed] to carry his burden” does not justify an award) (internal quotation marks and
1224	their right to remove when the jurisdictional details are omitted or misstated in a pleading. See Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 694 (9th Cir.2005) (“[O]nly where an initial pleading reveals a ground for removal will the defendant be bound to file a notice of removal within 30 days. Where, however, such details are obscured or omitted, or indeed misstated, that circumstance makes the case stated by the initial pleading not removable, and the defendant will have 30 days from the revelation of grounds for removal .... to file its notice of removal.” (quoting Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir.1997)) (emphasis and quotation marks omitted)); In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 399 F.Supp.2d 356, 364 (S.D.N.Y.2005) (“When a case is removable, but the grounds in the initial complaint are obscured, omitted, or misstated, a defendant has thirty days from the revelation of grounds for removal to file a notice of removal.” (internal quotation marks, footnote and citation omitted)). In other words, Defendants are not required to guess at the potential basis for removability. See Casale v. Metro. Transp. Auth., No. 05-CV-4232, 2005 WL 3466405, at *4 (S.D.N.Y. Dec. 19, 2005) (noting that “defendants need not embark on an investigation to discover jurisdictional facts outside the four corners of the pleading”); In re MTBE, 399 F.Supp.2d at 363 (stating that the intelligently ascertainable standard “does not require a defendant to look beyond the initial pleading for facts.... Nor
4134	to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages. N.Y. C.P.L.R. § 1411 (West 2009). Assumption of the risk is either express or implied. “Express assumption of the risk ... [is defined as] an ‘agreement in advance that defendant need not use reasonable care for the benefit of plaintiff and would not be liable for the consequence of conduct that would otherwise be negligent.’ ” Integrated Waste Services, Inc. v. Akzo Nobel Salt, Inc., 113 F.3d 296, 301 (2d Cir.1997). “Implied assumption of the risk may exist when a plaintiff voluntarily encounters a risk emanating from a defendant’s conduct with a full understanding of the possible harm to himself and unreasonably consents to the risk under the circumstances.” Furey v. U.S., 458 F.Supp.2d 48, 55 (N.D.N.Y.2006). In the case at bar, Dockery has shown that he was not aware of the existence of the wall and drop-off behind his tent. Consequently, assumption of the risk, as set forth in Fur&y, does not apply here. “[P]laintiffs owe themselves a duty ‘to recognize obvious hazards and exercise the appropriate level of caution.’ ” Furey at 55. “When they fail to do so, New York’s comparative negligence statute splits liability between plaintiffs and
3458	125 S.Ct. at 756-69. Booker rendered the sentencing guidelines advisory; it did not strike them down in their entirety. Id. C. Due Process Consideration. Lastly, Lister argues that the district court’s finding on relevant conduct violated his right to due process because it was predicated on the unreliable testimony of Gosha and Sims. We begin by noting that “a defendant has a due process right to be sentenced on the basis of accurate information.” United States v. Townsend, 73 F.3d 747, 751 (7th Cir.1996). This right is generally satisfied when the facts in question are found by a preponderance of the evidence using information that has a “sufficient indicia of reliability to support its probable accuracy.” Id. at 751-52 (citing United States v. Salinas, 62 F.3d 855, 859 (7th Cir.1995)); United States v. Ewers, 54 F.3d 419, 421 (7th Cir.1995) (internal quotation marks omitted). We review a district court’s findings of fact regarding the quantity of drugs considered as rele vant conduct for clear error. United States v. Beler, 20 F.3d 1428, 1431 (7th Cir.1994). Contrary to Lister’s contention, the district court based its finding of relevant conduct primarily on the admission of Lister himself. The district judge weighed the facts as presented in Lister’s PSIR statement against his attorney’s unsupported argument at the sentencing hearing and found the contested relevant conduct by a preponderance of the evidence. In this evidentiary evaluation, the district court reviewed and compared Lister’s specific statements regarding dates, relevant transactions, monies paid, and the delegation
34	Frontier; moreover, the jurisdictional error, if any, in entering judgment after the Order to Show Cause does not appear to be “egregious.” The Superintendent argues, however, that insurance regulation should be an exception to the general rule that state courts are powerless to restrain federal courts sitting in diversity jurisdiction : “Congress has evinced a strong federal policy in favor of deferring to state regula tion of insolvent insurance companies as reflected in the McCarran-Ferguson Act and the express exclusion of insurance companies from the federal Bankruptcy Code.” Munich American Reinsurance Co. v. Crawford, 141 F.3d 585, 595 (5th Cir.1998) (emphasis added). He further points out that because “insurance regulation has long been recognized as an area of traditional state concern,” Gross v. Weingarten, 217 F.3d 208, 223 (4th Cir.2000), federal courts routinely confront the conflict between their exercise of federal jurisdiction and state laws establishing exclusive claims proceedings for insurance insolvencies. Federal courts normally manage this conflict by exercising Burford abstention to avoid interfering with state rehabilitation proceedings. Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). Although Burford abstention is generally considered the exception rather than the rule, the insurance insolvency context presents the classic example of the doctrine’s goal of preventing “needless conflict with state policy.” Burford, 319 U.S. at 327, 63 S.Ct. 1098. We can certainly agree that, had the Superintendent timely moved the district court to dismiss or stay this action on Burford grounds, it would have been proper,
548	natural-born subjects or others.... [I]t would be wholly incompatible with the equality and exclusiveness of the sovereignty of all nations, that any one nation should be at liberty to regulate either persons or things not within its own territory.”); Letter from Thomas Jefferson, Secretary of State, to Gouverneur Morris, United States Minister to France (Aug. 16, 1793), reprinted in 1 American State Papers: Foreign Relations 167, 169 (photo, reprint 1998) (1833) (“Every nation has, of natural right, entirely and exclusively, all the jurisdiction which may be rightfully exercised in the territory it occupies. If it cedes any portion of that jurisdiction to judges appointed by another nation, the limits of their power must depend on the instrument of cession.”); see also In re Ross, 140 U.S. 453, 464, 11 S.Ct. 897, 35 L.Ed. 581 (1891) (“When ... the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other.”); 26 Op. Att’y Gen. 12, 14 (1906) (“It can not be supposed that the makers of the Constitution would undertake, by their mere fíat, to confer upon Congress exclusive legislative power , over a portion of a foreign country, nor is it probable that they were contemplating the erection of permanent forts and arsenals in foreign countries.”). Accordingly, when the First Congress spoke of lands under the “sole and exclusive jurisdiction of the
1005	not explicitly involve their patent but, as the arbitration panel found, in function substituted for the failure to obtain a license, must be considered in light of the parties’ intent to forge a “win-win” partnership and the Goldwassers’ choice to rely on TiVo’s good faith rather than to protect themselves through guaranteed minimum payments, guaranteed conduct, or other contractual devices. Without the ability to recover the equivalent of a royalty from TiVo’s litigation that arose because TiVo failed to obtain a license agreement, the Goldwassers’ “entitlement to royalties would be subject to forces completely beyond their control.” J.A. 418. Accordingly, we cannot conclude that the arbitrators, who are “often selected for expertise in the commercial aspect of the dispute,” Goldman v. Architectural Iron Co., 306 F.3d 1214, 1216 (2d Cir.2002), came to a commercially absurd result. 8. Fundamental Fairness TiVo argues that vacatur was warranted because the arbitration panel deprived it of a fundamentally fair hearing pursuant to 9 U.S.C. § 10(a)(3) by relying on the implied covenant of good faith and fair dealing, despite the Goldwassers not advancing that theory. Specifically, TiVo contends that, without notice that the decision could be based on this theory of recovery, it was unable to place relevant evidence into the record and to argue against this resolution. See Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir.1997) (stating that evidence exclusion under § 10(a) not erroneous unless viola-tive of “fundamental fairness”). We are not persuaded. The panel reasoned that implicit
2901	status quo has the ultimate burden of proving his allegations are true. See Joseph A. Bass Co. v. United States, 340 F.2d 842, 844 (8th Cir.1965) (“[i]t is fundamental that the burden of proof * * * rests upon the party who, as determined by the pleadings or the nature of the case, asserts the affirmative of an issue”). Since a Chapter 13 plan that meets the requirements of section 1325(a) would be confirmed absent the objections of the creditor, the creditor has, at minimum, “the initial burden of producing satisfactory evidence to support the contention that the debtor is not applying all of his disposable income” to the plan payments. In re Fries, 68 B.R. 676, 685 (Bkrtcy.E.D.Pa.1986); see also In re Mendenhall, 54 B.R. 44, 45-46 (Bkrtcy.W.D. Ark.1985). EAC presented no evidence to support its claim that Zellner overestimated his expenses. The record shows that Zellner is about fifty-one years old and has a wife and two young children. He requires daily insulin shots for his diabetes. He has glaucoma, a mild heart condition, and has been hospitalized for back problems. The bankruptcy court also found EAC’s evidence on the likelihood or amount of future raises or tax refunds to be speculative. We cannot conclude that the bankruptcy court’s determination of projected income was clearly erroneous. If, in the future, EAC can show a substantial change in Zellner’s ability to pay, it may request modification of the plan. See 11 U.S.C. § 1329(a) (1982 & Supp. II 1984).
3058	S.Ct. 2505, 91 L.Ed.2d 202(1986); NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28 (1st Cir.1994). “The principal judicial inquiry required by Rule 56 is whether a genuine issue of material fact exists.” Charles A. Wright, Aurthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: CM 3d § 2725, p. 401. In this regard, the First Circuit Court of Appeals has noted that for a dispute to be “genuine,” there must be sufficient evidence to permit a reasonable trier of fact to resolve the issue in favor of the non-moving party. U.S. v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992); see also Boston Athletic Assn. v. Sullivan, 867 F.2d 22, 24 (1st Cir.1989); Medinar-Muñoz v. R.J. Reynolds Tobacco, 896 F.2d 5, 8 (1st Cir.1990) (“A ‘genuine’ issue is one that must be decided at trial because the evidence, viewed in the light most favorable to the nonmovant, would permit a rational factfinder to resolve the issue in favor of either party.”) (citations omitted). By like token, “material” means that the fact is one that might affect the outcome of the suit under the governing law. Morris v. Government Development Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.1994). “A fact is material if it tends to resolve any of the issues that have been properly raised by the parties.” Wright, Miller & Kane, supra, § 2725 at p. 419. “Not every genuine factual conflict necessitates a trial. It is only when a disputed
3894	and is controlled by Bankruptcy Rule 9014. Bankruptcy Rule 6006(a). To seek to assume a lease, the request must be made by filing a motion. Bankruptcy Rule 9014. A motion filed to assume a lease “shall state with particularity the grounds therefore, and shall set forth the relief or order sought.” Bankruptcy Rule 9013. When a motion is made to assume an unexpired lease “the court shall set a hearing on notice to the other party to the contract [lease] and to other parties in interest as the court may direct.” Bankruptcy Rule 6006(c). The assumption procedure mandated by applicable bankruptcy rules recognizes and protects the due process rights of a lessor and other affected entities. Mullane v. Central Hanover Bank and Trust Company, 339 U.S. 306, 314, 70 S.Ct. 652, 657 [94 L.Ed. 865] (1950) (“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”); Cf. Verba v. Ohio Casualty Ins. Co., 851 F.2d 811, 815 (6th Cir.1988) (judgment creditor’s specific judicial lien on real estate is constitutionally protected within the meaning of the due process clause of the fifth amendment); 11 U.S.C. § 102(1). (Emphasis added.) In affirming this decision the Honorable Benjamin Gibson succinctly stated: Having reviewed the record and being otherwise advised in the premises, the court finds that the appellant did not
426	use income to pay its current operating expenses and the administrative expenses of the proceeding, we find no support for appellees’ claim that § 502(b)(2) is intended to provide the debt- or, a regulated public utility, an unfettered right, vis-a-vis Louisiana consumers, to build up money to give to its undersecured and unsecured creditors. Appellees’ assertion that Cajun is entitled to a “breathing spell” to help it reorganize is more properly based on the automatic stay provision of 11 U.S.C. § 362. See Commonwealth Oil Refining Co., 805 F.2d at 1182 (“The purpose of the automatic stay is to give the debtor a ‘breathing spell’ from his creditors, and also, to protect creditors by preventing a race for the debtor’s assets.”); Browning v. Navarro, 743 F.2d 1069, 1083 (5th Cir.1984) (“The automatic stay is intended to give ‘the debtor a breathing spell from his creditors.’ ”) (quoting S. Rep. No. 95-989, at 54-55 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5840-41; H.R. Rep. No. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6297). Under § 362(a), the fling of a bankruptcy petition operates as a stay of the commencement or continuation of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the bankruptcy proceeding. Congress has explicitly provided an exception to the automatic stay, however, for “the commencement or continuation of an action or proceeding by a governmental unit ... to enforce such governmental unit’s ... police
2036	medical evidence that was favorable to the veteran. On remand, in evaluating the evidence for purposes of readjudication in accordance with this opinion, the Board must explain carefully its conclusions as to the applicability of the benefit-of-the-doubt rule as to each material issue in the case, including the questions whether, according to medical evidence, the corroborated, frequent rocket-and-mortar-attack stressor was a contributing basis for the veteran’s current PTSD symptoms; and, if not, whether the veteran served in combat; whether the asserted landing stressor is corroborated by any further ESG report or other evidence; and whether, according to the medical evidence, the landing stressor if found to have occurred was a contributory basis for the veteran’s current PTSD symptoms. See Williams, supra; Sheets v. Derwinski, 2 Vet.App. 512, 516 (1992); O’Hare v. Derwinski 1 Vet.App. 365, 367 (1991); see also Fletcher v. Derwinski 1 Vet.App. 394, 397 (1991) (“[a] remand is meant to entail a critical examination of the justification of the decision” and is not “merely for the purposes of rewriting the opinion so it will superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C. § 7104(d)(1)”). Also, because the Court holds that the undisputed diagnosis of PTSD by the three mental-health professionals established on the facts of this case, as a matter of law, a current PTSD disability, which necessarily includes the sufficiency of the alleged stressors (although not necessarily their occurrence), the changes brought about in the PTSD diagnostic criteria by VA’s adoption, in 38 C.F.R.
4527	and based upon the immigration-related operations at issue in Melendres; (2) the federal government has unique interests which warrant providing it with its own enforcement mechanism for the types of. reforms and controls in the Melendres injunction; (3) Arpaio appealed the scope of the-Melendres injunction; and (4) the Melendres injunction is years away from full implementation, . Mootness doctrine prevents courts from ruling “when the issues presented are no longer live and therefor the parties lack á cognizable interest for which the-courts can grant a remedy.” Alaska Ctr. For Envt v. U.S. Forest Serv., 189 F.3d 851, 854 (9th Cir.1999). “The party asserting mootness bears the burden of establishing that there is no effective relief that the court can provide.” Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir.2006). And “[t]hat burden is ‘heavy’; a case is not moot where any effective relief may be granted.” Id. “Partial .relief in another proceeding cannot moot an action that legitimately seeks additional relief.” Flagstaff Med. Ctr., Inc. v. Sullivan, 962 F.2d 879, 885 (9th Cir. 1992). As a general principle, “the government is- not bound by private litigation when the government’s action seeks to enforce a federal statute that implicates both public and private interests.’’ ' California v. IntelliGender, LLC, 771 F.3d 1169, 1177 (9th Cir.2014) (internal quotation marks and citation omitted). See also Hathom v. Lovom, 457 U.S. 255, 268 n. 23, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982); City of Richmond v. United States, 422 U.S. 358, 373 n.
4079	believe that all of the standards for admission of Lanier’s statements to Hasse under Rule 404(b) have been met and that the District Court did not abuse its discretion. At trial, Lanier raised the defense of lack of knowledge or intent to do wrong. Lanier’s statements to Hasse during the interview are relevant to the issues of knowledge and plan because they reveal Lanier’s version of his relationship with McLane, as well as his relationship with Havard. Further, Lanier’s other acts with regard to Havard are similar in kind to those crimes with which he was charged, and took place during the time period in which the indictment alleged that Lanier and the other defendants carried out the scheme. See United States v. Gustafson, 728 F.2d 1078, 1083 (8th Cir.) (evidence of wrongdoing “similar in kind and reasonably close in time to the charge at trial” was clear and convincing), cert. denied, 469 U.S. 979, 105 S.Ct. 380, 83 L.Ed.2d 315 (1984). The judgment of the District Court is affirmed. . The Honorable Morris S. Arnold, United States District Judge for the Western District of Arkansas. Lanier’s appeal was originally presented to us consolidated with the appeal of Danny McLane. McLane, who was convicted with Lanier of fraud in interstate commerce, mail fraud, and aiding and abetting, has withdrawn his appeal. . Fed.R.Evid. 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
2794	when an initial EIS is prepared. Regulations promulgated by the Council on Environmental Quality require that an EIS be supplemented when an agency makes substantial changes to the project or when there are significant new circumstances or information relevant to the project and its impacts. 40 C.F.R. §§ 1502.9(c)(l)(i) and (ii). In this case, although the facility which was the subject of the original EIS has already been constructed, the daily operation of TOCDF will itself constitute a “major federal action” that would require a supplemental EIS if “new information is sufficient to show that the remaining action will ‘affect the quality of the human environment’ in a significant manner or to a significant extent not already considered.” Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 374, 109 S.Ct. 1851, 1859,104 L.Ed.2d 377. In order to provide a means for documenting the agency’s evaluation of the significance of new information or changes made to a project in situations where such information or changes have been “adequately assessed in existing documents and determined not to be environmentally significant,” the Army has promulgated regulations which provide for the preparation of a REC. 32 C.F.R. § 651.14(a). 9. Plaintiffs challenge the weight to be given to the Army’s July 13,1996 REC, questioning both the adequacy and the sincerity of the review found in the REC. According to plaintiffs, the timing of the REC makes it suspect. The REC is based on an attached report which was apparently completed one day before its
2059	Supplemental Security Income payments. While our review of the District Court’s order affirming the denial of benefits is plenary, we may reverse the Commissioner’s decision only if we conclude that the decision of the Administrative Law Judge (“ALJ”) is not supported by substantial evidence. Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir.1984); 42 U.S.C. § 405(g). As we write only for the parties involved, we will not restate the evidence below. The testimony of a vocational expert in response to hypotheticals posed by the ALJ may be relied upon, but “[wjhere there exists in the record medically undisputed evidence of specific impairments not included in a hypothetical question to a vocational expert, the expert’s response is not considered substantial evidence.” Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir.2002). The hypothetical posed by the ALJ asked the vocational expert to assume an age of 42, a high school education, and a lack of relevant work experience. With respect to claimant’s residual functional capacity (“RFC”), the hypothetical assumed a capacity for light work that is simple and repetitive in nature, not requir ing more than incidental interaction with the public, and not requiring the emersion of her hands in fluids or constant fine manipulation with her hands. AR-97. Claimant does not contest the findings related to her exertional impairments. Rather, she contests that the posited capacity to perform “simple and repetitive” tasks not requiring more than incidental interaction with the public does not reasonably encompass the scope of her limited
443	of appeal was not timely filed. The district court entered judgment in favor of defendants on January 5, 2010. Mr. Gardner’s notice of appeal was due on February 4, 2010, but he did not file his notice until February 16. On March 5, he filed a motion for an extension of time to file his appeal, which the district court granted. See 28 U.S.C. § 2107(c) (“The district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause.”); Fed. R.App. P. 4(a)(5)(A) (same). The district court’s order validated the earlier notice of appeal. See Hinton v. City of Elwood, 997 F.2d 774, 778 (10th Cir.1993) (“[W]e believe that Rule 4(a)(5) permits the district court’s approval of a timely motion to extend to validate a prior notice of appeal.”). Accordingly, we conclude we have jurisdiction to consider this appeal. III. Mr. Gardner alleged that his employer discriminated against him by subjecting him to a barrage of reprimands, creating a hostile work environment and constructively discharging him. These allegations all arose out of the negative reviews of his store from September 2006 to February 2007. The district court first addressed Mr. Gardner’s race discrimination claim, which it considered in three parts: disparate treatment, constructive discharge, and hostile work environment. The district court concluded that Mr. Gardner had not established a prima facie case of discrimination because he
4581	cause in making law enforcement decisions.” Id. at 898. These findings clearly show a “pattern or practice.” The discrimination found by the Melendres court was not of an isolated or accidental nature, but rather of standard operating procedure throughout MCSO. The United States has thus satisfied all of the elements , for proving a portion of Count One: violations of § 14141. However, the United States admits Count One is based not only on the pattern of -discriminatory conduct found in Melendres, but also on “three other patterns or practices of unlawful conduct.” (Doc. 332 at 9). Thus, any injunctive relief the Court ultimately. grants will be based only on conduct it has. found violated, the law. . See Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105, 1116 (9th Cir.2012) (“Courts should not enjoin conduct that has not been found to violate any law.”). Therefore, in order to obtain the full and greater relief it seeks under Count One, including for allegations not decided in Melendres (namely a pattern or practice of discrimination in workplace raids, home raids, and jail operations), the United States will have the burden of proving those allegations at trial. ii. Count Three Count .Three alleges violations of Title VI and its implementing regulations based on Arpaio and MCSO’s disparate, impact and disparate treatment of Latinos and the office’s receipt of federal .financial assistance. Title VI and its implementing regulations prohibit discrimination against any person on the basis of race, color, or national origin under “any
3092	doctrine-judicial economy, convenience, fairness and comity-will point toward declining to exercise jurisdiction over the remaining state law claims. In such a case, state-law claims should be dismissed. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 5, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); citing Gibbs, 383 U.S. at 726-27, 86 S.Ct. 1130; see also Mercado-Garcia v. Ponce Federal Bank, 979 F.2d 890, 896 (1st Cir.1992); Rivera v. Murphy, 979 F.2d 259, 264 (1st Cir.1992); Figueroa Ruiz v. Alegria, 896 F.2d 645 (1st Cir.1990); cf. Vega v. Kodak Caribbean, 3 F.3d 476, 478 (1st Cir.1993) (holding that “when the district court disposed of the ADEA claims, the pendent claims became subject to dismissal for want of subject matter jurisdiction”); Feinstein v. Resolution Trust Corp., 942 F.2d 34, 47 (1st Cir.1991) (stating that “since federal question jurisdiction hinged on that [dismissed] count, and there was no complete diversity of citizenship or other cognizable basis for the assertion of subject matter jurisdiction in the district court, the pendent state law claims were properly dismissed under the rule of United Mine Workers v. Gibbs ”). Supplemental jurisdiction should be declined in this case in view that the state law claims substantially predominate over the federal claims. The Supreme Court has held that judicial economy, convenience, fairness and comity favors “a decision to relinquish jurisdiction when state issues predominate, whether in terms of proof, of the scope of the issues raised, or the comprehensiveness of the remedy sought.” Carnegie-Mellon, 484 U.S. at 350 n.
817	employer and that Cow Country Equipment had fewer than 15 employees, thus rendering Title VII inapplicable. See 42 U.S.C. § 2000e(b). II. Discussion A. Summary Judgment Standard Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Summary judgment is not “a disfavored procedural shortcut, but rather ... an integral part of the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On summary judgment, the evidence is “viewed in the light most favorable to the non-moving party.” True v. Nebraska, 612 F.3d 676, 679 (8th Cir.2010). A party opposing a properly made and supported motion for summary judgment must cite to particular materials in the record supporting the assertion that a fact is genuinely disputed. Fed.R.Civ.P. 56(c)(1); Adam v. Stonebridge Life Ins. Co., 612 F.3d 967, 971 (8th Cir.2010). B. Legal Question Presented Defendant’s motion for summary judgment turns on whether Nelson’s employer had fewer than 15 employees. Ace Steel, including its Cow Country Equipment “subsidiary,” had more than 15 employees throughout the time of Nelson’s employment, but fewer than 15 of those worked in the segment of the business that Defendant calls Cow Country Equipment. Cow Country Equipment is not a separate legal entity from Ace Steel, but is a fictitious name registered by Ace
2164	as well as several tables categorizing other entries and summarizing the City’s many objections to the petition. In addition, the City has offered affidavits from two Boston-area attorneys to challenge the reasonableness of Attorney Hernandez’s hourly rate. DISCUSSION Under 42 U.S.C. § 1988, this Court has the discretion to “allow the prevailing party [in a civil rights action] ... a reasonable attorney’s fee as part of the costs” to which that party is normally entitled under Fed.R.Civ.P. 54(d). 42 U.S.C. § 1988(b). The parties agree that plaintiffs satisfy the relatively low threshold required to qualify for “prevailing party” status. See, e.g., Farrar v. Hobby, 506 U.S. 103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989); Williams v. Hanover Hous. Auth., 113 F.3d 1294, 1299 (1st Cir.1997). “However, the fact that [plaintiffs] were the prevailing parties does not mean that they can recover for all the time spent in this litigation.” Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94,102 (1st Cir.1988). Instead, the Court calculates a reasonable fee award using the lodestar method, which is “the strongly preferred method by which district courts should determine what fees to award prevailing parties” under ,§ 1988. Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 337 (1st Cir.1997) (citing Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.1992)). To arrive at a reasonable award, the Court “must evaluate the data submitted by
1514	to appreciate critical differences between the facts of this case and those in ITU Pension Plan and Ft. Worth Star Telegram, 5 E.B.C. 1193 (Arbit.1984), and Cuyamaca Meats, Inc. v. San Diego and Imperial Counties Butchers’and Food Employer’s Pension Trust Fund, 827 F.2d 491 (9th Cir.1987). Again, the court disagrees. The magistrate judge expressly addressed the factual differences in these decisions, and explained why, despite those differences, the legal analysis in each was persuasive and applicable to this case. The Fund turns next to 29 U.S.C. § 1392(c), arguing that the magis trate judge ignored the section’s “plain meaning.” “It is axiomatic that ‘[t]he starting point in every case involving construction of a statute is the language itself.’ ” Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S.Ct. 2297, 85 L.Ed.2d 692 (1985) (quoting Blue Chip Stamps v. Manor Drug Stores, 95 S.Ct. 1917, 421 U.S. 723, 756, 44 L.Ed.2d 539 (1975) (Powell, J., concurring)). In other words, the threshold question is whether the “language is clear and unambiguous.” 2a Norman J. Singer, Sutherland Statutory Construction § 46.01, at 121-22 (6th ed. 2000). The “plain meaning rule” has been articulated many ways. The court finds the following formulation helpful: What has come to known as the plain meaning rule has been given expression in a variety of ways. When the intention of the legislature is so apparent from the face of the statute that there can be no question as to its meaning, there is no room for
1233	joinder issue, the court is permitted to look beyond the pleadings to resolve this jurisdictional question.”); Sherman v. A.J. Pegno Constr. Corp., 528 F.Supp.2d 320, 327 n. 10 (S.D.N.Y.2007) (stating that the court is permitted to look beyond the pleadings to resolve jurisdictional question of fraudulent joinder); Arseneault, 2002 WL 472256, at *6 (considering “deposition testimony and other material outside of the pleadings” in analyzing fraudulent joinder claim). In fraudulent joinder cases, “[p]ost-removal filings may not be considered, however, when or to the extent that they present new causes of action or theories not raised in the controlling petition filed in state court.” Griggs v. State Farm Lloyds, 181 F.3d 694, 700 (5th Cir.1999); see also Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 263 (5th Cir. 1995) (stating that although the court could consider affidavits or deposition testimony in analyzing fraudulent joinder claim, the court should not use such evidence to “determine whether a claim has been stated against the nondiverse defendant under a legal theory not alleged in the state court complaint”); Lovell v. United Airlines, Inc., No. 09-CV-146, 2009 WL 3172729, at *3 (D.Haw.2009) (stating that in evaluating fraudulent joinder, “the court may consider the plaintiffs factual assertions (whether in a brief, an affidavit, or in some other form), that elaborate on the allegations of the complaint, so long as those factual assertions are not inconsistent with the allegations of the complaint” (quoting Conk v. Richards & O’Neil, LLP, 77 F.Supp.2d 956, 961 (S.D.Ind.1999)));
1181	first factor, the relative strength of plaintiffs’ case on the merits as compared to what the defendants offer by way of settlement, is the most important consideration. Taifa, 846 F.Supp. at 726. The district court stated its firm belief that plaintiffs’ chances for success at trial on the merits were relatively low when compared to what defendants offered in the agreed entry. Id. In support of this belief, the district court noted that one of plaintiffs’ “principal concerns” was the assignment of prisoners to the MCC as part of a classification process rather than as the outcome of disciplinary proceedings which afford due process protections. As evidence that plaintiffs’ prospects on this issue were not favorable, the district court relied on King v. Fairman, 997 F.2d 259, 262 n. 4 (7th Cir.1993), in which we cited Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), for the proposition that “an inmate has no liberty interest in confinement at any particular state prison and that prison officials may effect discretionary transfers of an inmate without implicating the due process clause, even if the conditions at one prison are substantially worse than another.” Taifa, 846 F.Supp. at 726-27. See also Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, (1976). All of these decisions were recognized by the district court as undermining plaintiffs’ chances of success on the merits. Taifa,
4003	limitations are present in the accused device, either literally or by a substantial equivalent. See Johnson Worldwide Assocs. v. Zebco Corp., 175 F.3d 985, 988 (Fed.Cir.1999). To show literal infringement of a patent, a patentee must supply sufficient evidence to prove that the accused product meets every element or limitation of a claim. See Lemelson v. United States, 752 F.2d 1538, 1551 (Fed.Cir.1985) (“It is ... well settled that each element of a claim is material and essential, and that in order for a court to find infringement, the plaintiff must show the presence of every element ... in the accused device.”). If, however, even one limitation is not met, then the product does not literally infringe. Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000); Zodiac Pool Care, Inc. v. Hoffinger Indus., Inc., 206 F.3d 1408, 1415 (Fed.Cir.2000). 1. The Elements of Claim 1 of the '833 Patent a. Placing Floating Craft Having a Hull with an Upwardly Curved Bow onto a Dry Dock This court’s previous conclusion that the Ultra permits the placing of a floating craft having a hull with an upwardly curved bow onto a dry dock was not altered by the Federal Circuit’s opinion and the court sees no basis to reconsider it here. b. Plurality of Floatation Units Pursuant to the Federal Circuit’s opinion, the term “floatation unit,” is construed to mean an “airtight, hollow, individual structural constituent of a whole which is buoyed on water.” Considering that this court has
4652	a district court’s grant of summary judgment. Int’l Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir.2006). Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). In considering a motion for summary judgment, the district court must construe all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review the denial of a motion for sanctions for an abuse of discretion. United States v. Allen, 516 F.3d 364, 374 (6th Cir.2008). B. Wrongful termination claim Piona alleges that UPS wrongfully discharged him in violation of public policy. Ohio has traditionally adhered to the employment-at-will doctrine, which permits an employer to terminate an at-will employment relationship “for any cause, at any time whatsoever, even if done in gross or reckless disregard of [an] employee’s rights.” Painter v. Graley, 70 Ohio St.3d 377, 639 N.E.2d 51, 55 (1994) (citations and internal quotation marks omitted). But in Greeley v. Miami Valley Maintenance Contractors, Inc., 49 Ohio St.3d 228, 551 N.E.2d 981, 987 (1990), the Ohio
2462	... motion for summary judgment — as opposed to a motion to dismiss — [] mere allegations of injury are insufficient. Rather, a plaintiff must establish that there exists no genuine issue of material fact as to justiciability or the merits.”); Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (“Since [the elements of standing] are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”) (citations omitted). A. Standing The question of standing “involves constitutional limitations of federal court jurisdiction.” Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). “To satisfy the case or controversy requirement of Article III, which is the irreducible constitutional minimum of standing, a plaintiff must, generally speaking, demonstrate that he has suffered injury in fact, that the injury is fairly traceable to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.” Id. “In addition to constitutional requirements, standing also involves prudential limits on the exercise of federal jurisdiction.” Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031, 1036 (8th Cir.2002) (citing Bennett, 520 U.S. at 162,117 S.Ct. 1154). Constitutional standing “assures that the legal questions presented to
4713	nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir.2013) (alterations and internal quotation marks omitted). Further, “[t]o survive a [summary judgment] motion ..., [a nonmovant] need[s] to create more than a ‘metaphysical’ possibility that his allegations were correct; he need[s] to ‘come forward with specific facts 'showing that there is a genuine issue for trial,’ ” Wrobel v. Cnty. of Erie, 692 F.3d 22, 30 (2d Cir.2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), and “cannot rely on the mere allegations or denials contained in the pleadings,” Walker v. City of New York, No. 11-CV-2941, 2014 WL 1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted) > (citing, inter aha, Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009) (“When a motion for summary judgment is properly supported by documents or other evidentiary materials, thé party opposing summary judgment may not merely rest on the allegations or denials of his pleading....”)). “On a motion for summary judgment, a fact is material if it might affect the outcome of the
3445	945, 948 (7th Cir.2001). Normally, a defendant’s plea of guilty is evidence of his having accepted responsibility. United States v. Bothun, 424 F.3d 582, 586 (7th Cir.2005) (citing application note to U.S.S.G. § 3E1.1). Furthermore, the application note to Sentencing Guideline 3E1.1 allows the defendant to “remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection.” U.S.S.G. § 3E1.1, cmt. n.l(a). But where a defendant “falsely denies, or frivolously contests, relevant conduct that the court determines to be true” he may be found to have acted in a “manner inconsistent with acceptance of responsibility.” Id.; United States v. Purchess, 107 F.3d 1261, 1264 n. 1 (7th Cir.1997); United States v. Booker, 248 F.3d 683, 689-91 (7th Cir.2001) (holding defendant who pleaded guilty but challenged PSIR’s findings on drug quantity was properly denied acceptance of responsibility (additionally, we note that this Booker is not the same Booker that successfully appealed his case to the Supreme Court in 2004)). For defendant to properly contest findings presented in a PSIR they need to do more than simply deny the information presented. Purchess, 107 F.3d at 1267-68 (citing United States v. Taylor, 72 F.3d 533, 547 (7th Cir.1995)). Instead, they must present evidence. See id. Furthermore, defendants may not circumvent this barrier by using their attorney to make the challenges. Id. at 1268-69. Frivolous challenges and denials made by one’s attorney also place a deduction for acceptance of responsibility at risk.
4886	to the jury, producing reversible error. We find this argument to be without merit. We do detect strains of impatience, if not irascibility, in the district court’s manner during this exchange. However, we cannot say that plaintiffs were substantially prejudiced as a result. As we recently have stated, the fact “that a judge may have exhibited a bit of ire or manifested some impatience at times” is, without more, an insufficient basis for finding prejudice. United States v. Devin, 918 F.2d 280, 294 (1st Cir.1990) (“ ‘Though we expect a trial judge to be sensitive to the judicial role and to exercise restraint, we have no right to anticipate that he will function as ... [a] bloodless automaton.’ ”) (quoting United States v. Polito, 856 F.2d 414, 418 (1st Cir.1988)). “In the last analysis, litigants are entitled to a fair trial, but not necessarily a perfect or a monochromatic one.” Id. Having scrutinized the court’s rulings concerning the autopsy photographs and found them to be sound in substance, we conclude that its occasional lapses in restraint did not deny plaintiffs a fair trial. C. Rodriguez’s Convictions and the Cache of Weapons Before trial, plaintiffs moved in limine to exclude from evidence two prior narcot ics convictions of Ivan Rodriguez (from 1971 and 1975) and testimony concerning a cache of firearms and ammunition seized from the Fernandez apartment in 1970. Plaintiffs contended the evidence was irrelevant and unduly prejudicial—that it would serve only to tarnish the reputation and credibility of the
2103	affidavit of L. G. Tolleson, and particularly invited the plaintiff to deny, if he could, that he now holds and at all times has held and retained seniority rights on the Asheville Division of the Southern Railway, since his employment as a switchman thereon, and the plaintiff elected to close said hearing without denial of the same. On these findings of fact I conclude: That this suit is governed entirely by the terms of the Railway Labor Act, 45 U.S.C.A. § 151a, and a determination must be controlled by such act and the decisions of the court in line therewith. Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Spires v. Southern Ry. Co., 4 Cir., 204 F.2d 453, 454. In the last cited case Judge Parker, among other things, said: “The Railway Labor Act was passed to provide for the settlement of ‘all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions’.” It would thus appear that the plaintiff did not within the time permitted, or allowed by the contract, appeal the decision of the highest designated official of the carrier handling grievances and has not therefore exhausted his administrative remedies. That the plaintiff's grievances as set forth in his pleadings, is a dispute which is exclusively within the jurisdiction of the Railway Adjustment Board. That this Court does not have jurisdiction of the cause of action alleged
1917	stay was granted in the district court. DISCUSSION As indicated, the Government opposes the motion to stay and instead seeks dismissal of the complaint based on the jurisdictional bar of 28 U.S.C. § 1500 (1982). That statute reads in pertinent part as follows: The United States Claims Court shall not have jurisdiction of any claim for or in respect to which the plaintiff ... has pending in any other court any suit or process against the United States.... The purpose of the statute is to avoid duplicative litigation: “[S]ection 1500 was enacted to prevent ... the maintaining of two suits against the United States on the same claims and at the same time in two different courts.” Wessel, Duval & Co. v. United States, 129 Ct.Cl. 464, 465, 124 F.Supp. 636, 637-38 (1954). In Tecon Engineers, Inc. v. United States, 170 Ct.Cl. 389, 343 F.2d 943 (1965), cert. denied, 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966), it was decided that a suit begun in another court after an action had been filed in the Court of Claims (now the Claims Court) was not a “pending” suit within the contemplation of the statute. Thus, section 1500 potentially applies only in those situations where the litigation that is brought here is also the subject of a previously filed action that remains pending in another forum. Further, in deciding the dimensions of a “claim” for purposes of section 1500, the court has taken a practical approach consistent with the purposes
2744	an equal protection discrimination claim. See Coyne v. City of Somerville, 972 F.2d 440, 444 (1st Cir.1992) (“A plaintiff may not prevail simply by asserting an inequity and tacking on the self-serving conclusion that the defendant was motivated by a discriminatory animus.”) (quotations omitted). Finally, Plaintiff argues simply that the Admissions Committee’s application of a subjective standard to the evaluation of his average LSAT score evidences a discriminatory intent. The only evidence in the record on this issue is that the Admissions Committee considers an applicant’s average LSAT score in addition to a number of other factors when evaluating applications. This fact simply does not permit a reasonable inference that the admissions process is discriminatory in any way. See Judge v. City of Lowell, 160 F.3d 67, 72 (1st Cir.1998) (plaintiff must “ ‘put forward specific, nonconclusory factual allegations’ that establish improper motive causing cognizable injury in order to survive a ... motion for ... summary judgment.”); Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.1994) (summary judgment appropriate “ ‘[ejven in cases where elusive concepts such as motive or intent are at issue ... if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.’ ”) (quoting Goldman v. First Nat’l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.1993)). In light of the Court’s determination that Plaintiff has failed to raise a genuine issue of fact as to Defendants’ motivation, the Court need not address Defendants’ arguments relating to rational basis review and
11	Underwriters, and the Primary P & I Underwriters, now move the Court to stay proceedings and compel arbitration. I. This motion puts into play several competing sources of treaty law, the primary concept of arbitration dispute resolution, and insurance policy provisions. Third-party defendants, invoking the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, contend that arbitration should be compelled pursuant to the insurance policies’ arbitration clauses. The Court agrees. A The Convention on the Recognition and Enforcement of Foreign Arbitral Awards is anchored to the Constitution’s treaty power. The United States is a party to the Convention, which Congress implemented at 9 U.S.C. § 201, “mak[ing] the Convention the highest law of the land.” Sedco, Inc. v. Petroleos Mexicanos Nat’l Oil Co., 767 F.2d 1140, 1145 (5th Cir.1985). The Fifth Circuit has observed that the purpose of ratifying the Convention was “to secure for United States citizens predictable enforcement by foreign governments of certain arbitral contracts and awards made in this and other signatory nations.” McDermott Int’l, Inc. v. Lloyds Underwriters of London, 944 F.2d 1199, 1207 (5th Cir.1991). Section 202 of the Convention, which addresses the Convention’s coverage, provides: An arbitration agreement or arbitral award arising out of a legal relationship, whether contractual or not, which is considered as commercial, including a transaction, contract, or agreement described in section 2 of this title, falls under the Convention. An agreement or award arising out of such a relationship which is entirely between citizens of the United States shall
2697	claim, so the only Chapter 13 payments to which Ventura was entitled were those that Debtors provided in the Plan — $9,350.00 over time, with interest. In addition, though, Ventu-ra retained its in rem rights against Debtors’ House, and those rights and the amount of the underlying debt owed to Ventura have not been affected by confirmation of Debtors’ Plan in the First Case. Ventura was also entitled to accept payments from Bank (which undoubtedly paid Ventura to protect its security interest from being eroded by the penalties and interest that might accrue if Ventura continued to remain unpaid). Our conclusions are consistent with the authority cited by the bankruptcy court and by Debtors. The bankruptcy court cited Andrews v. Loheit (In re Andrews), 49 F.3d 1404 (9th Cir.1995), and Work, 58 B.R. 868, for the proposition that the “treatment provided in the Plan was consistent with 11 U.S.C. § 1325(a)(5)(B).” As noted above, that section of the Bankruptcy Code generally requires that secured creditors receive the present value of their allowed claim over time. See 11 U.S.C. § 1325(a)(5)(A) and (B). It is true that Ventura waived any rights under Section 1325(a)(5) by not asserting a claim or objecting to the Plan. Out of the Plan payments Ventura was entitled to no more than what the Plan provided. See Andrews, 49 F.3d at 1409. That does not, however, eviscerate Ventura’s lien rights or reduce the total amount of assessments secured by its lien. Section 1325(a)(5) is irrelevant to our
1737	"(holding that pleading which provided incomplete address information did not allow the defendant to ''intelligently ascertain” removability; the defendant was not required to research the missing address of another named defendant to discover removability) (quotation marks omitted). . Id. . Richstone v. Chubb Colonial Life Ins., 988 F.Supp. 401, 403 (S.D.N.Y. 1997) (“A defendant must be able to ascertain easily the necessary facts to support his removal petition. To allow a document with less information to satisfy the statute would require the movant to 'guess’ as to an actions’ removability, thus encouraging premature, and often unwarranted, removal requests.”) (citations omitted). . See Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 83 L.Ed. 334 (1939). See also Vera v. Saks & Co., 335 F.3d 109, 116 (2d Cir.2003) (""we generally evaluate a defendant’s right to remove a case to federal court at the time the removal notice is filed”). . Watkins v. Grover, 508 F.2d 920, 921 (9th Cir.1974) (finding that where a case was removed to federal court based on federal officer jurisdiction, the district court could retain jurisdiction to hear the state law claims against the remaining defendants even when the federal officers were dismissed). . Murphy v. Kodz, 351 F.2d 163, 167 (9th Cir.1965) (finding that in a case properly brought in federal court, the ""plaintiff's subsequent reduction of his claim to less than the jurisdictional amount"" did not ""disturb the diversity jurisdiction of a federal court”). Accord New Jersey Dep’t of Envtl. Prot. v."
1229	the Summons with Notice also asserted claims of promissory estoppel and fraud. (Pis.’ Mem. 16; Pis.’ Reply Mem. 7-8.) In a fifty-nine page Proposed Complaint, Plaintiffs lay out breach of contract claims against all Defendants relevant to all three Logan CDS contracts, which are substantially similar to the allegations in the Summons with Notice. (Chun Aff. Ex. C ¶¶ 145-162.) Plaintiffs also detail a host of new causes of action against RBCCMC, including (i) fraud based upon affirmative misrepresentations; (ii) fraudulent omissions; (iii) aiding and abetting fraud; (iv) negligent misrepresentations; and (v) promissory estoppel. (Id. ¶¶ 113-144, 163-166.) Courts “generally evaluate a defendant’s right to remove a ease to federal court at the time the removal notice” was filed. Vera v. Saks & Co., 335 F.3d 109, 116 n. 2 (2d Cir.2003) (per curiam); see also In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir.1992) (“Because jurisdiction is determined as of the instant of removal, a post-removal affidavit or stipulation is no more effective than a post-removal amendment of the complaint.”) (per curiam); In re MTBE, 399 F.Supp.2d at 363 (“A court must thus consider the complaint at the time of removal to determine if removal was appropriate in the first place.” (footnote omitted)). Thus, “[i]n considering a motion to remand where the issue of fraudulent joinder has been raised, the court examines the pleadings at the time the case was removed to determine whether a cause of action has been pleaded” against the non-diverse defendant. Rosenberg v.
13	section 2 of this title, falls under the Convention. An agreement or award arising out of such a relationship which is entirely between citizens of the United States shall be deemed not to fall under the Convention unless the relationship involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states. For the purpose of this section a corporation is a citizen of the United States if it is incorporated or has its principal place of business in the United States. 9 U.S.C. § 202. “In determining whether the Convention requires compelling arbitration in a given case,” the Fifth Circuit instructs, “courts conduct only a very limited inquiry.” Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 339 (5th Cir.2004) (citing Sedco, 767 F.2d at 1144-45). An arbitration agreement “falls under” the Convention pursuant to Section 202, and the Court should compel arbitration, if the following four prerequisites are met: (1) there is a written agreement to arbitrate the matter; (2) the agreement provides for arbitration in a Convention signatory nation; (3) the agreement arises out of a commercial legal relationship; and (4) a party to the agreement is not an American citizen. Id. (citing Sedco, 767 F.2d at 1146). The Fifth Circuit has expressly stated that “[o]nee these requirements are met, the Convention requires the district eourt[ ] to order arbitration ... unless it finds that the said agreement is null and void, inoperative or incapable of being performed.”
3525	San Bernardino County, 237 F.3d 1101, 1106 (9th Cir.2001). We apply the same summary judgment standard as the district court. Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d 1110, 1131 (9th Cir.2003). Summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Because the issues presented here on summary judgment are “purely legal ones,” we need decide only “whether the district court correctly determined that, under the facts alleged, [CHI’s] claims were barred as a matter of law.” Clipper Exxpress v. Rocky Mtn. Motor Tariff Bureau, Inc., 690 F.2d 1240, 1250 (9th Cir.1982). We accept those facts and reasonable inferences to be drawn from them in the light most favorable to CHI. Ill LEGISLATIVE IMMUNITY Local government officials are entitled to legislative immunity for their legislative actions, whether those officials are members of the legislative or the executive branch. Bogan v. Scott-Harris, 523 U.S. 44, 54-55, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). This immunity extends both to claims for damages and claims for injunctive relief. Supreme Ct. of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 732-33, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980). Accordingly, we must decide whether the lease and sale of Community House to the BRM was an act within the sphere of legislative activity. Bogan,
2025	independent medical evidence providing a basis for any such rejec tion. See West and Colvin, both supra; Wilkinson v. Brown, 8 Vet.App. 263, 271 (1995). In addition, the Court notes that in this case, because the veteran’s PTSD claim was well grounded, if the Board was in doubt as to the sufficiency of the veteran’s medical evidence, as it clearly was here, then fulfillment of the statutory duty to assist under section 5107(a) would require that VA provide a comprehensive, current examination in accordance with the applicable DSM criteria; the Board could not just deny the claim without providing such assistance. See Allday v. Brown, 7 Vet.App. 517, 526 (1995) (citing Suttmann v. Brown, 5 Vet.App. 127, 138 (1993) and Green (Victor) v. Derwinski, 1 Vet.App. 121, 124 (1991) (duty to assist may include “the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one”)). In view of the foregoing, the Court holds, on this record, that the undisputed, unequivocal diagnoses of PTSD by the three mental-health professionals establish the current disability as a matter of law. As a result, the asserted stressors in this ease in terms of the veteran’s experiences in the war are, as a general matter, presumed — and here have actually been found by three mental-health professionals as shown by their current diagnosis of PTSD — to be sufficient to cause PTSD
2718	v. Dick, 639 F.2d at 94; Lanza v. Drexel, 479 F.2d at 1310. Similarly, the addition of the new defendants does not revive plaintiffs right to demand a jury trial. The parties plaintiff seeks to add are all related to the parties already named in this action and, indeed, have been participating in discovery. This mere addition of parties does not change the underlying claims or the nature of the relief desired and, therefore, does not revive plaintiffs right to a jury trial. See Richardson Greenshields Securities v. Mui-Han Lau, 693 F.Supp. at 1458. Bifurcation The court “in furtherance of convenience or to avoid prejudice” may in its discretion bifurcate a trial concerning issues of liability and damages. Fed. R.Civ.P. 42(b); Katsaros v. Cody, 744 F.2d 270 (2d Cir.1984). While it may be proper in certain instances to bifurcate a trial, “separation of issues is not the usual course that should be followed.” Keyes Fibre Co. v. Packaging Corp. of America, 763 F.Supp. 374 (N.D.Ill.1991), quoting, Response of Carolina, Inc. v. Leasco Response, Inc., 537 F.2d 1307 (5th Cir.1976); see Advisory Committee Notes to the Fed. R.Civ.P. 42(b). Bifurcation is appropriate where, for example, deciding the issue of liability first might save the court from having to rule on complex issues of damages. American Home Products Corp. v. Johnson & Johnson, 111 F.R.D. 448 (S.D.N.Y.1986). Defendant asserts that MCA will have to develop a computer program to isolate profit information on goods and services provided under the “UPTOWN” mark. .
130	F.Supp.2d 135, 144-45 (D.Mass.2002). The exception is intended to prevent the courts from second-guessing “legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort.” Id. at 145 (quoting Campbell v. United States, 167 F.Supp.2d 440, 447-48 (D.Mass.2001)). The Supreme Court has described a discretionary function as one “in which there exists an ‘element of judgment or choice,’ ” Coyne, 233 F.Supp.2d at 145 (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)), and the court must dismiss any claim “covered by the discretionary function exception ... for lack of subject matter jurisdiction,” Kelly, 924 F.2d at 360. See 28 U.S.C. § 1346(b); see also Muniz-Rivera v. United States, 326 F.3d 8, 17 (1st Cir.2003); Irving v. United States, 909 F.2d 598, 600 (1st Cir.1990). There is a two-prong test to determine whether particular conduct falls with in the discretionary function exception: (1) “whether the challenged action was a matter of choice for the acting official”; and (2) “whether the official’s discretion was based on considerations of public policy.” Coyne, 233 F.Supp.2d at 145 (citing United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)); see Kelly, 924 F.2d at 360. With regard to the first prong, the court must focus on “the nature of the conduct, rather than the status of the actor,” Kelly, 924 F.2d at 360 (quoting Varig Airlines, 467 U.S. at 813, 104 S.Ct. 2755), and
2011	Stevens v. Bangor and Aroostook R.R., 97 F.3d 594, 602 n. 8 (1st Cir.1996) (noting that Federal Employers’ Liability Act and other federal statutes incorporate the “eggshell skull” rule to prevent defendants from avoiding liability in certain cases); Testa v. Village of Mundelein, Ill., 89 F.3d 443, 446 (7th Cir.1996) (applying Illinois law that allows tortfeasor liability for injuries he or she caused, even though injuries are aggravation of preexisting medical condition that would make plaintiff more susceptible to injury from defendant’s conduct). This “eggshell plaintiff rule” has generally been applied to cases in which the cause and effect of an injury are physical but also has been applied “[w]hen an emotional injury causes physical manifestations of distress”. Pierce v. S. Pacific Transp. Co., 823 F.2d 1366, 1372 n. 2 (9th Cir.1987); cf. Testa, 89 F.3d at 446-47 (implying that rule could be applied in ease where competent medical evidence showed that plaintiffs preexisting mental state made him “more susceptible to [psychological] injury from the defendant’s conduct”). Relating to stressors, the DSM-IV provides examples of traumatic events that are experienced directly, such as military combat, and those that are witnessed. (DSM-III-R had provided that “[s]tressors producing this disorder include ... deliberately caused disasters (e.g., bombing, torture, death camps).” DSM-III-R at 248.) The Manual M21-1 also provides the following guidance that may be applied in a manner favorable to the veteran: “A stressor is not to be limited to just one single episode. A group of experiences also may affect an
946	(A).” Therefore, the District Court correctly concluded that it was required to include the youthful offender adjudication and that Hernandez was not eligible for safety valve relief. Secondly, Hernandez claims that the government failed to present sufficient evidence to meet its burden of establishing the sentence he received for his previous conviction by a preponderance of the evidence. In particular, he points out that in his presentence report his felony was mischaracterized as a Class B felony (criminal sale of a controlled substance in the second degree) although he was actually convicted of a Class E felony (criminal facilitation). However, this argument is waived because at sentencing he conceded that the mischaracterization, had no impact on his Guideline computation. See United States v. Rizzo, 349 F.3d 94, 99 (2d Cir.2003) (“[I]f a defendant fails to challenge factual matters contained in the presentence report at the time of sentencing, the defendant waives the right to contest them on appeal.”). Finally, Hernandez argues that sentencing guideline U.S.S.G. § 4A1.2(j) violates due process because it requires district courts to look to state law when determining whether a sentence is expunged, resulting in disparate treatment of “similar” defendants. However, it is clearly established that “[t]o sustain a federal sentencing statute against a due process challenge, courts need only find that Congress had a rational basis for its choice of penalties.” United States v. Meskini, 319 F.3d 88, 91 (2d Cir.2003) (internal citations and punctuation omitted, alteration in original). Since a wide variety of decisions
421	obligation with respect to post-petition interest terminates only “if and when” the debtor obtains a discharge from the bankruptcy court. See 11 U.S.C. §§ 727(b), 1141(d). As the Supreme Court stated over eighty years ago, although as a general rule postpetition interest is not allowed on undersecured debts, “that is not because the [debts] had lost their interest-bearing quality during that period.... and if, as a result of good fortune or good management, the estate proved sufficient to discharge the claims in full, interest as well as principal should be paid.” American Iron & Steel Mfg. Co. v. Seaboard Air Line Ry., 233 U.S. 261, 266, 34 S.Ct. 502, 58 L.Ed. 949 (1914); see Kellogg v. United States (In re West Tex. Marketing Carp.), 54 F.3d 1194, 1203 (5th Cir.1995) (Smith, J., dissenting) (stating that a debtor’s obligation to pay interest during bankruptcy “is not extinguished, but, for purposes of the bankruptcy proceedings, is ignored until the time the court determines whether the debtor’s assets can meet the obligation. Only upon discharge, see § 727, is the state law obligation to pay extinguished.”) (footnote omitted). We fail to understand, however, why the bankruptcy court determined from these conclusions regarding the timing of 'the potential discharge of a debtor’s obligation to pay postpetition interest that an injunction was necessary -to carry out the provisions of the Bankruptcy Code. The court stated that it “believes the LPSC acknowledged” that the determination of a debt- or’s postpetition interest obligations is “within the sole
2181	Hernandez’s time entries as unproductive or otherwise unnecessary to advance the litigation. The Court agrees with the City on a number of these entries. Hours spent by plaintiffs’ counsel talking with the press (7.2) were eliminated. See, e.g., Rum Creek Coal Sales, Inc., v. Caperton, 31 F.3d 169, 176 (4th Cir.1994) (“The legitimate goals of litigation are almost always attained in the courtroom, not in the media.”); Knight v. Alabama, 824 F.Supp. 1022, 1033 (N.D.Ala.1993) (holding that “time spent talking with the media is not compensable because it is not ‘ordinarily necessary to secure the final result obtained from the litigation’ ” (quoting Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S. 546, 561, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1985))); cf. Hart v. Bourque, 798 F.2d 519, 523 (1st Cir.1986) (disallowing time spent on “ ‘arrangements for lectures or publications about the case’ ”). The Court also disallowed time spent communicating with the Attorney General’s office (.90 hours), as there is little indication that those communications were necessary to the presentation of this case. In addition, the Court eliminated the considerable time (62.6 hours) that Attorney Hernandez spent waiting in the courthouse for the jury’s verdict before the jury returned it late in the day on February 8, 1999. Counsel were free to leave and/or work on matters for other clients during that time. The Court also deducted the 6.7 hours that plaintiffs’ counsel unsuecess-fully spent on mediation in September 1998. The Court eliminated one hour that Attorney Hernandez spent
4550	private remedy in favor of individual persons.’”). The implication, then, is that whei-e a- statutory provision focuses on a particular party, it is more likely Congress intended to confer a right of action on that party to enforce the provision. The logic of Sandoval, therefore, supports finding a right of action for federal agency enforcement under § 602 of Title VI. The Sixth Circuit appears to be the only federal court of appeals to have addressed the meaning of “any other means authorized by law” as it applies to means of government enforcement following Sandoval. The Sixth Circuit acknowledged the gve-Sandoval understanding of the phrase and found it authorized the government to bring suit to enforce a statutory provision. United States v. Miami Univ., 294 F.3d 797, 808 (6th Cir.2002) (“We believe that the fourth alternative [‘take any other action authorized by law with respect to the recipient’] expressly permits the [agency] to bring suit'to enforce the [statutory] conditions in lieu of its administrative rém-edies.”) (citing Baylor Univ. Med. Ctr., 736 F.2d at 1050; Nat’l Black Police Ass’n, 712 F.2d at 575). Cf. United States v. Marion Cnty. Sch. Dist., 625 F.2d 607, 611 (5th Cir.1980) (“[T]he government's right to sue to enforce its contracts exists as' a matter of federal common law, without necessity of & statute ... Congress may nullify the right, but, as the Supreme Court has repeatedly emphasized, courts are entitled to conclude that Congress has done so only , if the evidence of Congress’ intent
2469	its position misconstrues the “law of the case.” The Bank cites a number of cases, including Klein v. Arkoma Prod. Co., 73 F.3d 779, 784 (8th Cir.1996), to support its position. Klein, however, refers not to a magistrate’s ruling vis-a-vis the district court hearing the case, but rather to the precedential effect of an appellate court’s decision on the lower court when the matter is remanded. This case is entirely different. If the Bank’s argument is correct, this Court could never alter a magistrate’s decision, or indeed, one of its own. To the contrary, it is clear that a district court may correct itself to avoid later reversal when convinced a decision “is clearly erroneous and would work a manifest injustice.” Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 n. 8 (1983); Lovett v. Gen. Motors Corp., 975 F.2d 518, 522 (8th Cir.1992); 28 U.S.C. § 636 (granting district court judge’s authority to reverse erroneous magistrate orders). In Lovett, the Eighth Circuit Court of Appeals upheld a district court’s reconsideration of its own standing decision. See id. Because the law of the case doctrine applies only to issues decided by final judgments, id., the earlier decision did not bind the court. Here, the Magistrate did permit the Bank to intervene. But the law of the case does not bar this Court’s consideration of the Bank’s standing. 2. Do Plaintiffs Have Standing? Constitutional standing requires that plaintiffs suffer some injury to justify file Court’s entry of
3800	can express while performing. The dancer may use non-sexually explicit elements and semi-nudity to convey a certain degree of sensuality, but putting taste aside, more explicit and erotic content is commonly available on primetime television without being fairly regarded as adult entertainment. ... Because this speech is not obscene, government may not simply proscribe it. [The City] cannot avoid this dictate by regulating nude dancing with such stringent restrictions that the dance no longer conveys eroticism nor resembles adult entertainment. Schultz, 228 F.3d at 847 (internal quotations and citations omitted). Some self-touching, even of the genitals or anus — no matter how crude or distasteful — may be “central to the expressive nature of the dance itself.” 2025 Emery Highway, L.L.C. v. Bibb County, 377 F.Supp.2d 1310, 1331 (M.D.Ga.2005). Subsection (2) of the SSA definition already prohibits workers from engaging in acts of masturbation; subsection (3)’s attempt to limit the non-obscene self-touching by adult entertainers impermissibly encroaches on a dancer’s ability to engage in a perhaps disfavored, but nonetheless protected, form of expression. Therefore, the definition of SSA that prohibits fondling, stroking, or rubbing of human genitals or anus — short of masturbation — as referenced in section 3-129(3) is unconstitutional. In accordance with section 1-11 of the Orange County Code, the third definition of SSA contained in section 3-6, is severed from the AEC. B. Simulation of SSA, Section 3-129(6) Section 3-129(6) provides that it is unlawful for a worker to “[display or expose any specified anatomical area while
4682	that the Maitlands failed to adequately plead diversity jurisdiction. The complaint alleged only that the Maitlands resided in Florida, the Fishbeins resided in New York, and Chase’s main office was in New Yoi’k. .This was insufficient to show that the Maitlands were domiciled in, and thus citizens of (within the meaning of 28 § U.S.C. 1332), Florida, especially considering that their lawsuit involved a property they owned in New York. See, e.g., Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc., 87 F.3d 44, 47 (2d Cir. 1996) (“It is ... clear that a statement of the parties’ residence is insufficient to establish their citizenship.”). However, “[a] failure,to allege facts establishing jurisdiction need not prove fatal to a complaint.” Canedy v. Liberty Mut. Ins. Co., 126 F.3d 100, 103 (2d Cir. 1997). Federal law provides that “[djefective allegations .of jurisdiction may be amended, upon terms, in the trial or appellate courts.” 28 U.S.C. § 1653. As such, when the record supports a factual basis for diversity, leave to correct a technical defect is freely given. See Canedy, 126 F.3d at 103. “Unless the record clearly indicates that the complaint could not be saved by any truthful amendment, we generally afford an opportunity for amendment.” Id. (citation omitted). Having reviewed the entire record and the Maitlands’ filings in this Court, we conclude that they have now alleged an adequate basis for diversity jurisdiction. The Maitlands moved to Florida in 2010, have had Florida driver’s licenses since before their complaint was filed, have
2159	to be 100% liable for the cleanup of the contamination. It has been civilly fined for its conduct. It has filed its Site Management Plan for the cleanup of the property, and it has reimbursed the Cabinet for its response costs. However, 500 Associates has been found liable for its actions and has been civilly fined also. It cannot recover from VAC the costs of defending itself either in its business transactions or before the Cabinet or court. 500 Associates can only recover from VAC if it establishes “some nexus between the alleged response cost and an actual effort to respond to environmental contamination.” Ford Motor Company v. Michigan Consolidated Gas Company, 2010 WL 3419502 (E.D.Mich. Aug. 27, 2010), quoting, Young v. United States, 394 F.3d 858, 863 (10th Cir.2005), et al. 500 Associates has failed to establish that its costs were, in fact, response costs. The findings in the record belie 500 Associates’ statement that it “[p]aid its officers for their time as they, among other things, investigated the extent of the contamination of the Property, developed removal plans to contain the hazardous substances, and carried out the removal plan to provide a temporary response until Vermont American remediates the property.” (Response to VAC’s Mo. for Summary Judg., p. 7). 500 Associates asserted unwaveringly throughout the proceedings that it was an “innocent purchaser” entitled to an exemption from liability. In rejecting the defense, the hearing officer noted that CERCLA “does not sanction willful or negligent blindness.” (quoting, United States
4958	prosecution). NetApp’s reliance on Intirtool, Ltd. v. Texar Corp., 369 F.3d 1289 (Fed.Cir.2004) is misplaced because the Federal Circuit held there that the statements in the prosecution history could have been interpreted as referring to the structural limitations in the body of the claim, rather than the preamble. Id. at 1295. Here, by contrast, the teaching of “increasing a number of [PCPI’s]” does not appear in the body of the claim and it is apparent from the prosecution history that the applicants relied on the preamble. NetApp points out that the applicants did not amend the preamble at issue, distinguishing Symantec Corp. v. Computer Associates Int’l, where the applicant added the “as it is being transferred” language in dispute to overcome the prior art. 522 F.3d 1279, 1289 (Fed.Cir.2008), reh’g and reh’g en banc denied (May 20, 2008). However, an amendment is not the sine qua non for the prosecution history to influence claim construction. NetApp notes that the Examiner at one point in the prosecution history recognized that the claims of the '720 patent were patentable because of the limitations recited in the bodies of the claims, specifically the novel volinfo block '720 Patent File History, Feb. 17, 2005 Notice of Allowability at 2. See also Aug. 10, 2005 Notice of Allowability at 2 (same). However, NetApp concedes that these notices of allowance were issued by the PTO before it considered Cabrera and before the applicants made the statements at issue to distinguish Cabrera. Thus, they have little, if
2790	decidedly in [their] favor,” the requirement of showing a substantial probability of success on the merits is satisfied by raising “questions going to the merits so serious, substantial, difficult and doubtful as to make them a fair ground for litigation and thus for more deliberate inquiry.” Lundgrin, 619 F.2d at 63 (quoting Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 781-82 (10th Cir.1964)). Irreparable Injury 2. Mere threatened, speculative harm, without more, does not amount to irreparable injury for purposes of justifying preliminary injunctive relief such as that sought by plaintiffs. E.g., Mullis v. United States Bankruptcy Court, 828 F.2d 1385 (9th Cir.1987), appeal dismissed, cert. denied, 486 U.S. 1040, 108 S.Ct. 2031, 100 L.Ed.2d 616 (1988); Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (movant must show that irreparable injury is “both certain and great; it must be actual and not theoretical”). Unlike most cases alleging violations of NEPA, plaintiffs in this case do not assert the sort of environmental harm due to construction which is usually seen as irreparable. TOCDEF is already fully constructed, so all of Plaintiffs’ asserted irreparable harm in this case is related to the alleged health risks of incineration, due to either emissions from normal operations, or agent releases due to accidents. Dioxin exposure risks 3. The harm cited by plaintiffs resulting from increased dioxin exposure is based on extrapolations from conservative hypothetical scenarios used by the Utah DEQ in compiling their health risk assessment. As noted above, the methodology
4711	material fact and the movant is entitled to judgmént as a matter of law.” Fed. R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir.2014) (same). “In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (internal quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cnty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314 (S.D.N.Y.2014) (same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004); see also Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at *2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would’ fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir.2013) (alterations and internal quotation marks omitted). Further, “[t]o survive a [summary judgment] motion ..., [a
1379	IV. “Apex” Depositions The deposition of a high-level official or executive, often referred to as an “apex” deposition, may be precluded by the Court under Rule 26(e) where the discovery sought “can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Apple Inc. v. Samsung Electronics Co., Ltd., 282 F.R.D. 259, 263 (N.D. Cal. 2012). Heads of government agencies, in particular, “are not normally subject to deposition,” “absent extraordinary circumstances.” Green v. Baca, 226 F.R.D. 624, 648 (C.D. Cal. 2005) (quoting Kyle Eng. Co. v. Kleppe, 600 F.2d 226, 231-32 (9th Cir. 1979)). As an initial matter, an individual objecting to a deposition must first demonstrate he “is sufficiently ‘high-ranking1 to invoke the deposition privilege.” Thomas v. Cate, 715 F.Supp.2d 1012, 1049 (E.D. Cal. 2010) (citing United States v. Sensient Colors, Inc., 649 F.Supp.2d 309, 320 (D. N.J. 2009)). Upon this showing, the Court then should consider: “(1) whether the deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the case and (2) whether the party seeking the deposition has exhausted other less intrusive discovery methods.” Apple, Inc., 282 F.R.D. at 263; see also Coleman v. Schwarzenegger, 2008 WL 4300437 at *2 (E.D. Cal. Sept. 15, 2008) (“The extraordinary circumstances test may be met where high-ranking officials ‘have direct personal factual information pertaining to material issues in an action,’ and ‘the information to be gained is not available through any other sources.’ ” [citations omitted]), The Plaintiffs dispute that they are
1220	at 1.) It is true that the well-pleaded complaint rule generally requires a district court to determine if a complaint includes any causes of action that on their face give a federal court jurisdiction. See Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998). However, an exception to this general principle exists when a defendant asserts removal based on “fraudulent joinder.” See Whitaker, 261 F.3d at 206-07 (“[A] plaintiff may not defeat a federal court’s diversity jurisdiction and a defendant’s right of removal by merely joining as defendants parties with no real connection with the controversy.” (quoting Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460-61 (2d Cir.1998)) (alteration in original)); Intershoe, Inc. v. Filanto S.P.A., 97 F.Supp.2d 471, 474 (S.D.N.Y.2000) (stating that “[a]n exception to th[e] principles [of diversity] applies when a non-diverse party is ‘fraudulently joined’ in order to defeat complete diversity”). Courts regularly review pleadings to determine if there has been a fraudulent joinder of parties and will “disregard parties with no real connection with the controversy” or who are “not a real party in interest.” Intershoe, 97 F.Supp.2d at 474 (internal quotation marks omitted); see also Pampillonia, 138 F.3d at 460-61. The Court sees no reason why a summons with notice, which may be an initial pleading under Whitaker, should be treated differently than a complaint for the purpose of analyzing removal based on a fraudulent joinder claim. In Moran v. Continental Casualty Co., No. 01-CV1008, 2001 WL
1632	public school in the State of Alabama provide readings from the Holy Bible on each day of school. The First Amendment of the Constitution, in pertinent part, is a prohibition against the enactment by Congress of any law “respecting an establishment of religion”. The “establishment” clause of the First Amendment was made applicable to laws and regulations of state agencies by the Fourteenth Amendment. School District of Abington v. Schempp, 374 U.S. 203, 215, 83 S.Ct. 1560, 10 L.Ed.2d 844; Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213. The contemporary Supreme Court has often written to the effect that the very basis of our government is religion and that we are basically a religious nation. In Engel v. Vitale, 370 U.S. 421, 434, 82 S.Ct. 1261, 1268, 8 L.Ed.2d 601, the Court said: “The history of man is inseparable from the history of religion. And * * * since the beginning of that history many people have devoutly believed that ‘More things are wrought by prayer than this world dreams of’.” In Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 684, 96 L.Ed. 954, the Court said, “we are a religious people whose institutions presuppose a Supreme Being.” In School District of Abington v. Schempp, supra, the Court states, “the fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact
1225	controversy). Here, Defendants have shown by a preponderance of evidence that the amount in controversy requirement is met. Plaintiffs stated in the Summons with Notice that the action is “to enforce three credit default swap contracts made between” the Plaintiffs and the Defendants, which “reference, respectively, three collateralized debt obligations.” (Chun Aff. Ex. A at 2.) Based upon alleged breaches of those contracts, Plaintiffs seek, inter alia, enforcement of the contracts and “damages in an amount to be determined.” {Id.) Despite the lack of a specified damages amount, Defendants were able to intelligently ascertain that the amount in controversy exceeded $75,000 when they knew that the contracts identified in the Summons with Notice were worth billions of dollars. See Zido v. Werner Enters., Inc., 498 F.Supp.2d 512, 513-514 (N.D.N.Y.2006) (finding that “[although [plaintiffs do not specify a precise dollar amount sought” a fair reading of the complaint showed that plaintiffs’ claims for damages exceeded $75,000 when plaintiffs claimed, inter alia, serious injuries, medical expenses and loss of consortium); James, 2004 WL 2624004, at *4 (noting that although the complaint merely stated that the $25,000 jurisdictional requirement for New York state court was met, defendant showed reasonable probability that damages exceeded $75,000 when complaint alleged “severe and permanent personal injuries” (internal quotation marks omitted)); Viens v. Wal-Mart Stores, Inc., No. 96-CV-2602, 1997 WL 114763, at *2-3 (D.Conn. Mar. 4, 1997) (finding reasonable probability that amount in controversy requirement was satisfied when plaintiffs complaint alleged severe injuries and lost wages). Indeed, Defendants
2827	so. Figeroa v. INS, 886 F.2d 76, 78 (4th Cir.1989). This court accords broad, though not unlimited, deference to credibility findings supported by substantial evidence. Camara, 378 F.3d at 367. A determination regarding eligibility for asylum or withholding of removal is conclusive if supported by substantial evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to decide to the contrary. 8 U.S.C. § 1252(b)(4)(B) (2000). This court will reverse the Board “only if the evidence presented by the petitioner was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Rusu v. INS, 296 F.3d 316, 325 n. 14 (4th Cir.2002) (internal quotation marks and citation omitted). We find substantial evidence supports the immigration judge’s findings that Zetchem was not credible and she failed to provide reliable corroborative evidence supporting her claim. Accordingly, the evidence does not compel a different result with respect to her applications for asylum and withholding from removal. We further find the immigration judge did not err in denying the application for withholding under the Convention Against Torture. Zetchem failed to submit reliable independent evidence showing it was more likely than not she will be tortured if she returns to Cameroon. Accordingly, we deny the petition for review. We also deny Zetchem’s second motion for a stay of deportation. We dispense with oral argument because
3384	status, this only establishes a prima facie case of discrimination and the City must be allowed to rebut the initial showing by presenting legitimate nondiscriminatory reasons for the ordinances, namely, public safety and property values. See Bangerter v. Orem City Corp., 46 F.3d 1491, 1500-01 (10th Cir.1995). But as plaintiff points out however, BangeHer dealt with an ordinance that treated handicapped individuals differently from all other groups. The Tenth Circuit stated that factual issues remained whether the differential treatment of handicapped individuals was for their benefit; if so, the defendant’s actions, though discriminatory, could be upheld. By contrast, the City ordinance scheme in this case unquestionably discriminates against Keys residents in violation of the FHA familial status protection. See Kormoczy v. Secretary of HUD, 53 F.3d 821, 823-24 (7th Cir.1995) (“Where direct evidence is used to show that a housing decision was made in violation of the statute, the burden shifting analysis is inapposite.”). The City also asserts that this Court’s ruling will have far-reaching impact on zoning schemes throughout the United States. First, as noted above, the Court’s ruling is not as broad as defendant posits. Further, to the extent that the Court’s decision in this case has such impact, the Court must apply the plain language of the FHA. Finally, the City asserts that on this record a finding in favor of plaintiff is inappropriate because plaintiff has “shotgunned” its arguments against the “ordinances” of the City in general. A review of defendant’s summary judgment briefs indicates, however,
1583	district court jurisdiction over “[s]uits for violations of contracts between an employer and a labor organization.” 29 U.S.C. § 185(a) (emphasis added). Thus, if a labor dispute is contractual, Garmon preemption does not apply; instead, the aggrieved party can sue on the contract in federal court. Some claims, however, can be both contractual and representational; that is, a claim that alleges that conduct violates a collective bargaining agreement and also constitutes an unfair labor practice or otherwise violates the NLRA. Instead of forcing courts to shoehorn a hybrid claim into one category or the other, the Supreme Court has held that they retain jurisdiction to hear a contractual claim even if the claim is also representational. William E. Arnold Co. v. Carpenters Dist. Council, 417 U.S. 12, 16, 94 S.Ct. 2069, 40 L.Ed.2d 620 (1974) (“When [conduct allegedly subject to the NLRA] also constitutes a breach of a collective-bargaining agreement, the [NLRB’s] authority ‘is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301 [of the LMRA].’ ” (quoting Smith v. Evening News Ass’n, 371 U.S. 195, 197, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962))). In that event, the “labor case [falls] within the concurrent jurisdiction of the NLRB and the federal courts.” Mack Trucks, Inc. v. Int’l Union, UAW, 856 F.2d 579, 585 (3d Cir.1988); accord Mullins v. Kaiser Steel Corp., 642 F.2d 1302, 1316 (D.C.Cir.1980) (“[F]ederal courts have independent jurisdiction to decide cases alleging the breach of collective bargaining agreements, even though
2045	should abstain and either dismiss or stay the present action. Marcano opposes this request for abstention. For the reasons set forth below, the Court denies K-Mart’s request. DISCUSSION In an action for damages, a federal court may stay, but not dismiss, an action based on principles of abstention. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 719-31, 116 S.Ct. 1712, 1722-28, 135 L.Ed.2d 1 (1996). A federal court’s decision to abstain from hearing a case when a similar action is pending in state court should “rest on considerations of ‘[w]ise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.’ ” Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246 (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952)); Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 915 F.2d 7, 12 (1st Cir.1990) (“Villa Marina 7”). A pending overlapping state court case is, by itself, not a sufficient basis to warrant abstention. González v. Cruz, 926 F.2d 1, 3 (1st Cir.1991). A federal court should abstain from exercising its duty to adjudicate a ease only in exceptional circumstances. Moses H. Cone Memorial Hosp. v. Mercury Constr., 460 U.S. 1, 14, 103 S.Ct. 927, 936, 74 L.Ed.2d 765 (1983) (quoting Colorado River, 424 U.S. at 813, 96 S.Ct. at 1244). The Supreme Court in its Colorado River decision set out four factors for a federal court to consider in determining whether to abstain: (1)
2177	and his co-counsel to arrive at the lodestar. A. Reasonable Hours Expended “Typically, a court proceeds to compute the lodestar amount by ascertaining the time counsel actually spent on the case ‘and then subtracting] from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary.’ ” Lipsett, 975 F.2d at 937 (alteration in original) (quoting Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir.1984)); see also Coutin, 124 F.3d at 337. In doing so, “the presiding judge must ‘draw[ ] on [her] own experience and wisdom [in] deciding whether the time spent on each phase was in excess of - a reasonable amount.’ ” Metropolitan Dist. Comm’n, 847 F.2d at 18 (first and third alterations in original) (quoting Gabriele v. Southworth, 712 F.2d 1505, 1507 (1st Cir.1983)). In combing through the billing records, the Court encountered a number of entries containing reference to two different tasks with no indication of how much time was spent on each. Whenever such an entry involved one of the enumerated uncom-pensable categories discussed in this séction, I allocated fifty percent of the hours in that entry to the category in question. 1. Unproductive or Unnecessary Hours Citing a failure by plaintiffs’ counsel to exercise “billing judgment,” the City challenges a long list of Attorney Hernandez’s time entries as unproductive or otherwise unnecessary to advance the litigation. The Court agrees with the City on a number of these entries. Hours spent by plaintiffs’ counsel talking with the press (7.2) were eliminated. See,
3173	of racial criteria nor advanced any other objective non-discriminatory criteria used by the judges. E. Guillory v. Cain Based on the undersigned’s appreciation of the above-described jurisprudence, relief was recommended in Hicks (from Bossier Parish) and a similar case from Bienville Parish even though the undersigned found credible the testimony of the judges who testified in those cases (Judge Burchett from Bossier and Judge Burgess from Bienville) that they did not intentionally or consciously discriminate in the selection of foremen. The absence of evidence of racially neutral, objective selection procedures or criteria was found to preclude the State from rebutting the pri-ma facie case with only affirmations from the judges of the appointing court. That understanding had to be reexamined after Guillory v. Cain, 303 F.3d 647 (5th Cir.2002), which says: “We do not read Guice to hold that the sole means of rebutting a prima facie case is proof that racially neutral procedures have been independently adopted.” But the Guillory Court added: “That may well be the case when the only rebuttal of the prima facie case is a denial from the official whose decisions created it.” Id. at 652. The facts in Guillory are unique and must be reviewed to determine its impact on this case. The State accepted that the petitioner could establish a prima facie case. Judge Carter, who appointed the foreman in the case at issue, was black, appointed the foreman as his first selection, and had appointed only three foremen by the time of
3106	Prac. & Pro. § 1350 (3d ed. 2004). “Unless the jurisdictional issue is inextricable from the merits of a case, the court may determine jurisdiction on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure.” Kingman Reef Atoll Investments, L.L.C. v. United States, 541 F.3d 1189, 1195 (9th Cir.2008). On a Rule 12(b)(1) motion, “the district court is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. In such circumstances, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id, quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987). Rule 12(f) allows a party to move that the court to strike “from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Although defendant labelled this motion as one falling under Rule 12(f), the contents of the motion do not discuss a motion to strike at all. III. DISCUSSION Defendants move to dismiss this action on the bases that (1) the court lacks subject-matter jurisdiction over this dispute due to the RLA and (2) plaintiffs action is time-barred under the terms of the contract. A. JURISDICTION 1. THE RLA AND “MINOR DISPUTES” Defendants argue that the RLA, which governs labor relations involving airline employees, vests mandatory, exclusive jurisdiction for the adjudication of this dispute in a
4349	the Monitor provision therefore needed to be changed. In response to those concerns, the parties revised the Monitor provision so that the Court now appoints the Monitor from a list of names submitted by the parties. See Consent Decree at U 12(a). The Monitor is removable only for “good cause.” A number of objections also noted that the original proposed Consent Decree appeared to prevent the Court from exercising jurisdiction in the event that the USDA did not comply with the terms of the decree. The law is clear that the Court retains jurisdiction to enforce the terms of the Consent Decree. See Spallone v. United States, 493 U.S. 265, 276, 110 S.Ct. 625, 107 L.Ed.2d 644 (1990); Beckett v. Air Line Pilots Ass’n, 995 F.2d 280, 286 (D.C.Cir.1993) (principle is well-established that trial court “retains jurisdiction to enforce consent decrees and settlement agreements”); Twelve John Does v. District of Columbia, 855 F.2d 874, 876 (D.C.Cir.1988) (in action to enforce terms of consent decree, district court “unquestionably had power to hold the District of Columbia in civil contempt for violations of the consent decree”). The parties also have clarified that the Court retains jurisdiction to enforce the terms of the Decree. D. Absence of Provisions Preventing Future Discrimination The stated purpose of the Consent Decree is to “ensur[e] that in their dealings with the USDA, all class members receive full and fair treatment that is the same as the treatment accorded to similarly situated white persons.” Consent Decree at 2.
2209	Marek v. Chesny, 473 U.S. 1, 9-10, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) (holding that the term “costs” in Rule 68 includes attorneys’ fees and that, therefore, prevailing civil rights plaintiffs “who reject an offer more favorable than what is thereafter recovered at trial will not recover attorney’s fees for services performed after the offer is rejected”). The City invokes this cost-shifting provision with regard to defendants’ June 1, 1998, offer to allow judgment against the City in the total amount of $35,000, which included costs and attorneys’ fees accrued through that date. Plaintiffs contend that the City cannot satisfy its burden of establishing that defendants’ settlement offer was more favorable than the jury’s award of $15,676, see Gavoni v. Dobbs House, Inc., 164 F.3d 1071, 1075-76 (7th Cir.1999) (noting that the offeror bears the burden of showing that Rule 68’s “mandatory cost-shifting provision [is] ... triggered”), because the offer was unapportioned between the two plaintiffs and therefore defective. As a result, plaintiffs could not have “evaluated the individualized values of the offer” and compared them to their own independent prospects for success before a jury. Id. at 1076 (holding that the defendant “failed to carry its burden” under Rule 68 because its settlement offer of $10,000 did not specify how much of the total amount it was allocating to each of the three plaintiffs). According to the Seventh Circuit, “[r]e-quiring the offeror, always a defendant, to make an offer precise enough to enable each offeree, always a plaintiff,
827	advertise his company’s car polish. Id. Liquid Glass is wrong. The fair use doctrine does not apply because protected marks can only be fairly used in limited circumstances. Here, where Liquid Glass used Porsche’s trademark and trade dress to describe Porsche’s product, rather than its own, fan- use can only be successfully invoked if (1) “the product or service in question [is] one not readily identifiable without use of the trademark;” (2) “only so much of the mark or marks [is] used as is reasonably necessary to identify the product or service;” and (3) “the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.” New Kids on the Block v. News America Pub., Inc., 971 F.2d 302, 308 (9th Cir.1992). Liquid Glass fails in all three respects. First, there is no indication that the Liquid Glass products would not be readily identifiable in the advertisements without use of the Porsche trademarks or trade dress. Unlike the defendant newspapers in New Kids, which had to use the New Kids on the Block trademark in order to run its phone-in contest as to who was the favorite New Kid, Id. at 308, or the defendant automobile repair shop in Volkswagenwerk Aktiengesellschaft v. Church, 411 F.2d 350, 352 (9th Cir.1969), which could not avoid using the word Volkswagen in describing the type of cars repaired in the shop, Id., Liquid Glass has asserted no reason why the Porsche trademark or trade dress is
4600	"that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.’ ” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citation omitted). A case only becomes moot in the context ,of a voluntary cessation, “if subsequent events [make] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. (citing United States v. Concentrated Phosphate Export Ass’n., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)) (emphasis added). “[A] voluntary governmental cessation of possibly wrongful conduct [may be treated] with some solicitude.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir. 2009). But courts warn the solicitude should only be applied where the- “self-correction ... appears genuine.” Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir.1988). Arpaio does not contest that he and MCSO filed"" the lawsuits, submitted bar complaints, and performed the arrests the United States alleges. What Arpaio contests is the allegation that these actions were performed in retaliation for criticism he and his office received. In other words, that they were done with retaliatory animus. But the United States’ facts are sufficient to raise a reasonable inference that Arpaio’s actions were performed out of retaliatory animus. Arpaio’s conclusory denials do not defeat this evidence. Therefore, summary judgment will not be granted on these grounds. Arpaio’s second argument —"
4167	because the underlying state law claims fail as a matter of law. (Filing No. 42.) II. SUMMARY JUDGMENT STANDARD Under Federal Rule of Civil Procedure 56, summary judgment is appropriate only where there exists “no genuine issue as to any material facts and.. .the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the non-moving party and draw[s] all reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). “However, inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, “[a] party who bears the burden of proof on a particular issue .may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007) (citation omitted). “The opposing party cannot meet this burden with eonclusory statements or speculation but only with appropriate citations to relevant admissible evidence.” Sink v. Knox County Hosp., 900 F.Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor
3731	nor could the Court find, any cases discussing the pleading standards for unlawful restraint of competition in the context of a patent misuse claim or defense. In Sherman Act cases, proving injury to competition “ordinarily requires the claimant to prove the relevant geographic and product markets and to demonstrate the effects of the restraint within those markets.” Thurman Indus., Inc. v. Pay ‘N Pak Stores, Inc., 875 F.2d 1369, 1373 (9th Cir.1989) (internal citations omitted). Because whether a market is relevant is considered a factual issue, antirust claims will survive a motion to dismiss “unless it is apparent from the face of the complaint that the alleged market suffers a fatal legal defect” or is “facially unsustainable.” Newcal Industries, Inc. v. Ikon Office Solution, 513 F.3d 1038, 1044 (9th Cir.2008) (“There is no requirement that [the market definition and market power] elements of the antitrust claim be pled with specificity.”). A plaintiff must allege “injury to competition in the market as a whole, not merely injury to itself, as a competitor.” Gorlick Distribution Centers, LLC v. Car Sound Exhaust Sys., Inc., 723 F.3d 1019, 1024-25 (9th Cir.2013); see also Orchard Supply Hardware LLC v. Home Depot USA, Inc., 967 F.Supp.2d 1347, 1358 (N.D.Cal.2013). A plaintiff must also' identify the market by its constituent products. Newcal Industries, 513 F.3d at 1045 (complaint adequately identified the following product markets: (1) “replacement Copier Equipment for IKON and GE customers with Flexed IKON Contracts,” (2) “Copier Service for IKON and GE customers with Flexed
4594	connection, to be alleged and shown, is the absence of probable cause.” Id. at 263, 126 S.Ct. 1695. The United States’ claim against Arpaio includes ordinary retaliation, as well as retaliatory prosecution. It alleges, with retaliatory motive, Arpaio complained to the Arizona Commission on Judicial Conduct, ordered arrests, and initiated lawsuits through then County Attorney Andrew Thomas (“Thomas”).. (Doc. 1 at 23-25). Arpaio. acknowledges Skoog, but argues “the Ninth Circuit has shifted away from [its] conclusion.” (Doc. 345 at 14). He cites Acosta v. City of Costa Mesa, for the proposition that the Ninth Circuit has “affirmatively stated that the, existence of probable cause is dispositive of a. retaliatory .arrest claim.” (Doc. 345 .at 14) (emphasis added); see Acosta v. City of Costa Mesa, 718 F.3d 800, 825 (9th Cir.2013). Acosta addressed the question of whether arresting officers were entitled to qualified immunity for claims of retaliatory arrest. The Ninth Circuit held, for purposes of qualified immunity, “there [was ho] clearly established First Amendment right to be free from a retaliatory arrest that is otherwise supported by probable cause.” Acosta, 718 F.3d at 825 (citing Reichle v. Howards, — U.S.-, 132 S.Ct. 2088, 2097, 182 L.Ed.2d 985 (2012)) (emphasis added). The United States argues, whether or not this right would have been clear to‘ an arresting officer, it exists and-applies here. The United States is correct. As the Ninth Circuit’s analysis in Ford v. City of Yakima shows, the question of the substance of a constitutional right is distinct from
209	to join nondiverse defendants for 366 days simply to avoid federal court, thereby undermining the very purpose of diversity jurisdiction.” Id. A court may estop a plaintiff from relying upon the limit where the “plaintiff has attempted to manipulate the statutory rules for determining federal removal jurisdiction, thereby preventing the defendant from exercising its rights.” Id. at 428-29. Courts must determine, based upon a review of the parties’ conduct, whether “it is equitable to strictly apply the one-year limit.” Id. at 426. And, as part of the analysis, the court must balance the Tedford exception with the general rule construing removal jurisdiction strictly, because any “doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.” Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir.2000). “Contested issues of material fact, and any ambiguity or uncertainty in the controlling state law, are -resolved in the plaintiffs favor.” Cantor v. Wachovia Mortg., FSB, 641 F.Supp.2d 602, 606 (N.D.Tex.2009) (citing Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 259 (5th Cir.1995)). In Tedford, two plaintiffs filed suit against a pharmaceutical company and named a single non-diverse defendant, who was initially alleged to be both plaintiffs’ treating physician, even though the physician had never treated Tedford. Id. at 424. Further, the other plaintiffs claim was filed in the wrong venue. The trial court severed the plaintiffs’ claims and transferred the other plaintiffs case to another county. Id. at 425. When the pharmaceutical company discovered that the
1459	BVA 92-17683, at 5 (July 24, 1992). The BVA did not reach the issue of an increased disability rating based on “clear and unmistakable error.” II. ANALYSIS A. Clear and Unmistakable Error Appellant specifically claimed that the VA committed “clear and unmistakable error” by failing to rate the through-and-through gunshot wound to his leg 30% disabling. That being so, the Board was obligated to determine whether or not the VARO committed “clear and unmistakable error” in the December 1970 rating decision. Russell v. Principi, 3 Vet.App. 310, 319 (1992) (en banc); of. Mingo v. Derwinski, 2 Vet.App. 51, 54 (1992) (The BVA “must review all issues which are reasonably raised from a liberal reading of the appellant’s substantive appeal.”); see also Azurin v. Derwinski, 2 Vet.App. 489, 492 (1992); Myers v. Derwinski, 1 Vet.App. 127, 129 (1991). Both parties request that the Court remand this claim to the BVA for adjudication. The Court will remand appellant’s appeal with respect to this claim. B. 38 U.S.C. § 1159 Appellant contends that the Board severed service connection for residuals of a gunshot wound to his right thigh when it corrected the December 1970 rating decision to reflect the actual situs of his injury. Pursuant to 38 U.S.C. § 1159, service connection, once established and in effect for more than ten years, can be severed only under limited circumstances: Service connection for any disability or death granted under this title which has been in force for ten or more years shall not be
2154	500 Associates’ Mo., p. 11. VAC notes that no specifics concerning 500 Associates’ alleged “removal” and “remediation” costs are provided. CERCLA’s cost recovery scheme mandates a particularized showing of the necessity for these costs and the precise connection that they bear to the cleanup. 500 Associates seeks a damages hearing at which it intends to offer further proof concerning these costs. However, we conclude that it cannot establish the requisite elements required for cost recovery under CERCLA. Therefore, no hearing will be necessary. Congress enacted CERCLA “to clean up hazardous waste sites and to impose the costs of such cleanup on parties responsible for the contamination.” Champion Laboratories, Inc. v. Metex Corporation, 2009 WL 2496888 (D.N.J. Aug.13, 2009), citing, Meghrig v. KFC Western, Inc., 516 U.S. 479, 483, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996). Under the CERCLA scheme, a prima facie case for cost recovery under § 9607 has four elements: (1) The property is a “facility”; (2) There has been a “release” or “threatened release” of a hazardous substance; (3) The release has caused the plaintiff to incur “necessary costs of response” that are consistent with the NCP; and (4) The defendant is in one of four categories of potentially responsible parties. Regional Airport Authority of Louisville v. LFG, LLC, 460 F.3d 697, 703 (6th Cir.2006), citing, Franklin County Convention Facilities Authority v. American Premier Underwriters, Inc., 240 F.3d 534, 541 (6th Cir.2001). 500 Associates cannot identify a “release” or “threatened release” by VAC which created an imminent
3551	entertain arguments that were not raised in the district court. However, we may exercise our discretion to consider an issue first raised on appeal if it “is a pure question of law and the record is sufficient to review the issue.” United States v. Alisal Water Corp., 431 F.3d 643, 654 n. 4 (9th Cir.2005). Qualified immunity is such an issue. Bibeau v. Pac. Nw. Research Found., Inc., 188 F.3d 1105, 1111 n. 5 (9th Cir.1999), as amended, 208 F.3d 831 (9th Cir.2000) (“Because qualified immunity presents a pure question of law which we review de novo, any decision by the district court would be entitled to no deference.”). We have on occasion considered qualified immunity sua sponte. Graves v. City of Coeur D’Alene, 339 F.3d 828, 846 n. 23 (9th Cir.2003), abrogated on other grounds by Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). CHI will not be prejudiced by our consideration of qualified immunity on the FHA claims because, as we have noted, we assume all disputed facts in CHI’s favor, and the dispositive issue — which was fully addressed during oral argument — is one of law only. We turn now to the merits. C.The Fair Housing Act The FHA applies only to “dwellings.” 42 U.S.C. § 3604. A dwelling is a structure “occupied as, or designed or intended for occupancy as, a residence,” id. at § 3602(b), an “abode or habitation to which one intends to
749	supra, 429 F.2d 1019 (5 Cir. 1970), ordering a remand for inquisition on the possible deprivation of a defendant’s rights by the jury’s noticing of news stories about his pretrial escape which were included in courtroom proceedings. Respondent argues that McKinney permits scrutiny solely of Federal court trials, and does not empower a Federal court by habeas corpus to examine State court jury-room occurrences. However, we find clear authority in United States ex rel. Owen v. McMann, 435 F.2d 813 (2 Cir. 1970), for United States court review of State trials, on habeas corpus, where there is “ ‘such a probability that prejudice will result that it [the verdict] is deemed inherently lacking in due process’ ”, id. at 818 (citing Estes v. Texas, 381 U.S. 532, 542-43, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965)). Downey’s further defiance of the jury is the partisanship of one juror because he is the son of the jailer who was beaten in the escape attempt. Petitioner’s allegations on this complaint, as well as on the jury deliberations, prima facie present deviations beyond the province, duties and impartiality of jurymen. As they raise the specter of taint in the jury’s fixing of punishment, we direct the District Court to hold a hearing to explore and make findings on the truth of these allegations. IV. Downey’s final complaint is that his Fifth Amendment privilege against self-incrimination was impinged by a prosecution witness’ mention of his failure to make a statement to the police when arrested.
4708	accept reduced pay is valid— ’ [The] [plaintiffs here have not alleged that they were paid below minimum wage.” (alterations in original) (quoting United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 494 (2d Cir.1960))). Here, Plaintiff may be entitled to recovery for overtime hours worked in excess of 40 hours a week, but the Court finds that under the reasoning in Lundy, Plaintiffs FLSA minimum wage claim should be dismissed. B. Rule 56 Motion 1. Standard of Review Summary judgment shall be granted where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgmént as a matter of law.” Fed. R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir.2014) (same). “In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (internal quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cnty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314 (S.D.N.Y.2014) (same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004); see also Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at *2 (S.D.N.Y. Apr. 9, 2014) (same). “However,
2777	subject matter of the opinion, even if it is from trial counsel.” [Docket No. 82, p. 6]. As noted above, AKEVA and Chiron extend the waiver to the broadest possible limits, requiring disclosure of both attorney-client communications and work product, regardless of whether shared with the alleged infringer, through trial. Without regurgitating its analysis, the Court disagrees with such a broad waiver. Moreover, “[t]he willfulness of allegedly infringing activity is determined as of the date the activity began or the date on which the alleged infringer became aware of the patent, whichever is later.” Eli Lilly and Co. v. Zenith Goldline Pharmaceuticals, Inc., 149 F.Supp.2d 659, 662 (S.D.Ind.2001), citing Jurgens v. McKasy, 927 F.2d 1552, 1562 (Fed.Cir.1991), and Odetics, Inc. v. Storage Technology Corp., 185 F.3d 1259, 1276 (Fed.Cir.1999) (“The proper time to assess willfulness is at the time the in-fringer received notice ... making the relevance of later developments ... questionable at best.”)- See also Johns Hopkins University v. CellPro, Inc., 152 F.3d 1342, 1362 (Fed.Cir.1998). In this instance, the Court finds that Reilly has waived the attorney-client privilege and work product protections, to the extent disclosed to Reilly, post-lawsuit relating to the subject matter of the opinion of counsel. However, the Court does so not because the matter involves a continuing infringement, but rather, as explained above in detail, because Reilly has proffered a new and seemingly contradictory opinion during the lawsuit. III. Conclusion. The Court expects the parties to work in good faith to adhere to the
2003	and description of past and present symptoms (including a description of “the relationship between past events and current symptoms” in terms of “a link between current symptoms and an in[-]service stressful event(s)”)); see also Manual M21-1, Part VI, ¶ 7.46 (Oct. 11,1995) (reiterating three PTSD service-connection requirements set forth in regulation § 3.304(f)). Hence, no question arises as to whether all three elements of a PTSD claim are required to be met in this case. As a general matter, the veteran is entitled to have his case adjudicated under whichever regulatory or Manual M21-1 provision would be more favorable to him in light of regulatory change (not specifically made prospective only) while his case was on appeal to the BVA See Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991) (“where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should ... apply unless Congress provided otherwise or permitted the Secretary ... to do otherwise and the Secretary did so”); Fugere v. Derwinski, 1 Vet.App. 103, 109 (1990) (without adherence to Administrative Procedure Act notice-and-comment process and specific notice to the public of intent to revoke Manual M21-1 provision protecting benefit entitlement, Secretary cannot revoke that provision); see also Austin v. Brown, 6 Vet.App. 547, 554-55 (1994) (discussing 38 C.F.R. § 1.551(e)’s prohibition against adversely affecting anyone by matter not published in Federal Register). This Court previously has held that
2613	claims of those clients are barred by the apparently applicable three-year statute of limitations, Cal.Code Civ.Proc. § 338(4). Sackett v. Beaman, 399 F.2d 884, 890 (9 Cir. 1968); Smith v. Guaranty Service Corp., 51 F.R.D. 289, 294-295 (N.D.Cal.1970). “[T]he time from which the statute of limitations begins to run is not the time at which a plaintiff becomes aware of all of the various aspects of the alleged fraud, but rather the statute runs from the time at which plaintiff should have discovered the general fraudulent scheme.” Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 410 (2 Cir. 1975). As the Court of Appeals said in Cameron v. E. M. Adams & Co., supra, 547 F.2d at 478, quoting Williams v. Sinclair, 529 F.2d 1383, 1388 (9 Cir. 1975): “ ‘The existence of a statute of limitations issue does not compel a finding that individual issues predominate over common ones. Given a sufficient nucleus of common questions, the presence of the individual issue of compliance with the statute of limitations has not prevented certification of class actions in securities cases.’ ” The evidence before the Court does not suggest that a significant number of class members knew or should have known that CIS’s representations concerning past performance in Performance Chart No. 1 were fraudulent. CIS never distributed on a systematic basis information which described any more accurately or completely than that Chart the performance of its accounts between March 1967 and March 1971. Many CIS clients complained to
3408	sentence run consecutive to his sentence for probation revocation because the revocation needed additional punishment. Terrell objected to the consecutive sentences. II. The Appeal On appeal, Terrell argues that (1) the court erred by admitting extrinsic evidence of his guilty plea in the state burglary case; (2) the court improperly denied his motion for a mistrial; (3) his sentence as an armed career criminal is unconstitutional in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); and (4) the court erred by imposing consecutive sentences. A. Extrinsic Evidence We review a district court’s evidentiary rulings for abuse of discretion, but will not reverse if the error had “no substantial influence on the outcome.” United States v. Gunn, 369 F.3d 1229, 1236 (11th Cir.), cert. denied, — U.S. -, 125 S.Ct. 324, 160 L.Ed.2d 244 (2004); see also Fed. R.Crim.P. 52(a) (noting that errors that do not affect substantial rights must be disregarded). An error is harmless unless “there is a reasonable likelihood that [it] affected the defendant’s substantial rights.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.1990). Federal Rule of Evidence 404(b) provides Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). “To be admissible, 404(b) evidence must
262	actors.’” Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 795 (2d Cir. 1999) (quoting Felder v. Casey, 487 U.S. 131, 141, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988)). Section 1983 “does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere.” Morris—Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir.2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992). Malicious prosecution, false arrest, and abuse of process give rise to liability under 42 U.S.C. § 1983. Savino v. City of New York, 331 F.3d 63 (2d Cir.2003). a. False arrest/imprisonment In order to prove a claim of false arrest or imprisonment, a plaintiff must show: (1) the defendant intended to confine the plaintiff; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged. Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d Cir. 1995). Confinement is “privileged” if the defendant had probable cause to arrest the plaintiff. Jocks v. Tavernier, 316 F.3d 128, 135 (2d Cir.2003). A plaintiff
4657	of the settlement agreement within which to obtain a commercially reasonable offer. Huizenga could have made his offer conditional on receiving the approvals he wanted rather than reserving the right to withdraw the offer for any (or for that matter for no) reason. Such an offer would have been commercially reasonable. But he refused to commit himself. When the offer was made, the government sent a copy to Reinsdorf, and that kicked off negotiations with Huizenga. But after extensive negotiations involving the NBA, Reinsdorf decided not to allow Huizenga, despite the investment in the Bulls that he would be making, to become a full partner. As a result, Huizenga withdrew his offer. As we said in Architectural Metal Systems, Inc. v. Consolidated Systems, Inc., 58 F.3d 1227, 1229 (7th Cir.1995), “the recipient of a hopelessly vague offer should know that it was not intended to be an offer that could be made legally enforceable by being accepted.” That doesn’t make such an offer commercially unreasonable; our home-buying example shows that contingent offers can be commercially reasonable. The problem in this case is the impact of Huizenga’s highly tentative offer on Segal’s legitimate interests. According to the government and the district judge, to repossess his original half-interest in his Bulls investment pursuant to paragraph 9(f) of the settlement agreement Segal had to meet Huizenga’s offer without knowing whether it was realistic. Huizenga was offering $2.9 million for an investment that had been appraised at only $2.09 million, and Segal argues that
4945	all cases with the actual words of the claim.”). This ordinary and customary meaning “is the meaning that the terms would have to a person of ordinary skill in the art in question at the time of the invention .... ” Phillips, 415 F.3d at 1313. A patentee is presumed to have intended the ordinary meaning of a claim term in the absence of an express intent to the contrary. York Products, Inc. v. Central Tractor Farm & Family Ctr., 99 F.3d 1568, 1572 (Fed.Cir.1996). Generally speaking, the words in a claim are to be interpreted “in light of the intrinsic evidence of record, including the written description, the drawings, and the prosecution history, if in evidence.” Teleflex, Inc. v. Ficosa North Am. Corp., 299 F.3d 1313, 1324-25 (Fed.Cir.2002) (citations omitted); see also Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313, 1319 (Fed.Cir.2005) (court looks at “the ordinary meaning in the context of the written description and the prosecution history”). “Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). With regard to the intrinsic evidence, the court’s examination begins, first, with the claim language. See id. Specifically, “the context in which a term is used in the asserted claim can be highly instructive.” Phillips, 415 F.3d at 1314. As part of that context, the court may also consider the other patent claims, both asserted and unasserted. Id. For example, as claim
3348	S.Ct. at 352. Speaking generally, when the defendant demonstrates a genuine desire to build a business under his own name, courts have been reluctant to proscribe all surname use whatever even though the defendant’s conduct has been less than exemplary. In L.E. Waterman Co. v. Modern Pen Co., supra, the Court declined to order an absolute prohibition although it was clear that the defendant intended to use his surname to garner benefits from the plaintiff’s success ful exploitation of the same name. 235 U.S. at 94-96, 35 S.Ct. 91. Particularly when the infringer is a son or grandson, as in Hall, supra; National Distillers Products Corp. v. K. Taylor Distilling Co., 31 F.Supp. 611, 615 (E.D.Ky.1940), and Friend v. H. A. Friend & Co., 416 F.2d 526, 534 (9th Cir. 1969) cert. denied, 397 U.S. 914, 90 S.Ct. 916, 25 L.Ed.2d 94 (1970), the courts have given qualified relief which reflects “a judicious balancing of the countervailing interests of protecting an individual’s use of his own name and the avoiding of confusion.” 416 F.2d at 534. Lest it be thought that the equitable doctrine stated by Justice Holmes has lapsed with the passage of time, we mention two more cases which have, in recent years, also balanced the issue much as the Ninth Circuit did in Friend, supra. In Berghoff Restaurant Co., Inc. v. Louis W. Berghoff, Inc., 357 F.Supp. 127 (N.D.Ill.1973), aff’d, 499 F.2d 1183 (7th Cir. 1974), the defendant was permitted to use his own name when accompanied
3776	257, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953); Eisenstadt v. Baird, 405 U.S. 438, 446, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); or if the third party’s rights are asserted in a First Amendment overbreadth challenge to a statute, Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). All three types of third-party standing have been used to allow adult establishment owners to litigate the First Amendment rights of their entertainers. Even if a party may properly raise a third party’s First Amendment rights, the litigant must still be able to point to an injury in fact and be able to sufficiently frame the issues for adjudication. Clark v. City of Lakewood, 259 F.3d 996, 1010 (9th Cir.2001). Potential financial injury with a “vested interest in having [an ordinance overturned” is sufficient to satisfy the standing requirement. Id. at 1011 (analyzing standing regarding a facial over-breadth claim). “[A] business ... may properly assert its employees’ or customers’ First Amendment rights where the violation of those rights adversely affects the financial interests or patronage of the business.” Hang On, Inc., 65 F.3d at 1252 (classifying this principle as falling under both the close relationship exception and the “unlikely to defend” exception); White’s Place, 222 F.3d at 1330 (classifying this rule as a form of associational standing). Plaintiff has a strong financial interest in the activities that take place within its establishment and, if the ordinances are unconstitutional, there is
4659	if obtained during “custodial interrogation” without prior warnings that the suspect “has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602. The central issue here is whether the interview in the library was custodial interrogation, as Ellison says, simply because incarceration makes any interrogation custodial per se within the meaning of Miranda. Determinations about Miranda custody begin by examining all of the “circumstances surrounding the interrogation” and asking whether “a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave,” Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). This “initial determination ... depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam). Once a court finds that a reasonable person in the suspect’s position would not have felt free to end the interview and walk away, there is a further question whether the suspect would reasonably find the circumstances coercive, thus raising the concern that drove Miranda. See Berkemer v. McCarty, 468 U.S. 420, 436-37, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (acknowledging that “a traffic stop significantly curtails ... ‘freedom of action,’
2287	firm was not privileged. The court also noted that Mr. White had not asserted that any particular information or document was privileged. The court suggested that some of the information would not even fall into the category of client communications. When information is disclosed for the purpose of assembly into a bankruptcy petition and supporting schedules, there is no intent for the information to be held in confidence because the information is to be disclosed on documents publicly filed with the bankruptcy court. In re Feldberg is not to the contrary. While there we noted the difference between expectations about communications and expectations about documents, we still emphasized that “Conformation imparted to counsel without any expectation of confidentiality is not privileged.” In re Feldberg, 862 F.2d 622, 628 (7th Cir.1988). Here, there is no specification as to what information Mr. White gave Mr. Center for which Mr. White had an expectation of confidentiality. Evidence given to the grand jury was disclosed to Mr. White and yet he is unable to point to any specific information in the documents or Mr. Center’s testimony to which the attorney-client privilege would attach. Mr. White simply alleges that the privilege applies to drafts of the bankruptcy petition and to interview notes used to prepare these drafts. The district court found that Mr. White made an insufficient blanket assertion of the privilege. He continues to do so in this court. We find no error in the district court’s determination that Mr. White did not carry
3711	would otherwise invoke federal jurisdiction. “If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of jurisdiction contained in the. complaint are insufficient on their face to demonstrate the existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made.” Cervantez v. Sullivan, 719 F.Supp. 899, 903 (E.D.Cal.1989), rev’d on other grounds, 963 F.2d 229 (9th Cir.1992). “The factual, allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Id.; see also Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1052 n. 2 (9th Cir.2009), rev’d on other grounds en banc, 616 F.3d 1019 (9th Cir.2010) (applying Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), to a facial motion to dismiss for lack of subject matter jurisdiction). V. ANALYSIS A. Whether Plaintiff Has Standing to Bring Its Inventorship Claim Plaintiffs tenth cause of action seeks a declaratory judgment stating that Lininger is a co-inventor of patents numbers 6,604,-053 (“'053 Patent”), 6,722,208 (“'208 Patent”), 6,799,474 (“'474 Patent”), and 6,990,-924 (“'924 Patent”). FAC ¶ 170. Plaintiff also seeks to establish that Brown is a co-inventor of the 053 patent, and that Borc-hert and Yiesca are not co-inventors of any of the four patents. Id. at ¶¶ 175-18. These patents are all related to the Meter technology. Id. at ¶¶ 170. These claims are, in
4723	"been conducted. Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir.1995). 2. Analysis The FLSA applies generally to “employees, engaged in interstate commerce.” Dauphin v. Chestnut Ridge Transp., Inc., 544 F.Supp.2d 266, 271 (S.D.N.Y.2008). Among other things, the FLSA requires employers to pay overtime wages to certain, employees who work more than 40 hours per week. See 29 U.S.C. § 207. However, the FLSA has also' exempted classes 'of employees from its wage protections. “Because the FLSA is a remedial law, [courts] must narrowly construe its exemptions.” Reiseck v. Universal Commons of Miami, Inc., 591 F.3d 101, 104 (2d Cir.2010) (footnote omitted). Moreover, an employer bears the burden of establishing that an exemption applies. See Young v. Cooper Cameron Corp., 586 F.3d 201, 204 (2d Cir.2009) (“The employer has the burden, of proving that the employee clearly falls within the terms of the exemption.”); Clarke v. JPMorgan Chase Bank, N.A., No. 08-CV-2400, 2010 WL 1379778, at *15 (S.D.N.Y. Mar. 26, 2010) (same); Franklin v. Breton Int’l, Inc., No. 06-CV-4877, 2006 WL 3591949, at *2 (S.D..N.Y. Dec. 11, 2006) (same). Defendants argue that they are exempt from paying Plaintiff in accordance with ""the FLSA because ""Plaintiff fits into one of the FLSA’s exemptions: the motor carrier exemption. This exemption has its roots in a desire for uniformity in regulation. See Dauphin, 544 F.Supp.2d at 271 (“The purpose of [the motor carrier] exemption is to prevent conflict between the FLSA and the Motor Carrier Act.”). So as to"
3577	of a lending statute because “neither compensatory damages nor nominal damages were awarded against [the lender]. Consequently, punitive damages could not be awarded.” Valley Acceptance Corp. v. Glasby, 230 Va. 422, 432, 337 S.E.2d 291, 297 (1985). In yet another case, the Supreme Court held that because “the evidence of fraud in the inducement was insufficient to take the case to the jury as to compensatory damages, there was, a fortiori, no basis for an award of punitive damages.” Watson v. Avon Street Business Center, Inc., 226 Va. 614, 619, 311 S.E.2d 795, 799 (1984). See also Zedd v. Jenkins, 194 Va. 704, 706-07, 74 S.E.2d 791, 793 (1953). The Fourth Circuit has also followed this path. See Durham v. New Amsterdam Casualty Co., 208 F.2d 342, 345 (4th Cir.1953) (“Punitive damages can be allowed only where compensatory damages have been awarded.”); Gay v. American Motorists Insurance Co., 714 F.2d 13, 16 (4th Cir.1983) (compensatory damages necessary predicate in Virginia for award of punitive damages). The plaintiffs have barely responded to the defendant’s arguments on punitive damages. The only possible support for their position is found in a case cited by the defendant, O’Brien v. Snow, 215 Va. 403, 210 S.E.2d 165 (1974). In Snow, the defendant admitted to property damage liability and the trial court granted summary judgment allowing recovery of the compensatory damages but denying punitive damages. The Supreme Court reversed, stating that “as the result of the defendant’s admission of property damage liability, there has been a
1070	must-carry provisions in Turner were content-neutral restrictions on speech because they did not distinguish favored from disfavored speech, prompting an intermediate level of scrutiny from the Court. See Turner II, 520 U.S. at 185-86, 117 S.Ct. 1174. Intermediate scrutiny, which is itself a fairly deferential standard of review, is not applicable when legislation substantially burdens a fundamental right. See, e.g., Turner II, 520 U.S. at 225, 117 S.Ct. 1174 (Stevens, J., concurring) ( “If this statute regulated the content of speech rather than the structure of the market, our task would be quite different.”); Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988) (“[CJlassifications affecting fundamental rights ... are given the most exacting scrutiny.”); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978) (“Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake.”). Had the must-carry provisions distinguished based on the content of speech, they would have been subjected to strict scrutiny, the Court’s most nondefer-ential standard. See Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989) (applying strict scrutiny to FCC regulations banning indecent telephone communications). The Supreme Court has held that abortion of a nonviable fetus, as a form of personal privacy, is a fundamental right found in the due process guarantee of liberty. See Roe, 410 U.S. at 153-54, 93 S.Ct. 705. While the plurality in Casey held that undue
4002	water to reduce buoyancy, or have foam inside. Based on the above-mentioned considerations, this court holds that “hollow” as used in the '833 patent, means having a cavity or space within, that may or may not be filled with another material. C. Infringement Now this court must perform the second step of the infringement analysis, evaluating the accused device to determine whether all of the claim limitations are present in the accused device, either literally or by a substantial equivalent. See Johnson Worldwide Assocs. v. Zebco Corp., 175 F.3d 985, 988 (Fed.Cir.1999). To show literal infringement of a patent, a patentee must supply sufficient evidence to prove that the accused product meets every element or limitation of a claim. See Lemelson v. United States, 752 F.2d 1538, 1551 (Fed.Cir.1985) (“It is ... well settled that each element of a claim is material and essential, and that in order for a court to find infringement, the plaintiff must show the presence of every element ... in the accused device.”). If, however, even one limitation is not met, then the product does not literally infringe. Bayer AG v. Elan Pharm. Research Corp., 212 F.3d 1241, 1247 (Fed.Cir.2000); Zodiac Pool Care, Inc. v. Hoffinger Indus., Inc., 206 F.3d 1408, 1415 (Fed.Cir.2000). 1. The Elements of Claim 1 of the '833 Patent a. Placing Floating Craft Having a Hull with an Upwardly Curved Bow onto a Dry Dock This court’s previous conclusion that the Ultra permits the placing of a floating craft having a
1352	the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). The allegations must be “specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985). To that end, the allegations must contain “an account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (citation omitted). Averments of fraud must be accompanied by the “who, what, when, where, and how” of the misconduct charged. Vess v. Ciba-Geigy Corp. USA 317 F.3d 1097, 1106 (9th Cir.2003) (citation omitted). Additionally, “the plaintiff must plead facts explaining why the statement was false when it was made.” Smith v. Allstate Ins. Co., 160 F.Supp.2d 1150, 1152 (S.D.Cal.2001); see also In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1549 (9th Cir.1994) (en banc) (superseded by statute on other grounds). C. Rule 12(b)(1) A party may file a motion to dismiss with the Court for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion may be either facial or factual. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004). A facial 12(b)(1) motion involves an inquiry confined to the allegations in the complaint, whereas a factual 12(b)(1) motion permits the court to look beyond the
2227	effect than others. See Andrew Robinson Int’l, Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 56-57 (1st Cir.2008). Because a federal court sitting in diversity applies the choice-of-law rules of the forum state to determine questions of res judicata, see Taveras v. Taveraz, 477 F.3d 767, 783 (6th Cir.2007), we must first determine the preclusive effect accorded declaratory judgments under Kentucky law. Because the Kentucky Supreme Court has not squarely addressed this issue, the Court is guided by relevant decisions of the Sixth Circuit. When a district court must apply state law which has been previously interpreted by the Sixth Circuit, “that interpretation is binding ... unless an intervening decision of the state’s highest court has resolved the issue.” Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir.2009). Here, the Sixth Circuit has interpreted Kentucky claim preclusion law with respect to declaratory judgments on two different occasions: first in Holbrook v. Shelter Ins. Co., 186 Fed.Appx. 618 (6th Cir.2006), and then later in Ventas, Inc. v. HCP, Inc., 647 F.3d 291 (6th Cir.2011). Because no intervening decision of the Kentucky Supreme Court has resolved the issue, the Court must look to these decisions for a proper interpretation of Kentucky law. In Holbrook, the plaintiff sued her automobile insurance company after being denied coverage for an accident. 186 Fed. Appx. at 620. In response, the insurance company moved to dismiss the action on the grounds that it was barred under the doctrine of claim preclusion. Id. Previously, the insurance
9	court need not accept “unwarranted deductions” or “sweeping legal conclusions” cast in the form of factual allegations.) As such, they have failed to demonstrate through competent evidence that Houlihan asserted actual control over the plan assets exchanged by virtue of the 1995 transaction, and Plaintiffs cannot survive Houlihan’s Motion for Summary Judgment in this respect. Plaintiffs alternatively argue that Houlihan was a fiduciary under § 1002(21)(A)(ii) because it provided investment advice to the ESOP. The record does not support a finding that Houlihan gave investment advice to the ESOP regarding the 1995 stock purchase. In fact, all of the material evidence points the other way. Besides, “[n]ot everyone who provides investment advice to an ERISA plan is” a fiduciary. Wolin v. Smith Barney Inc., 83 F.3d 847, 849 (7th Cir.1996). The statute, 29 U.S.C. § 1002(21)(A)(ii), as glossed by the Department of Labor’s regulations, 29 C.F.R. § 2510.3-21, and by the cases, such as Farm King Supply and Thomas, Head & Greisen Employees Trust v. Buster, 24 F.3d 1114, 1117—20 (9th Cir.1994), requires that the investment advisor, in order to be deemed a fiduciary, with all that that status implies, be rendering advice pursuant to an agreement, be paid for the advice, and have influence approaching control over the plan’s investment decisions. Id. Department of Labor regulations further provide that a professional advisor can qualify as a fiduciary when it “renders any advice ... on a regular basis to the plan pursuant to mutual agreement ... that such services will
15	scope of the arbitration clause. C. The Fifth Circuit has noted that “when confronted with arbitration agreements, we presume that arbitration should not be denied unless it can be said with positive assurance that an arbitration clause is not susceptible of an interpretation which would cover the dispute at issue.” Sedco, 767 F.2d at 1145. In determining whether a particular claim falls within the scope of an arbitration agreement, the focus is properly placed on the factual allegations of the complaint rather than the legal causes of actions asserted. “Were the rule otherwise,” as one court has soundly observed, “a party could frustrate any agreement to arbitrate simply by the manner in which it framed its claim.” In re Oil Spill by Amoco Cadiz, 659 F.2d 789, 794 (7th Cir.1981). The Court finds that Monda Marine’s claims are within the broad scope of the arbitration clause. The crux of Monc la Marine’s claims against the third-party-defendants are that they conspired and colluded to compensate Monda Marine under the Primary P & I policy, rather than the Hull policy. By doing so, it is argued, the third-party defendants would receive a credit for the salvage value of the MONCHA 101, which would be available under the terms of the Primary P & I policy but not the Hull policy. The underlying basis of all Monda Marine’s claims is that the insurance policies issued to Monda cover all or some of the MONCLA 101 loss. For Monda Marine’s claims to be within
1215	call for “the strict construction” of the removal statute); Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269, 274 (2d Cir.1994) (“In light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability.” (internal citation omitted)); Zerafa v. Montefiore Hosp. Hous. Co., 403 F.Supp.2d 320, 324 (S.D.N.Y.2005) (“Removal jurisdiction is strictly construed inasmuch as it implicates significant federalism concerns and abridges the deference courts generally give to a plaintiffs choice of forum.”). As a general matter, the party asserting federal jurisdiction bears the burden of proving that the case is properly in federal court. See McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936). “Where, as here, jurisdiction is asserted by a defendant in a removal petition, it follows that the defendant has the burden of establishing that removal is proper.” United Food & Commercial Workers Union v. Center-Mark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir.1994). B. Summons with Notice as an Initial Pleading Plaintiffs only filed a Summons with Notice in state court before Defendants removed. The Summons states that “Plaintiffs’ principal office and/or place of business is in [Westchester] County.” (Chun Aff. Ex. A at 1.) It also lists RBC’s mailing address in London, United Kingdom and RBCCMC’s mailing address in New York. (Id.) The two-page Notice portion states that “[t]his is an action
4830	in the sedentary occupational base. For this reason, the ALJ erred in not calling a vocational expert (“VE”) to testify as to the jobs York is capable of performing despite his limitations. The Commissioner bears the burden at step five of the sequential analysis to produce evidence of a significant number of jobs accommodating the claimant’s RFC and vocational characteristics. Knight, 55 F.3d at 313. The ALJ may establish this evidence by applying the Medical- Vocational grid rules or by consulting a vocational resource. SSR 96-9p. The use of the grid rules in determining whether a claimant can perform sedentary work is inappropriate where the claimant’s nonexertional impairments are so severe as to limit the range of work he can perform. Herron v. Shalala, 19 F.3d 329, 336 (7th Cir.1994). If that is the case, the ALJ’s disability determination is made through the “testimony of vocational experts who can indicate what work, if any, the claimant is capable of performing.” Herron, 19 F.3d at 336-337, quoting Nelson v. Secretary of Health and Human Services, 770 F.2d 682, 684 (7th Cir.1985); See also, May v. Apfel, 1999 WL 1011927 * 10 (N.D.Ill.1999) (When a claimant suffers from both exertional and nonexertional impairments the ALJ may not be able to rely solely on the grid rules and may use a vocational expert). The grid rules in 20 C.F.R. Pt. 404, Subpt. P, App. 2, set forth rules that identify whether jobs requiring specific combinations of physical ability, age, education, and work experience
3413	whether Terrell knew he possessed the firearm, which Terrell placed in issue by pleading not guilty to the firearm offense. United States v. Jernigan, 341 F.3d 1273, 1282 n. 7 (11th Cir.2003). The only issue is whether the prejudice of this evidence outweighed its probative value. Here, the district court properly admitted the extrinsic evidence of the related burglary conviction, as its prejudicial effect did not outweigh the probative value. The judge issued limiting instructions to the jury reminding them that the burglary conviction could not be used alone to determine Terrell’s guilt for the firearm offense. See Jernigan, 341 F.3d at 1282 (holding that “any unfair prejudice that may have existed was mitigated by the district judge’s limiting instruction.”); United States v. Wilson, 149 F.3d 1298, 1302 (11th Cir.1998) (presuming that a jury follows the court’s instructions). Moreover, any potential error in the admission of this evidence was harmless. Compare Matthews, slip op. at 2535-41 (finding error not harmless when the government needed the extrinsic evidence to meet its “heavy burden” of proving the defendant’s intent to conspire). The government presented sufficient evidence at trial, aside from the burglary conviction, from which a reasonable jury could have determined that Terrell stole the firearm that was found in his possession. Evidence that forms an “integral and natural part of the witness’s accounts of the circumstances surrounding the offenses for which the defendant was indicted” is admissible even if it tends to reflect negatively on the defendant’s character. United States v.
4963	consistency point images” is indefinite under section 112, paragraph 2. A claim is indefinite under section 112, ¶ 2 when “its legal scope is not clear enough that a person of ordinary skill in the art could determine whether a particular [product] infringes or not.” Geneva Pharms., Inc. v. GlaxoSmithKline PLC, 349 F.3d 1373, 1384 (Fed.Cir.2003). “It is the applicants’ burden to precisely define the invention, not the PTO’s,” and section 112, ¶ 2 “puts the burden of precise claim drafting squarely on the applicant.” In re Morris, 127 F.3d 1048, 1056 (Fed. Cir.1997). Indefiniteness must be shown by clear and convincing evidence that the claim terms at issue are “not amenable to construction” or are “insolubly ambiguous.” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347-48 (Fed.Cir.2005). The inquiry “depends on whether those terms can be given any reasonable meaning.” Id. at 1347. Unless “reasonable efforts at claim construction prove futile[,]” the claim is not invalid for indefiniteness. Exxon Research & Eng’g Co. v. United States, 265 F.3d 1371, 1375 (Fed.Cir.2001). Sun contends that the term “increasing” provides one of skill in the art with no measure of the scope of the claims. Sun’s expert contends that the term “increasing a number of persistent consistency point images” implies that a storage system was previously capable of storing a certain number of consistency point images and that, as a result of the claimed invention, the system is now able to store more per sistent consistency point images. However, the
769	2003), in support of his arguments regarding the petty offense exception, those cases do not explicitly support his arguments. Moreover, this court must defer to the BIA’s interpretation of ambiguous provisions of the INA, and the BIA held in this case that the petty offense exception was inapplicable to Rivas-Banos. Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.1996). As the petty offense exception was not applicable to Rivas-Banos, he was ineligible for cancellation of removal. See 8 U.S.C. §§ 1101(f)(3), 1229b(b)(l)(B), 1182(a)(2)(A)(i)(I). It is therefore not relevant whether Rivas-Banos met the other statutory requirements for cancellation of removal. Rivas-Banos’s argument regarding voluntary departure is not cognizable because he did not exhaust that claim by raising it before the BIA. See Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.2004). Moreover, Rivas-Banos’s due process claim lacks merit because he does not have a right to due process regarding “the failure to receive relief that is purely discretionary in nature.” Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir.2004). Accordingly, Rivas-Banos’s petition for review is DENIED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
2488	interests, a dispute definite and concrete, not hypothetical and abstract.” See Babbitt, 442 U.S. at 298, 99 S.Ct. 2301 (quotations omitted). Ripeness requires “fitness of the issues for judicial decision” and examination of “the hardship to the parties of withholding court consideration.” See Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The Declaratory Judgment Act calls upon the Court to apply a heightened standard of ripeness, allowing judicial intervention only where “there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” See Lake Carriers Ass’n v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Gopher Oil Co. v. Bunker, 84 F.3d 1047, 1050 (8th Cir.1996) (citing Caldwell, 755 F.2d at 649). The Court’s declaratory power is strictly discretionary, see Wilton v. Seven Falls Co., 515 U.S. 277, 282, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995), and is to be exercised with caution. The Court finds this litigation involves only hypothetical and speculative disagreements. See Cass County v. United States, 570 F.2d 737, 738 (8th Cir.1978) (finding generalized claims of confusion over jurisdiction lack needed specificity). According to plaintiffs, legal uncertainty over tribal jurisdiction within the 1855 reservation boundaries has created an unbearable hardship requiring judicial action. While the Courts have found uncertainty regarding legal status can justify judicial action in a limited number of cases, see, e.g., Thomas v. Union Carbide Agric. Prods. Co., 473
98	INS is high. Absent some unambiguous assurance that the INS will not revert to its old policies, plaintiffs plainly have a continuing stake in the outcome of this litigation. See Lewis, 110 S.Ct. at 1255. It, therefore, cannot be said that there is “no reasonable expectation that the alleged violation will recur” nor can it be said that intervening events have “completely and irrevocably eradicated the effects of the alleged violation.” County of Los Angeles, 440 U.S. at 631, 99 S.Ct. at 1383 (citations and internal quotations omitted). In light of all the circumstances, the obvious potential for recurrent injury, “together with a public interest in having the legality of the practices settled, militates against a mootness conclusion.” United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). D. Standard of Review Where, as here, an interlocutory appeal has been taken from the district court’s issuance of a permanent injunction, we may consider the underlying “merits of the case, to the extent they relate to the propriety of granting ... injunctive relief.” 11 C. Wright & A. Miller, Federal Practice & Procedure § 2962, at 629 (1973). “A district court has a wide range of discretion in framing an injunction in terms it deems reasonable to prevent wrongful conduct, and appellate review of the terms of the injunction must focus upon whether there has been an abuse of that discretion.” Spring Mills, Inc. v. Ultracashmere House, Ltd., 724 F.2d 352, 355 (2d
3839	hours following his arrest. A pretrial detainee is entitled to reasonable medical care unless the failure to provide it is reasonably related to a legitimate governmental objective. Cupit v. Jones, 835 F.2d 82, 85 (5th Cir.1987). There are facts consistent with Van Cleave’s general allegation that could be proved and would entitle Van Cleave to relief; therefore this claim should not have been dismissed for failure to state a claim. See Moawad v. Childs, 673 F.2d 850 (5th Cir.1982). The district court dismissed this claim stating that Van Cleave failed to allege the nature of his injury or the requested treatment. In civil rights cases, this Court requires that the “ ‘claimant ... state specific facts, not merely conclusory allegations.’ ” Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir.1986) (citation omitted). However, Van Cleave’s complaint was dismissed before he had an opportunity to amend. There are further facts that Van Cleave could have alleged in support of this claim; the claim should not have been dismissed before Van Cleave had an opportunity to amend his complaint. See Jacquez v. Procurer, 801 F.2d 789, 792 (5th Cir.1986). Van Cleave’s complaint also alleged that his request for a newspaper was denied and he was told newspapers were not allowed. There are facts consistent with this allegation that if proved would entitle Van Cleave to relief. In Mann v. Smith, 796 F.2d 79, 82-83 (5th Cir.1986), this Court held that a county jail’s policy of banning newspapers and magazines violated a pretrial
3064	credibility determinations, [and] no room for the measured weighing of conflicting evidence such as the trial process entails.” Id. (citing Greenburg v. Puerto Rico Maritime Shipping Authority, 835 F.2d 932, 936 (1st Cir.1987)). Accordingly, if the facts permit more than one reasonable inference, the court on summary judgment may not adopt the inference least favorable to the non-moving party. Casas Office Machines, 42 F.3d at 684. While the moving party has the burden of initially establishing that there is “an absence of evidence to support the non-moving party’s case,” Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1984); the nonmovant has a “corresponding obligation to offer the court more than steamy rhetoric and bare conclusions.” Lawton v. State Mutual Life Assurance Company of America, 101 F.3d 218, 223 (1st Cir.1996). Furthermore, “the nonmovant must produce specific facts, in suitable evidentiary form sufficient to limn a trialworthy issue ... Failure to do so allows the summary judgment engine to operate at full throttle.” Id.; see also Kelly v. United States, 924 F.2d 355, 358 (1st Cir.1991) (warning that “the decision to sit idly by and allow the summary judgment proponent to configure the record is likely to prove fraught with conse quence.”); Medina Muñoz, 896 F.2d at 8, (quoting Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989)) (“The evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a
3870	shows that Bonneville received treatment for his painful conditions. The above assertions concerning Dr. Basse indicate only Bonneville’s disagreement with the prescribed treatment; these assertions are not sufficient to establish that Dr. Basse acted with deliberate indifference to Bonneville’s serious medical needs. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir.2006). Even if these facts show that Dr. Basse’s treatment was negligent, negligent medical care does not constitute a valid § 1983 claim. See id. Additionally, Bonneville contends that Kelle Wallace is liable under § 1983 because a causal connection existed between her failure to favorably resolve his grievances and Dr. Basse’s deliberate indifference. Wallace cannot be held liable under § 1983 in the absence of a constitutional violation. See Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir.1987). A prisoner does not have a constitutionally protected liberty interest in having “grievances resolved to his satisfaction.” Geiger v. Towers, 404 F.3d 371, 374 (5th Cir.2005). In his work-related claim, Bonneville argues that he cannot purchase his medications from the commissary because he is not being paid to work in prison. Compelling an inmate to work without pay does not violate the Constitution even if the inmate is not specifically sentenced to hard labor. Ali v. Johnson, 259 F.3d 317, 318 (5th Cir.2001). Bonneville admitted that he receives medication for pain, just not in the manner and quantity that he had previously. Because Bonneville has failed to brief his claims against Charles Wallace, he has abandoned them. See Hughes v.
2330	not confined to that. If this were not so most patents would be of little worth. * * * The invention, of course, must be described and the mode of putting it to practical use, but the claims measure the invention. They may be explained and illustrated by the description.” Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 418, 419, 28 S.Ct. 748, 751, 52 L.Ed. 1122. “In making his claim the inventor is at liberty to choose his own form of expression, and while the -courts may construe the same in view of the specifications and the state of the art, they may not add to or detract from the claim.” Cimiotti Unhairing Co. v. American Fur Refining Co., 198 U.S. 399, 410, 25 S.Ct. 697, 702, 49 L.Ed. 1100. See, also, McDonough v. Johnson-Wentworth Co., 8 Cir., 30 F.2d 375; Smith v. Snow, 294 U.S. 1, 11, 55 S.Ct. 279, 79 L.Ed. 721. The character of a patent and its commercial and practical success may be such as entitle the inventor to broad claims and to a liberal construe tion of those he has made. Smith v. Snow, 294 U.S. 1, 14, 55 S.Ct. 279, 79 L.Ed. 721. It is also to be remembered that the doctrine of equivalents is applied to other than primary or generic patents and that, while the range of equivalents depends upon the extent and nature of the invention, even a nongeneric or specific patent is entitled to some
2720	been participating in discovery. This mere addition of parties does not change the underlying claims or the nature of the relief desired and, therefore, does not revive plaintiffs right to a jury trial. See Richardson Greenshields Securities v. Mui-Han Lau, 693 F.Supp. at 1458. Bifurcation The court “in furtherance of convenience or to avoid prejudice” may in its discretion bifurcate a trial concerning issues of liability and damages. Fed. R.Civ.P. 42(b); Katsaros v. Cody, 744 F.2d 270 (2d Cir.1984). While it may be proper in certain instances to bifurcate a trial, “separation of issues is not the usual course that should be followed.” Keyes Fibre Co. v. Packaging Corp. of America, 763 F.Supp. 374 (N.D.Ill.1991), quoting, Response of Carolina, Inc. v. Leasco Response, Inc., 537 F.2d 1307 (5th Cir.1976); see Advisory Committee Notes to the Fed. R.Civ.P. 42(b). Bifurcation is appropriate where, for example, deciding the issue of liability first might save the court from having to rule on complex issues of damages. American Home Products Corp. v. Johnson & Johnson, 111 F.R.D. 448 (S.D.N.Y.1986). Defendant asserts that MCA will have to develop a computer program to isolate profit information on goods and services provided under the “UPTOWN” mark. . While the Court is not insensitive to the costs of litigation, this does not appear to be an overly burdensome task to impose on defendant, and there is no guarantee that at the close of the liability portion of the trial that this task would not have to be performed.
2921	of counsel claims fail as he has not shown “that there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 4. After our independent review of the record, we conclude that the state court decision denying Joseph’s habeas petition was not “objectively unreasonable.” Pham v. Terhune, 400 F.3d 740, 742 (9th Cir.2005) (citation omitted). 5. To the extent Joseph raises arguments not encompassed within the certificate of appealability (COA), we construe this as a motion to expand the COA and deny the motion because Joseph fails “to make a substantial showing of the denial of a Constitutional right.” Nardi v. Stewart, 354 F.3d 1134, 1138 (9th Cir.2004) (citation omitted); see also 28 U.S.C. § 2253(c)(2); 9th Cir. R. 22-1(e). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
2242	motion to strike the complaint in toto with a supporting brief. Plaintiff responded by filing an opposition brief, a request to add another party and a motion for default judgment. Defendants replied to each of these requests and no further pleadings have been filed. LEGAL STANDARD Federal Rule of Civil Procedure 12(f) provides in relevant part that: ... the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. “Scandalous matter” has been defined as “that which improperly casts a derogatory light on someone, most typically on a party to the action.” 5 Wright and Miller, Federal Practice and Procedure, Civil, Section 1382 at 826 (footnote omitted). See also Gilbert v. Eli Lilly & Co., Inc., 56 F.R.D. 116 (D.C.PR 1972). “Scandalous pleading for purposes of Rule 12(f) must ‘reflect cruelly’ upon the defendant’s moral character, use ‘repulsive language’ or ‘detract from the dignity of the court.’ ” See Doc. No. 8 at 4, quoting Skadegaard v. Farrell, 578 F.Supp. 1209, 1221 (D.N.J.1984), citing 2A Moore’s Federal Practice, Section 12.21 at 2426. Although the invocation of Fed.R.Civ.P. 12(f) to strike an entire complaint is rare, especially in pro se matters, such an action is not unknown. Ex Parte Tyler, 70 F.R.D. 456, 457 (E.D.Mo.1976), citing Hohensee v. Watson, 188 F.Supp. 941 (M.D.Pa.1959), aff'd, 283 F.2d 950 (3d Cir.1960); Skolnick v. Hallet, 350 F.2d 861 (7th Cir.1965); See also, Agran v. Isaacs, 306 F.Supp. 945 (D.C.Ill.1969); Theriault v. Silber, 574 F.2d 197 (5th
3009	have “identified several factors that have particular significance” in these “essentially ad hoc, factual inquiries.” Penn Central, 438 U. S., at 124. Two such factors are “[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.” Ibid. Another is “the character of the governmental action.” Ibid. The purposes served, as well as the effects produced, by a particular regulation inform the takings analysis. Id., at 127 (“[A] use restriction on real property may constitute a ‘taking’ if not reasonably necessary to the effectuation of a substantial public purpose, [citations omitted], or perhaps if it has an unduly harsh impact upon the owner’s use of the property”); see also Yee v. Escondido, 503 U. S. 519, 523 (1992) (Regulatory takings cases “necessarily entai[l] complex factual assessments of the purposes and economic effects of government actions”). Penn Central does not supply mathematically precise variables, but instead provides important guideposts that lead to the ultimate determination whether just compensation is required. The Rhode Island Supreme Court concluded that, because the wetlands regulations predated petitioner’s acquisition of the property at issue, petitioner lacked reasonable investment-backed expectations and hence lacked a viable takings claim. 746 A. 2d 707, 717 (2000). The court erred in elevating what it believed to be “[petitioner’s] lack of reasonable investment-backed expectations” to “dispositive” status. Ibid. Investment-backed expectations, though important, are not talismanic under Penn Central. Evaluation of the degree of interference with investment-backed expectations instead is one
999	in the Goldwassers’ favor. In reviewing a decision to confirm or vacate an arbitration award, we examine the district court’s legal rulings de novo and its findings of fact for clear error. See Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 103 (2d Cir.2013). We assume the parties’ familiarity with the facts and record of the underlying proceedings, which we reference only as necessary to explain our decision to affirm. 1. Standard of Review for Arbitration Decisions Under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., “[a] party moving to vacate an arbitration award has the burden of proof, and the showing required to avoid confirmation is very high.” D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 110 (2d Cir.2006). The district court may vacate an arbitration award only: (1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. 9 U.S.C. § 10(a). “In addition, as judicial gloss on these
92	they seek employment and the district court found this issue to be undisputed. Plainly, plaintiffs have standing to bring this action; as LPRs they are directly in the group that allegedly has been or will be adversely affected by the INS’s policies and procedures. C. Mootness Finally, we agree with the district court that plaintiffs’ claims have not been rendered moot. The mootness doctrine, like standing, stems from Article Ill’s “case or controversy” requirement. “[A] case becomes moot ‘ “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” ’ ” Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (per curiam) (quoting United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208-09, 63 L.Ed.2d 479 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950-51, 23 L.Ed.2d 491 (1969))); see also 6A Moore’s Federal Practice ¶ 57.13, at 57-123 & n. 11 (2d ed. 1991). While standing focuses on the status of the parties when an action is commenced, the mootness doctrine requires that the plaintiffs’ claims remain alive throughout the course of the proceedings. 13A C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3533, at 211 (2d ed. 1984). The “case or controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). In
1274	Nichols’s fault. A reasonable reviewer of the record could conclude that these statements did not concern matters within the scope of Brittingham’s employment. Therefore, the District Court did not abuse its discretion in declining to consider the statements. See Ansell v. Green Acres Constr. Co., 347 F.3d 515, 519 (3d Cir.2003) (“We will not disturb a trial court’s exercise of discretion [in making evidentiary rulings] unless no reasonable person would adopt the district court’s view.” (internal quotation marks omitted)). B. We now turn to Nichols’s claim that the District Court erred in granting summary judgment in favor of Bennett and Allen’s on all counts of her complaint. Upon de novo review, we apply the same standard as the district court. Kautz v. Met-Pro Corp., 412 F.3d 463, 466 (3d Cir.2005). Summary judgment is proper only if it appears “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he non-moving party ... is entitled to every favorable inference that can be drawn from the record.” Kautz, 412 F.3d at 466. As explained briefly below, without admissible evidence of Valerie Brittingham’s alleged out-of-court statements, Nichols was left with very little evidence of either defamation or intentional discrimination, and we therefore conclude that the District Court did not err in granting summary judgment. 1. Defamation claim As the District Court noted, Nichols’s defamation claim against Allen’s was dependent on Valerie Brittingham’s alleged recounting of
2102	desired to file an affidavit in denial of the matters and things set forth in said affidavit of L. G. Tolleson, and particularly invited the plaintiff to deny, if he could, that he now holds and at all times has held and retained seniority rights on the Asheville Division of the Southern Railway, since his employment as a switchman thereon, and the plaintiff elected to close said hearing without denial of the same. On these findings of fact I conclude: That this suit is governed entirely by the terms of the Railway Labor Act, 45 U.S.C.A. § 151a, and a determination must be controlled by such act and the decisions of the court in line therewith. Slocum v. Delaware, L. & W. R. Co., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795; Spires v. Southern Ry. Co., 4 Cir., 204 F.2d 453, 454. In the last cited case Judge Parker, among other things, said: “The Railway Labor Act was passed to provide for the settlement of ‘all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions’.” It would thus appear that the plaintiff did not within the time permitted, or allowed by the contract, appeal the decision of the highest designated official of the carrier handling grievances and has not therefore exhausted his administrative remedies. That the plaintiff's grievances as set forth in his pleadings, is a dispute which is exclusively within the jurisdiction of the
141	Corp. v. United States, 112 F.3d 532, 536 (1st Cir.1997) (explaining that “violation of a federal statute by governmental actors does not create liability unless state law would impose liability on a ‘private individual under like circumstances,’ 28 U.S.C. § 2674”). To prevail on a negligence claim under Massachusetts law, the plaintiff must establish that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached that duty, (3) proximately or legally causing (4) the plaintiffs actual injury or damages. Fithian v. Reed, 204 F.3d 306, 308-09 (1st Cir.2000) (explaining that, while “such matters most often comprise grist for the jury’s mill, they may be resolved on summary judgment when the facts lead ineluctably to a particular outcome”); see Primus v. Galgano, 329 F.3d 236, (1st Cir.2003); Magarian v. Hawkins, 321 F.3d 235, 238 (1st Cir.2003); Jorgensen v. Massachusetts Port Auth., 905 F.2d 515, 522 (1st Cir.1990). In the context of an FTCA claim, a legal duty of care exists where there is “some relationship between the governmental employee[s] and the plaintiff to which state law would attach a duty of care in purely private circumstances.” Sea Air Shuttle Corp., 112 F.3d at 537 (quoting Myers v. United States, 17 F.3d 890, 899 (6th Cir.1994)). In defining the duty of care in tort actions, Massachusetts follows the Restatement (Second) Of Torts § 315 (1965) (“Section 315”). Mosko v. Raytheon Co., 416 Mass. 395, 400 n. 7, 622 N.E.2d 1066 (1993); Jean v. Commonwealth, 414 Mass. 496, 513, 610
302	is a purely legal question for the Court to decide. IV. Analysis of ILSFDA Nondisclosure Claims. A. Parameters of the Act. “The ILSFDA was intended to curb abuses accompanying interstate land sales.” Winter v. Hollingsworth Properties, Inc., 777 F.2d 1444, 1448 (11th Cir.1985). Indeed, “[t]he underlying purpose of the [ILSFDA] is to insure that a buyer, prior to purchasing certain kinds of real estate, is informed of facts which will enable him to make an informed decision about purchasing the property.” Law v. Royal Palm Beach Colony, Inc., 578 F.2d 98, 99 (5th Cir.1978); see also Winter, 777 F.2d at 1449 (Act’s purpose requires that buyer must receive information necessary to make his decision prior to entering into purchase agreement); United States v. Steed, 674 F.2d 284, 287 (4th Cir.1982) (ILSFDA “is a comprehensive statute requiring subdivision developers, unless exempt, to furnish prospective purchasers pertinent information about lots offered for sale”). The Act “should be construed not technically, but flexibly to effectuate its remedial purposes.” Schatz v. Jockey Club Phase III, Ltd., 604 F.Supp. 537, 541 (S.D.Fla.1985). One of the ILSFDA’s requirements is that a developer selling a nonexempt lot must furnish the purchaser with a so-called “property report” in advance of the execution of a purchase agreement. See 15 U.S.C. § 1708(a)(1)(B) (declaring it unlawful for a developer to use means of communication in interstate commerce “to sell or lease any lot unless a printed property report ... has been furnished to the purchaser or lessee in advance of
1308	culture promoted increasing the dispensation of forbearances through quotas and a team bonus system. Zahara Complaint ¶¶ 24-27; Batiste Complaint ¶¶ 22-25. Though Zahara focused on the fabrication of oral forbearance requests, Zahara Complaint ¶¶ 3-8, 30, and Batiste focused on the offering of forbearances to unqualified borrowers, Batiste Complaint ¶¶ 17-21, the allegations of the first complaint give the government grounds to investigate all that is in the second. Under the Hampton material facts test, these complaints allege essentially the same corporation-wide scheme. The Zahara Complaint would suffice to equip the government to investigate SLM’s allegedly fraudulent forbearance practices nation wide. Batiste’s additional details would not give rise to a different investigation or recovery. See United States ex rel. Ortega v. Columbia Healthcare, 240 F.Supp.2d 8, 13 (D.D.C.2003) (“[A]n examination of possible recovery ... aids in the determination of whether the later-filed complaint alleges a different type of wrongdoing on new and different material facts.”). The district court properly dismissed Batiste’s complaint under the FCA’s first-to-file bar. B. Federal Rule of Civil Procedure 9(b) Federal Rule of Civil Procedure 9(b) provides that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Batiste raises a question of first impression in this Court — namely, whether a complaint must allege fraud with particularity sufficient to meet that heightened pleading standard in order to bar later-filed complaints under the FCA’s first-to-file rule. We hold that first-filed complaints need not meet the heightened standard of
154	color of state law.” West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). As in West, the adequacy and the sufficiency of the Plaintiffs’ showing on the first element are not contested; the only issue before the court is whether the Plaintiffs have established “the second essential element — that [the Federal Defendants] acted under col- or of state law.” 487 U.S. at 48-49, 108 S.Ct. 2250. It is well-established that a Section 1983 action cannot lie against federal officers acting under color of federal law. Carter, 409 U.S. at 424, 93 S.Ct. 602 (explaining that the actions “of the Federal Government and its officers are at least facially exempt from [the] proscriptions” of Section 1983); Behre v. Thomas, 665 F.Supp. 89, 92 (D.N.H.1987); see Wheeldin v. Wheeler, 373 U.S. 647, 650 n. 2, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963) (concluding that an investigator of the United States House of Representatives Un-American Activities Committee was not acting “under color” of state law for purposes of Section 1983); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339, 1346 (2d Cir.1972) (on remand) (noting that the Civil Rights Act does not apply to federal officers). However, one may bring a Section 1983 action against federal employees who conspire or act in concert with state officials to deprive a person of his civil rights under color of state law. See Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 81 L.Ed.2d
4699	the defendant is covered by the Act, such, as by. showing that 'the defendant constitutes an enterprise engaged in commerce. However, this required showing is simply an element of the cause of action. A plaintiffs failure, to make this showing constitutes a failure on the merits.” (citation omitted)). Moreover, while “[i]t is true that courts sometimes refer to the plaintiffs obligation to prove a defendant’s covered status as ‘jurisdictional,’” the term is “overused” and “one that is often used without explicit consideration of whether the court’s authority to adjudicate the type of controversy-involved in the action is really at stake.” Velez, 203 F.Supp.2d at 330 (some internal quotation marks omitted). Indeed, as recognized by the Second Circuit in Da Silva v. Kinsho International Corporation, 229 F.3d 358 (2d Cir.2000), “[w]hether a disputed matter concerns jurisdiction or the. merits (or occasionally both) is sometimes a close question,” and “[c]ourt decisions often obscure the issue by stating that the court is dismissing ‘for lack of jurisdiction’ when some threshold fact has not been established, without explicitly considering whether the dismissal should be for lack of subject matter jurisdiction or for failure to state a claim.” Id. at 361. Therefore, given that the vast majority of the courts in the Second Circuit have held that the issue of whether an employer falls into an FLSA exemption is a merits question and not a jurisdictional threshold, and in light of the Supreme Court’s ruling that a limitation on a statute’s scope should be considered
757	is clear. It would be difficult, and indeed seems to be impossible, to give a definition of such frauds in words. * * * The essential difference is a fact, and in the administration of the criminal law is a fact to be found by a jury. “* * * There would seem to be no other way of dealing with the subject than to submit to the common sense judgment of a jury to find whether in a given case the acts of a defendant have been honest, however mistaken, or whether they have been false and fraudulent.” In the instant case, the question was reduced to one of fact, as distinguished from mere opinion, Eleven Gross Packages v. United States, 3 Cir., 233 F. 71 and Kar Ru Chemical Co. v. United States, 9 Cir., 264 F. 921, and, as defendants’ testimony made for conflicting evidence, a question of weighing the evidence was presented. To weigh the evidence is not within the power of this court. It is insisted that there was no proof that any of the statements were fraudulently made. In Seven Cases v. United States, 239 U.S. 510, page 517, 36 S.Ct. 190, page 193, 60 L.Ed. 411, L.R.A.1916D, 164, in speaking of the phrase “false and fraudulent”, it was said: “This phrase must be taken with its accepted legal meaning, and thus it must be found that the statement contained in the package was put there to accompany the goods with actual intent to
385	S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982)). Federal courts cannot justify abstaining from the enforcement of an individual’s constitutional right in deference to the systemic values of finality, federalism, and comity, however, unless there has in fact been a good-faith State effort to protect constitutional rights by applying the Chapman standard. See id.; John H. Blume & Stephen P. Garvey, Harmless Error in Federal Habeas Corpus After Brecht v. Abrahamson, 35 Wm. & Mary L. Rev. 163, 183-84 (Fall 1993). Furthermore, Brecht was a non-capital case; it did not present, and the Court did not address, the applicability of its new rule to capital cases. “[T]he Eighth Amendment requires increased reliability of the process by which capital punishment may be imposed.” Herrera v. Collins, 506 U.S. 390, 405, 113 S.Ct. 853, 863, 122 L.Ed.2d 203 (1993). Moreover, because-of the unique “severity” and “finality” of the death penalty, capital eases demand heightened standards of reliability. Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 2389, 65 L.Ed.2d 392 (1980). In this case, Barber will be executed with no state court ever having demanded that the State prove beyond a reasonable doubt that the constitutional error did not contribute to the verdict obtained. By repeating the state court’s error, this court will have failed in its obligation to “protect people from infractions by the States of federally guaranteed rights.”' See Chapman, 386 U.S. at 21, 87 S.Ct. at 827. For these reasons, I conclude that this court in Hogue, by adopting
3086	claims in the present case, it is hornbook law that a district court has discretion to exercise supplemental jurisdiction over the state law claims where the state and federal claims derive from a common nucleus of operative facts. See 28 U.S.C. § 1367; United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Nevertheless, where, as here, all federal claims warrant dismissal prior to trial, the district court should decline to exercise supplemental jurisdiction. It has been stated that the holding in Gibbs “seems to clearly require dismissal without action on the merits and without any exercise of discretion if all the federal claims ... are found to be short of trial, deficient.” Snowden v. Millinocket Regional Hosp., 727 F.Supp. 701, 709 (D.Me.1990). Such a result is warranted in view that “[t]he power of a federal court to hear and to determine state-law claims in non-diversity cases depends upon the presence of at least one ‘substantial’ federal claim in the law suit.” Newman v. Burgin, 930 F.2d 955, 963 (1st Cir.1991). Although District Courts are not obliged to dismiss pendent state law claims, in the usual case in which all federal law claims are dismissed before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness and comity-will point toward declining to exercise jurisdiction over the remaining state law claims. In such a case, state-law claims should be dismissed. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.
2653	lack of confusing similarity between the notations ‘Shine-All’ and ‘Briten-All.’ The notation ‘Shine-All’ manifestly is highly suggestive of the nature of the goods here involved, and while the notation ‘Briten-All’ is similarly suggestive thereof, it differs substantially from ‘Shine-AU’ in both appearance and sound. The applicant having adopted a notation of such character as a trade-mark for its goods may not prevent others from using similarly suggestive but otherwise distinguishable notations as trade-marks for their goods. It is believed that the marks here involved in their essentials are comparable to the notations ‘Have-some,’ for cocoa, and ‘Drinksum,’ for coffee, which were held not to be confusingly similar in the case of Stephen L. Bartlett Co. v. Arbuckle Bros., 307 O.G. 235, 52 App.D.C. 267, 285 F. 1001. In its decision, the court stated: “ ‘That the words involved here are-not confusingly similar in appearance or sound we think is apparent, and unless we are to rule that the adoption of a suggestive mark by one trader precludes all other traders from employing another mark of similar sug gestiveness but entirely different in appearance and sound, applicant is entitled to registration.’ ” We agree with the views and conclusion expressed by the Examiner-in-Chief in the opposition proceeding, but reject them as inapposite in the cancellation proceeding. Accordingly, we deem it unnecessary to discuss the issue of laches or other points argued by counsel for the parties in their briefs. Subsequent to the filing of the records in this court the respective
248	Federal Rule of Civil Procedure 12(c) on the claim for municipal liability under § 1983, as to which discovery has been held in abeyance. I. Summary Judgment Standard A motion for summary judgment under Federal Rule of Civil Procedure 56 must be granted if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir.1995). The moving party must demonstrate the absence of any material factual issue genuinely in dispute. Id. The court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, the non-moving party may not “rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986). Nor may the non-moving party “rest upon the mere allegations or denials of his pleading.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Rather, the non-moving party must produce specific facts sufficient to establish that there is a genuine factual issue for trial. Id. at 322-23, 106 S.Ct. 2548. If the evidence is “merely colorable” or “not significantly probative,” summary judgment may be granted. See Anderson v. Liberty Lobby,
2774	F.Supp.2d at 1189; McCormick-Morgan, 765 F.Supp. at 613. Further, the courts reason that fairness dictates that a party cannot withhold damaging communications claiming attorney-client privilege while disclosing other self-serving communications. AKEVA, 243 F.Supp.2d. at 424; Chiron, 179 F.Supp.2d at 1186; McCormick-Morgan, 765 F.Supp. at 614. On the other hand, there is conflicting authority which stands for the position that waiver of the attorney-client privilege and the work product privilege is limited to only those communications and documents created prior to suit. See Motorola, Inc. v. Vosi Technologies, Inc., 2002 WL 1917256, *2 (N.D.Ill.2002); Dunhall Pharmaceuticals, Inc. v. Discus Dental, Inc., 994 F.Supp. 1202, 1206 (C.D.Cal.1998); Carl Zeiss Jena GmbH v. Bio-Rad Laboratories, Inc., 2000 WL 1006371, *2 (S.D.N.Y.2000); Kelsey-Hayes Co. v. Motor Wheel Corp., 155 F.R.D. 170, 172 (W.D.Mich.1991). These courts reason that, in patent cases, “courts generally construe the scope of the subject matter narrowly.” Kelsey-Hayes, 155 F.R.D. at 172. In addition, the courts found that greater protection applied to litigation work product. As the Court in Dunhall stated: Although defendants have waived work product protection by asserting the advice of counsel defense, that waiver is not absolute. Once the lawsuit is filed, the waiver of work product protection ends. This temporal limitation follows from the enhanced interest in protecting against disclosure of trial strategy and planning. Following the filing of the lawsuit, defense counsel is engaged in critical trial preparation, often including analysis of the weaknesses of their client’s case. Such analysis, while likely related to the subject
2623	it. See Ass’n of Am. R.Rs. v. Costle, 562 F.2d 1310, 1312 (D.C.Cir.1977); BLACK’S LAW DICTIONARY 1379 (7th ed.1990). Additionally, the plain text shows that Congress was specific about the public policy it intended to advance by Section 7(a): a municipality shall receive preference only where its plans are “equally well adapted ... to conserve and utilize in the public interest the water resources of the region.” 16 U.S.C. § 800(a). This precondition is not a limit on which entities are municipalities that qualify for the statutory preference but rather describes the circumstances that must exist to trigger application of the preference. By its terms, then, Section 7(a) is a “statutory tie-breaker provision favoring states and municipalities over private parties.” Oconto Falls v. FERC, 41 F.3d 671, 672 (D.C.Cir.1994). As defined in Section 3(7), “municipality” neither betrays ambiguity nor leaves a statutory gap for the Commission to fill. Contrary to the Commission’s conclusion, Congress has spoken directly to the question at issue. In concluding that Section 7(a) is ambiguous because it provided no guidance on its scope, the Commission has “manufactured ambiguity,” “ignoring [Chevron step one] altogether by failing to articulate how the plain text of Section 7(a) was unclear.” Pet’rs’ Br. 11. The Commission never explained why the meaning of “States and municipalities” is ambiguous such that the municipal preference can be limited to those municipalities in a project’s “vicinity,” a word Congress did not use in defining “municipality” or elsewhere in Sections 4 or 7(a). Instead, the Commission
139	States, if a private per son, would be liable to the claimant in accordance with the law of the place where the act or omission occurred (emphasis added).” 28 U.S.C. § 1346(b)(1). Thus, to hold the United States liable for Anderson’s conduct in disconnecting Sampson’s telephone call and for the FBI’s alleged negligent supervision and training of Anderson, the Plaintiffs must show that, under Massachusetts law, a private person in similar circumstances would be liable. Rakes v. United States, 352 F.Supp.2d 47, 57 (D.Mass.2005) (noting that the FTCA liability arises only in circumstances where a private person would be liable to the plaintiff under the law of the state where the act or omission took place); see Sea Air Shuttle Corp. v. United States, 112 F.3d 532, 536 (1st Cir.1997) (explaining that “violation of a federal statute by governmental actors does not create liability unless state law would impose liability on a ‘private individual under like circumstances,’ 28 U.S.C. § 2674”). To prevail on a negligence claim under Massachusetts law, the plaintiff must establish that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached that duty, (3) proximately or legally causing (4) the plaintiffs actual injury or damages. Fithian v. Reed, 204 F.3d 306, 308-09 (1st Cir.2000) (explaining that, while “such matters most often comprise grist for the jury’s mill, they may be resolved on summary judgment when the facts lead ineluctably to a particular outcome”); see Primus v. Galgano, 329 F.3d 236, (1st Cir.2003); Magarian
4591	"cannot form the basis of a retaliation claim. B., Probable Cause Arpaio argues the United States’ retaliation claim must fail because the United States does not and cannot show Arpaio lacked probable cause for the lawsuits"" it claims were retaliatory. - The United States argues it is not required to show lack of probable cause to succeed in a claim'for retaliatory law enforcement action. To prove a claim for retaliation in violation of the First Amendment, a plaintiff must show: (1) the defendant “took action that “would chill or silence a person of ordinary firmness from -future First Amendment activities’ ” and (2) the defendant’s “desire to cause the chilling effect was a but-for cause of the defendant’s action.” Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1232 (9th Cir.2006) (citing Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir.1999); Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)). At the time Skoog was decided, whether a plaintiff had to plead a lack of probable cause in order to satisfy the second requirement was “an open question in [the Ninth Circuit] and the subject of a split in other circuits.” Id. The Skoog court held “a plaintiff need not plead the absence of probable cause in-order to state á claim for retaliation.” Id. The court contrasted this with the Supreme Court’s ruling in Hartman v. Moore, where the Supreme Court held plaintiffs claiming retaliatory prosecution must plead lack of probable cause. 547 U.S."
1967	(2d Cir.1957), cert. denied, 355 U.S. 924, 78 S.Ct. 365, 2 L.Ed.2d 354 (1958) (conspiracy to defraud the United States by impeding the lawful functions of the Department of the Treasury). Accordingly, the Defendants’ motion to dismiss Counts II and III, and portions of Count I, should be DENIED. 8. Motion to Suppress. The Defendants claim that the search warrants, which authorized the seizure of business records of the four corporations controlled by the Johnsons were impermissibly overbroad. They seek suppression of the seized documents, or a hearing “to determine whether or not the breadth of the warrant’s seizure authorization, and the corresponding acquisition of virtually all documents of four different businesses, is sustainable under the good faith exception” of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See Memorandum of Richard I. Johnson, Sr., filed June 25, 1993, at 38; see also United States v. Roberts, 852 F.2d 671 (2d Cir.), cert. denied, 488 U.S. 993, 109 S.Ct. 556, 102 L.Ed.2d 583 (1988). The Government contends that the seizure authorization was not overbroad because the businesses searched were “permeated with fraud.” It is argued that, under such circumstances, the seizure of all business records of the companies controlled by the Defendants is authorized. See National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir.1980) (citing United States v. Brien, 617 F.2d 299, 309 (1st Cir.), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980)). The Fourth Amendment
3886	its intention to assume the lease to a representative of R & J, this asserted attempted assumption was wholly insufficient in light of the clear mandate of §§ 365(a) and (d)(4) and Bankruptcy Rules 6006 and 9014. The Order requiring Debtor-in-Possession to Surrender Leased Premises on or before December 15, 1990 was subsequently entered on November 15, 1990. On December 3, 1990 the court heard and orally granted the Debtor’s November 20, 1990 motion for an extension of the time within which to appeal. Bankruptcy Rule 8002(a). The written order granting that relief was entered on December 11, 1990. On December 7, 1990 the court sua sponte reconsidered its November 15, 1990 order in light of its understanding of In re Cybernetic Services, Inc., 94 B.R. 951 (Bkrtcy.W.D.Mich.1989). The December 7 amending order deleted the “surrender by December 15, 1990” language from the November 15, 1990 order, leaving the rest of the order in full force and effect. On December 10, 1990 the Debtor filed a notice of appeal as to the court’s original order dated November 15, 1990 and the Amended order of December 7, 1990. On December 11, 1990 the Debtor filed its Motion for Stay of Order Pending Appeal. That motion was heard on December 14, 1990. A motion for a stay pending appeal is governed by Bankruptcy Rules 7062 and 8005. To obtain a stay pending appeal, the moving party must establish substantially all the elements required to obtain a preliminary injunction. All of the following
3038	was otherwise extensive. Id. § 3Bl.l(a). He received a three-level reduction for acceptance of responsibility, id. § 3El.l(a) & (b), making his total offense level 39. With a criminal history category of I, his guidelines range was 262 to 327 months imprisonment. He faced a mandatory minimum of 120 months and a maximum of life imprisonment. At his sentence hearing, the government asked the court to impose a sentence of 327 months to life, and Jaimes argued for a sentence below his guidelines range. The district court stated that it had considered all of the § 3553(a) factors, including those that it had not specifically mentioned, and the record shows that the district court did carefully consider the factors. See United States v. Bonilla, 463 F.3d 1176, 1182 (11th Cir.2006) (holding that a district court is not required “to articulate its consideration of each individual § 3553(a) factor, particularly where, as here, it is obvious the court considered many of the § 3553(a) factors”) (emphasis omitted). Although Jaimes argues that the district court gave only minimal consideration to his wife’s and his daughter’s illnesses, the court discussed the effect his incarceration would have on his family, while recognizing that this hardship was a consequence of Jaimes’ actions. The court also considered and discussed Jaimes’ personal drug abuse and limited criminal history. The court expressed its familiarity with the sentences of Jaimes’ co-conspirators and selected a sentence it believed fit Jaimes’ role and his participation in the conspiracy, noting that Jaimes
3061	under the governing law. Morris v. Government Development Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.1994). “A fact is material if it tends to resolve any of the issues that have been properly raised by the parties.” Wright, Miller & Kane, supra, § 2725 at p. 419. “Not every genuine factual conflict necessitates a trial. It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared.” Martinez v. Colón, 54 F.3d 980, 983-984 (1st Cir.1995). In addition, when determining whether to grant summary judgment, the Court may not weigh the evidence. Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668 (1st Cir.1994). Summary judgment “admits of no room for credibility determinations, [and] no room for the measured weighing of conflicting evidence such as the trial process entails.” Id. (citing Greenburg v. Puerto Rico Maritime Shipping Authority, 835 F.2d 932, 936 (1st Cir.1987)). Accordingly, if the facts permit more than one reasonable inference, the court on summary judgment may not adopt the inference least favorable to the non-moving party. Casas Office Machines, 42 F.3d at 684. While the moving party has the burden of initially establishing that there is “an absence of evidence to support the non-moving party’s case,” Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1984); the nonmovant has a “corresponding obligation to offer the court more than steamy rhetoric and bare
2800	is willing to offer stipulations concerning the district court’s jurisdiction'over the limitation action. (Id. at 4-5.) Under the saving to suitors clause, 28 U.S.C. § 1333, “[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of ... [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” The saving to suitors clause “preserves remedies and the concurrent jurisdiction of state courts over some admiralty and maritime claims,” including the right to a trial by jury in the claimant’s choice of forum. Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 445, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001); see also Beiswenger Enters. Corp. v. Carletta, 86 F.3d 1032, 1037 (11th Cir. 1996) (recognizing the saving to suitors clause “embodies a presumption in favor of jury trials and com mon law remedies in the forum of the claimant’s choice”). The Limitation Act, by-contrast, grants federal courts exclusive admiralty jurisdiction .over actions to determine whether a vessel owner is entitled to limited liability. See 28 U.S.C. § 1333(1) (vesting federal courts with exclusive jurisdiction over “any case of admiralty or maritime jurisdiction,” including suits pursuant to the Limitation Act). As in all admiralty cases, there is no right to a jury trial in limitation proceedings. Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 152-53 (4th Cir. 1995). Thus, tension exists between the saving to suitors clause and the Limitation Act as one statute
1998	by service records, the official history of each organization in which the veteran served, the véteran’s military records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a); 38 C.F.R. §§ 3.303(a), 3.304(f) (1996); see also Hayes v. Brown, 5 Vet.App. 60, 66 (1993). With respect to injuries or disabilities incurred in or aggravated during combat, including psychiatric disabilities, the Secretary is required to accept as sufficient proof of service connection “satisfactory lay or other evidence of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service”. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d) (1996); see Zarycki v. Brown, 6 Vet.App. 91, 97 (1993); Hayes, 5 Vet.App. at 66. Section 1154(b) provides a factual basis upon which a determination can be made that a particular disease or injury was incurred or aggravated in service but not a basis to link etiologically the condition in service to the current condition. See Libertine v. Brown, 9 Vet.App. 521, 524 (1996); Caluza, 7 Vet.App. at 507. Although the provision does not establish service connection for a particular disability of a combat veteran, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. See id. at 508; see also Collette v. Brown, 82 F.3d 389, 392 (Fed.Cir.1996) (noting that § 1154(b) “does not create a statutory presumption that a combat veteran’s alleged
4099	in the ‘DEFINITIONS AND OTHER INSTRUCTIONS’ section, that instruction should be given only if the subject matter of the note is applicable to the facts and circumstances of that case.” Under the Benchbook instructions concerning false official statement, there is no standard instruction concerning a definition for the term “official.” Rather, the Benchbook contains a “note” that provides in part, “Whether a statement ... is official is normally a matter of law to be determined as an interlocutory question. However, even though testimony concerning officiality may be uncontroverted, or even stipulated, when such testimony permits conflicting inferences to be drawn, the question should generally be regarded as an issue of fact for resolution by the members.” Benchbook, H 3-31-ld. In United States v. Elmore, 33 M.J. 387 (C.M.A.1991), the Court of Military Appeals observed: “[A] military judge is not strictly limited to the theories advanced by the parties, but must instruct the court members on the legal points reasonably raised by the evidence.” Id. at 396. The issue, however, was not reasonably raised by the evidence in this case. This case is unlike United States v. Johnson, 24 M.J. 101 (C.M.A.1987), upon which the appellant relies. In that case the members “were left to grope without adequate instructional guidance from the military judge” with respect to the key term “national-defense utilities.” Id. at 108. The members in appellant’s ease only had to conclude that the appellant’s statement to a base security officer was “official.” That was not a difficult task.
2186	the time spent was reasonable. Deary v. City of Gloucester, 9 F.3d 191, 197-98 (1st Cir.1993) (instructing that, in the absence of “specific information about ... the nature of the work performed,” the requested fees “should be reduced or even denied altogether” (citing Calhoun v. Acme Cleveland Corp., 801 F.2d 558, 560 (1st Cir.1986), and Grendel’s Den, 749 F.2d at 952)); see also Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir.1994) (requiring “ ‘a full and specific accounting of the tasks performed’ ” and upholding a thirty-percent reduction in the fee award for over-general time sheets (quoting Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 527 (1st Cir.1991))); Lipsett, 975 F.2d at 938; Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir.1978) (suggesting that “counsel’s records ... [should] provide a proper basis for determining how much time was spent on particular claims”). The entries in question, totaling 115.4 hours in all, contain only vague descriptions such as “Drafting documents,” “Reviewing documents,” “Case planning,” or “Trial planning/Trial preparations.” These descriptions simply do not fit the bill, see Tennessee Gas, 32 F.3d at 634 (approving the reduction of fees for similar entries), especially in a complex, multiclaim case. 3. Unsuccessful Claims With one exception, the Court did not deduct specific hours spent on claims that were ultimately unsuccessful. See, e.g., McMillan, 140 F.3d at 311 (permitting courts to make such deductions in certain circumstances); Coutin, 124 F.3d at 337 (same) (citing Hensley, 461 U.S.
1735	"when Congress ''expressly so provides” for removal of those claims. Id. at 8, 123 S.Ct. 2058. Neither of these exceptions is relevant here. . Marcus v. AT & T Corp., 138 F.3d 46, 53 (2d Cir.1998) (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). Accord City of Rome v. Verizon Commc’ns, Inc., 362 F.3d 168, 174 (2d Cir.2004). . Whitaker v. American Telecasting, Inc., 261 F.3d 196, 206 (2d Cir.2001) (holding that pleading which provided incomplete address information did not allow the defendant to ''intelligently ascertain” removability; the defendant was not required to research the missing address of another named defendant to discover removability) (quotation marks omitted). . Id. . Richstone v. Chubb Colonial Life Ins., 988 F.Supp. 401, 403 (S.D.N.Y. 1997) (“A defendant must be able to ascertain easily the necessary facts to support his removal petition. To allow a document with less information to satisfy the statute would require the movant to 'guess’ as to an actions’ removability, thus encouraging premature, and often unwarranted, removal requests.”) (citations omitted). . See Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 83 L.Ed. 334 (1939). See also Vera v. Saks & Co., 335 F.3d 109, 116 (2d Cir.2003) (""we generally evaluate a defendant’s right to remove a case to federal court at the time the removal notice is filed”). . Watkins v. Grover, 508 F.2d 920, 921 (9th Cir.1974) (finding that where a case was removed to federal court based"
2875	properly only seek disclosure of matters which become part of the pleadings, and which are necessary to enable the moving party properly to prepare his answer, or to prepare for trial. I said in passing upon a similar motion: “Stated differently, Rule 12(e) permits the moving party to require the other party to define the issues with as much particularity as necessary. Rule 33, on the other hand, permits the moving party to ask for proofs. Information furnished under Rule 33 may become part of the trial record: information furnished in response to a motion under Rule 12(e) becomes part of the pleadings. See American La FranceFoamite Corp. v. American Oil Company, D.C., 25 F.Supp. 386; Fried v. Warner Bros. Circuit Management Corporation, D.C., 26 F.Supp. 603.” Tested by this criterion, paragraphs 1, 2 and 3 of the motion for bill of particulars are proper. Those are the paragraphs asking for identification of the alleged prior publications, public sale and public use; see Teller v. Montgomery Ward & Co., D.C., 27 F.Supp. 938, opinion filed April 21, 1939, and cases there cited. Revised Statutes, Section 4920, 35 U.S.C.A. § 69, is declarative of the policy of the law in this regard: The statute cited provides that when a party attacks the validity of invention on the grounds of anticipation, the data sought here must be furnished by that party. It is not important, of course, whether a party nominally occupies the status of plaintiff or defendant: the point is that
4509	of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable. Southern Mach. Co. v. Mohasco Indus., 401 F.2d 374, 381 (6th Cir.1968). Because the Court believes that its exercise of personal jurisdiction over the DNN defendants would offend the Due Process Clause, the Court will confine its analysis to the constitutionality of personal jurisdiction. In order to be subject to personal jurisdiction, a defendant must “purposefully avail[ ] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). On the facts presented by the parties in the pleadings, it is clear that the DNN defendants have not “purposefully availed” themselves of the benefits or protections of Michigan law. Plaintiffs stress that the DNN defendants operate a steel galvanizing facility at which a substantial portion of National’s steel is galvanized. However, the Sixth Circuit has held that the amount of business conducted with the non-resident defendant is not supportive of a purposeful availment argument. “It is the ‘quality’ of [the] ‘contacts,’ and not their number or status, that determines whether they amount to purposeful availment.” CompuServe, Inc., 89 F.3d at 1265 (quoting Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1119 (6th Cir.1994)
4971	should not normally interpret a claim term to exclude a preferred embodiment.”). c. Prosecution History Sun further argues that NetApp’s representations to the PTO about the layered architecture of the '417 patent during its prosecution compel the adoption of Sun’s construction. “Arguments and amendments made during the prosecution of a patent application and other aspects of the prosecution history, as well as the specification and other claims, must be examined to determine the meaning of terms in the claims.” E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1438 (Fed.Cir.1988). “The prosecution history limits the interpretation of claim terms so as to exclude any interpretation that was disclaimed during prosecution. [Citations omitted.]” Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed.Cir.1995). On June 24, 2003, the Examiner rejected claim 1 as well as claims 12, 18 and 19 under 35 U.S.C. § 103 as unpatentable over U.S. Patent No. 6,173,293 to Thek-kath et al. (“Thekkath”) in view of U.S. Patent No. 5,944,789 to Tzelnic et al. (“Tzelnic”). '417 Patent File History, June 24, 2003 Office Action at 2-3. The applicants responded by arguing that the prior art combination did not teach the specific layered architecture set forth in claim 1, referring to a management layer that is below the storage layer: It is important that Thekkath teaches the lock server 30 provides some level of management, because one skilled in the art would not look to Tzelnic for the teaching of a
3448	more readily attributed to conscious choice rather than incomprehension. Under these circumstances, we cannot say that the district court committed clear error when it found that Lister had not accepted responsibility for his crimes. B. Review of the sentence for unreasonableness. Lister also challenges the overall length of his term as erroneously calculated and unreasonable. In United States v. Booker, the Supreme Court held that the Federal Sentencing Guidelines were no longer mandatory and that all sentences must be reviewed for “unreasonableness.” 543 U.S. 220, 125 S.Ct. 738, 765-67, 160 L.Ed.2d 621 (2005). District courts are aided in their determination of reasonableness via a mandatory examination of the factors set forth in 18 U.S.C. § 3553(a). Id. at 764-65, 67; United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1045 (7th Cir.2005). These factors include “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). In determining the specific term, § 3553(a) advises that the sentence should “reflect the seriousness of the offense,” “provide just punishment,” and “protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(A)-(C). Additionally, this court has held that “any sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness.” United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). At the outset of this reasonableness review, Lister briefly challenges the accuracy of the district court’s calculation of his advisory sentence range. He argues that the incorporation of his relevant
170	the District Court (see Beatty v. Heiner, 17 F.(2d) 743), on other grounds, however, stating that it was unnecessary for the court, in the view it had taken of the case, to pass on the applicability of section 1014 (a) of the 1924 act. It seems to me that the recognized rule of statutory construction requires that the amendment speak prospectively entirely, unless the words of the act make a retrospective operation imperative, and certainly this cannot be said of section 1014 (a) of the 1924 act under discussion. “That a statute shall not be given retroactive effect, unless such construction is required by explicit language or by necessary implication, is a rule of general application.” U. S. v. St. Louis, etc., Ry. Co., 270 U. S. 1, 3, 46 S. Ct. 182, 183 (70 L. Ed. 435). “The petitioner maintains that Congress intended to revive actions against carriers when the period designated hy the state statute for bringing them had expired during federal control and asserts that the mischief to be remedied indicates such purpose and the ordinary meaning of the words employed discloses it. The respondent insists that a statute should never be given retroactive effect where another construction is fairly permissible, as here; that if in the circumstances the act of Congress be so construed it would create new; causes of action and thus permit the taking of property without due process of law. * * * ‘It is a rule of construction, that all statutes are
4387	Furthermore, an injunction with respect to the breach of contract claim is likely to cure much of the irreparable harm that Plaintiff could suffer. Therefore, an injunction with respect to the ITSA claim is unnecessary. V. Bond Under Rule 65, a Court may not issue a temporary restraining order unless the movant “gives security in an amount that the court considers proper to pay the costs and damage sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). An injunction in this case may cost Olson “commissions while it is in force” and may curtail his “future earnings by eroding [his] reputation and good will in the industry.” See Equip. & Sys. for Industry, Inc. v. Zevetchin, 864 F.Supp. 253, 258 (D.Mass.1994). Similarly, Alpha will lose the benefit of a successful account executive. Therefore, the Court concludes that Plaintiff must post as security an amount that is beyond a nominal bond. Taking all of the relevant factors into consideration, the Court will order Plaintiff to post as security a surety bond in the amount of $25,000. ConClusion For the foregoing reasons, Plaintiffs Motion for a Temporary Restraining Order is GRANTED in PART. 1. Defendant Olson is enjoined from working, either directly or indirectly, in media sales for Defendant Alpha or any other direct competitor of Cumulus, within a 60 mile area, .for a period of 6 months following the entry of this order; 2. Defendant Olson is enjoined from soliciting, either directly or
280	City had knowledge that any of the defendants had the propensity to arrest plaintiff without probable cause or maliciously prosecute him. Plaintiff does not address this argument in his brief and the record contains no evidence in support of the claim. Therefore, summary judgment is granted in favor of the-City on plaintiffs state law claims for negligent hiring, training, supervision, and retention. Defendants also challenge plaintiffs claim of intentional infliction of emotional distress. “The tort of intentional infliction of emotional distress has four elements: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress.” Linde v. Arab Bank, PLC, 384 F.Supp.2d 571, 590 (E.D.N.Y.2005) (citing Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993)). Defendants argue this claim must be dismissed because: (1) plaintiff failed to bring a mandatory Notice of Claim against the City for this claim; (2) public policy prohibits re covery of claims of intentional infliction of emotional distress against the City; and (3) there is no evidence that any of the defendants’ conduct was so outrageous as to give rise to severe emotional distress. Again, plaintiff does not address this argument in his brief. Under New York law, a notice of claim is a condition precedent to bringing a tort claim against a municipality. See N.Y. Gen. Mun. Law § 50 — e;
2463	mere allegations of injury are insufficient. Rather, a plaintiff must establish that there exists no genuine issue of material fact as to justiciability or the merits.”); Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (“Since [the elements of standing] are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”) (citations omitted). A. Standing The question of standing “involves constitutional limitations of federal court jurisdiction.” Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). “To satisfy the case or controversy requirement of Article III, which is the irreducible constitutional minimum of standing, a plaintiff must, generally speaking, demonstrate that he has suffered injury in fact, that the injury is fairly traceable to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.” Id. “In addition to constitutional requirements, standing also involves prudential limits on the exercise of federal jurisdiction.” Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031, 1036 (8th Cir.2002) (citing Bennett, 520 U.S. at 162,117 S.Ct. 1154). Constitutional standing “assures that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but
2573	judicial capacity. Judge Rieckhoff had the jurisdiction and capacity to sentence Mr. Hansborough. See John v. Barron, 897 F.2d 1387, 1392 (7th Cir.1990), cert. denied, 498 U.S. 821, 111 S.Ct. 69, 112 L.Ed.2d 43 (1990) (test is whether the acts are those normally performed by a judge). Thus, even if Judge Rieckhoff erred in sentencing Mr. Hansborough, he is immune from civil damages. Mr. Hansborough alleges that Deputy Prosecutor Meteiver participated in the sentencing hearing and knew of the injustices that happened yet did nothing about them. Prosecutors have absolute immunity for the initiation and pursuit of a criminal prosecution, including presenting the state’s case at trial or any other conduct “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). “In initiating a prosecution and in presenting the State’s case, the prosecutor is immune from a civil suit for damages under § 1983.” Id. at 431, 96 S.Ct. 984. This immunity applies even where the prosecutor acts “maliciously, unreasonably, without probable cause, or even on the basis of false testimony or evidence.” Henry v. Farmer City State Bank, 808 F.2d 1228, 1238 (7th Cir.1986). Negotiating a plea agreement and participating in a sentencing hearing constitutes conduct intimately associated with the judicial phase of the criminal process, so even if Mr. Meteiver was aware that Judge Rieckhoff erred in sentencing Mr. Hansborough, he is immune from civil damages. Finally, Mr. Hansborough alleges that Sheriff Brooks knew
681	manner in which the mortgage proceeds are used.” (Emphasis supplied.) There was evidence also that part of the motivation for incorporating was to allow the long term retirement of Drybrough’s debt out of the corporate earnings; such earnings, when applied to the 1953 loan, would likely be taxed at a lower rate than they would be in Drybrough’s own tax bracket. Drybrough’s expectation, however, that income tax would be saved by the lower rate that would apply to the corporate earnings as contrasted with his own income tax exposure was not, in our view, a purpose to avoid “Federal income tax on the exchange.” We read such to be the holding of the Tax Court’s own decision in W. H. B. Simpson v. Commissioner, 43 T.C. 900 (1965) announced some months after the decision before us. In Simpson, the Tax Court said, “We do not believe it (§ 357(b)) was intended tc require recognition of gain on bona fide transactions designed to rearrange one’s business affairs in such a manner as to minimize taxes in the future, consistent with existing provisions of the law.” (Emphasis supplied.) 43 T.C. at 916. and further observed therein, “As was pointed out in Arthur L. Kniffen, supra, in using the term ‘liability’ in sections 351 and 357, Congress was concerned with the assumption by the transferee of an existing liability of the transferor, not with the manner in which it might subsequently be discharged. It is clear that as the corporation paid off the
1114	- such as Federal statutory claims.” Id. at 14-15. The Federal Arbitration Act, 9 U.S.C. §§ 1-13, establishes “a uniform federal law over contracts which fall within its scope.” Goodwin v. Elkins & Co., 730 F.2d 99, 108 (3d Cir.1984). Because neither party contests the validity of the arbitration clause, the Court confines its inquiry to assessing whether the dispute at issue falls within the scope of that clause. Further, because neither party questions the propriety of this Court determining whether the dispute is arbitrable, the Court “assume[s], without further analysis, that the [a]greement leaves the question of arbitrability to judicial determination.” See CardioNet, Inc. v. Cigna Health Corp., 751 F.3d 165, 172 (3d Cir.2014) (citing Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010)). The United States Court of Appeals for the Third Circuit recently summarized the standards governing a court’s interpretation of the scope of an arbitration clause: [The court] must resolve “any doubts concerning the scope of arbitrable issues ... in favor of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); see also Medtronic AVE, Inc. v. Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 55 (3d Cir.2001) (noting that “federal policy favors arbitration”). However, the Supreme Court has repeatedly warned against “over-read[ing its] precedent []” concerning the presumption of arbitrability. E.g. Granite Rock, 130 S.Ct. at 2857. The presumption in favor of arbitration does not
2548	liability in excess of the policy limits by agreeing to a reasonable good faith settlement of the negligence actions and then, on proof of the insurer’s default, to recover from it the amount of its policy limits.”); Isadore Rosen & Sons, Inc. v. Sec. Mut. Ins. Co., 31 N.Y.2d 342, 339 N.Y.S.2d 97, 291 N.E.2d 380, 382 (1972) (citation omitted) (“The New York rule is that where an insurer unjustifiably refuses to defend a suit, the insured may make a reasonable settlement or compromise of the injured party’s claim, and is then entitled to reimbursement from the insurer, even though the policy purports to avoid liability for settlements made without the insurer’s consent.”); Gates Formed Fibre Prod., Inc. v. Imperial Cas. and Indem. Co., 702 F.Supp. 343, 346 (D.Me.1988) (citation omitted) (“It is well settled that once an insurer breaches its duty to defend, the insured is free .to proceed as he sees fit ... Thus, if an insurer wrongfully refuses to defend an action against an insured, as required by the policy, the insured is entitled to settle without jeopardizing his right to coverage otherwise available to him.”) In fact, more than one court has noted that this is the general rule. See Isadore Rosen, 339 N.Y.S.2d 97, 291 N.E.2d at 382 (citation omitted) (“This seems the general rule: The provision against settlement by insured cannot be taken advantage of by insurer, where it unreasonably delays to take any action, after notice of the claim.”); National Union Fire Ins.
1349	127 S.Ct. 1955. When deciding whether to grant a motion to dismiss, the court generally “may not consider any material beyond the pleadings.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). The court must accept as true all “well-pleaded factual allegations.”' Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The court must also construe the alleged facts in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir.1988). However, the court may consider material submitted as part of the complaint or relied upon in the complaint, and may also consider material subject to judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688-69 (9th Cir.2001). But “courts are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. B. Rule 9(b) Fraud-based claims are subject to heightened pleading requirements under Federal Rule of Civil Procedure 9(b). In that regard, a plaintiff alleging fraud “must state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). The allegations must be “specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985). To that end, the allegations must contain “an
1959	Steel, 829 F.Supp. 1023 (N.D.Ind.1993) in which the court sustained an indictment under RCRA against the argument that the invalidated “mixture” rule was needed to support it. See Recticel Report and Recommendation, at 735. In the Bethlehem Steel case, the court found that the waste in question was a listed waste and relied upon 40 C.F.R. § 261.3(c)(1), the EPA’s continuing jurisdiction rule, also unaffected by the Shell Oil decision, which provides that a hazardous waste will remain a hazardous waste unless it is de-listed and that a “hazardous waste does not lose its hazardous character simply because it changes form or is combined with other substances.” United States v. Bethlehem Steel, supra, at 1032 (quoting Chemical Waste Management, Inc. v. Environmental Protection Agency, 869 F.2d 1526, 1539 (D.C.Cir.1989)). In the instant case, even without the benefit of the evidence at trial or a pre-trial stipulation, the allegations of the Indictment appear to contemplate proof that the listed solvents in question were either merely combined with distilled water or changed in form prior to being improperly released into the environment. Additionally, the defendant in Recticel was a generator of hazardous waste, and the issue there was whether a substance that it produced was “hazardous” within the meaning of RCRA. Here, Envirotek was not a generator of hazardous waste, but was a storage and treatment operation for wastes that were allegedly identified by the generators as “hazardous” within the meaning of RCRA. Thus, in this case, the substances at issue had,
4968	given to a claim term by the patentee that differs from the meaning it would otherwise possess. In such cases, the inventor’s lexicography governs.”). The '720 specification provides: (“In the example of a WAFL file system, snapshots are described [in the '292 patent] which is hereby incorporated by reference as though full [sic] set forth herein.”). '720 patent, col. 3:62-4:2. The '720 specification also states: “Examples of snapshot and block allocation data structures, such as the active map, space map and summary map, are described in [the '916 patent application], which application is hereby incorporated by reference.” Id. at 4:20-26. Sun argues that documents incorporated by reference into a patent become part of the patent’s intrinsic record, citing AquaTex Indus., Inc. v. Techniche Solutions, 419 F.3d 1374, 1381-82 (Fed.Cir.2005). In AquaTex, the court held that because “AquaTex chose to incorporate by reference the teachings of three United States Patents to define the scope of the term ‘fiberfill,’ these publications are highly relevant to one of ordinary skill in the art for ascertaining the breadth of the claim term.” 419 F.3d at 1381. Sun points out that the '916 patent contains a special “Lexicography” section that defines fsinfo as located at a fixed location and including data about the volume. The Lexicography section appears in the section of the '916 patent entitled “Detailed Description of the Preferred Embodiment,” and defines fsinfo as follows: DETAILED DESCRIPTION OF THE PREFERRED EMBODIMENT In the following description, a preferred embodiment of the invention is described
4717	might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of City of N.Y., 746 F.3d 538, 544 (2d Cir.2014) (internal quotation marks omitted). At summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., MDL No. 1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court’s goal should be “‘to isolate and dispose of factually unsupported claims.’ ” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir.2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Schatzki v. Weiser Capital Mgmt., LLC, No. 10-CV-4685, 2013 WL 6189465, at *14 (S.D.N.Y. Nov. 26, 2013) (same). “If the party opposing a summary judgment motion shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may deny the motion or allow time to take discovery.” Walden v. Sanitation Salvage Corp., No. 14-CV-112, 2015 WL 1433353, at *2 (S.D.N.Y. Mar. 30, 2015); see also Fed.R.Civ.P. 56(d) (“If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to'justify its opposition, the court may: (1) defer considering
591	she has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by “showing ... that there is an absence of evidence to support the nonmoving party’s case.” Celotex, supra, 477 U.S. at 323, 325, 106 S.Ct. at 2552-53, 2554. Issues of fact are genuine “only if a reasonable jury, considering the evidence presented, could find for the non-moving party.” Childers v. Joseph, 842 F.2d 689, 694 (3d Cir.1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986)). Material facts are those which will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248,106 S.Ct. at 2510. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir.1988). B. Applicable Law The law concerning spoliation of evidence is set forth in Part I-D, supra. In short, federal evidentiary law and Pennsylvania substantive law are consistent in setting forth the rule that a party who is responsible for the spoliation of evidence may be sanctioned. The seriousness of the sanction is consistent with the
3701	dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990). In considering a motion to dismiss for failure to state a- claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in ^the pleader’s favor. Lazy Y. Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.2008). To survive a 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “The plausibility, standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct.
306	containing fewer than one hundred lots which are not exempt” under any of eight recognized statutory exemptions. 15 U.S.C. § 1702(b)(1); see generally Trotta v. Lighthouse Point Land Co., LLC, 551 F.Supp.2d 1359, 1362 (S.D.Fla.2008) (recognizing that § 1702(b) exempts developments with fewer than 100 units from the Act’s property report requirement). Sanibel maintains that the 108-unit Project consists of fewer than 100 lots which are not exempt from the ILSF-DA, because at least 9 units are exempt for purposes of § 1702(b)(1). Given the statute’s remedial objective, “when faced with an ambiguity regarding the scope of an exemption [in the ILSFDA], the court must interpret the exemption narrowly, in order to further the statute’s purpose of consumer protection.” Taylor v. Holiday Isle, LLC, 561 F.Supp.2d 1269, 1271 n. 5 (S.D.Ala.2008) (citing Meridian Ventures, LLC v. One North Ocean, LLC, 538 F.Supp.2d 1359 (S.D.Fla.2007)); see also Markowitz v. Northeast Land Co., 906 F.2d 100, 105 (3rd Cir.1990) (“exemptions from remedial statutes such as the Act are to be narrowly construed”); Harvey, 568 F.Supp.2d at 1362, 2008 WL 1843909, at *6 (“Under federal law, exemptions under the ILSF-DA must be narrowly and strictly construed.”). The obvious corollary to this principle is that the terms of the ILSFDA must “be applied liberally in favor of broad coverage.” N & C Properties v. Windham, 582 So.2d 1044, 1048 (Ala.1991); see also Olsen v. Lake Country, Inc., 955 F.2d 203, 205 (4th Cir.1991) (“The language of the Act is meant to be read broadly
133	see Kelly, 924 F.2d at 360. With regard to the first prong, the court must focus on “the nature of the conduct, rather than the status of the actor,” Kelly, 924 F.2d at 360 (quoting Varig Airlines, 467 U.S. at 813, 104 S.Ct. 2755), and determine “whether the action is a matter of choice for the acting employee,” Kelly, 924 F.2d at 360 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). An action is outside the scope of the discretionary function exception “if a federal statute, regulation or policy specifically prescribes a course of action for [an official] to follow, because [the official] has no rightful option but to adhere to the directive.” Coyne, 233 F.Supp.2d at 145 (quoting Magee v. United States, 121 F.3d 1, 4 (1st Cir.1997)); see Limar Shipping Ltd., 324 F.3d at 7 (explaining that the exception does not apply “when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow” (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954)). With regard to the second prong, the inquiry must center “not on the agent’s subjective intent in exercising the discretion ..., but on the nature of the actions taken and on whether they are susceptible to policy analysis.” Gaubert, 499 U.S. at 325, 111 S.Ct. 1267. There exists a presumption that if “there is an exercise of discretion, that exercise is based on considerations of public policy.” Coyne, 233 F.Supp.2d at 145 (citing Shansky v. United States, 164
3313	(3) the grand jury is aware of the subpoena at the time of the alleged obstruction of justice, for such rules can be easily circumvented by the government and offer the guilty a sanctuary among “empty technicalities.” See United States v. Shoup, 608 F.2d 950, 962 (3d Cir.1979); Simmons, 591 F.2d at 209-10 (“empty technicalities”); United States v. Walasek, 527 F.2d 676, 678 (3d Cir.1975) (“easily circumvented”). In place of rigid rules, we have counselled a case by case inquiry into whether the subpoenas were issued in furtherance of an actual grand jury investigation, i.e., whether they were issued “to secure a presently contemplated presentation of evidence before the grand jury.” Walasek, 527 F.2d at 678, cited with approval in United States v. McComb, 744 F.2d 555, 561 (7th Cir.1984), Shoup, 608 F.2d at 962, and Simmons, 591 F.2d at 210. See also United States v. Ryan, 455 F.2d 728 (9th Cir.1972), discussed in Simmons, 591 F.2d at 209, Walasek, 527 F.2d at 680 n. 13, and United States v. Vesich, 724 F.2d 451, 454 (5th Cir.1984). This case by case inquiry is, of course, factual. C. In instructing the jury on the obstruction counts, the district judge correctly explained that “a grand jury proceeding is pending for the purposes of this statute if an Assistant U.S. Attorney has issued a subpoena in furtherance of the grand jury investigation.” At trial, however, she unreasonably limited inquiry into whether the subpoenas were issued to secure a presently contemplated presentation of evidence
720	at 451). Therefore, in order to invalidate a contract on the basis of public policy, the Court must identify in the sovereign’s positive law a defined, dominant, and unambiguous expression that the performance of the thing agreed to by the parties is inimical to the public good. See In re McCurdy’s Estate, 303 Pa. 453, 154 A. 707, 708 (1931) (“The prime question is whether the thing forbidden is inimical to the public interest.”). The Court recognizes that “public policy” is not, of course, a mantra which licenses the judiciary to act as a board of censors for contemporary morality or to impose, under notions of the general good and welfare, its own brand of social or economic justice. Cf. Lochner v. New York, 198 U.S., 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937 (1905) (Holmes J., dissenting) (“It is settled by vari ous decisions of this court that state constitutions and state laws may regulate life in many ways which [judges] as legislators might think as injudicious, or if you like as tyrannical, as this_”). As the Pennsylvania Supreme Court warned over half a century ago, “[i]n our judicial system the power of courts to formulate pronouncements of public policy is sharply restricted; otherwise they would become judicial legislatures rather than instrumentalities for the interpretation of law.” Mamlin v. Genoe, 340 Pa. 320, 17 A.2d 407, 409 (1941). Yet, “when a given policy is so obviously ... against the public health, safety, morals or welfare that there is
2908	under section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(c), pursuant to which the court reviews actions commenced under section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a, including an action contesting the final results of an administrative review that Commerce issues under section 751 of the Tariff Act of 1930, 19 U.S.C. § 1675(a). The court “shall hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law....” 19 U.S.C. § 1516a(b)(l)(B)(i). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). In the Remand Redetermination, Commerce explained that its model-match type categories, as developed during the investigation and first administrative review, resulted from a determination “that CORE products should be separated into four categories: clad, unpainted, painted, and painted with polyvinylidene fluoride (PVDF).” Remand Redetermination 1. Commerce also explained that during the development of these four categories, certain parties requested that the Department create an additional category for laminated products, that the Department did not do so at the time, and that the Department decided instead to group laminated products with painted products for model-match purposes. Id. at 2. During the review at issue in this case, Commerce rejected Union’s proposal to place laminated CORE products
149	that, for the purposes of sovereign immunity, suits against federal agencies and against federal employees, acting in their official capacities, are deemed to be suits against the United States. The Plaintiffs acknowledge that, by its terms, Section 1983 claims concern the actions of state agencies or employees and do not apply to the United States or its agencies and employees. The Plaintiffs concede that their complaint does not allege any action under color of state law by the Federal Defendants, but speculate that discovery may provide a basis for a Section 1983 claim by revealing the nature of Anderson’s FBI employment or “the potential involvement or application of any [s]tate law or regulation” to the facts of this case. They cite Tritsis v. Backer, 355 F.Supp. 225 (N.D.Ill.1973), aff'd, 501 F.2d 1021 (7th Cir.1974), and Peck v. United States, 470 F.Supp. 1003 (S.D.N.Y.1979), in support of this position. The Plaintiffs argue that, in the interests of justice, I should defer ruling on their Section 1983 claims until discovery is completed. They say that, because the same discovery is involved in all the claims asserted, the defendants will not be prejudiced if I were temporarily to retain jurisdiction over the Section 1983 claims. The Plaintiffs also state that they may be prepared voluntarily to dismiss their Section 1983 claims if discovery confirms that the facts of this case do not implicate or involve any state law or regulation, and that the matter is limited to issues of federal law. In their
2017	longer applicable, these two cases would not apply to the consideration of the DSM-IV criteria. b. Occurrence of in-service stressors: As to the second PTSD-serviceeonnection element (occurrence of in-service stressors), § 3.304(f) requires “credible supporting evidence that the claimed in[-]service stressor actually occurred”. It is clear that the required corroboration of the occurrence of in-service stressors need not be found only in service records, as the Manual M21-1 had required before the adoption of § 3.304(f) (see, e.g., Manual M21-1, Part VI, ¶ 7.46(f) (Sept. 21, 1992); Manual M21-1, Subch. XII, ¶ 50.45(d) (1989); see also Hayes, 5 Vet.App. at 67) “but may be obtained from other sources”. Manual M21-1, Part VI, ¶ 7.46.C (1995); see Moreau, 9 Vet.App. at 394-95; Doran v. Brown, 6 Vet.App. 283, 289 (1994). If the claimed stressor is not combat related, a veteran’s lay testimony regarding in-service stressors is insufficient to establish the occurrence of the stressor and must be corroborated by “credible supporting evidence”. Moreau, 9 Vet.App. at 395; Doran, supra; see also Moreau, 9 Vet.App. at 395-96 (interpreting § 3.304(f) as precluding use of medical opinion based on post-service examination of veteran as credible evidence to help establish “actual” occurrence of in-service stressor). Although the Secretary concedes that certain M21-1 provisions adopted after the BVA decision here on appeal apply to the present appeal because they contain “a liberalizing provision in that [they] no longer restricted corroborating evidence to service department records” (Brief (Br.) at 14; see Hayes, supra (quoting Karnas, supra)),
3564	Boise homeless would have a place to sleep — a chance that lasted nearly ten years. Its decision to give a similar chance to the BRM did not violate the First Amendment. V CONCLUSION CHI must be satisfied with the City and the Council as defendants on the substantive issues raised in this case and with Chatterton and Birdsall in their official capacities only. Our decision today has no effect on CHI’s claims against them. As the Supreme Court held in Owen v. City of Independence, “imposing personal liability on public officials could have an undue chilling effect on the exercise of their decision-making responsibilities, but ... no such pernicious consequences [are] likely to flow from the possibility of a recovery from public funds.” 445 U.S. 622, 653 n. 37, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) (municipalities have no immunity from damages flowing from their constitutional violations). We hold only that as a matter of law, the individual defendants are beyond the reach of CHI’s claims. To pursue these individuals' — as suggested at oral argument by CHI’s counsel' — for damages, punitive or otherwise, serves no legally cognizable purpose. Mayor Bieter and City Council members Jordan, Clegg, Bisterfeldt, Eberle, Mapp, and Shealy are absolutely immune from suit, either for damages or injunctive relief. The lease and sale of Community House to the BRM, preceded as it was by the City’s long partnership with CHI and grants of large amounts of funding, “reflected a discretionary, policymaking decision implicating the
3176	v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000). Under the “unreasonable application” clause — the clause that applies to most claims — -a federal court is permitted to grant the writ if the state court has identified the correct governing legal principle from the Supreme Court’s decisions but unreasonably applied that principle to the facts of the prisoner’s case. Williams, 120 S.Ct. at 1523. Even if the federal court finds in its independent judgment that the State court was incorrect in its application of a federal constitutional principle, that alone does not permit the federal court to grant habeas relief. Relief is not permitted unless the State court decision was “not only erroneous, but objectively unreasonable.” Yarborough v. Gentry, 540 U.S. 1, 124 S.Ct. 1, 4, 157 L.Ed.2d 1 (2003); Cotton v. Cockrell, 343 F.3d at 750. A federal habeas court only reviews the reasonableness of the state court’s ultimate decision, so the inquiry is not altered when the State court does not, as in this case, provide reasons for its decision. Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir.2003). In such a situation, the federal court: (1) assumes that the state court applied the proper “clearly established Federal law”; and (2) then determines whether its decision was “contrary to” or “an objectively unreasonable application of’ that law. Id. When the federal court holds an evidentiary hearing, the additional evidence is relevant, but deference to the State court’s decision is still due. “Where a
3738	Fifth Circuit again spoke of Rule 60(b) in these words: “The provisions of this rule must be carefully interpreted to preserve the delicate balance between the sanctity of final judgments, expressed in the doctrine of res judicata, and the incessant command of the court’s conscience that justice be done in light of all the facts. In its present form, 60(b) is a response to the plaintive cries of parties who have for centuries floundered, and often succumbed, among the snares and pitfalls of the ancillary common law and equitable remedies. It is designed to remove the uncertainties and historical limitations of the ancient remedies but to preserve all of the various kinds of re lief which they offered.” Bankers Mortgage Co. v. United States, 423 F. 2d 73, 77 (1970). See also Smith v. Jackson Tool & Die, Inc., 426 F.2d 5 (5 Cir. 1970). Because of the liberal construction which the Fifth Circuit has accorded Rule 60(b), we decline to follow Kahle v. Amtorg Trading Corp., 13 F.R.D. 107 (D.N.J.1952), a decision which is relied on by the trustee. Kahle refused to relieve plaintiffs of adverse judgment on the ground of mistake because plaintiffs had failed to turn over to their attorney correspondence material and relevant to the issues raised by the defense. The rationale of the decision was that since the plaintiffs did not have newly discovered evidence under (b) (2) which by due diligence could not have been discovered in time to move for a new trial
4949	single best guide to the meaning of a disputed term,” and “acts as a dictionary when it expressly defines terms used in the claims or when it defines terms by implication.” 415 F.3d at 1321. Limitations from the specification, however, such as from the preferred embodiment, cannot be read into the claims absent a clear intention by the patentee to do. Altiris v. Symantec Corp., 318 F.3d 1363, 1372 (Fed.Cir.2003) (“resort to the rest of the specification to define a claim term is only appropriate in limited circumstances”); Teleflex, 299 F.3d at 1326 (“The claims must be read in view of the specification, but limitations from the specification are not to be read into the claims.”) (citations omitted); CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed.Cir.2002) (“a patentee need not describe in the specification every conceivable and possible future embodiment of his invention”). “[TJhere is sometimes a fine line between reading a claim in light of the specification, and reading a limitation into the claim from the specification_ [Attempting to resolve that problem in the context of the particular patent is likely to capture the scope of the actual invention more accurately than either strictly limiting the scope of the claims to the embodiments disclosed in the specification or divorcing the claim language from the specification.” Decisioning.com, Inc. v. Federated Dept. Stores, Inc., 527 F.3d 1300, 1307-08 (Fed.Cir.2008) (quoting Comark Comm’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed.Cir.1998)). There is therefore “no magic formula or
593	likely to be tortured if he returned to India. We deny Patel’s petition. Patel abandoned any challenge he might have made to the denial of his application for asylum. The immigration judge found Patel not credible based on his different accounts of persecution in his statements to border patrol agents and asylum officers, in his application, and in his testimony. Patel contested the adverse credibility ruling in his appeal to the Board, where he argued that he was “confused by many of the questions he was asked” about the inconsistencies, but in his petition, Patel focuses exclusively on the merits of his requests for asylum and withholding of removal. Patel abandoned his challenge to the adverse credibility ruling. See Sepulveda v. U.S. Atty. Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005) (“When an appellant fails to offer argument on an issue, that issue is abandoned.”). Substantial evidence supports the finding that Patel is unlikely to be tortured if he returns to India. The record is bereft of evidence that Patel would likely be tortured. See 8 C.F.R. § 208.16(c). Patel argues that he is entitled to relief based on information in his declaration, but we cannot consider a document that Patel prepared after the Board dismissed his appeal. We are required to “decide the petition only on the administrative record on which the order of removal is based.” 8 U.S.C. § 1252(b)(4)(A). We DENY Patel’s petition for review.
425	LPSC’s consideration of the proper impact of the suspension of Cajun’s interest obligation on its wholesale rates and terminating the escrow provision in the LPSC’s rate order. Initially, we note that we have previously explained that the central purpose of 11 U.S.C. § 502(b)(2)’s suspension of an undersecured debtor’s interest obligations is to provide equitable treatment to creditors — “allowing the accrual of postpetition interest in favor of one creditor would be ‘inequitable’ to other creditors.” United Savings Ass’n v. Timbers of Inwood Forest Assocs. (In re Timbers of Inwood Forest Assocs.), 793 F.2d 1380, 1385 (5th Cir.1986), aff'd on reh’g, 808 F.2d 363 (1987) (en banc), aff'd, 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988); see also Nicholas v. United States, 384 U.S. 678, 683-84, 86 S.Ct. 1674, 16 L.Ed.2d 853 (1966) (stating that the rule “rests at bottom on an awareness of the inequity that would result if, through the continuing accumulation of interest in the course of subsequent bankruptcy proceedings, obligations bearing relatively high rates of interest were permitted to absorb the assets of a bankrupt estate whose funds were already inadequate to pay the principal of the debts owed by the estate”). Although the effect of suspending debt service may be to make it possible for the debtor to use income to pay its current operating expenses and the administrative expenses of the proceeding, we find no support for appellees’ claim that § 502(b)(2) is intended to provide the debt- or, a regulated public
4176	2151, 150 L.Ed.2d 272 (2001). The Court also determines “whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition.” Id. 1. Violation of a Constitutional Right The Plaintiffs allege that the Defendants violated their Fourth Amendment right when the Defendants unreasonably seized the Plaintiffs and used excessive force. Excessive force claims are analyzed using the Fourth Amendment’s “reasonableness” standard in the context of “an arrest, an investigatory stop or any other type of seizure.” Stainback v. Dixon, 569 F.3d 767, 771 (7th Cir. 2009). The Fourth Amendment protects against the use of force that is not “objectively reasonable.” Kinney v. Ind. Youth Ctr., 950 F.2d 462, 465 (7th Cir. 1991). The “right to make an arrest.. .necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). However, this right is not without limits; a “police officer’s use of force is unconstitutional if, judging from the totality of circumstances at the time of the arrest, the officer used greater force than was reasonably necessary to make the arrest.” Payne v. Pauley, 337 F.3d 767, 778 (7th Cir. 2003) (citation and quotation marks omitted). Fourth Amendment unreasonable seizure claims, like excessive force claims, are analyzed in light of the totality of the circumstances to determine the objective reasonableness
256	must contain sufficient factual matter ... to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). Plausibility “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. III.42 U.S.C. § 1983 “Section 1983 imposes liability on anyone who, under color of state law, deprives a person of any rights, privileges, or immunities secured by the Constitution” of the United States. K & A Radiologic Tech. Servs., Inc. v. Comm’r of the Dept. of Health, 189 F.3d 273, 280 (2d Cir.1999) (quoting Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)). “[T]he core purpose of § 1983 is ‘to provide compensatory relief to those deprived of their federal rights by state actors.’” Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 795 (2d Cir. 1999) (quoting Felder v. Casey, 487 U.S. 131, 141, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988)). Section 1983 “does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere.” Morris—Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir.2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791
4330	the fairness hearing and jointly filed by the parties on March 19,1999, is a negotiated settlement that resolves all of the claims raised by plaintiffs in the Seventh Amended Complaint. The purpose of the Consent Decree is to ensure that in the future all class members in their dealings with the USDA will “receive full and fair treatment” that is “the same as the treatment accorded to similarly situated white persons.” Consent Decree at 1-2. As with all settlements, it does not provide the plaintiffs and the class they represent with everything they sought in the complaint. Instead it is a negotiated settlement intended to achieve much of what was sought without the need for lengthy litigation and uncertain results. See Stewart v. Rubin, 948 F.Supp. 1077, 1087 (D.D.C.1996) (“inherent in compromise is a yielding of absolutes and an abandoning of highest hopes”), ajfd 124 F.3d 1309 (D.C.Cir.1997). It is impossible to know precisely how much the overall settlement in this case will cost the government, in part because the exact size of the class has not been determined and because the Consent Decree provides for debt relief that is dependent on the amount of debt that individual class members owe to the USDA, but plaintiffs estimate that the settlement is worth at least $2.25 billion, the largest civil rights settlement in the history of this country. See Pis’ Response to Post-Hearing Submissions at 7. The Consent Decree accomplishes its purposes primarily through a two-track dispute resolution mechanism that provides
301	also May, 458 F.Supp.2d at 1333. That is precisely the case here, at least with respect to the ILSFDA exemption issue, as all parties appear to concur that the exempt or nonexempt status of the Project is a purely legal question for the Court to decide. IV. Analysis of ILSFDA Nondisclosure Claims. A. Parameters of the Act. “The ILSFDA was intended to curb abuses accompanying interstate land sales.” Winter v. Hollingsworth Properties, Inc., 777 F.2d 1444, 1448 (11th Cir.1985). Indeed, “[t]he underlying purpose of the [ILSFDA] is to insure that a buyer, prior to purchasing certain kinds of real estate, is informed of facts which will enable him to make an informed decision about purchasing the property.” Law v. Royal Palm Beach Colony, Inc., 578 F.2d 98, 99 (5th Cir.1978); see also Winter, 777 F.2d at 1449 (Act’s purpose requires that buyer must receive information necessary to make his decision prior to entering into purchase agreement); United States v. Steed, 674 F.2d 284, 287 (4th Cir.1982) (ILSFDA “is a comprehensive statute requiring subdivision developers, unless exempt, to furnish prospective purchasers pertinent information about lots offered for sale”). The Act “should be construed not technically, but flexibly to effectuate its remedial purposes.” Schatz v. Jockey Club Phase III, Ltd., 604 F.Supp. 537, 541 (S.D.Fla.1985). One of the ILSFDA’s requirements is that a developer selling a nonexempt lot must furnish the purchaser with a so-called “property report” in advance of the execution of a purchase agreement. See 15 U.S.C. § 1708(a)(1)(B) (declaring
2009	him.” Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 907-08 (2d Cir.1993) (quoting Maurer v. United States, 668 F.2d 98, 100 (2d Cir.1981) (per curiam), and citing Restatement (Second) of Torts § 435, at 454 (1965) and W. Page Keeton et al, Prosser and Keeton on the Law of Torts § 43, at 292 (5th ed.1984)); see Maurer, 668 F.2d at 99-100 (“It is a settled principle of tort law that when a defendant’s wrongful act causes injury, he is fully liable for the resulting damage even though the injured plaintiff had a preexisting condition that made the consequences of the wrongful act more severe than they would have been for a normal victim.”); see also Stevens v. Bangor and Aroostook R.R., 97 F.3d 594, 602 n. 8 (1st Cir.1996) (noting that Federal Employers’ Liability Act and other federal statutes incorporate the “eggshell skull” rule to prevent defendants from avoiding liability in certain cases); Testa v. Village of Mundelein, Ill., 89 F.3d 443, 446 (7th Cir.1996) (applying Illinois law that allows tortfeasor liability for injuries he or she caused, even though injuries are aggravation of preexisting medical condition that would make plaintiff more susceptible to injury from defendant’s conduct). This “eggshell plaintiff rule” has generally been applied to cases in which the cause and effect of an injury are physical but also has been applied “[w]hen an emotional injury causes physical manifestations of distress”. Pierce v. S. Pacific Transp. Co., 823 F.2d 1366, 1372 n. 2 (9th Cir.1987);
3614	seeking arbitration is prepared to arbitrate; and (4) whether the issuance of an injunction would be warranted under ordinary principles of equity. The fourth consideration turns on whether breaches are occurring and will continue, or have been threatened and will be committed; whether the breaches have caused or will cause irreparable injury to the Union; and whether the Union will suffer more from the denial of an injunction than will the Agency from its issuance. We review the district court’s issuance of an injunction for abuse of discretion. Greyhound I, 529 F.2d at 1078. Within this context, questions of law are reviewed de novo, and the district court’s findings of fact are reviewed for clear error. Niagara Hooker Employees Union v. Occidental Chemical Corp. 935 F.2d 1370, 1374 (2d Cir.1991). In Niagara Hooker, the Second Circuit stated that “it is unnecessary to imply an employer’s duty to preserve the status quo from the existence of a promise to arbitrate.” 935 F.2d at 1377. In Greyhound II, we stated, “[A] strike pending arbitration generally will frustrate and interfere with the arbi-tral process while the employer’s altering the status quo generally will not.” 550 F.2d at 1238-39. The arbitration process is rendered meaningless only if any arbitral award in favor of the union would substantially fail to undo the harm occasioned by the lack of a status quo injunction.... The arbitral process is not rendered “meaningless,” however, by the inability of an arbitrator to completely restore the status quo ante or by
1841	the defendants, as it does, with having violated Sections 1 and 2 of the Act, has the burden of establishing the relevant market as well as the elements of the offense as set forth in the Act. Thus, to sustain its charge that the defendants conspired to monopolize, the Government must prove that the defendants had a specific intent to monopolize, Swift & Co.v. United States, 1905, 196 U.S. 375, 396, 25 S.Ct. 276, 49 L.Ed. 518; and to establish that the conspiracy charged was successfully consummated, that the defendants did in fact monopolize the relevant market, that they were “ * * * able, as a group, to exclude actual or potential competition from the field”, American Tobacco Co. v. United States, 1946, 328 U.S. 781, 809, 66 S.Ct. 1125, 1139, 90 L.Ed. 1575. The basic issues presented for determination as they have been framed-.and submitted by the defendants are: 1. Were the activities of defendants in connection with the promotion and exhibition of championship boxing contests interstate trade and commerce within the meaning of Sections 1 and 2 of the Sherman Act? and 2. If the defendants’ activities were interstate trade and commerce, was Section 1 or Section 2 of the Sherman Act violated by them? The Government called eight witnesses, and introduced 268 exhibits; defendants called seven witnesses and offered 13 exhibits. On consideration of all this evidence, I make the following findings of fact. 2. FINDINGS OF FACT I. Description of Defendants and Others. 1. Defendant
538	102 L.Ed.2d 818 (1989) (“When it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute.”). This “canon of construction,” Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (internal quotation marks omitted), is “rooted in a number of considerations,” Smith v. United States, 507 U.S. 197, 204 n. 5, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993). It “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” Aramco, 499 U.S. at 248, 111 S.Ct. 1227. In addition, it recognizes that Congress “generally legislates with domestic concerns in mind.” Smith, 507 U.S. at 204 n. 5, 113 S.Ct. 1178; see also Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949). For these reasons, we “assume that Congress legislates against the backdrop of the presumption against extraterritoriality.” Aramco,■ 499 U.S. at 248, 111 S.Ct. 1227. In other words, absent “clear evidence of congressional intent” to apply a statute beyond our borders, the statute will apply only to the territorial United States. Smith, 507 U.S. at 204, 113 S.Ct. 1178; see Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (stating that the presumption against extraterritoriality is not overcome unless there appears “the affirmative im tention of the Congress clearly expressed” (internal quotation marks omitted)). In searching for “clear evidence” of Congress’s intent, we are not, however, limited to the text of the statute itself. To the contrary,
976	up any deficiency which might occur in any year because of the failure of the trust to produce the required income; and he agreed further to pay to Helen Gallatin Welsh additional amounts sufficient to provide for taxes, imposed by the United States or any state or territory, with respect to the income paid by the trust. If these various undertakings had been included in a simple contract by the terms of which a third party thereto had been required to pay, on behalf of the taxpayer, the various amounts specified, such payments clearly would have been made in his behalf and in satisfaction of his obligations. Old Colony Trust Co. v. Commissioner, 279 U. S. 716; United States v. Boston & Maine Railroad, 279 U. S. 732. “The creation of a trust by the taxpayer as the channel for the application of the income to the discharge of his obligation leaves the nature of the transaction unaltered.” Douglas v. Willcuts, supra. The facts in the instant case clearly distinguish it from other cases decided by this Board since Douglas v. Willcuts, in which the income of trusts paid to former wives was held not taxable to the settlors of the trusts following divorce or remarriage. In Harry S. Blumenthal, supra, the trust there involved was created by the taxpayer pursuant to a decree requiring him to do so. It was created expressly for the purpose of paying alimony; it related solely to his obligation to support his wife; presumably
1209	be ascertained that the case is one which is or has become removable....” Id. In evaluating the propriety of a removal, the Court starts with the baseline principle that federal courts are courts of limited jurisdiction. See Keene Corp. v. United States, 508 U.S. 200, 207, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993). Accordingly, “removal jurisdiction exists in a given case only when that jurisdiction is expressly conferred on the courts by Congress.” Fed. Ins. Co. v. Tyco Int’l Ltd., 422 F.Supp.2d 357, 367 (S.D.N.Y.2006) (internal quotation marks omitted); see also Irving Trust Co. v. Century Exp. & Imp., S.A., 464 F.Supp. 1232, 1234 (S.D.N.Y.1979) (noting that the right of removal is “a matter of legislative grace” (citing Great N. Ry. Co. v. Alexander, 246 U.S. 276, 280, 38 S.Ct. 237, 62 L.Ed. 713 (1918))). Judicial scrutiny is especially important “in the context of removal, where considerations of comity play an important role.” Johnston v. St. Paul Fire & Marine Ins. Co., 134 F.Supp.2d 879, 880 (E.D.Mich.2001). Indeed, “[o]ut of respect for the independence of state courts, and in order to control the federal docket, federal courts construe the removal statute narrowly, resolving any doubts against removability.” Stan Winston Creatures, Inc. v. Toys “R” Us, Inc., 314 F.Supp.2d 177, 179 (S.D.N.Y.2003) (internal quotation marks omitted); see also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) (noting that federalism concerns call for “the strict construction” of the removal statute); Lupo v.
1655	1983 action alleging that defendants deprived him of food in violation of the Eighth Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. §§ 1915A and 1915(e)(2). Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order). We affirm. The district court properly dismissed Garrett’s action because Garrett failed to allege facts sufficient to show that the deprivation of food resulted in any pain or injury to his health. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir.2010) (although pro se pleadings are to be liberally construed, a plaintiff still must present factual allegations sufficient to state a plausible claim for relief); Foster v. Runnels, 554 F.3d 807, 814 (9th Cir.2009) (“The sustained deprivation of food can be cruel and unusual punishment when it results in pain without any penological purpose.”); LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir.1993) (“The Eighth Amendment requires only that prisoners receive food that is adequate to maintain health.... ”). We reject Garrett’s contention concerning the three-strike law, 28 U.S.C. § 1915(g). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
3947	on the charge of harboring a fugitive suspected of rape. The newspaper moved for summary judgment. The district court granted the motion on the basis of the newspaper’s defense of substantial truth. Vachet appeals. He alleges, in essence, that the newspaper articles were not substantially true and that summary judgment was therefore improper. II Federal Rule of Civil Procedure 56(c) provides that granting summary judgment is proper where there is no genuine issue of material fact and the moving party is enti tied to judgment as a matter of law. In determining whether the district court appropriately granted summary judgment, all factual inferences must be taken in favor of the opposing party and against the moving party. Local Beauty Supply, Inc. v. Lamaur, Inc., 787 F.2d 1197, 1200 (7th Cir.1986). “Once a motion for summary judgment has been made and properly supported, however, the nonmovant does have the burden of setting forth specific facts showing the existence of a genuine issue of fact for trial.” Shlay v. Montgomery, 802 F.2d 918, 920 (7th Cir.1986) (citing Fed.R. Civ.P. 56(e)). In the case at hand, the district court granted Central Newspapers’ motion for summary judgment based upon one of its defenses, the substantial truth of the printed statements. In support, Central Newspapers filed, among other documents, Vachet’s deposition in which he admitted that he was arrested for harboring a fugitive, Michael Saucerman. Under Illinois law, truth has historically been a defense to claims of libel. Cook v. East Shore Newspapers, 327 Ill.App.
1272	evidence it would consider as part of the summary judgment record. We then consider Nichols’s more general objection to the District Court’s application of the summary judgment standard and find that the District Court did not err in granting judgment as a matter of law in favor of the defendants. A. Nichols attempted to support both her discrimination and defamation claims with her own testimony about out-of-court statements allegedly made by Allen’s employee Brittingham. The District Court refused to consider this evidence as part of the summary judgment record because it found that “Nichols’s testimony about what Brittingham told her” was hearsay which could not be produced in an admissible form at trial. See Fed.R.Civ.P. 56(c), (e); J.F. Feeser, Inc. v. Serv -A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir.1990). On appeal, Nichols argues that the District Court’s refusal to consider the hearsay statements was erroneous. Nichols attempts to skirt the apparent hearsay nature of the statements by arguing that Brittingham’s statements are admissible as statements of a party opponent (i.e., not hearsay) because they are statements by Allen’s “agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” Fed. R.Evid. 801(d)(2)(D). Nichols cites to a single, unreported case from the Delaware District Court, which holds that a statement can concern “a matter that was within the scope of [an employee’s] employment or agency” even if the employee was not expressly authorized to make those statements. Callaway Golf Co.
293	to judgment as a matter of ‘ law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). Once the moving party has satisfied its responsibility, the burden shifts to the nonmovant to show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof,’ the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote omitted). “In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir.1992) (internal citations and quotations omitted). “Summary judgment is justified only for those cases devoid of any need for factual determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir.1987) (citation omitted). “The applicable Rule 56 standard is not affected by the filing of cross-motions for summary judgment.” Godard v. Alabama Pilot,
4719	WL 1433353, at *2. However, “[t]here is a critical distraction between cases where a litigant opposing a motion for summary judgment requests a stay of that motion to conduct additional discovery and cases where that same litigant opposes a motion for summary judgment on the ground that it is entitled to an opportunity to commence discovery with respect to the non-movant’s claims.” Desclafani v. Pave-Mark Corp., No. 07-CV-4639, 2008 WL 3914881, at *7 (S.D.N.Y. Aug. 22, 2008) (emphasis, alterations, and internal quotation marks omitted); see also Walden, 2015 WL 1433353, at *3 (same). “Only in the rarest of eases may summary judgment be granted against á plaintiff who has not been afforded the opportunity to conduct discovery.” Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000). But if the nonmovant “give[s] the ... court no basis to conclude that further discovery would yield” information that would create a genuine dispute as to material facts, then summary judgment may be appropriate, even before discovery has been conducted. Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir.1995). 2. Analysis The FLSA applies generally to “employees, engaged in interstate commerce.” Dauphin v. Chestnut Ridge Transp., Inc., 544 F.Supp.2d 266, 271 (S.D.N.Y.2008). Among other things, the FLSA requires employers to pay overtime wages to certain, employees who work more than 40 hours per week. See 29 U.S.C. § 207. However, the FLSA has also' exempted classes 'of employees from its wage protections. “Because the FLSA is
3871	not sufficient to establish that Dr. Basse acted with deliberate indifference to Bonneville’s serious medical needs. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir.2006). Even if these facts show that Dr. Basse’s treatment was negligent, negligent medical care does not constitute a valid § 1983 claim. See id. Additionally, Bonneville contends that Kelle Wallace is liable under § 1983 because a causal connection existed between her failure to favorably resolve his grievances and Dr. Basse’s deliberate indifference. Wallace cannot be held liable under § 1983 in the absence of a constitutional violation. See Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir.1987). A prisoner does not have a constitutionally protected liberty interest in having “grievances resolved to his satisfaction.” Geiger v. Towers, 404 F.3d 371, 374 (5th Cir.2005). In his work-related claim, Bonneville argues that he cannot purchase his medications from the commissary because he is not being paid to work in prison. Compelling an inmate to work without pay does not violate the Constitution even if the inmate is not specifically sentenced to hard labor. Ali v. Johnson, 259 F.3d 317, 318 (5th Cir.2001). Bonneville admitted that he receives medication for pain, just not in the manner and quantity that he had previously. Because Bonneville has failed to brief his claims against Charles Wallace, he has abandoned them. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.1999); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993). Bonneville’s claims regarding (1) Dr. Basse’s failure to renew other
3533	the voters must be the ultimate reliance for discouraging or correcting such abuses. Id. at 378, 71 S.Ct. 783 (footnote omitted). For their legislative decisions, legislators are answerable to the citizenry — not to a court of law. The specters of impeachment, recall, lost elections, and criminal prosecution for bribery and other crimes are enough checks against a legislator’s malfeasance. As a matter of sound public policy, we must not and should not add personal financial liability to that list. IV QUALIFIED IMMUNITY In § 1983 actions, the doctrine of qualified immunity protects city officials from personal liability in their individual capacities for their official conduct so long as that conduct is objectively reasonable and does not violate clearly-established federal rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (citations omitted). Qualified immunity is necessary to “protect[] the public from unwarranted timidity on the part of public officials” and to avoid “dampen[ing] the ardour of all but the most resolute, or the most irresponsible.” Richardson v. McKnight, 521 U.S. 399, 408, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) (citation and internal quotation marks omitted). True to these purposes, the qualified immunity standard “ ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 343, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).
298	999 (11th Cir.1992) (internal citations and quotations omitted). “Summary judgment is justified only for those cases devoid of any need for factual determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir.1987) (citation omitted). “The applicable Rule 56 standard is not affected by the filing of cross-motions for summary judgment.” Godard v. Alabama Pilot, Inc., 485 F.Supp.2d 1284, 1291 (S.D.Ala.2007); see also May v. A Parcel of Land, 458 F.Supp.2d 1324, 1333 (S.D.Ala.2006) (same). Indeed, the Eleventh Circuit has explained that “[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984) (citation omitted); see also Wermager v. Cormorant Tp. Bd., 716 F.2d 1211, 1214 (8th Cir.1983) (“the filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits”). Nonetheless, “cross-motions may be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the disposi-tive legal theories and material facts.” Godard, 485 F.Supp.2d at 1291; see also May, 458 F.Supp.2d at 1333. That is precisely the case here, at least with respect to the ILSFDA exemption issue, as all parties appear to concur that the exempt or nonexempt status
1602	question is presented at all. Rather, the dispute boils down to a contractual one—whether the New Agreement remained in effect as of 12:01a.m. on October 1 and whether Liberty violated it. Accordingly, we conclude that the district court properly exercised its jurisdiction under section 301 of the LMRA. B, Arbitration Having concluded that the district court had jurisdiction to compel arbitration generally, we turn to the specific merits inquiry in this case: is when the contract expired—i.e., whether the parties reached impasse—an arbitrable issue? The district court answered in the affirmative, see Liberty Mar., 70 F.Supp.3d at 350, and we agree. The Supreme Court has set out “the proper framework for deciding when disputes are arbitrable.” Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 296, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010). “Under that framework, a court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute.” Id, (emphasis in original); see also AT & T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (“[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960))). In considering how to apply this framework, we have used “[a] trichotomy among the
250	Nature Co., 71 F.3d 464, 469 (2d Cir.1995). The moving party must demonstrate the absence of any material factual issue genuinely in dispute. Id. The court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, the non-moving party may not “rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986). Nor may the non-moving party “rest upon the mere allegations or denials of his pleading.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Rather, the non-moving party must produce specific facts sufficient to establish that there is a genuine factual issue for trial. Id. at 322-23, 106 S.Ct. 2548. If the evidence is “merely colorable” or “not significantly probative,” summary judgment may be granted. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (stating that the “mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find [for the non-moving party]”). II. Standard for Motion to Dismiss Under Rule 12(c) A motion for judgment on the pleadings pursuant to Rule 12(e) of the
4638	Framework It is well-settled that a state may confer on its employees a degree of job security so great that the job becomes a form of “property” within the meaning of the Due Process Clause of the Fourteenth Amendment (Board of Regents v. Roth, 408 U.S. 564, 576-77, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Hohmeier v. Leyden Community High Schools Disk 212, 954 F.2d 461, 463-65 (7th Cir.1992)). When a job becomes “property” the state may not take it away without notice and a hearing — though “this procedure need not be elaborate and can be satisfied with less than a full evidentiary hearing” (Smith v. Town of Eaton, 910 F.2d 1469, 1472 (7th Cir.1990), citing Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 547, 105 S.Ct. 1487, 1496, 84 L.Ed.2d 494 (1985)). Failure to provide due process is actionable under Section 1983, the all-purpose statutory vehicle for compensating the victims of constitutional torts. Section 5-156 provides in relevant part: A disabled policeman who receives duty or ordinary disability benefit shall be examined at least once a year by one or more physicians appointed by the board. When the disability ceases, the board shall discontinue payment of the benefit, and the policeman shall be returned to active service. Buttitta claims that the final sentence of Section 5-156 confers a property interest in reinstatement upon any officer whom the Board finds no longer disabled. He says that the CPD may challenge the Board’s conclusion that an officer is
3105	subject-matter jurisdiction and a 12(b)(6) motion for dismissal for failure to state a claim are based on distinct concepts: “the former determines whether the plaintiff has a right to be in the particular court and the latter is an adjudication as to whether a cognizable legal claim has been stated.” Trustees of Screen Actors-Guild-Producers Pension & Health Plans v. NYCA Inc., 572 F.3d 771 (9th Cir.2009), quoting 5B Wright & Miller, Federal Prac. & Pro. § 1350 (3d ed. 2004). “Unless the jurisdictional issue is inextricable from the merits of a case, the court may determine jurisdiction on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure.” Kingman Reef Atoll Investments, L.L.C. v. United States, 541 F.3d 1189, 1195 (9th Cir.2008). On a Rule 12(b)(1) motion, “the district court is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary. In such circumstances, no presumptive truthfulness attaches to plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id, quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987). Rule 12(f) allows a party to move that the court to strike “from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Although defendant labelled this motion as one falling under Rule 12(f), the contents of the motion do not discuss a motion to
4676	a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although a court must accept as true all the factual allegations in the complaint, that requirement is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. As an initial matter, the Maitlands have waived appellate review of their RICO claim against the Fishbeins by failing to object to the portion of the magistrate judge’s February 28, 2017 report and recommendation addressing that claim despite being notified of the consequences of their failure to do so. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). Although we have discretion to excuse that waiver “in the interests of justice,” Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Cephas, 328 F.3d at 107, “[s]uch discretion is exercised based on, among other factors, whether the defaulted argument has* substantial merit or, put otherwise, whether the magistrate judge committed plain error in ruling against the defaulting party,” Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000). Upon review, we conclude that, even were we to excuse the Maitlands’ failure to object to the relevant portions of the magistrate judge’s report and recommendation, we would nonetheless affirm for substantially the reasons stated by the magistrate judge. On appeal,
1195	the Attorney General and the United States Attorney.” § 401(m). Accordingly, the Sentencing Commission added a new section to the Sentencing Guidelines providing that “[u]pon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides.” U.S.S.G. § 5K3.1. In a 2003 memorandum, the Attorney General established guidelines for the Congressionally-authorized fast-track programs. The memo stated that the programs are to be “reserved for exceptional circumstances, such as where the resources of a district would otherwise be significantly strained by the large volume of a particular category of cases.” United States v. Perez-Pena, 453 F.3d 236, 238 (4th Cir.2006) (quoting the Attorney General’s memorandum). The Attorney General laid out the criteria that would be considered in assessing whether “exceptional circumstances” are present: (1) the district must face an “exceptional local circumstance with respect to a specific class of cases” that warrants expediting their disposition; (2) declination of such cases in favor of state prosecution must be unavailable or unwarranted; (3) the cases must be highly repetitive and present similar fact scenarios; and (4) the cases must not involve an offense that the Attorney General has designated a “crime of violence.” Id. at 239 (paraphrasing and quoting the Attorney General’s memorandum). The Attorney General further stated that fast-track programs must require defendants to enter into written plea agreements and to
4480	it relied on these purportedly false representations to its detriment, and it now seeks recovery. DISCUSSION I. Federal Claims Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action when a plaintiff has failed to state a claim upon which relief can be granted. In reviewing a motion to dismiss, the court must read the complaint generously, and draw all inferences in favor of the pleader. See Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989). Therefore, “the court should not dismiss the complaint for failure to state a claim ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2d Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). Defendants, charged with securities fraud under § 10(b) and Rule 10b-5, seek dismissal of the complaint for failure to plead scienter adequately. To state a cause of action under Rule 10b-5, a plaintiff must plead that, “ ‘in connection with the purchase or sale of securities,’ the defendants], acting with scienter, made a false material representation or omitted to disclose material information and that plaintiffs reliance on defendant’s action caused [plaintiff] injury.” In re Time Warner Inc. Sec. Lit., 9 F.3d 259, 264 (2d Cir.1993), cert. denied,—U.S.-, 114 S.Ct. 1397, 128 L.Ed.2d 70 (1994) (citation omitted); see also Basic Inc. v. Levinson, 485 U.S.
4363	as noted above, involved jurisdictional issues previously litigated in a motion to remand. In a more recent case, our Court of Appeals followed these earlier precedents in determining that a state jury’s damages verdict in a bifurcated trial had the requisite finality for issue preclusion where the case was settléd before a liability determination. While not before it for decision, the court specifically noted in a footnote that “some courts have applied section 28(1) [of the Restatement (Second) of Judgments] to ‘[a] District Court’s jurisdictional findings incident to remand’ because remand orders are wholly unappealable as a matter of law under 28 U.S.C. § 1447(d).” See Greenleaf v. Garlock, Inc., 174 F.3d 352, 361 n. 6 (3d Cir.1999) (citing Nutter v. Monongahela Power Co., 4 F.3d 319, 322 (4th Cir.1993); Southern Leasing Corp. v. Tufts, 167 Ariz. 133, 804 P.2d 1321, 1323 (Ariz.Ct.App.1991)). Other circuits have reached the same conclusion. See, e.g., Health Cost Controls, Inc. v. Washington, 187 F.3d 703, 708-09 (7th Cir.1999); Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 395 (5th Cir.1998). We agree with those decisions and § 28(1) of the Restatement (Second) of Judgments that a remand order does not have the requisite finality for issue preclusion to apply. Finally, there is an additional reason why issue preclusion is inappropriate in the type of situation now before the court. The location of a corporation’s principal place of business, that is, its nerve center, may change over time. For diversity purposes, we must determine the
2663	the ground composition at issue were provided by the Defendant....” (#38, Ex. F at 1-2.) As to the ground composition actually encountered by ZD, Plaintiff answered that it was without sufficient information to respond. As to the composition expected, Plaintiff referred to documents previously produced in discovery. Id. Plaintiffs response is insufficient. As the court in VICA Coal Co., Inc. v. Crosby, 212 F.R.D. 498, 506 (S.D.W.Va.2003), stated “ ‘[ a] party to civil litigation in the federal system is under a severe duty to make every effort to obtain the requested information and, if, after an adequate effort, he is unsuccessful, his answer should recite in detail the attempts which he made to acquire the information.’” (quoting Jackson v. Kroblin Refrigerated Xpress, Inc., 49 F.R.D. 134, 137 (N.D.W.Va.1970)). Plaintiffs response to interrogatory number 1 falls short of this requirement and, appears to improperly rely on the large volume of documents produced with its Rule 26(a)(1) disclosures instead of providing a specific response. Interrogatory number 2 seeks the evidentiary support for Plaintiffs assertion that it provided adequate managerial oversight, supervision, and inspection of ZD’s pilot hole drilling operations as claimed in Paragraph 17 of Plaintiffs Answer. In response, Plaintiff contends that the interrogatory misstates Paragraph 17 and, therefore, is vague and unduly burdensome. Without waiving the objection, Plaintiff states that “all facts, documents, statements, and evidence adduced to date in discovery of this matter constitute evidentiary support for Plaintiffs denial of any failure of managerial oversight, supervision, and/or inspection of
1448	"the position either that the base was a temporary skid for the purpose of facilitating handling and delivery or that even if a permanent base of the circuit breaker it did, in fact, facilitate handling and delivery. The Bill of Lading sets forth, inter alia, the following information: NO. OF PKGS SHIPPER'S DESCRIPTION OF GOODS AID LOAN NO. 512-L-027 6 PIECES 6 GRATES CIRCUIT BREAKERS 26 BOXES It is the second item which is the subject matter of this dispute. As noted above, the circuit breakers were at least partially packaged. The standards to be applied in determining if a partially packaged item is a ""package” within the meaning of § 4(5) of COGSA were set forth in Aluminios Pozuelo Ltd. v. S.S. Navigator, 407 F.2d 152 (2d Cir. 1968), where the Court of Appeals stated: “The meaning of ‘package’ which has evolved from the cases can therefore be said to define a class of cargo, irrespective of size, shape or weight, to which some packaging preparation for transportation has been made which facilitates handling, but which does not necessarily conceal or completely enclose the goods.” 407 F.2d at 155. In Aluminios, supra, an eleven foot high, three-ton toggle press was bolted to a wooden skid which the Court found “served primarily to facilitate delivery so as to make the press an article ‘put up * * * in a form suitable for transportation or handling.’ ” The Court concluded, therefore, that the skidded toggle press was a “package” as"
929	for -1983, the district court properly dismissed his complaint for lack of jurisdiction. Yuen v. United States, 825 F.2d 244, 245 (9th Cir.1987) (per curiam) (timely administrative refund claim is jurisdictional). See also Commissioner v. Lundy, — U.S. -,---, 116 S.Ct. 647,---, 133 L.Ed.2d 611 (1996) (noting that two-year look-back rule of Section 6511(b)(2)(B) limits recovery to amounts paid within two years of filing of refund claim). Ill The taxpayer also claims that he is entitled to relief under the mitigation provisions of the Internal Revenue Code (I.R.C.), 26 U.S.C. §§ 1311-1314. We disagree. The mitigation provisions of the I.R.C. “ *provid[e] for mitigation of some of the inequities under the Income Tax Laws caused by the Statute of Limitations____’” Kolom v. United States, 791 F.2d 762, 765 (9th Cir.1986) (quoting H.R.Rep. No. 2330, 75th Cong., 3d Sess. 56 (1938)), overruled on other grounds, United States v. Dalm, 494 U.S. 596, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990). The I.R.C. specifies the types of errors to which the mitigation provisions can be applied, and a taxpayer must show that he comes within one of these specified categories of error before he can obtain relief through the provisions. Id. (“The mitigation provisions require that (1) a final ‘determination’ be made; (2) the error fall within one of the specified circumstances of adjustment; and (3) the determination be inconsistent with that made in another year.”) (citations omitted) (emphasis added). The specified circumstances to which the mitigation provisions can be applied are enumerated
4983	with what seems to be three arguments. The first two arguments are fairly clear. The third is more murky. First, Plaintiff argues that it is improper for the Court to consider the standing argument before Rule 23 class certification has been considered. This argument is grounded in Amchem Products, Inc., et al. v. Windsor et al., 521 U.S. 591, 612-613, 117 S.Ct. 2231,138 L.Ed.2d 689 (1997), and Ortiz, et al. v. Fibreboard Corp. et al., 527 U.S. 815, 831, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999). In both these cases, the Supreme Court decided whether class certification was proper before considering issues of standing. This was somewhat askance with the previous view that standing was the first inquiry to be made. O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (noting that “if none of the named plaintiffs purporting to represent a class establishes the requisite case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.”); see also, Robinson v. City of Chicago, 868 F.2d 959, 968 (7th Cir.1989) (“[A] class will not be certified unless the named plaintiff has standing at that time.”). Ortiz and Amchem have caused “a great deal of mischief,” as one observer put it. In re Plasma-Derivative Protein Therapies Antitrust Litigation, No. 09-7666, 2012 WL 39766, at *4, 2012 U.S. Dist. LEXIS 2501, at *18 (N.D.Ill. Jan. 9, 2012) (citing Linda S. Mullenix, Standing and Other Dispositive Motions After
1057	964, 120 S.Ct. 2597. Justice Kennedy also criticized the majority for transforming Casey ’s holding that a health exception is mandated only when the medical procedure is necessary, into a requirement that the procedure cannot be banned when it may be necessary. See id. at 966, 120 S.Ct. 2597. “[T]he Court is wrong,” Justice Kennedy wrote, “to limit its inquiry to the relative physical safety of the two procedures, with the slightest potential difference requiring the invalidation of the law.” Id. at 967,120 S.Ct. 2597. Justice Kennedy further asserted that the majority’s standard does not allow states to ban procedures in the absence of a medical consensus about the procedure’s safety benefits. He contrasted the majority’s holding with cases such as Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), a point the majority did not address. In Hendricks, the Court “held that disagreements among medical professionals ‘do not tie the State’s hands in setting the bounds of ... laws. In fact, it is precisely where such disagree ment exists that legislatures have been afforded the widest latitude.’ ” Stenberg, 530 U.S. at 970, 120 S.Ct. 2597 (Kennedy, J., dissenting) (quoting Hendricks, 521 U.S. at 360 n. 3, 117 S.Ct. 2072). Thus, in Justice Kennedy’s view, a standard that requires any ban on an abortion method to permit the procedure when “appropriate medical judgment” believes it may carry some health benefits means there can be no partial-birth abortion bans at all. See id. at 972, 120
1206	28 U.S.C. § 1441(b). A defendant must file a notice of removal within thirty days of receipt “of the initial pleading setting forth the claim for relief upon which such action or proceeding is based....” Id. § 1446(b). “If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable....” Id. In evaluating the propriety of a removal, the Court starts with the baseline principle that federal courts are courts of limited jurisdiction. See Keene Corp. v. United States, 508 U.S. 200, 207, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993). Accordingly, “removal jurisdiction exists in a given case only when that jurisdiction is expressly conferred on the courts by Congress.” Fed. Ins. Co. v. Tyco Int’l Ltd., 422 F.Supp.2d 357, 367 (S.D.N.Y.2006) (internal quotation marks omitted); see also Irving Trust Co. v. Century Exp. & Imp., S.A., 464 F.Supp. 1232, 1234 (S.D.N.Y.1979) (noting that the right of removal is “a matter of legislative grace” (citing Great N. Ry. Co. v. Alexander, 246 U.S. 276, 280, 38 S.Ct. 237, 62 L.Ed. 713 (1918))). Judicial scrutiny is especially important “in the context of removal, where considerations of comity play an important role.” Johnston v. St. Paul Fire & Marine Ins. Co., 134 F.Supp.2d 879, 880 (E.D.Mich.2001). Indeed,
350	judgment on all claims predicated on injury to Grassi, Mrs. Grassi’s derivative loss-of-consortium claim failed as well. This appeal followed. Analysis On appeal, plaintiffs argue that the district court mistakenly resolved disputed issues of material fact in favor of CCA, and that the court further misapplied Colorado law as to the negligence of the nurse who treated Grassi. “We review the question whether to grant summary judgment de novo, and will affirm a district court’s decision to do so only if, viewing the facts in the light most favorable to the non-mov-ant, we discern no genuine issue as to any material fact and conclude that movant is entitled to judgment as a matter of law.” Four Corners Nephrology Assocs., P.C. v. Mercy Med. Ctr., 582 F.3d 1216, 1220 (10th Cir.2009). Constitutional Claims. Plaintiffs brought two claims under the Eighth Amendment against CCA: failure to provide adequate medical care for Grassi and failure to hire qualified medical providers at CCCF. As part of its obligations under the Eighth Amendment, a government must provide medical care for its prisoners. Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). “[Djeliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Id. at 104, 97 S.Ct. 285 (internal quotation marks and citation omitted). “Deliberate indifference” involves both an objective and a subjective component. The objective component is met if the deprivation is sufficiently serious. A medical need is sufficiently
4327	with USDA in that time period. Pigford v. Glickman, 182 F.R.D. at 352. Plaintiffs had asserted that the class could be certified under either Rule 23(b)(2) or Rule 23(b)(3) of the Federal Rules of Civil Procedure, but the Court found that it was most appropriate for purposes of determining liability to certify a class under Rule 23(b)(2), governing class actions seeking primarily in-junctive or declaratory relief. At the time, the Court also noted that “[i]f liability is found and the case reaches the remedy stage, the Court will have to determine the most appropriate mechanism for determining remedy. It is possible that at that point it would be appropriate to certify a class pursuant to Rule 23(b)(3)____” Id. at 351 (citing Eubanks v. Billington, 110 F.3d 87, 96 (D.C.Cir.1997) (in class action seeking both injunctive and monetary relief, court may adopt “hybrid” approach and certify (b)(2) class for former and (b)(3) class for latter)). By Order of January 5, 1999, upon motion of the parties, the Court vacated the Order certifying the class and certified a new class pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure. The newly certified class is defined as: All African American farmers who (1) farmed, or attempted to farm, between January 1, 1981 and December 31, 1996; (2) applied to the United States Department of Agriculture (USDA) during that time period for participation in a federal farm credit or benefit program and who believed that they were discriminated against on the basis
2474	979 (8th Cir.1999) (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). Plaintiffs’ primary claim arises out of threatened regulation by Mille Lacs Band ordinances. The Court finds this claimed injury does not meet the constitutional requirement for standing; it is not actual, concrete, or imminent. While actual enforcement of regulatory ordinances is not required by law, standing requires more than an “imaginary or speculative” fear of prosecution. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). An injury may involve past prosecution, United Food & Commercial Workers Int’l Union v. IBP, Inc., 857 F.2d 422, 427 (8th Cir.1988), or the intent to engage in the exercise of a constitutionally guaranteed right, Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973). See also Stoianoff v. Montana, 695 F.2d 1214 (9th Cir.1982) (“The mere existence of a statute, which may or may not ever be applied to plaintiffs, is not sufficient to create a controversy within the meaning of Article III.”). In order to allege a cognizable injury, plaintiffs must demonstrate a realistic danger of enforcement by the Band. In Steffel v. Thompson, the United States Supreme Court permitted a pre-enforcement First Amendment challenge to a law, but the law was a criminal statute. See 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). The Court limited potential prosecution claims to cases where the threat of prosecution is not imaginary, speculative, or chimerical. Id.; United
979	El San Juan Hotel, 809 F.2d at 154. The standard in the First Circuit for determining whether an order of a bankruptcy judge is a “final order” for purposes of appeal to a district court from a bankruptcy court views “finality” with more flexibility than in other civil litigation contexts. In re American Colonial Broadcasting Corp., 758 F.2d 794, 801 (1st Cir.1985). The standard for determining “finality” in the bankruptcy context requires a discrete dispute within the larger bankruptcy proceeding and involves an order that does “conclusively determine” the outcome of the litigation at least with respect to some “discrete dispute within the larger case.” Id. See also In re El San Juan Hotel, 809 F.2d at 153; In re Saco Local Development Corp., 711 F.2d 441, 444-46 (1st Cir.1983) (explaining historical development of the law regarding jurisdiction of Courts of Appeals of appeals from “all orders — both final and interlocutory — ...”). The meaning of “discrete dispute” does not include a dispute over some element of a claim or defense that is not at the time of decision outcome-determinative because other yet undecided issues may make the order one that “does not finally determine a cause of action but only de cides some intervening matter pertaining to the cause, and which requires further steps to be taken in order to enable the court to adjudicate the causes on the merits.” In re American Colonial Broadcasting Corp., 758 F.2d at 801 (internal citations and question marks omitted). In the
3879	chest pain. Within two hours after her release, she was returned to the Hospital in cardiac arrest. She died shortly thereafter. The Defendant moves the Court to enter summary judgment in its favor. Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.Proc. 56(c). While the burden rests squarely on the party moving for summary judgment to show “that there is an absence of evidence to support the nonmoving party’s case,” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986), the nonmoving party responding to a properly made and supported summary judgment motion still must set forth facts showing that there is a genuine issue of material fact and that a reasonable jury could return a verdict in its favor. See Wolf v. City of Fitchburg, 870 F.2d 1327, 1329 (7th Cir.1989); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.1983), cert. denied, 464 U.S. 960, 104 S.Ct. 392, 78 L.Ed.2d 336 (1983). Denials contained in the pleadings or bald allegations that an issue of fact exists are insufficient to raise a factual issue. See Shacket v. Philko Aviation, Inc., 681 F.2d 506, 513 n. 8 (7th Cir.1982), rev’d on other grounds, 462
3819	not held unconstitutional because of that provision; the statute was unconstitutional with or without the burden-shifting provision. Although BSA and Riley are not helpful in this analysis, there is United States Supreme Court precedent which bears directly on this issue. Although the Supreme Court has held that “the burden of proving that [a] film is unprotected expression must rest on the censor,” Freedman v. Maryland, 380 U.S. 51, 57, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), the Court later held that burden-shifting is permissible in the licensing context “[b]ecause the license is the key to the applicant’s obtaining and maintaining a business, [and therefore,] there is every incentive for the applicant to pursue a license denial through court,” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 229-30, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). The Freedman Court had expressed concern that a speaker or exhibitor — in a prior restraint, censorship context — be protected to the fullest extent possible, and thus, it mandated three procedural safeguards that are constitutionally required under a censorship scheme, including the requirement that the censor bear the burden of proof. Freedman, 380 U.S. at 57-59, 85 S.Ct. 734. In the licensing context, these concerns are mitigated, and therefore the requirement that the censor bear the burden of proof does not apply. FW/PBS, 493 U.S. at 227-28, 110 S.Ct. 596; Redner v. Dean, 29 F.3d 1495, 1500 (11th Cir.1994). The County relies on Ward v. County of Orange, 217 F.3d 1350 (11th Cir.2000), aff'g
234	the case at this late date and, also, that the amendment will avail the respondents nothing because the pleas of res judicata or collateral estoppel are not available to them as a matter of law. Markowitz’s acquittal on the criminal action was based on the fact that insufficient evidence was presented from which the jury could find, without a reasonable doubt, that the defendant was guilty of the conspiracy charged. If this action were considered a criminal proceeding and Markowitz were a party, this determination would bar the action against him on the grounds of res judicata as to issues actually litigated. Whether or not this forfeiture action is a remedial (civil) or punitive (criminal) proceeding is in doubt. In United States v. Burch, 294 F.2d 1 (5th Cir.1961), the court states at page 3: “ * * * the weight of authority seems to support the proposition that forfeiture in rem actions, such as the present one, are essentially civil in nature, and should not be burdened with the attributes of a criminal action.” However, this statement is dicta in the Burch case, the court holding that even if the proceeding is criminal in nature, the defense of res judicata would not be applicable. Respondents rely on the Supreme Court decision in Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684 (1886), which held that an acquittal on a substantive charge barred a libel in forfeiture. Although this case has been carefully distinguished by the
285	filed a breach of contract and declaratory judgment action in federal district court, and Westchester moved for summary judgment. The district court granted Westchester’s motion, finding “Westchester ha[d] no duty to defend or indemnify W3i for expenses associated with the [underlying [c]laims.” The district court concluded the products exclusion precluded recovery because the underlying claims in volved W3i’s product and that the illusory-coverage doctrine did not apply in these circumstances under Minnesota law. W3i appeals. II. DISCUSSION We review the district court’s grant of summary judgment and its interpretation of state law de novo. Babinski v. Am. Family Ins. Grp., 569 F.3d 349, 351 (8th Cir.2009). We may affirm a grant of summary judgment “on any grounds supported by the record.” Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir.2009). “Summary judgment is proper when the evidence viewed in the light most favorable to the nonmoving party presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. See also Fed.R.Civ.P. 56(a) (amended effective Dec. 1, 2010). Minnesota law governs our interpretation of the insurance policy in this diversity action. See Babinski, 569 F.3d at 351-52. Under Minnesota law, “[g]eneral principles of contract interpretation apply to insurance policies.” Carlson v. Allstate Ins. Co., 749 N.W.2d 41, 45 (Minn. 2008) (quoting Lobeck v. State Farm Mut. Auto. Ins. Co., 582 N.W.2d 246, 249 (Minn. 1998)). We must interpret clear and unambiguous policy language “according to plain, ordinary sense so as to
3007	of private property for public use without just compensation. We have recognized that this constitutional guarantee is “‘designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Penn Central, supra, at 123-124 (quoting Armstrong v. United States, 364 U. S. 40, 49 (1960)). The concepts of “fairness and justice” that underlie the Takings Clause, of course, are less than fully determinate. Accordingly, we have eschewed “any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” Penn Central, supra, at 124 (quoting Goldblatt v. Hempstead, 369 U. S. 590, 594 (1962)). The outcome instead “depends largely ‘upon the particular circumstances [in that] case.’ ” Penn Central, supra, at 124 (quoting United States v. Central Eureka Mining Co., 357 U. S. 155, 168 (1958)). We have “identified several factors that have particular significance” in these “essentially ad hoc, factual inquiries.” Penn Central, 438 U. S., at 124. Two such factors are “[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.” Ibid. Another is “the character of the governmental action.” Ibid. The purposes served, as well as the effects produced, by a particular regulation inform the takings analysis. Id., at 127 (“[A] use restriction on real property may constitute
114	Plaintiffs’ action is cognizable under the FTCA because the complaint in this case “asserts all the required elements — the claim is one for wrongful death under Massachusetts state law, arising from actions taken by an FBI employee within the scope of his employment and seeking money damages against the United States.” 278 F.Supp.2d at 121. Consequently, the FTCA “remedy [against the United States] is the exclusive remedy, and the FBI is not a proper defendant” on counts I, IV, V, and VI. Id. (dismissing the FTCA claims against the FBI for lack of subject matter jurisdiction). c. Claims against the United States— the discretionary function exception The United States may be sued only if it has consented to be sued. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (explaining that “the United States, as sovereign, ‘is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit’” [citation omitted]); see United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); see also United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (emphasizing that the waiver of sovereign immunity must be “unequivocally expressed”); Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957)
3907	fact of the matter is that plaintiffs did not apply to the United Americas Bank directly for this information, thereby receiving it in accordance with the defendants’ authority. On the contrary, the plaintiffs made use of their own banking connections in Puerto Rico to obtain the documents and information in question. The defendants say, in their motion papers to vacate the attachment, that the documents in question were obtained, through plaintiffs’ bank in Puerto Rico, without either the knowledge or consent of the defendants (Romanach Afft. ¶ 28); and there is nothing in the record to contradict that statement. In vacating the order of attachment in this ease, this Court is following the course charted by Judge Cooper in In re Panoceanic Tankers Corp., 332 F.Supp. 313 (S.D.N.Y. 1971), in which the court stated generally that an order of attachment pursuant to CPLR § 6201(4) is not appropriate “on the basis of the facts before us which fail to satisfactorily establish the requisite ‘intent to defraud’ ” 332 F.Supp. at p. 314. I conclude, in the case at bar, that plaintiffs’ evidence of the necessary element of fraud does not rise above the level of a scintilla, if indeed it even attains that inadequate measure. Consequently, the writ of attachment in this case is vacated. The security given by plaintiffs to procure the attachment shall be continued, pending the application of defendants, if so advised, for an award in their favor for legal costs and damages sustained as the result
1657	This seems to be premised upon the assumption that the court-martial’s ruling on the question of “double jeopardy” and non-applicability of the Fifth Amendment was a ruling upon a legal issue arising during the trial and therefore may not be inquired into in a collateral proceeding. While the language of some decisions may tend to support that view, this court is of the opinion that later pronouncements by the Supreme Court authorize it to determine, in a habeas corpus proceeding, whether the petitioner has been twice put in jeopardy for the same offense; for, if the sentence was “beyond the jurisdiction of the court, because it was against an express provision of the Constitution which bounds and limits all jurisdiction,” Ex parte Hans Nielsen, 131 U.S. 176, 185, 9 S.Ct. 672, 675, 33 L.Ed. 118, it is invalid. Before passing upon the issue of “double jeopardy” it is appropriate to consider another important question raised by learned counsel for the respondent upon brief. Stated generally it is that one in the military service of his country may not be allowed the protection of the Fifth Amendment. Specifically, it is contended that the petitioner at bar must seek his rights under, and his case must “be governed exclusively by, the ‘double jeopardy’ provision of the Fortieth Article of War.” The Fifth Amendment provides that no person “shall. ‡ * be subject for the same offense to be twice put in jeopardy of life or limb.” The Fortieth Article of War is
1651	a protected ground. 8 C.F.R. § 1208.13(b)(1) (2006). Without regard to past persecution, an alien can establish a well-founded fear of persecution on a protected ground. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.2004). An applicant has the burden of demonstrating her eligibility for asylum. 8 C.F.R. § 1208.13(a) (2006); Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353 (4th Cir.2006). A determination regarding eligibility for asylum is affirmed if supported by substantial evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). This court will reverse the Board “only if the evidence presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Rusu v. INS, 296 F.3d 316, 325 n. 14 (4th Cir.2002) (internal quotation marks and citations omitted). We find the immigration judge’s adverse credibility finding to be supported by the record. Therefore, the evidence does not compel a different result. Accordingly, we deny the petition for review. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED. Yafou does not challenge the denial of withholding under the CAT.
2624	Id. Rather than inferring from Congress’s silence that the physical proximity of a municipality to a project is irrelevant to whether it is a “municipality” for purposes of the Section 7(a) preference, the Commission inferred a legislative delegation to pick and choose favored municipalities to advance the Commission’s policy. Agencies are empowered to make policy only insofar as Congress expressly or impliedly delegates that power. See Utility Air Regulatory Grp. v. EPA, — U.S. —, 134 S.Ct. 2427, 2445, 189 L.Ed.2d 372 (2014). “Were courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely with the Constitution as well.” Ethyl Corp. v. EPA, 51 F.3d 1053, 1060 (D.C.Cir.1995) (emphasis in original). The Commission’s apparent understanding that “Chevron step two is implicated any time a statute does not expressly negate the existence of a claimed administrative power ..,, is both flatly unfaithful to the principles of administrative law ... and refuted by precedent.” Id. (alteration in original). In Section 7(a), Congress adopted a clear mandate that where applications are “equally well adapted,” the application of a “municipality’ is to be preferred over that of a private applicant. Bolstering this mandate is the broad definition of “municipality.” The Commission’s injection of a proximity requirement in the definition of “municipality” is unwarranted. By stating that the preference applies only when competing applicants’ plans are “equally well adapted” to develop and conserve the
4321	of that total exceeds the jurisdictional threshold. In addition, Tootsie Roll presented undisputed evidence that Weiner collected millions of dollars in 2003 for his ownership interest in the companies and that, in 2003 and 2004, Weiner and several high-ranking salaried employees of Concord Confections and Alpharetta Confections earned more than the jurisdictional threshold. The district court did not clearly err when it found that Tootsie Roll established by a preponderance of the evidence that the value of the relief sought by Weiner exceeds the required amount in controversy. B. The District Court Did Not Err by Granting the Motion of Tootsie Roll to Compel Arbitration. “The ‘validity of an arbitration agreement is generally governed by the Federal Arbitration Act.’ ” Lambert v. Austin Ind., 544 F.3d 1192, 1195 (11th Cir.2008) (quoting Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1367 (11th Cir.2005)). The Act promotes enforcement of written agreements to arbitrate, see 9 U.S.C. § 2, “in the manner provided for in [the parties’] agreement,” id. § 4. As a result, contracting “parties who do agree to arbitrate” are free to “exclud[e] certain claims from the scope of their arbitration agreement.” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 1255, 103 L.Ed.2d 488 (1989). Weiner and Tootsie Roll agreed that, “except for claims barred by the applicable survival period in [section] 8(a)” and “claims for preliminary or provisional injunctive relief ..., any and all disputes ... that relate[d]
4123	similar requirement, a promise in consideration of his doing that act or of his promise to do it is unenforceable on grounds of public policy if (a) the requirement has a regulatory purpose, and (b) the interest in the enforcement of the promise is clearly outweighed by the public policy behind the requirement, Restatement (Second) of Contracts § 181 (Am. Law Inst. 1981). To support their incorporation of the Restatement (Second) of Contracts into their argument, the relators point to Supreme Court case law indicating that federal contracts may be interpreted through the application of general contract principles. See Mobil Oil Explor. & Prod. v. United States, 530 U.S. 604, 607-08, 120 S.Ct. 2423, 147 L.Ed.2d 528 (2000) (quoting United States v. Winstar Corp., 518 U.S. 839, 895, 116 S.Ct. 2432, 135 L.Ed.2d 964 (1996)) (“When the United States enters into contract relations, its rights and duties therein are governed generally by the law applicable to contracts between private individuals.”). . The Contractors also contend that even if the subcontracts were deemed null under Louisiana law, the Contractors would nonetheless have been entitled to reimbursement from FEMA on the ‘'cost-plus-fixed-fee” basis, a factor that would preclude actionable falsity under the FCA. Further, they contend that because FEMA instructed the Contractors to continue the THU installations notwithstanding the subcontractors’ lack of LP gas permits, and because FEMA and the Contractors were unsure as to whether the LP gas regulations applied to their work, the Contractors’ claims against the government agency would
3195	be maintained simultaneously with any administrative review proceeding un der this section” (emphasis added). As the EPA would have us interpret the statute, judicial review could only be maintained simultaneously with administrative review because if no administrative review is sought, under the EPA’s view, the right to judicial review would be cut off. We decline to change the statutory “may” to a “must.” We recognize that this issue is far from clear-cut. The EPA’s position is not implausible and, quite frankly, neither side advances an entirely satisfactory construction of a statute that obviously was the product of some controversy and considerable compromise. The courts have long recognized, however, a presumption in favor of judicial review of administrative actions. See Block v. Community Nutrition Inst., 467 U.S. 340, 350-51, 104 S.Ct. 2450, 2456-57, 81 L.Ed.2d 270 (1984) (presumption only overcome when “the congressional intent to preclude judicial review is ‘fairly discernible in the statutory scheme’ ”); Ruff v. Hodel, 770 F.2d 839, 840 (9th Cir.1985) (“[t]he bar to judicial review ... requires a ‘persuasive reason to believe’ that Congress intended to preclude judicial review”) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967)); Moapa Band of Paiute Indians v. Department of Interior, 747 F.2d 563, 565 (9th Cir.1984) (“[pjreclusion of judicial review is not lightly inferred, and usually will not be found absent a clear command of the statute”). Moreover, we construe prohibitions against judicial review narrowly. Cf. Wallace v. Christensen, 802 F.2d
3716	identify how it might profit financially by altering the list of named inventors. Reply at 2. The Court agrees that the FAC pleads no such facts. The FAC also fails to allege facts that would support standing based on an alleged interest in avoiding litigation expenses. In cases where a declaratory plaintiff asserts standing on the basis of threatened litigation, the Federal Circuit requires the plaintiff to: (1) hold “a recognized interest in a patent that could be adversely affected by an action brought under section 256,” and (2) show that “another party with a right to bring an 'action under section 256 has created in the declaratory plaintiff a reasonable apprehension that it will do so.” Fina Oil & Chem. Co. v. Ewen, 123 F.3d 1466, 1471 (Fed.Cir.1997). “This standard respects the constitutional requirement of an actual controversy.” Id. Plaintiff has met the first requirement because it has alleged that it holds a financial interest in- the patents-in-suit by virtue of the agreement that it will share in the royalties the patents generate as well as the costs of .litigating claims to obtain royalties.. FAC Ex. E. Plaintiff, however, fails to meet the second requirement. As Defendant points out, Plaintiff has not pleaded the existence of “another party” with the right to bring an inventor-ship claim who has done something to cause Plaintiff “reasonable apprehension” that inventorship is in question. Reply at 2. Rather, Plaintiff points to its own suit as the basis for concluding that the GTS’ ownership
253	202 (1986) (stating that the “mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find [for the non-moving party]”). II. Standard for Motion to Dismiss Under Rule 12(c) A motion for judgment on the pleadings pursuant to Rule 12(e) of the Federal Rules of Civil Procedure is governed by the same standards as a motion to dismiss pursuant to Rule 12(b). LaFaro v. N.Y. Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir.2009). The court must “accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party.” Vietnam Ass’n for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104, 115 (2d Cir.2008) (internal quotation marks omitted). The court may consider only the “facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference.” Leonard v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal quotation and citation omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter ... to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). Plausibility “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Instead, the plaintiff must plead “factual content that allows the court to
260	Constitution” of the United States. K & A Radiologic Tech. Servs., Inc. v. Comm’r of the Dept. of Health, 189 F.3d 273, 280 (2d Cir.1999) (quoting Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)). “[T]he core purpose of § 1983 is ‘to provide compensatory relief to those deprived of their federal rights by state actors.’” Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 795 (2d Cir. 1999) (quoting Felder v. Casey, 487 U.S. 131, 141, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988)). Section 1983 “does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere.” Morris—Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir.2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992). Malicious prosecution, false arrest, and abuse of process give rise to liability under 42 U.S.C. § 1983. Savino v. City of New York, 331 F.3d 63 (2d Cir.2003). a. False arrest/imprisonment In order to prove a claim of false arrest or imprisonment, a plaintiff must show: (1) the defendant intended to confine the plaintiff; (2)
2969	Cir.1971) (same). Head-speth was given an opportunity to read and respond to all portions of the presentence report except the sentencing recommendation, and that was sufficient to satisfy due process. Headspeth contends next that the district court committed reversible error in refusing to give his requested instruction on the definition of “reasonable doubt.” This argument is without merit. We have frequently admonished district courts not to attempt to define reasonable doubt in their instructions to the jury absent a specific request from the jury itself. See, e.g., Murphy v. Holland, 776 F.2d 470, 475 (4th Cir.1985), vacated on other grounds, 475 U.S. 1138, 106 S.Ct. 1787, 90 L.Ed.2d 334 (1986); United States v. Love, 767 F.2d 1052, 1060 (4th Cir.1985); United States v. Moss, 756 F.2d 329, 333 (4th Cir.1985); Smith v. Bordenkircher, 718 F.2d 1273, 1276 (4th Cir.1983). We have done so on the theory that the term reasonable doubt has a “self-evident meaning comprehensible to the lay juror,” which judicial efforts to define generally do more to obscure than to illuminate. See Murphy, 776 F.2d at 475. So long as the trial court properly instructs the jury that the government must prove the defendant’s guilt beyond a reasonable doubt and that this burden remains with the government throughout the trial, the failure to give an additional instruction defining reasonable doubt, even when requested by the defendant, is therefore not reversible error. See United States v. Marquardt, 786 F.2d 771, 784 (7th Cir.1986); cf. United States v. Woods, 812
258	unlawfully.” Id. Instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. III.42 U.S.C. § 1983 “Section 1983 imposes liability on anyone who, under color of state law, deprives a person of any rights, privileges, or immunities secured by the Constitution” of the United States. K & A Radiologic Tech. Servs., Inc. v. Comm’r of the Dept. of Health, 189 F.3d 273, 280 (2d Cir.1999) (quoting Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)). “[T]he core purpose of § 1983 is ‘to provide compensatory relief to those deprived of their federal rights by state actors.’” Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d 789, 795 (2d Cir. 1999) (quoting Felder v. Casey, 487 U.S. 131, 141, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988)). Section 1983 “does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere.” Morris—Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir.2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161, 112 S.Ct. 1827, 118 L.Ed.2d 504
1691	support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). See also Bass v. Jackson, 790 F.2d 260, 262 (2d Cir.1986). “For purposes of a motion to dismiss, [the Second Circuit has] deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference ..., as well as public disclosure documents required by law to be, and that have been, filed with the SEC, and documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.” Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir.2000) (citing Cos-mas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989); Kramer, 937 F.2d at 774; and Cor-tee Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991), cert, denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992)). The documents attached to the complaint as Exhibits A-D are appropriately considered under this standard. II. Breach of Fiduciary Duty SG Cowen has moved to dismiss the breach of fiduciary duty claim against it on the grounds that the complaint alleges that SG Cowen was merely a “clearing broker” that settled trades for May Davis rather than acting as a personal stockbroker for Rozsa (Compl.1ffl 5, 23), and as such, SG Cowen had no fiduciary duty to Rozsa. In contrast, Rozsa contends that SG Cowen had a fiduciary
3369	action was brought for an injunction. In dismissing the action the trial court found that “the trade marks ‘Meadow Gold’ and ‘Meadow Sweet’, when applied to dairy products, are not confusingly similar to purchasers using ordinary care.” The principal question presented is whether the record sustained this finding. The primary function of a trademark used in business or trade is to distinguish goods as the products of a particular manufacturer or trader and to prevent another from passing off its goods as those of the manufacturer or trader identified by the trademark. Avrick v. Rockmont Envelope Co., 10 Cir., 155 F.2d 568; Schneider Brewing Co. v. Century Distilling Co., 10 Cir., 107 F.2d 699; American Photographic Pub. Co. v. Ziff-Davis Pub. Co., 7 Cir., 135 F.2d 569. “With essential qualifications, one infringes the trade-mark of another if the designation he uses to identify his goods is ‘identical with or confusingly similar’ to another’s protected trademark.” Avrick v. Rockmont Envelope Co., supra [155 F.2d 572], The development of advertising on a national scale caused trade-marks to perform an additional function in the field of advertising and sales promotion. Restatement, Torts § 715 (1938); Avrick v. Rockmont Envelope Co., supra. The statutory test of infringement is whether the “use is likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods * * 15 U.S.C.A. § 1114. This court has discussed the concept of trademark infringement on several occasions. In Schneider Brewing Co. v.
2486	such a controversy of constitutional dimension exists. The Court, therefore, cannot address the serious issues before it. B. Ripeness As an alternative, but certainly related basis, the Court finds this case is not ripe for adjudication. See U.S. Const. Art. III; see also United Food, 857 F.2d at 425-26 (applying ripeness to Declaratory Judgment Act). The ripeness doctrine precludes any decision on a legal or factual question absent “a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical and abstract.” See Babbitt, 442 U.S. at 298, 99 S.Ct. 2301 (quotations omitted). Ripeness requires “fitness of the issues for judicial decision” and examination of “the hardship to the parties of withholding court consideration.” See Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The Declaratory Judgment Act calls upon the Court to apply a heightened standard of ripeness, allowing judicial intervention only where “there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” See Lake Carriers Ass’n v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Gopher Oil Co. v. Bunker, 84 F.3d 1047, 1050 (8th Cir.1996) (citing Caldwell, 755 F.2d at 649). The Court’s declaratory power is strictly discretionary, see Wilton v. Seven Falls Co., 515 U.S. 277, 282, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995), and is to be exercised with caution. The Court finds this litigation involves
3546	undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier, 533 U.S. at 201, 121 S.Ct. 2151. For the law to be clearly established, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). It is not necessary that the “very action in question has previously been held unlawful,” but “in the light of preexisting law the unlawfulness must be apparent.” Id. “The relevant, dispositive inquiry ... is whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted.” Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir.2010) (quoting Saucier, 533 U.S. at 202, 121 S.Ct. 2151) (omission and emphasis in original), petition for cert, filed, April 7, 2010. In addition, “[c]ourts have ... held that the existence of a statute or an ordinance authorizing particular conduct is a factor which militates in favor of the conclusion that a reasonable official would find that conduct constitutional.” Grossman, 33 F.3d at 1209. A. Jurisdiction CHI argues initially that we lack jurisdiction to consider the qualified immunity issue. Although the district court found— on the first prong of the qualified immunity analysis — that there were genuine issues of material fact regarding whether there had been a violation of the Establishment Clause, the court ended its analysis there. Cmty. House
3816	or of which it recklessly disregarded, but it is not unconstitutional simply because the revocation provision does not follow the same escalation pattern as the suspension provision. The effect of the revocation, while grave, does not constitute an impermissible prior restraint because the AEC’s revocation provision is a punishment for past wrongdoing; it is not a permanent restraint of future expression. See Alexander, 509 U.S. at 553-54, 113 S.Ct. 2766 (“[O]ur decisions have steadfastly preserved the distinction between prior restraints and subsequent punishments.”). The licensee can seek a new license upon expiration of a year’s time for the same location, and nothing in the AEC appears to prohibit the licensee from seeking another license for a new location. See Arcara v. Cloud Books, Inc., 478 U.S. 697, 705-06, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986) (“The severity of this burden [on First Amendment protected activities] is dubious at best, and is mitigated by the fact that respondents remain free to sell the same materials at another location.”). The termination of an establishment’s non-conforming use zoning permit upon revocation is also unrelated to the exercise of free speech; the licensee is free to re-petition the board of zoning to reestablish its non-conforming use permit. See id. Section 3-36(c) is constitutional. E. Shifting the Burden of Proof Finally, Plaintiff argues that section 3 — 37(f)(8) of the AEC impermissibly shifts the burden of proof to the licensee to show that the dancing contains a “significant expressive element” during license suspension and revocation
1606	"contract did not expire until then. See Oral Arg. Recording at 14:09-14:22 (""We could not assert the contract expired September 27 because the durational clause ... carried out [until] the end of the month.”). . Liberty admits it employed AMO-represented officers and engineers beginning at 12:01a.m, on October 1, 2011. If the parties’ CBA remained in effect past midnight on September 30, as MEBA contends, there can be no question that MEBA’s suit would be for a violation of the contract and the court would have jurisdiction under section 301. . Liberty starts with the premise that a court cannot exercise section 301 jurisdiction of a claim arising from conduct that took place after the contract expired. See, e.g., Derrico v. Sheehan Emergency Hosp., 844 F.2d 22, 25 (2d Cir.1988) (“When a complaint alleges a claim based on events occurring after the expiration of a collective bargaining agreement, courts have held that section 301 can not provide a basis for jurisdiction.”). Liberty maintains that it abided by the contract until midnight on September 30 and that the conduct MEBA complains of and seeks to arbitrate in this suit—namely, Liberty's replacing MEBA workers with AMO workers— occurred after that time. In Liberty’s view, if the parties reached impasse before September 30, then (1) the contract expired at midnight; (2) the conduct MEBA seeks to arbitrate occurred after the contract expired; and therefore (3) the court cannot exercise jurisdiction over the “contractual” claim because it did not in fact arise under the"
2770	put some form of pressure on its attorneys to obtain a more favorable opinion. Id. at *6 (footnotes omitted). The same reasoning applies to the case at hand and, therefore, BASF cannot obtain counsel’s work product which was not communicated to Reilly. In making this determination, the Court is cognizant of the concerns noted by courts following the broader waiver point of view. See Mosel Vitelic Corp. v. Micron Technology, Inc., 162 F.Supp.2d 307, 312 (D.Del.2000) (narrow view has “effectively encouraged patent counsel to place only the most favorable version of the facts and the law in their opinion letters, even if these attorneys are aware of other information which is far less helpful to their client.”); Cordis Corp. v. SciMed Life Systems, Inc., 980 F.Supp. 1030, 1034 n. 1 (D.Minn.1997). While noting that the narrower view point “creates some risk‘that intentional infringement (of patent or trademark rights) could be obscured by reliance upon deliberately incompetent opinions,” the Eco court found that other factors outweighed those risks. Eco, 2003 WL 1888988 at *8 (broad approach “creates substantial risk of confusion and wasted time”; no “compelling reason for believing attorney’s private papers and thoughts would be probative of the client’s ability to rely on the attorney’s advice”; and “independent attorneys have substantial internal and external reasons to provide competent and honest advice”). The Court agrees with Eco’s reasoning and finds that Reilly has not waived the work product privilege for any pre-suit documents that were not communicated or otherwise disseminated to
2349	are denied. If the claimant cannot perform his or her regular employment, a determination of whether the claimant can perform other gainful work is made. See 20 C.F.R. §§ 404.1520, 416.920 (1986). Because the AU determined that Havas could continue in his former employment, the second determination was never made. A determination by the Secretary that an individual is not disabled is conclusive if supported by substantial evidence. 42 U.S.C. § 405(g) (1982); Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984). “Substantial evidence” has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). In reviewing district court decisions in disability cases, we undertake our own plenary review of the administrative record to determine whether substantial evidence supports the Secretary’s denial of benefits. See Valente v. Secretary ofHHS, 733 F.2d 1037,1041 (2d Cir.1984). Accordingly, “our focus is not so much on the district court’s ruling as it is on the administrative ruling.” Id. Some time ago, we adopted the so-called “treating physician” rule whereby the medical opinion of the doctor who treated the claimant is given greater weight relative to other medical evidence before the Secretary. According to this rule, a treating physician’s opinion on the subject of medical disability, i.e., diagnosis and nature and degree of impairment,
3115	not vest jurisdiction in system boards of adjustment of all disputes related to employ ment. The Supreme Court has expressly-rejected the idea that “all employment-related disputes, including those based on statutory or common law” fall under the exclusive jurisdiction of the system board of Adjustment; “the RLA’s mechanism for resolving minor disputes does not preempt causes of action to enforce rights that are independent of the CBA.” Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 253, 265, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). To determine if they have jurisdiction, courts are to examine the relationship of the dispute to the CBA; “ ‘minor disputes’ are those that are ‘grounded’ in the collective bargaining agreement.” Felt v. Atchison, Topeka & Santa Fe Ry. Co., 60 F.3d 1416 (9th Cir.1995), citing Hawaiian Airlines v. Norris 512 U.S. 246, 256, 114 5. Ct. 2239, 129 L.Ed.2d 203 (1994). “A minor dispute cannot involve rights that emanate from sources outside the agreement.” Id. at 1419. The burden of establishing that a dispute is not minor lies with the party seeking to bring a RLA-related claim in federal court. Plaintiff faces a high burden, as “courts should characterize a dispute as minor if it is even ‘arguably justified’ that the dispute turns on the application of the CBA.” Coker, 165 F.3d at 584, citing Norris, 512 U.S. at 265-66, 114 S.Ct. 2239; see also Jenisio, 187 F.3d at 972 (noting “a party shoulders a relatively light burden in establishing exclusive arbitral jurisdiction under the
4840	that a corporation — except in the rarest situations — is organized under, and governed by, the law of a single jurisdiction, traditionally the corporate law of the State of its incorporation____ It is thus an accepted part of the business landscape in this country for States to create corporations, to prescribe their powers, and to define the rights that are acquired by purchasing their shares. A State has an interest in promoting stable relationships among parties involved in the corporations it charters, as well as ensuring that investors in such corporations have an effective voice in corporate affairs. Id. at 1649-51. “Nationwide tender offers cannot be interfered with by the application of the fifty states’ different securities laws.” Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 568 (6th Cir.1982). CTS resolves this problem by identifying the state of incorporation as the jurisdiction with regulatory authority over tender offers for the corporations it creates. This rule enhances predictability to the extent shareholders expect their rights to be governed by the laws of the state of incorporation. But more importantly it is the only rule compatible with the constitutional prohibition against inconsistent regulation. Tennessee is one of at least twenty states with which Holly Farms has significant contacts. To allow Tennessee to regulate Tyson’s tender offer for Holly Farms’ stock is to guarantee inconsistent regula tion. See Campean Corp. v. Federated Dept. Stores, 679 F.Supp. 735, 739 (S.D. Ohio 1988) (Application of Ohio takeover statute to foreign corporations “gives rise to
4224	factors. A child must be both needy and dependent. No other conditions of eligibility are required.” Doe v. Swank, supra, at page 63. The state contends that the regulations under attack are merely necessary effectuations of the requirement mandated by the Act obligating them to identify and prosecute the father of the needy child in order for the state to qualify for federal aid. These requirements are embodied in 42 U.S.C. § 602(a) (10) and (17) (they have been denominated the Notice to Law Enforce ment Officials (NOLEO) requirements) and charge the states “with the furnishing of aid to all eligible individuals with reasonable promptness while at the same time the states must diligently attempt to secure support from deserting parents.” Taylor v. Martin, 330 F.Supp. 85, 88 (N.D.Calif.1971) affirmed, without opinion, sub nom, Carleson v. Taylor, 404 U.S. 980, 92 S.Ct. 446, 30 L.Ed.2d 364 (1971). With respect to the requirement that the mother of an illegitimate child name the putative father, we have concluded that the plaintiffs Doe and Roe do not have standing to attack the validity of that facet of the South Carolina Regulation and this Court expresses no opinion on the merits of that particular attack. See Socialist Labor Party v. Gilligan, 406 U.S. 583, 92 S.Ct. 1716, 32 L.Ed.2d 317 (1972). In the present case, both plaintiffs voluntarily disclosed the names of the putative fathers. It is established law that a federal court does not concern itself with abstract questions posed by parties who
1503	his apartment. . See Salgado v. United States, 278 F.2d 830, 831 (1st Cir. 1950) (“It is true that such character evidence is not relevant to the question of the witness’s veracity, and is therefore not admissible to discredit him in that regard. Nor could defendant introduce the evidence merely as contradiction of the witness’s own denial that he was ‘an immoral pervert.’ ” [citations omitted]); United States v. Xuccio, 2 Cir., 373 F.2d 168, 171, cert. denied 387 U.S. 906, 87 S.Ct. 1688, 18 D.Ed.2d 623 (1967) (“ * * * it would indeed have been wrong to permit cross-examination on the score of homosexuality merely to discredit [a witness’] character * * *.”) . Wynn v. United States, 130 U.S.App.D.C. 60, 62-63, 397 F.2d 621, 623, 624 (1967); Villaroman v. United States, 87 U.S.App.D.C. 240, 241, 184 F.2d 261, 262, 21 A.D.R.2d 1074 (1950). . Villaroman v. United States, supra note 8, 87 U.S.App.D.C. at 241, 184 F.2d at 262; McFarland v. United States, 85 U.S.App.D.C. 19, 21 n. 3, 174 F.2d 538, 540 n. 3 (1949). . Wynn v. United States, supra note 8, 130 U.S.App.D.C. at 62, 397 F.2d at 623. See also Blair v. United States, 130 U.S.App.D.C. 322, 324, 325, 401 F.2d 387, 389-390 (1968); Villaroman v. United States, supra note 8, 87 U.S.App.D.C. at 241, 184 F.2d at 263. . See Salgado v. United States, supra note 7, 278 F.2d at 831-832; United States v. Nuccio, supra note 7, 373 F.2d at 171.
4569	"judgment on these narrow grounds and allow the United States to prove additional grounds at trial. A. Application of Non-Mutual, Offensive Issue Preclusion to Arpaio Arpaio claims applying non-mutual, offensive issue preclusion as to the findings from Melendres would be unfair and, therefore, cannot apply. The United States argues non-mutual, offensive issue preclusion should apply because an identity of issues exists, the issues were actually litigated and decided, and the United States did not improperly interfere in the previous litigation or adopt a “wait and see” strategy. Issue preclusion, formerly known as collateral estoppel, has the “dual purpose of protecting litigants from the burden of ré-litigating an identical issue ... and of promoting judicial economy by preventing needless litigation.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645,""58 L.Ed.2d 552 (1979). However, the offensive use of issue preclusion may have the opposite effect, encouraging plaintiffs to “wait and see” in a way which may “increase rather than decrease the total amount of litigation.” Id. at 330, 99 S.Ct. 645. Thus, special care must be taken when considering whether to apply non-mutual, offensive issue preclusion. Ordinary issue preclusion requires a party, show: “(1) the issue sought to be litigated is sufficiently similar to the issue presented in an earlier .proceeding and sufficiently material in both actions to justify invoking the doctrine, (2) the issue was actually litigated in the first case, and (3) the issue was necessarily decided in the first case.” Appling v. State Farm Mut. Auto."
3406	a scenario in which the channel expansion does not draw in additional listeners; there could be the same number of listeners, but spread among more channels. Music Choice argues that the Judges lacked any evidence that the channel expansion would lead to increased listenership, and thus erred when they adjusted the rate upward based on this consideration. MC Br. 40-42; MC Reply 19-23. Music Choice’s argument fails. The Judges acted reasonably when they inferred that the channel expansion would lead to increased performances of copyrighted works. The Copyright Act empowers the Judges to “predict the future course of the music industry.” SoundExchange, 571 F.3d at 1225. “The ‘arbitrary and capricious’ standard is particularly deferential in matters implicating predictive judgments.” Rural Cellular Ass’n v. F.C.C., 588 F.3d 1095, 1105 (D.C.Cir.2009). Given the broad discretion afforded to the Judges in making predictive judgments, the Judges acted on sufficient evidence, and not arbitrarily, when they determined that Music Choice’s planned channel expansion warranted an upward adjustment. We also question Music Choice’s reliance on U.S. v. ASCAP, 627 F.3d 64 (2nd Cir.2010), for the proposition that there cannot be proof of additional performances without proof of additional listeners. U.S. v. ASCAP concerned “whether a download of a digital file containing a musical work constitutes a public performance of that musical work.” Id. at 68. The Second Circuit held that digital downloads are not such a performance because downloads “are not ... contemporaneously perceived by the listener.” Id. at 73. “The downloaded songs are not
4540	"conduct complained of’; and (3) the likelihood “the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted). In a previous. order, the Court held, “Under Arizona law, the Sheriff has final policymaking authority with respect to County law enforcement and jails, and the County can be held responsible for constitutional violations resulting from these policies,” (Doc. 56 at 13), and denied Maricopa County’s motion to dismiss, including the allegation of lack of standing. “Lhw of the case” doctrine “preclude[s a court] from reexamining an issue previously decided by the samé court, or a higher court, in the same case.” United States v. Jingles, 702 F.3d 494, 499 (9th Cir.2012) (citation omitted). The doctrine applies where.an issue was “decided explicitly or by necessary implication in [the] previous disposition.” Id. (internal quotation marks and citation omitted). In finding Maricopa"" County could be held responsible for Arpaio’s constitutional violations, the Court ruled, by necessary implication, the County was capable ofire-dressing those violations. Nonetheless, Maricopa County now claims the Court’s previóus analysis was flawed 'because it relied on precedents from § 1983"" cases involving claims for monetary, rather than injunctive relief. Maricopa County acknowledges A.R.S. § 11-201 gives it the power to determine MCSO’s budget, but maintains that aüthority is insufficient to influence or control hovv MCSO is run. Maricopa County also claims: 1) the County cannot “cure the alleged violations here” (Doc."
300	fact, or have the effect of submitting the cause to a plenary determination on the merits”). Nonetheless, “cross-motions may be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the disposi-tive legal theories and material facts.” Godard, 485 F.Supp.2d at 1291; see also May, 458 F.Supp.2d at 1333. That is precisely the case here, at least with respect to the ILSFDA exemption issue, as all parties appear to concur that the exempt or nonexempt status of the Project is a purely legal question for the Court to decide. IV. Analysis of ILSFDA Nondisclosure Claims. A. Parameters of the Act. “The ILSFDA was intended to curb abuses accompanying interstate land sales.” Winter v. Hollingsworth Properties, Inc., 777 F.2d 1444, 1448 (11th Cir.1985). Indeed, “[t]he underlying purpose of the [ILSFDA] is to insure that a buyer, prior to purchasing certain kinds of real estate, is informed of facts which will enable him to make an informed decision about purchasing the property.” Law v. Royal Palm Beach Colony, Inc., 578 F.2d 98, 99 (5th Cir.1978); see also Winter, 777 F.2d at 1449 (Act’s purpose requires that buyer must receive information necessary to make his decision prior to entering into purchase agreement); United States v. Steed, 674 F.2d 284, 287 (4th Cir.1982) (ILSFDA “is a comprehensive statute requiring subdivision developers, unless exempt, to furnish prospective purchasers pertinent information about lots offered for sale”). The Act “should be construed not technically, but flexibly to effectuate its
2196	2. Hourly Rates for Each Attorney In order to determine the appropriate hourly rates for core work performed by Attorney Hernandez, Attorney Paniagua, and Attorney Flax, the Court looked to the rates “ ‘prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.’ ” Grendel’s Den, 749 F.2d at 955 (quoting Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)); see also, e.g., Lipsett, 975 F.2d at 937 (applying the “ ‘prevailing rates in the community for comparably qualified attorneys’ ” (quoting Metropolitan Dist. Comm’n, 847 F.2d at 19)). The relevant community for purposes of this determination is Boston, “[t]he community in which the court sits,” National Wildlife Fed’n v. Hanson, 859 F.2d 313, 317 (4th Cir.1988); see also, e.g., Guckenberger, 8 F.Supp.2d at 103 (noting the “presumption that local Boston rates apply” to a case heard in federal district court in Boston (citing cases)). a. Attorney Hernandez This Court recently found that $250 per hour is the typical rate for senior private civil rights trial attorneys in Boston. See id. at 105. Given Attorney Hernandez’s nearly twenty years of private practice, much of which has centered on civil rights litigation and police misconduct cases in particular, this rate is fully justified for the core work. b. Attorneys Paniagua and Flax The City does not specifically challenge the hourly rate of $130 for work performed by Attorney Hernandez’s co-counsel. In’ any event, based on a review of
4000	floatation units as the '962/Guibault patent and reveals that they are “hollow” and that they may be partially filled with water. '644/Stanzinger patent, col. 2,11. 1-2, 18-25 (“A floating element according to the invention comprises a hollow prismatic body.... If the bottom of the floating element is drilled through ..., water can enter its body.”) Thus, of the different dictionary meanings, having a cavity within “is most consistent with the use of the words by the inventor.” Texas Digital, 308 F.3d at 1202. Additionally, the Ringdal patent, U.S. Patent 3,977,030, though not incorporated by reference in the '833 patent, is useful to illustrate how those of ordinary skill in the art would interpret the term “hollow.” See Hoechst Celanese Corp. v. BP Chems. Ltd., 78 F.3d 1575, 1578 (Fed.Cir.1996) (“A technical term used in a patent document is interpreted as having the meaning that it would be given by persons experienced in the field of the invention.... ”). The '030/Ringdal patent describes a dock with a floating ramp made of rollers across which a boat can be hauled to remove it from the water. That patent describes that “the rollers can preferably be effected as hollow bodies and filled with air, or preferably filled with plastic foam .... ” '030 patent, col. 1,11. 56-58. The sentence structure demonstrates that, as used by those of ordinary skill in the art, a “hollow” body may nevertheless be “filled” with something. That a float is “hollow” and may contain something is consistent with
2534	State court did not find that he was guilty of malice. We agree with the district court that this contention is without merit. It has been a general rule that liabilities arising from assault and battery are considered as founded on willful and malicious injuries. 3 Collier on Bankruptcy ¶ 523.16. See also In re Rice, 18 B.R. 562 (Bkrtcy.N.D.Ala.1982); In re McCloud, 7 B.R. 819 (Bkrtcy.M.D.Tenn.1980). Appellant further asserts that the verdict of the State court did not find malice because no award was made for punitive damages. The failure of a jury to award punitive damages does not necessarily result in the discharge of a judgment debt claimed to be nondisehargeable as arising from a willful and malicious act. In re Cooney, 8 B.R. 96, 100 (Bkrtcy.W.D.Ky.1980). This was the rule under the prior bankruptcy act. Thibodeau v. Martin, 140 Me. 179, 35 A.2d 653 (1944); see Annotation, “Claim or judgment based on assault and battery as liability for willful and malicious injury within § 17(2) of Bankruptcy Act (11 U.S.C. § 35(2)), barring discharge of such liability.” 63 A.L.R.2d 549, 556 (1959). The judgment of the district court is affirmed. . § 523. Exceptions to discharge (a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (6) for willful and malicious injury by the debtor to another entity or to the property of another entity.
3449	L.Ed.2d 621 (2005). District courts are aided in their determination of reasonableness via a mandatory examination of the factors set forth in 18 U.S.C. § 3553(a). Id. at 764-65, 67; United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1045 (7th Cir.2005). These factors include “the nature and circumstances of the offense and the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1). In determining the specific term, § 3553(a) advises that the sentence should “reflect the seriousness of the offense,” “provide just punishment,” and “protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2)(A)-(C). Additionally, this court has held that “any sentence that is properly calculated under the Guidelines is entitled to a rebuttable presumption of reasonableness.” United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.2005). At the outset of this reasonableness review, Lister briefly challenges the accuracy of the district court’s calculation of his advisory sentence range. He argues that the incorporation of his relevant conduct into his total offense level was in error. But Booker and its predecessor cases did not limit such judicial factfinding in the sentencing context. United States v. Bryant, 420 F.3d 652, 656 (7th Cir.2005). Instead, they held that a Sixth Amendment problem arises where the sentence exceeds the statutory maximum of the charged crime or where the term is imposed under a mandatory sentencing scheme. Booker, 125 S.Ct. at 750; see United States v. Dean, 414 F.3d 725, 729-30 (7th Cir.2005). Neither of these concerns are present upon review
3403	previously noted that we are especially deferential to the Judges of the Copyright Royalty Board for three distinct reasons: First, the [Board] is required “to estimate the effect of the royalty rate on the future of the music industry,” which requires a “forecast of the direction in which the future public interest lies ... based on the expert knowledge of the agency.” Second, the agency has “legislative discretion in determining copyright policy in order to achieve an equitable division of music industry profits between the copyright owners and users.” Finally, “the statutory factors pull in opposing directions, and reconciliation of these objectives is committed to the [agency] as part of its mandate to determine ‘reasonable’ royalty rates.” [S]ee Fresno Mobile Radio, Inc. v. FCC, 165 F.3d 965, 971 (D.C.Cir.1999) (“When an agency must balance a number of potentially conflicting objectives ... judicial review is limited to determining whether the agency’s decision reasonably advances at least one of those objectives and its decisionmaking process was regular[.]”). Id. at 1223-24 (quoting R.I.A.A., 662 F.2d at 8-9) (other citations omitted). Applying that standard to our review of the record before us, we find no basis to set aside the decision of the Copyright Royalty Board. A. SoundExchange’s Challenge to the Copyright Royalty Judges’ Final Determination SoundExehange appeals from the Judges’ setting of royalty rates and terms for both satellite digital audio radio services and preexisting subscription services, contending that the Judges’ action was arbitrary and capricious and resulted in unlawfully low rates for
188	in this action may lie in the District of Puerto Rico, the Court next addresses whether transfer to the State of New Jersey is appropriate based upon convenience to the parties and the interests of justice. In moving for a change of venue, defendants carry the burden of showing that the factors enumerated in 28 U.S.C. § 1404 militate in favor of transfer. Sergio Estrada Rivera Auto Corp. v. Kim, 717 F.Supp. 969, 973 (D.P.R.1989). “Factors to be considered by the district court in making its determination include the convenience of the parties and witnesses, the order in which jurisdiction was obtained by the district court, the availability of documents and the possibilities of consolidation.” Id., at 973 quoting Cianbro Corp. v. Curran-Lavoie, Inc., 814 F.2d 7, 11 (1st Cir.1987). As particularly relevant to the case at hand, we shall proceed to address the factor relating to the factor of convenience of the parties. Transfer will not be ordered if the result is merely to shift the inconvenience from one party to another. Buckley v. McGraw-Hill, Inc., 762 F.Supp. 430, 439 (D.N.H.1991); see also, Wright, Miller & Cooper, 15 Federal Practice and Procedure: Jurisdiction § 3848, at 387-388 (2d ed. 1986) (and cases therein cited). Regardless of where this action is tried, should it proceed to trial, either the plaintiff or the defendants will be inconvenienced by having to travel a substantial distance. In deciding § 1404 transfer motions, “substantial weight” is given to plaintiffs choice of forum. S-G Securities
1115	issue falls within the scope of that clause. Further, because neither party questions the propriety of this Court determining whether the dispute is arbitrable, the Court “assume[s], without further analysis, that the [a]greement leaves the question of arbitrability to judicial determination.” See CardioNet, Inc. v. Cigna Health Corp., 751 F.3d 165, 172 (3d Cir.2014) (citing Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010)). The United States Court of Appeals for the Third Circuit recently summarized the standards governing a court’s interpretation of the scope of an arbitration clause: [The court] must resolve “any doubts concerning the scope of arbitrable issues ... in favor of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); see also Medtronic AVE, Inc. v. Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 55 (3d Cir.2001) (noting that “federal policy favors arbitration”). However, the Supreme Court has repeatedly warned against “over-read[ing its] precedent []” concerning the presumption of arbitrability. E.g. Granite Rock, 130 S.Ct. at 2857. The presumption in favor of arbitration does not “take[ ] courts outside (the] settled framework” - of using principles of contract interpretation to determine the scope of an arbitration clause. Id. at 2859. Quite the contrary, the presumption “derives its legitimacy from” the judicial supposition “that arbitration of a particular dispute is what the parties intended because their express agreement to. arbitrate was validly formed and (absent a provision
2785	argue that although the alternative technologies’ ability to process energetics is relatively untested, dual use of both incineration and an alternative could be implemented. CONCLUSIONS OF LAW 1. Plaintiffs bear the burden in this case of establishing the need for injunctive relief. In making its determination regarding the necessity of the injunction, the court must consider four factors: (a) whether plaintiffs have shown a substantial probability of success on the merits; (b) whether plaintiffs are threatened with irreparable injury in the absence of an injunction; (c) whether plaintiffs’ potential injury outweighs any damage to defendants; and (d) whether the injunction would be adverse to the public interest. Potawatomi Indian Tribe v. Enterprise Management Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir.1989); Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980). If plaintiffs are able to show that they will suffer irreparable injury and that “the balance of hardships tips decidedly in [their] favor,” the requirement of showing a substantial probability of success on the merits is satisfied by raising “questions going to the merits so serious, substantial, difficult and doubtful as to make them a fair ground for litigation and thus for more deliberate inquiry.” Lundgrin, 619 F.2d at 63 (quoting Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 781-82 (10th Cir.1964)). Irreparable Injury 2. Mere threatened, speculative harm, without more, does not amount to irreparable injury for purposes of justifying preliminary injunctive relief such as that sought by plaintiffs. E.g., Mullis v. United States Bankruptcy Court, 828
3628	applies to felony offenses that include “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). “Physical force ‘means violent force — that is, force capable of causing physical pain or injury to another person.’ ” United States v. Schaffer, 818 F.3d 796, 798 (8th Cir. 2016) (quoting Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)). In determining whether a prior conviction qualifies as a predicate offense for. purposes of the ACCA sentencing enhancement, we first apply the categorical approach, looking “only to the fact of conviction and the statutory definition of the prior offense.” Shockley, 816 F.3d at 1063 (quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). One of Eason’s prior convictions was for robbery under Ark. Code Ann. § 5-12-102. The Arkansas robbery statute, § 5-12-102, states “[a] person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person.” Id. Physical force under Arkansas law is defined as “any ... [b]odily impact, restraint, or confinement; or [t]hreat of any bodily impact, restraint, or confinement.” Ark. Code Ann. § 5-12-101. After Johnson, this definition, on its face, falls short of requiring “force capable of causing physical pain or injury to another person.” In United States
938	“pattern” or “habit” evidence under Federal Rule of Evidence 406. 1. Transcripts The Defendant raises four objections to the Government’s intention to introduce transcripts of intercepted telephone calls into evidence during trial. First, the Defendant argues that the transcripts “are not authenticated, original evidence, but only the interpretation of that original evidence by persons not subject to cross-examination, and the jury’s focus should be on the calls themselves.” Def.’s Mot. at 1. The D.C. Circuit has “upheld the practice of giving the jury a transcript to help follow a tape recording played during trial so long as procedures are followed to ensure that the jury does not rely on one party’s version of the transcript instead of the tape recording.” United States v. Holton, 116 F.3d 1536, 1541 (D.C.Cir.1997). Therefore, subject to the procedures outlined below, the Court shall allow the Government to use transcripts as an aid to the jury in listening to intercepted telephone calls. Second, the Defendant argues that “[a]t most, these transcripts should only be used as informal aids that jurors can reference while hearing the calls—not as evidence admitted and taken back into the jury room.” Def.’s Mot. at 1. The D.C. Circuit addressed this specific point in Holton, noting Certainly a transcript can be helpful when the jury listens to replays of tape recordings during deliberations as well as during trial. Indeed, it might well confuse the jurors to permit them to use transcripts as a guide during trial, but not during deliberations. Moreover,
816	an entirely different business, using different invoices. Doc. 20 at ¶ 24, 27; Doc. 24 at ¶ 24, 27. Ace Steel accordingly asserts that Cow Country Equipment alone was Nelson’s employer and that Cow Country Equipment had fewer than 15 employees, thus rendering Title VII inapplicable. See 42 U.S.C. § 2000e(b). II. Discussion A. Summary Judgment Standard Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Summary judgment is not “a disfavored procedural shortcut, but rather ... an integral part of the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On summary judgment, the evidence is “viewed in the light most favorable to the non-moving party.” True v. Nebraska, 612 F.3d 676, 679 (8th Cir.2010). A party opposing a properly made and supported motion for summary judgment must cite to particular materials in the record supporting the assertion that a fact is genuinely disputed. Fed.R.Civ.P. 56(c)(1); Adam v. Stonebridge Life Ins. Co., 612 F.3d 967, 971 (8th Cir.2010). B. Legal Question Presented Defendant’s motion for summary judgment turns on whether Nelson’s employer had fewer than 15 employees. Ace Steel, including its Cow Country Equipment “subsidiary,” had more than 15 employees throughout the time of Nelson’s employment, but fewer than 15 of those worked in the
461	not provided evidence demonstrating that defendants “had any reason to believe” that plaintiff would be attacked). To the extent that Sanchez’s action challenges prior parole suitability decisions or would otherwise necessarily demonstrate the invalidity of the duration of his confinement, it is barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). See Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir.1997) (Heck bars prisoner’s § 1983 action alleging that “defendants violated his due process rights by considering false information in his prison file to find him ineligible for parole”). We do not consider matters not specifically and distinctly raised and argued in the opening brief, or documents presented for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir.2009) (per curiam); United States v. Elias, 921 F.2d 870, 874 (9th Cir.1990) (“Documents or facts not presented to the district court are not part of the record on appeal.”). We reject Sanchez’s contentions concerning discovery because the record shows that the district court ordered Baker to respond to Sanchez’s discovery before it granted summary judgment and the record does not show that the responses were inadequate. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
4722	"that further discovery would yield” information that would create a genuine dispute as to material facts, then summary judgment may be appropriate, even before discovery has been conducted. Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir.1995). 2. Analysis The FLSA applies generally to “employees, engaged in interstate commerce.” Dauphin v. Chestnut Ridge Transp., Inc., 544 F.Supp.2d 266, 271 (S.D.N.Y.2008). Among other things, the FLSA requires employers to pay overtime wages to certain, employees who work more than 40 hours per week. See 29 U.S.C. § 207. However, the FLSA has also' exempted classes 'of employees from its wage protections. “Because the FLSA is a remedial law, [courts] must narrowly construe its exemptions.” Reiseck v. Universal Commons of Miami, Inc., 591 F.3d 101, 104 (2d Cir.2010) (footnote omitted). Moreover, an employer bears the burden of establishing that an exemption applies. See Young v. Cooper Cameron Corp., 586 F.3d 201, 204 (2d Cir.2009) (“The employer has the burden, of proving that the employee clearly falls within the terms of the exemption.”); Clarke v. JPMorgan Chase Bank, N.A., No. 08-CV-2400, 2010 WL 1379778, at *15 (S.D.N.Y. Mar. 26, 2010) (same); Franklin v. Breton Int’l, Inc., No. 06-CV-4877, 2006 WL 3591949, at *2 (S.D..N.Y. Dec. 11, 2006) (same). Defendants argue that they are exempt from paying Plaintiff in accordance with ""the FLSA because ""Plaintiff fits into one of the FLSA’s exemptions: the motor carrier exemption. This exemption has its roots in a desire for uniformity in regulation. See Dauphin,"
1374	and opened only on court order; (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. Fed. R. Civ. P. 26(c). The Ninth Circuit determined this Rule provides the Court with “extensive control” over the discovery process, and “authorizes] courts to make any order which justice requires” to protect the parties. United States v. CBS, Inc., 666 F.2d 364, 369 (9th Cir. 1982) (internal quotation marks omitted). In general, it is rare for a court to disallow the taking of a deposition. See Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (“strong showing is required before a party will be denied entirely the right to take a deposition”); see also Apple Inc. v. Samsung Electronics Co., 282 F.R.D. 259, 263 (N.D. Cal. 2012) (“it is very unusual for a court to prohibit the taking of a deposition altogether absent extraordinary circumstances”). In general, under Rule 26 “the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” Phillips v. GMC, 307 F.3d 1206, 1210-1211 (9th Cir. 2002). However, when an apex deposition is at issue, courts are inconsistent as to whether the party resisting the discovery or the party seeking to depose the high-ranking official bears the burden related to
4373	the Court should abstain from deciding Plaintiffs state law claims and require Plaintiff to pursue these claims in state court. Defendants allege that abstention is appropriate in this case because a state court ruling in Plaintiffs favor on the state law issue would avoid the need for any federal determination of the federal constitutional issues. Under one theory of abstention, Pullman-type abstention, “[a] federal court may ... stay its consideration of a case until a state court decides an issue of state law in the case that will end the controversy without need for a resolution of a federal consti tutional question, or that, at least, will make resolution of the federal question somewhat easier.” Bath Memorial Hospital v. Maine Health Care Finance Commission, 853 F.2d 1007, 1012 (1st Cir.1988) (citing Railroad Commission of Texas v. Pullman Co., 812 U.S. 496, 501, 61 S.Ct. 643, 85 L.Ed. 971 (1941)); see also, 17A Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure § 4242, at 30 (2d ed.1988). The Supreme Court has admonished, however, that “abstention from the exercise of federal jurisdiction is the exception, not the rule.” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 14, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (citations omitted). Because the Court is persuaded that it is reasonably clear that the Supreme Judicial Court would decide the state law issue in favor of Plaintiff, the Court finds that abstention is not appropriate in this case.
351	treated Grassi. “We review the question whether to grant summary judgment de novo, and will affirm a district court’s decision to do so only if, viewing the facts in the light most favorable to the non-mov-ant, we discern no genuine issue as to any material fact and conclude that movant is entitled to judgment as a matter of law.” Four Corners Nephrology Assocs., P.C. v. Mercy Med. Ctr., 582 F.3d 1216, 1220 (10th Cir.2009). Constitutional Claims. Plaintiffs brought two claims under the Eighth Amendment against CCA: failure to provide adequate medical care for Grassi and failure to hire qualified medical providers at CCCF. As part of its obligations under the Eighth Amendment, a government must provide medical care for its prisoners. Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). “[Djeliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.” Id. at 104, 97 S.Ct. 285 (internal quotation marks and citation omitted). “Deliberate indifference” involves both an objective and a subjective component. The objective component is met if the deprivation is sufficiently serious. A medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention. The subjective component is met if a prison official knows of and disregards an excessive risk to inmate health or safety.
4724	"because ""Plaintiff fits into one of the FLSA’s exemptions: the motor carrier exemption. This exemption has its roots in a desire for uniformity in regulation. See Dauphin, 544 F.Supp.2d at 271 (“The purpose of [the motor carrier] exemption is to prevent conflict between the FLSA and the Motor Carrier Act.”). So as to not subject employers to the possibility of overlapping or inconsistent statutory requirements, the FLSA provides that it does not apply to “any employee with respect to whom the Secretary of Transportation has power to establish qualifications and maximum horn's of service pursuant to the provisions of section 31502 of Title 49,” which is the Motor Carrier Act (the “MCA”). 29 U.S.C. § 213(b)(1);' see also Bilyou v. Dutchess Beer Distrib., Inc., 300 F.3d 217, 222-23 (2d Cir.2002) (same). “Section 31502 grants the Secretary [of Transportation] the authority to prescribe qualifications and maximum hours of service of employees of a motor carrier [or motor private carrier]. This grant of authority applies to transportation by motor carrier [or motor private carrier] of property in interstate or foreign commerce on a public highway.”’ Walden, 2015 WL 1433353, at *3 (citing 49 U.S.C. §§ 13501, 13502). Thus, there áre two requirements that must be met for an employee to fall under the motor carrier exemption: (1) “the employer must be within the jurisdiction of the Secretary by virtue of operating as a motor carrier [or a motor private carrier], as defined by the statute,” and (2) “the individual employee must fall"
980	pertaining to the cause, and which requires further steps to be taken in order to enable the court to adjudicate the causes on the merits.” In re American Colonial Broadcasting Corp., 758 F.2d at 801 (internal citations and question marks omitted). In the absence of finality, this court must consider whether the exercise of appellate jurisdiction is, in this court’s discretion, appropriate. Some courts in this Circuit, other than the Court of Appeals for the First Circuit, have stated that, although 28 U.S.C. § 158(a) “provides no express criteria to guide our discretion,” those courts apply “the same standards as govern the propriety of district court’s certification of interlocutory appeals to the circuit courts under § 1292(b).” In re Bank of New England, Corp., 218 B.R. 643, 652 (1st Cir. BAP 1998). Nevertheless, as at least one court has also stated, the analogy to that standard is “jurisprudential and not jurisdictional.” In re Williams, 215 B.R. 289, 298 n. 6 (D.R.I.1997). The discretion granted to the district courts under 28 U.S.C. § 158 is greater than the discretion, if any, under 28 U.S.C. § 1292(b). For example, appellate jurisdiction over certified questions lies in the appellate tribunal only when those “orders other than final judgments ... have a final and irreparable effect on the rights of the parties.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See also In re Harrington, 992 F.2d 3, 6 (1st Cir.1993) (same requirement of irreparable
4969	the invention. NetApp also argues that requiring the management layer to be below the storage layer would also read out of the patent claim 4, which teaches an apparatus “wherein the management layer implements [functions] on top of the [inode] operations performed by the underlying storage layer.” Id. at 11:43-47 (emphasis added). Sun responds that claims other than claim 1, such as claim 12, could cover an embodiment where the management layer is not required to be below the storage layer. The weight of the intrinsic evidence does not, however, support the limitation proposed by Sun. The Court concludes that the claim language and specification do not require the management layer to be below the storage layer. See Primos Inc. v. Hunter’s Specialties Inc., 451 F.3d 841, 848 (Fed.Cir.2006) (“[W]e ... should not normally interpret a claim term to exclude a preferred embodiment.”). c. Prosecution History Sun further argues that NetApp’s representations to the PTO about the layered architecture of the '417 patent during its prosecution compel the adoption of Sun’s construction. “Arguments and amendments made during the prosecution of a patent application and other aspects of the prosecution history, as well as the specification and other claims, must be examined to determine the meaning of terms in the claims.” E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1438 (Fed.Cir.1988). “The prosecution history limits the interpretation of claim terms so as to exclude any interpretation that was disclaimed during prosecution. [Citations omitted.]” Southwall Techs.,
3925	Cir.1980) (citations omitted); see also, Ghandi v. Police Dept. of the City of Detroit, 747 F.2d 338 (6th Cir.1984), cert. denied, sub nom., Ghandi v. Fayed, 484 U.S. 1042, 108 S.Ct. 774, 98 L.Ed.2d 861 (1988). This does not mean, however, that courts should hesitate to enter summary judgment where it is appropriate to do so. In 1986, the Supreme Court’s opinions in Celotex, supra, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202, and Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538, revitalized Rule 56 and spawned a “new era” that “reflect[s] a salutary return to the original purpose of summary judgments.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir.1989). While a court must still deny a motion for summary judgment where the facts in an action are in dispute, since Celotex, Anderson, and Matsushita an opponent to such a motion may no longer defeat it simply by suggesting that facts are in controversy. Id. Before a court may enter summary judgment, it must determine that no genuine issue of material fact is in dispute. In Anderson the Supreme Court directly addressed the question of what constitutes a genuine issue of material fact by holding that irrelevant and unnecessary facts should have no bearing on a trial court’s determinations on a motion for summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. “[T]he mere existence of some alleged
18	] and is distinguishable from the third party practice under Fed.R.Civ.P. 14(a), which does not automatically establish a direct link between the plaintiff and the third-party defendant.” See Karim v. Finch Shipping Co., No. 96-1175, 1997 WL 436257, at *2 (E.D.La. July 31, 1997) (citing Seal Offshore, Inc. v. Am. Standard, Inc., 777 F.2d 1042, 1045 (5th Cir.1985)). Because the third-party defendants may now be liable to the Excess P & I Underwriters, Monda Marine submits that arbitration is inappropriate. The Fifth Circuit has specifically held, albeit in a FAA context, that “the policy of liberal joinder in maritime cases embodied in Rule 14(c) does not supercede the statutory right to enforce contractual arbitration.” Texaco Exploration & Prod. Co. v. AmClyde Engineered Prods. Co., 243 F.3d 906, 908 (5th Cir.2001). The Fifth Circuit reasoned that “to carve out a Rule 14(c) exception ... could severely undermine maritime arbitration clauses, inspiring abuse and opportunistic behavior, as third parties are allowed or encouraged to do what the parties to a contract themselves are not: to put aside a mandatory arbitration provision and force litigation.” Id. Accordingly, even assuming that Moncla Marine has sufficiently invoked Rule 14(c), the Court finds that this does not defeat arbitration here. Finally, in what can be construed as a last-ditch effort to avoid arbitration, Monela Marine submits that arbitration in this case would create piecemeal litigation, the third-party defendants’s previously waived their rights to arbitrate, and the third-party defendants will have to appear before the Court to
1658	of conflict with the protection of the double jeopardy clause of the Fifth Amendment. A construction of a statute which does not conflict with the constitution is to be preferred over one which conflicts with the constitution. Has petitioner been twice placed in jeopardy for the same offense within the purview of the Fifth Amendment? “The general rule is that a person is not in jeopardy until he has been arraigned on a valid indictment or information, has pleaded, and a jury has been impaneled and sworn; and where a case is tried to a court without a jury, jeopardy begins after accused has been indicted and arraigned, has pleaded and the court has begun to hear evidence.” McCarthy v. Zerbst, Warden, 10 Cir., 85 F.2d 640, 642. The prohibition against double jeopardy is not directed to the peril of a second punishment, but to a second trial for the same offense. Kepner v. United States, 195 U.S. 100, 130, 24 S.Ct. 797, 49 L.Ed. 114, 1 Ann.Cas. 655. The Board of Review expressed the opinion that the burden of pleading and proving former jeopardy rested upon petitioner and, in the event of his failure so-to do, waiver would follow. The record clearly indicates, however, that no waiver occurred, the plea having been properly made and argued at length. That it should have been sustained seems to be clear, tested by the rule referred to in the preceding paragraph. Whether the refusal of the military authorities to release upon the-ground
2610	F.2d 59, 68 (4 Cir. 1977) (en banc), cert denied, 435 U.S. 968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978), quoting Practicing Law Institute, Current Problems in Federal Civil Practice 491 (1975), common questions of damages predominate. See Blackie v. Barrack, supra, 524 F.2d at 905. iv. Statute of Limitations Defenses The only defense which defendants argue makes individual questions predominate over common ones is a statute of limitations defense. This suit was filed August 23, 1976. Defendants contend that a significant number of CIS clients knew or should have known before August 23, 1973, that CIS had defrauded them and that the claims of those clients are barred by the apparently applicable three-year statute of limitations, Cal.Code Civ.Proc. § 338(4). Sackett v. Beaman, 399 F.2d 884, 890 (9 Cir. 1968); Smith v. Guaranty Service Corp., 51 F.R.D. 289, 294-295 (N.D.Cal.1970). “[T]he time from which the statute of limitations begins to run is not the time at which a plaintiff becomes aware of all of the various aspects of the alleged fraud, but rather the statute runs from the time at which plaintiff should have discovered the general fraudulent scheme.” Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 410 (2 Cir. 1975). As the Court of Appeals said in Cameron v. E. M. Adams & Co., supra, 547 F.2d at 478, quoting Williams v. Sinclair, 529 F.2d 1383, 1388 (9 Cir. 1975): “ ‘The existence of a statute of limitations issue does not compel a finding that individual
994	Mass. 780, 788 n. 4, 336 N.E.2d 713, 718 (1975) (extrinsic evidence must “present an understanding of the parties which would aid in an interpretation of the agreement” in the event of ambiguity). Appellate review of the Bankruptcy Judge’s orders in this case begins with an examination of the text of the Pollution Exclusion. I conclude that the language of the Pollution Exclusion that includes “expected or intended” and “waste” is not shown by any evidence in the record before me to be ambiguous in any respect material to the outcome of the disputes in the Adversary Proceeding before the bankruptcy court. Potential ambiguity in immaterial respects is irrelevant to the decision of the Adversary Proceeding. See, e.g., Donoghue v. IBC USA (Publications), Inc., 70 F.3d 206, 215 (1st Cir.1995) (“Clarity about some hypothetical issue not in dispute is irrelevant. Conversely a party claiming to benefit from ambiguity ... must show ambiguity in the meaning of the agreement with respect to the very issue in dispute. Demonstration of ambiguity in some respect not material to any existing dispute serves no useful purpose.”). See also Starr v. Fordham, 420 Mass. 178, 190 n. 11, 648 N.E.2d 1261, 1269 n. 11 (1995) (any “determination of meaning or ambiguity should only be made in the light of the relevant evidence of the situation and the relations of the parties, the subject matter of the transaction, preliminary negotiations and statements made therein, usages of the trade and the course of dealing between the parties”),
2176	the time-and-rate-based method of fee calculation, may fashion a lodestar which differs substantially from the fee requested by the prevailing party.” Coutin, 124 F.3d at 337. Here, the Court sets out the standard it applied to Attorney Hernandez’s billing records in arriving at reasonable hours figures. Then, after explaining the standard applied for hourly rates, the Court applies both standards to Attorney Hernandez and his co-counsel to arrive at the lodestar. A. Reasonable Hours Expended “Typically, a court proceeds to compute the lodestar amount by ascertaining the time counsel actually spent on the case ‘and then subtracting] from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary.’ ” Lipsett, 975 F.2d at 937 (alteration in original) (quoting Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir.1984)); see also Coutin, 124 F.3d at 337. In doing so, “the presiding judge must ‘draw[ ] on [her] own experience and wisdom [in] deciding whether the time spent on each phase was in excess of - a reasonable amount.’ ” Metropolitan Dist. Comm’n, 847 F.2d at 18 (first and third alterations in original) (quoting Gabriele v. Southworth, 712 F.2d 1505, 1507 (1st Cir.1983)). In combing through the billing records, the Court encountered a number of entries containing reference to two different tasks with no indication of how much time was spent on each. Whenever such an entry involved one of the enumerated uncom-pensable categories discussed in this séction, I allocated fifty percent of the hours in that entry to the
1449	IN POUNDS),” “ * * * where the term ‘package’ for maritime shipping purposes has become a word of art and where by statute liability limitation consequences attach thereto, the parties must be presumed to have understood these consequences when they applied it to this Brobdingnagian package, the three-ton press. Their contract states their agreement. Having specified that the press was ‘One (1)’ package, they must abide by its meaning as a word of liability limitation.” 407 F. 2d at 156. In the instant ease as well, the parties must abide by the description of the items in the Bill of Lading which clearly specified “NO. OF PEGS — 6” so as to require limitation of liability. See also, Nichimen Company v. M.V. Farland, 462 F.2d 319, 335 (2d Cir. 1972), where the Court of Appeals again stated that “[w]hile the description on the bill of lading is not controlling, Middle East Agency, Inc. v. The John B. Waterman, 86 F.Supp. 487, 491 (S.D.N.Y. 1949), it is important evidence of the parties’ understanding, see Standard Electrica S.A. v. Hamburg Sudamerikanische Dampfschifffahrts-Gesellschaft, 375 F.2d 943, 946 (2d Cir.), cert. denied, 389 U.S. 831, 88 S.Ct. 97, 19 L.Ed.2d 89 (1967).” The Court also concludes that “some packaging preparation for transportation has been made [to the six circuit breakers] which facilitates handling;” i. e., the crating of the instrument panels. In reaching this conclusion, the Court is cognizant of the contrary holding of Gulf Italia Company v. American Export Lines, Inc., 263
3488	should be remanded. Lance Int’l, Inc. v. Aetna Cas. & Sur. Co., 264 F.Supp. 349, 356 (S.D.N.Y.1967). Courts, however, should be cautious about dismissal, since a decision to remand is not appealable. Roche v. American Red Cross, 680 F.Supp. 449, 451 (D.Mass.1988). Armco argues that removal is proper under 28 U.S.C. § 1442(a)(1), which states that an action may be removed by the “United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office____” 28 U.S.C. § 1442(a)(1). The purpose of the statute is to protect government officials enforcing federal laws. See Mesa v. California, 489 U.S. 121, 126, 109 S.Ct. 959, 963, 103 L.Ed.2d 99 (1989). The motivation for the enactment of § 1442(a)(1) was concern that “state governments hostile to duly enacted federal laws would be able to frustrate the implementation of [federal] laws by bringing (or allowing to be brought) civil or criminal actions in state court against the federal officials responsible for their implementation.” Brown & Williamson Tobacco Corp. v. Wigand, 913 F.Supp. 530, 533 (W.D.Ky.1996). By conferring federal subject matter jurisdiction over properly removed actions, Section 1442(a)(1) allows “those whose federal activity may be inhibited by state court actions to remove to the presumably less biased forum of federal court.” Ryan v. Dow Chem. Co., 781 F.Supp. 934, 939 (E.D.N.Y.1992). To successfully remove a case under
4651	clear public policy had been jeopardized by his discharge. With regard to Plona’s motion for sanctions, the court held that UPS’s late production of the parking lot lease was excusable and did not prejudice Piona. This timely appeal followed. II. ANALYSIS A. Standard of review We review de novo a district court’s grant of summary judgment. Int’l Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir.2006). Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). In considering a motion for summary judgment, the district court must construe all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review the denial of a motion for sanctions for an abuse of discretion. United States v. Allen, 516 F.3d 364, 374 (6th Cir.2008). B. Wrongful termination claim Piona alleges that UPS wrongfully discharged him in violation of public policy. Ohio has traditionally adhered to the employment-at-will doctrine, which permits an employer to terminate an at-will employment relationship “for any cause, at any time whatsoever, even
2057	F.2d at 537. In the present case, K-Mart argues that because the local court will be applying a burden more favorable to Marcano, Superior Court is the forum that will more adequately protect her rights. The different burdens to which K-Mart is referring are those in ADEA and Puerto Rico’s employment discrimination statute, Law 100. See generally Alvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling Co., 152 F.3d 17, 1998 WL 432081, at *9-10 (1st Cir. Aug.5, 1998). If as K-Mart argues, however, if the Superior Court claim is one only under Law 100 and the federal court claim is one only under ADEA, then the federal and local court claims are distinct, and not parallel, cases. Cf. Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 725 (1st Cir.1994) (“ADEA and Law 100 awards serve different ends and represent distinct types of damage awards.”) (emphasis added). The difference between the two claims undermines K-Mart’s assertion that there are parallel proceedings in the two courts. The abstention doctrine is applicable only if there are parallel proceedings. Additionally, if the Court abstained from exercising jurisdiction over this case, Plaintiffs would be denied access to a jury trial. Accordingly, this factor favors retention by the Court. The last factor to consider is the motivation for the federal lawsuit. Moses H. Cone, 460 U.S. at 17 n. 20, 103 S.Ct. at 937-38 n. 20; Villa Marina II, 947 F.2d at 533-34. Abstention would be appropriate if the plaintiffs motives for bringing the federal
4539	"Against Maricopa County Maricopa County argues the United States .does not. have standing because it has failed to show “the harms it alleges are ’likely to be redressed’ by a judgment against the County."" (Doc. 334 at 8). The United States contends it has shown a likelihood-of redress and that the “law of the case” precludes the County’s argument.. (Doc. 348 at 8). To . havé Article III standing, a plaintiff must demonstrate: (1) it has suffered “injury in fact — an invasion of a legally protected interest which is ... concrete and particularized”; (2) “a causal connection between the injury and the conduct complained of’; and (3) the likelihood “the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted). In a previous. order, the Court held, “Under Arizona law, the Sheriff has final policymaking authority with respect to County law enforcement and jails, and the County can be held responsible for constitutional violations resulting from these policies,” (Doc. 56 at 13), and denied Maricopa County’s motion to dismiss, including the allegation of lack of standing. “Lhw of the case” doctrine “preclude[s a court] from reexamining an issue previously decided by the samé court, or a higher court, in the same case.” United States v. Jingles, 702 F.3d 494, 499 (9th Cir.2012) (citation omitted). The doctrine applies where.an issue was “decided explicitly or by necessary implication in [the] previous"
4885	failing to inform the jury, upon its return, that no such punishment occurred, the court improperly left it with the impression that counsel had been formally disciplined. According to plaintiffs, the court’s hostility to counsel “conveyed a negative impression o[f] the merits of plaintiffs’ case” to the jury, producing reversible error. We find this argument to be without merit. We do detect strains of impatience, if not irascibility, in the district court’s manner during this exchange. However, we cannot say that plaintiffs were substantially prejudiced as a result. As we recently have stated, the fact “that a judge may have exhibited a bit of ire or manifested some impatience at times” is, without more, an insufficient basis for finding prejudice. United States v. Devin, 918 F.2d 280, 294 (1st Cir.1990) (“ ‘Though we expect a trial judge to be sensitive to the judicial role and to exercise restraint, we have no right to anticipate that he will function as ... [a] bloodless automaton.’ ”) (quoting United States v. Polito, 856 F.2d 414, 418 (1st Cir.1988)). “In the last analysis, litigants are entitled to a fair trial, but not necessarily a perfect or a monochromatic one.” Id. Having scrutinized the court’s rulings concerning the autopsy photographs and found them to be sound in substance, we conclude that its occasional lapses in restraint did not deny plaintiffs a fair trial. C. Rodriguez’s Convictions and the Cache of Weapons Before trial, plaintiffs moved in limine to exclude from evidence two prior narcot ics
1699	broker owes to investor). In contrast, the complaint specifically alleges that SG Cowen was the “clearing broker” for May Davis. (Compl.M 5, 23.) Clearing brokers, unlike “introducing brokers,” generally have agreements with other broker-dealers, rather than individual investors, governing the mechanics of order entry, confirmation and the completion of trades. See id. Due to this contracting scheme, New York courts have held that clearing brokers generally have no fiduciary duty to individual investors. See Edwards & Hanly v. Wells Fargo Securities, Corp., 602 F.2d 478, 484 (2d Cir.1979) (“a clearing agent, is generally under no fiduciary duty to the owners of securities that pass through its hands”) (citation omitted), cert. denied 444 U.S. 1045, 100 S.Ct. 734, 62 L.Ed.2d 731 (1980); Connolly v. Havens, 763 F.Supp. 6, 10 (S.D.N.Y.1991) (same); Dillon v. Militano, 731 F.Supp. 634, 636 (S.D.N.Y.1990) (same); Stander v. Financial Clearing & Services Corp., 730 F.Supp. 1282, 1286 (S.D.N.Y.1990) (same). This holds true even where, as here, the clearing broker holds an investor’s funds for trading. Flickinger v. Harold C. Brown & Co., Inc., 947 F.2d 595, 597, 599 (2d Cir.1991) (finding that clearing broker that kept custody of investor’s funds and securities had no fiduciary duty to him). Clearing brokers may have a fiduciary duty to investors in certain extenuating circumstances. See, e.g., Goldman v. McMahan, Brafman, Morgan & Co., No. 85 Civ. 2236(PKL), 1987 WL 12820, *22 (S.D.N.Y. June 18,1987) (finding that complaint adequately made out a claim for clearing agent’s breach of fiduciary duty due
2637	of Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939).” In Cobb v. Balkcom, 5 Cir., 1964, 339 F.2d 95, this Court held “that a Negro defendant in a criminal case is entitled to indictment by a grand jury and trial before a traverse jury from which Negroes have not been arbitrarily and systematically excluded. A conviction cannot stand where such is established for it constitutes a denial of due process and of the equal protection of the laws.” The burden of proof is on the-person attacking selection procedure to show “the existence of purposeful discrimination” by the exclusion of Negroes on account of race from jury participation. Whitus v. State of Georgia, supra; Fay v. People of State of New York, 332 U.S. 261, 285, 67 S.Ct. 1613, 1626, 91 L.Ed. 2043 (1947). Purposeful discrimination may not be assumed or merely asserted, it must be proven. Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). “When Negro representation on venire lists is not extremely disproportionate to the Negro population in the parish [county], the burden may be a heavy one.” Labat v. Bennett, 5 Cir., 1966, 365 F.2d 698, 712. However, juries must be drawn from a fair cross section of the community. Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ; Thiel v. Southern Pac. Co., 328 U.S. 217,
4703	the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.”’ (alteration in original) (citation omitted) (quoting Fed.R.Civ.P. 8(a)(2))). For the purposes of a motion for judgment on the pleadings, as with a motion to dismiss under 12(b)(6), the Court is required to consider as true the factual allegations contained in the Complaint. See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiffs favor.” (italics and internal quotation marks omitted)); Gonzalez v. Caballero, 572 F.Supp.2d 463, 466 (S.D.N.Y.2008) (same). In deciding a motion for judgment on the pleadings, as with a motion to dismiss, “a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal quotation marks omitted) (applying standard to a Rule 12(b)(6) motion); see also Smith v. City of New York, No. 13-CV-2395, 2014 WL 4904557, at *8 (E.D.N.Y. Sept. 30, 2014) (“When deciding a motion on the pleadings, the court must confine its consideration to the pleadings and their attachments, to documents ...
460	indifferent only if he or she “knows of and disregards an excessive risk to inmate ... safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference”); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir.1986) (summary judgment was proper where plaintiff had not provided evidence demonstrating that defendants “had any reason to believe” that plaintiff would be attacked). To the extent that Sanchez’s action challenges prior parole suitability decisions or would otherwise necessarily demonstrate the invalidity of the duration of his confinement, it is barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). See Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir.1997) (Heck bars prisoner’s § 1983 action alleging that “defendants violated his due process rights by considering false information in his prison file to find him ineligible for parole”). We do not consider matters not specifically and distinctly raised and argued in the opening brief, or documents presented for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir.2009) (per curiam); United States v. Elias, 921 F.2d 870, 874 (9th Cir.1990) (“Documents or facts not presented to the district court are not part of the record on appeal.”). We reject Sanchez’s contentions concerning discovery because the record shows that the district court ordered Baker to respond to Sanchez’s discovery before it granted summary judgment
1913	initiate any other litigation until 2001 — after the six-year period had run— Merkos is, at this stage, entitled to the reasonable inference that at least some preparation for the litigation fell within the period. B. Money Damages Consumer confusion is the cornerstone of trademark infringement. Injunctive relief — “the usual and standard remedy,” 5 McCarthy on Trademarks § 30.1 — is appropriate when there is a likelihood of confusion; such a likelihood exists, as a matter of law, “when a junior user has affixed a senior user’s mark to ‘substantially identical products directed at the same market and sold through the same outlets.’ ” Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 966 (2d Cir.1981) (quoting Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44, 47-48 (2d Cir.1978)). To recover damages, by contrast, a plaintiff must show either “actual consumer confusion or deception resulting from the violation,” or “or that the defendant’s actions were intentionally deceptive thus giving rise to a rebuttable presumption of consumer confusion.” George Basch Co. v. Blue Coral, Inc., 968 F.2d 1532, 1537 (2d Cir.1992). As noted, whether Vaad engaged in intentionally deceptive conduct presents a question of fact. Therefore, the Court cannot say, as a matter of law, that Merkos is limited to only injunctive relief. IV The PTO’s decision approving Merkos’s application for registration of the Kehot logo as a trademark is affirmed. Accordingly, Vaad’s motion for summary judgment is denied in that respect, while Merkos’s cross-motion is granted. With regard to
3901	made no attempt to comply. In In re Bon Ton Restaurant and Pastry Shop, Inc., 52 B.R. 850 (Bkrtcy.N.D.Ill.1985) the debtor filed its motion to assume within 60 days after the commencement of the case, thus clearly complying with both the requirements of the statute and the bankruptcy rules noted in Cybernetics. The only issue in Bon Ton was whether the court was required to hear the motion and rule within the 60 days. “By filing its motion within 60 days of the commencement of its case and presenting it for court approval within that time, Bon Ton manifested an unconditional and unambiguous decision to assume.” 52 B.R. at 854. That issue, however, is not before this court. And In re By-Rite Distributing, Inc., 55 B.R. 740 (D.Utah 1985) the debtor also timely filed its motion to assume the unexpired lease. On appeal the district court decided that the bankruptcy court was not required to both hear and decide the motion within the 60-day period, thereby overruling the bankruptcy court’s decision to the contrary. Finally, Debtor’s reliance on In re Carlisle Homes, Inc., 103 B.R. 524 (Bkrtcy.D.N.J.1988) is misplaced as that case dealt with debtor’s timely assumption of an exec-utory option agreement to purchase property. In finding that the debtor's letter to the option or constituted a clear communication in an unequivocal manner of its intent to assume the option, Judge Gambar-della stated: “The trustee or debtor-in-possession may assume or reject an executory contract for purposes of § 365(d)(4) by
2692	3007 (claims objections) and 7001(1), (2), and (9) (adversary proceeding required for avoidance of hen, or determination of its “validity, priority, or extent,” or declaratory judgment of same). As the Ninth Circuit stated in Enewally: Although confirmed plans are res judica-ta to issues therein, the confirmed plan has no preclusive effect on issues that must be brought by an adversary proceeding, or were not sufficiently evidenced in a plan to provide adequate notice to the creditor. * * :!= “[I]f an issue must be raised through an adversary proceeding it is not part of the confirmation process and, unless it is actually litigated, confirmation will not have a preclusive effect.” Cen-Pen Corp. v. Hanson, 58 F.3d 89, 93 (4th Cir.1995) (quoting In re Beard, 112 B.R. 951, 956 (Bankr.N.D.Ind.1990)). Enewally, 368 F.3d at 1173 (emphasis added). See also Shook v. CBIC (In re Shook), 278 B.R. 815, 824 (9th Cir.BAP 2002) (plan can effectively determine value and/or avoid a lien only if creditor receives “clear notice” that the plan will do so). Debtors argue that the order confirming the Plan states, “The court finds that the plan meets the requirements of 11 U.S.C. § 1325,” implying that such requirements were “actually litigated.” Section 1325 provides that, unless collateral is surrendered or the holders of allowed secured claims agree otherwise, they must retain their liens and the value of distributions under the Chapter 13 plan must be “not less than the allowed amount of such claim.” 11 U.S.C. § 1325(a)(5). If
4707	when accounting for the hours for which he was not paid. Indeed, Plaintiffs reasoning is undercut by Lundy, in which the Second Circuit held that employees are not entitled to recovery for unpaid hours worked up to 40 hours a week, so long as the average hourly rate still exceeds the minimum wage. See Lundy, 711 F.3d at 116 (“ ‘[T]he agreement to work certain additional hours for nothing was in essence an agreement to accept a reduction in pay. So long as the reduced rate still exceeds [the minimum wage], an agreement to accept reduced pay is valid— ’ [The] [plaintiffs here have not alleged that they were paid below minimum wage.” (alterations in original) (quoting United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 494 (2d Cir.1960))). Here, Plaintiff may be entitled to recovery for overtime hours worked in excess of 40 hours a week, but the Court finds that under the reasoning in Lundy, Plaintiffs FLSA minimum wage claim should be dismissed. B. Rule 56 Motion 1. Standard of Review Summary judgment shall be granted where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgmént as a matter of law.” Fed. R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir.2014) (same). “In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and ... resolve
2656	to the nature of an acceptable objection. Rule 33(b)(4) states that an objection must be “stated with specificity.” Fed.R.Civ.P. 33(b)(4). In comparison, Rule 34(b), states: “If objection is made to part of an item or category, the part shall be specified and inspection permitted of the remaining parts.” Fed.R.Civ.P. 34(b). In Drexel Heritage, the United States District Court for the Middle District of North Carolina acknowledged that while the plain language of Rule 34 does not explicitly provide for waiver when objections are not stated, “Rule 34(b), like Rule 33(b)(4), requires the reasons for any objections to be explicitly stated. Therefore, the Court finds the waiver to be an implicit one.” Drexel Heritage, 200 F.R.D. at 258 (footnote omitted). Likewise, in Hall v. Sullivan, 231 F.R.D. 468, 474 (D.Md.2005), the court held that implicit within Rule 34 is the requirement that objections to document production requests must be stated with particularity in a timely answer, and that a failure to do so may constitute a waiver of grounds not properly raised, including privilege or work product immunity, unless the court excuses this failure for good cause shown. Furthermore, boilerplate objections in response to a Rule 34 request for production of documents are widely rejected. McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir.1990) (finding insufficient, objections to document requests on the grounds that they were overly broad, burdensome and oppressive); Sabol v. Brooks, 469 F.Supp.2d 324, 328-29 (D.Md. 2006) (court found that an out-of-state non-party
2007	are no longer based solely on usual experience and response but are individualized (geared to the specific individual’s actual experience and response). Hence, under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of a predisposition toward development of that condition. For example, VA does not deny a service-connection award to a veteran whose lack of good balance causes him to fall and be injured during service even though a service person with better balance would not have been injured at all. This is analogous to the well-established principle of tort law that a tortfeasor “takes the plaintiff as he finds him.” Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 907-08 (2d Cir.1993) (quoting Maurer v. United States, 668 F.2d 98, 100 (2d Cir.1981) (per curiam), and citing Restatement (Second) of Torts § 435, at 454 (1965) and W. Page Keeton et al, Prosser and Keeton on the Law of Torts § 43, at 292 (5th ed.1984)); see Maurer, 668 F.2d at 99-100 (“It is a settled principle of tort law that when a defendant’s wrongful act causes injury, he is fully liable for the resulting damage even though the injured plaintiff had a preexisting condition that made the consequences of the wrongful act more severe than they would have been for a normal victim.”); see also Stevens v. Bangor and Aroostook R.R., 97 F.3d 594, 602 n. 8 (1st Cir.1996) (noting that
579	not be set aside unless clearly erroneous, * * * .” Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. In Cleo Syrup Corp. v. Coca-Cola Co., 8 Cir., 1943, 139 F.2d 416, at page 418, 150 A.L.R. 1056, certiorari denied 321 U.S. 781, 64 S.Ct. 638, 88 L.Ed. 1074, this court said: “In a non-jury case, this Court may not set aside a finding of fact of a trial court unless there is no substantial evidence to sustain it, unless it is against the clear weight of the evidence, or unless it was induced by an erroneous view of the law. Aetna Life Ins. Co. v. Kepler, 8 Cir., 116 F.2d 1, 4, 5; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 138 F.2d 197, 199; Travelers Mutual Casualty Co. v. Rector, supra [8 Cir., 138 F.2d 396]. * * * ” We have carefully examined the record in the light of the contentions of the defendant and must conclude that the trial court’s findings are based on substantial evidence, are not clearly erroneous, or induced by an erroneous view of the law and accordingly may not be set aside. In his exhaustive opinion, the able trial judge has with meticulous care commented on each of the defendant’s contentions. It would serve no good purpose for us to reiterate the trial court’s statements, which, as we have stated, are published and available, 160 F.Supp. 7. The judgment appealed from is affirmed. . “This contract .and agreement made and
4857	testified that such a person would still be able to perform the unskilled work already identified. Finally, Withrow’s contention that the vocational expert’s testimony deviates from agency policy lacks merit. Withrow points to no actual conflict between agency policy and the vocational expert’s testimony .that a claimant with moderate mental limitations can perform unskilled work. Moreover, this court has upheld determinations that claimants with moderate mental limitations are capable of doing simple unskilled work. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (upholding a denial of benefits where the ALJ found that a claimant with “moderate restrictions of his capacity to concentrate, interact with the public, and carry out detailed work instructions” was not disabled); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008) (the ALJ’s finding of moderate mental limitations was consistent with an RFC for simple, routine, and repetitive work). With-row’s reliance on the Program Operations Manual System (POMS) is misplaced, because POMS “does not impose judicially enforced duties on either this court or the ALJ.” Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
2565	In order to state a cause of action under 42 U.S.C. § 1983, the Supreme Court requires only two elements: First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of the right acted under color of state law. These elements may be put forth in a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). In reviewing the complaint on a motion to dismiss, no more is required from plaintiffs allegations of intent than what would satisfy Rule 8’s notice pleading minimum and Rule 9(b)’s requirement that motive and intent be pleaded generally. Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir.2001) (citations, quotation marks and ellipsis omitted). Mr. Hansborough alleges that “Judge Rieckhoff improperly sentenced me” (complaint at p. 3), and refused to correct his error. Mr. Hansborough further asserts that he has now served time “in excess above and beyond the already improper sentence.” (Complaint at p. 3). He also alleges that Deputy Prosecutor Meteiver prepared the plea agreement and knew he was improperly sentenced. Finally, he asserts that Sheriff Brooks “is aware of [his] situation and circumstances ... [and] ... is guilty of unlawful incarceration.” (Complaint at p. 4). To the extent Mr. Hansborough asks the court to order his release from custody, he states no claim upon which relief can be granted under § 1983. “Habeas corpus is
3415	conspire). The government presented sufficient evidence at trial, aside from the burglary conviction, from which a reasonable jury could have determined that Terrell stole the firearm that was found in his possession. Evidence that forms an “integral and natural part of the witness’s accounts of the circumstances surrounding the offenses for which the defendant was indicted” is admissible even if it tends to reflect negatively on the defendant’s character. United States v. Foster, 889 F.2d 1049, 1053 (11th Cir.1989). Here, the burglary conviction placed the firearm offense in context. Accordingly, there was no error in the admission of this evidence. B. Motion for a Mistrial A district court’s denial of a motion for mistrial is reviewed for abuse of discretion. United States v. Abraham, 386 F.3d 1033, 1037 (11th Cir.2004). When a curative instruction has been given, this court will reverse only if the evidence “is so highly prejudicial as to be incurable by the trial court’s admonition.” United States v. Harriston, 329 F.3d 779, 787 n. 4 (11th Cir.2003). To justify the grant of a mistrial, the defendant must show that he was substantially prejudiced. United States v. Chastain, 198 F.3d 1338, 1352 (11th Cir. 1999). “[This court] determined whether an error had substantial influence on the outcome by weighing the record as a whole.” See United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.1999). Here, the district court did not abuse its discretion in denying the mistrial. The statement that Terrell was a multiconvicted felon was a
4340	status conference. At the status hearing on March 20, 1998, for example, Mr. Chestnut pleaded for a trial date because he had no faith that the ease would settle and he wanted to protect the interests of the class. Government counsel continued to file motions and protect the legal interests of the USDA. Certainly the Court can attest to the fact that the parties litigated vigorously all of the issues that were or logically could have been raised. 4. Notice, Opportunity to Be Heard and Reaction of the Class When a class is certified and a settlement is proposed, the parties are required to provide class members with the “best notice practicable under the circumstances.” Rule 23(c)(2), Fed.R.Civ.P.; see Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 172-77, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). The Court concludes that class members have received more than adequate notice and have had sufficient opportunity to be heard on the fairness of the proposed Consent Decree. See Durrett v. Housing Authortty of City of Providence, 896 F.2d at 604. First, the timing and breadth of notice of the class settlement was sufficient under Rule 23. Notice was mailed to all known class members by January 15, 1999, nearly six weeks before the fairness hearing and a month before the deadline for comments, providing class members with ample time to submit their objections. See Maywalt v. Parker and Parsley Petroleum Co., 67 F.3d at 1079; Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370,
3103	to inform plaintiff of her right to file a claim; and failed to “apply the correct law to Plaintiffs claim.” Compl. ¶ 16. Pearson seeks restitution of all past benefits due, unspecified damages, attorneys’ costs and fees, and declaratory and injunctive relief. II. LEGAL STANDARD Defendants bring this motion under Rules 12(b)(6) and 12(f). A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in a complaint. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007). “[F]actual allegations must be enough to raise a right to relief above the speculative level.” Id at 1965. However, since defendants move, in part, for dismissal on the basis of a lack of subject-matter jurisdiction, discussed below, the motion should also have been filed under Rule 12(b)(1). As the Ninth Circuit has recently explained, a 12(b)(1) motion for dismissal for lack of subject-matter jurisdiction and a 12(b)(6) motion for dismissal for failure to state a claim are based on distinct concepts: “the former determines whether the plaintiff has a right to be in the particular court and the latter is an adjudication as to whether a cognizable legal claim has been stated.” Trustees of Screen
3709	(9th Cir.2000). As explained in Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1038 (9th Cir.2004): In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the. challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. “If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of jurisdiction contained in the. complaint are insufficient on their face to demonstrate the existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made.” Cervantez v. Sullivan, 719 F.Supp. 899, 903 (E.D.Cal.1989), rev’d on other grounds, 963 F.2d 229 (9th Cir.1992). “The factual, allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Id.; see also Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1052 n. 2 (9th Cir.2009), rev’d on other grounds en banc, 616 F.3d 1019 (9th Cir.2010) (applying Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), to a facial motion to dismiss for lack of subject matter jurisdiction). V. ANALYSIS A. Whether Plaintiff Has Standing to Bring Its Inventorship Claim Plaintiffs tenth cause of action seeks a declaratory judgment stating that Lininger is a co-inventor of patents numbers 6,604,-053 (“'053 Patent”), 6,722,208 (“'208 Patent”), 6,799,474 (“'474
4987	of Amchem and Ortiz as mere dicta explaining that, in those two particular cases, the Court chose to expound on class certification issues rather than standing issues. Mullenix, 2004 Mich. ST. L. Rev. at 714. The Seventh Circuit appeared headed toward the former interpretation in Pay-ton v. County of Kane when it called Ortiz’s language a “directive” to consider class certification before issues of standing. Payton v. County of Kane, 308 F.3d 673, 680 (7th Cir.2002). However, the Seventh Circuit appeared to retreat from that language in Arreola v. Godinez when it agreed that, at least in that case, “standing is an antecedent legal issue that we must resolve before proceeding to our evaluation of the district court’s class certification decision.” Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir.2008). This Court concedes the field is muddied with reasonable interpretations of Ortiz and Amchem on both sides, but it endorses Mullenix’s view that the cases do not require that class certification issues always be resolved before standing issues are addressed. Moreover, the Court finds the distinction provided by an Indiana case persuasive. In Catlin v. Hanser, the Court noted that eases where standing has been raised before class certification motions are made are easily distinguishable from Payton. Catlin v. Hanser, 2011 WL 1002736, at *7-8, 2011 U.S. Dist. LEXIS 28323, at *24-25 (S.D.Ind. March 17, 2011). Like Catlin, no class certification motion is pending here, and the Court will not defer the issue of Article III standing. B. Juridical Link
16	of the MONCLA 101 loss. For Monda Marine’s claims to be within the scope of the arbitration clause, the claims must relate to “any dispute arising under or in connection with this insurance.” The Fifth Circuit has stated, and this Court agrees, that “it is difficult to imagine a broader general language than ‘any dispute.’ ” Sedco, 767 F.2d at 1145 (internal quotation marks omitted). The inclusion of the language “in connection” also reaffirms the breadth of the arbitration clause in this case, and the Fifth Circuit has expressly stated that broad arbitration agreements embrace “all disputes between the parties having a significant relationship to the contract regardless of the label attached to the dispute.” Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1067 (5th Cir.1998). Accordingly, the Court finds that a valid arbitration agreement exists under the Convention, and Monda Marine’s claims are within the scope of the agreement. D. Monda Marine contends that arbitration is inappropriate for several reasons, all of which the Court finds unpersuasive. First, Monda Marine asserts that the policy language does not require arbitration. Specifically, Monda Marine points to the “Risk Details,” which states that jurisdiction is governed by the “Osprey Service of Suit Clause” and the applicable choice of law is determined by the “Osprey Law and Practice Clause.” And, “[a]ny other provision contained herein which provides for any law and/or jurisdiction other than that stated in this Choice of Law and Jurisdiction is deemed deleted.” Therefore, Monda Marine
4575	from Melendres in support of its claims. B. Application of Non-Mutual, Offensive Issue ’Preclusion to Mari-copa County Maricopa County argues non-mutual, offensive issue preclusion should not apply to the County, which was ,not a party, to Melendres. The United States argues non-mutual, offensive issue preclusion should apply to Maricopa County because the County was only dismissed from the previous suit because of its identity with MCSO, which was a party and, further, that Maricopa County is in privity with MCSO and Arpiaio with respect to the previous litigation and was adequately represented-therein. “A person who was not a party to a suit generally has not had a ’full and fair opportunity to litigate’ the claims and issues settled in that suit.” Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). But the Supreme Court has recognized six categories of exceptions to this general principle. A non-party may be precluded from relitigating an issue from a prior case when: (1) the nonparty agreed to be bound by the determinations of the prior case; (2) the non-party had a “pre-existing ‘substantive legal relationship’ ” with a party bound by the judgment; (3) the nonparty was “adequately 'represented by someone with the same interests who [wa]s a party”; (4) the nonparty “ ‘assume[d] control’ over the litigation in which [the] judgment was rendered;” (5) a party to the previous litigation was a “designated representative” or proxy of the nonparty; and (6) a special statutory scheme “expressly foreelose[es] successive
2464	of the litigation.”) (citations omitted). A. Standing The question of standing “involves constitutional limitations of federal court jurisdiction.” Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). “To satisfy the case or controversy requirement of Article III, which is the irreducible constitutional minimum of standing, a plaintiff must, generally speaking, demonstrate that he has suffered injury in fact, that the injury is fairly traceable to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.” Id. “In addition to constitutional requirements, standing also involves prudential limits on the exercise of federal jurisdiction.” Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031, 1036 (8th Cir.2002) (citing Bennett, 520 U.S. at 162,117 S.Ct. 1154). Constitutional standing “assures that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). “Absent specific facts establishing distinct and palpable injuries fairly traceable to [the defendants’ conduct]” the injury in fact requirement is not satisfied. Ark. ACORN Fair Horn., Inc. v. Greystone Dev., Inc., 160 F.3d 433, 435 (8th Cir.1998). Therefore, absent an actual controversy, the Court lacks jurisdiction. See
4145	widow for the 4-month period between a husband’s fall and his death from that fall. 31 F.Supp.2d 110, 132-33 (E.D.N.Y.1998). In LaMarca, the decedent suffered from osteoporosis and severe arthritis and was in extremely poor health prior to his last hospitalization, hence the low award. Id. at 125. In Goldstein v. U.S., set forth supra, the court awarded $50,000.00 to the husband of accident victim Goldstein. The court found that “$50,000 balanced the lack of quality leisure time the Goldstein[’]s shared prior to the accident, with the recognition of the many domestic chores Francine Goldstein did, but can no longer do, to keep the house, and the benefits that Allen Goldstein derived from those pre-accident efforts.” 9 F.Supp.2d at 193-94. In Battista v. U.S., 889 F.Supp. 716 (S.D.N.Y.1995), the court awarded $10,000.00 for loss of consortium. Mrs. Battista cared for her husband in the first four months after his accident. The court noted that “[n]either Mrs. nor Mr. Battista testified that their love and affection for each other had diminished after the accident,” nor did the Battistas expend any money to have household chores performed. Id. at 729. Based on consideration of the aforementioned cases and the facts of this case, the court awards Lisa Dockery $40,000.00 for loss of consortium due to her husband’s injury. C. Attorneys’ Fees Pursuant to 28 U.S.C. § 2412(d)(1)(A), plaintiffs cannot recover attorney’s fees from the defendant. Attorney’s fees must be taken from any judgment or settlement and pursuant to 28 U.S.C. § 2678
1345	Id. ¶¶ 109-66. II. LEGAL STANDARD A. Rule 8(a) Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient specificity to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotations omitted). A complaint which falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.2008). Moreover, the factual allegations “must be enough to raise a right to relief above the speculative level” such that the claim “is plausible on its face.” Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955. When deciding whether to grant a motion to dismiss, the court generally “may not consider any material beyond the pleadings.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990). The court must accept as true all “well-pleaded factual allegations.”' Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The court must also construe the alleged facts in the light most favorable to the plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th
2795	that the debates regarding the effects of dioxin are still ongoing. The wide range of expert testimony presented to the court during the hearing on plaintiffs motion makes clear that the seriousness of the dioxin threat is far from settled. In considering the likelihood of plaintiffs success on the merits of this claim, this court is guided by the Supreme Court’s observation in Marsh that a determination of whether new information is significant is an issue that the agency is to resolve. As in Marsh, “[b]eeause analysis of the relevant documents ‘requires a high level of technical expertise,’ we must defer to ‘the informed discretion of the responsible federal agencies.’ ” 490 U.S. at 377, 109 S.Ct. at 1861 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 2731, 49 L.Ed.2d 576 (1976)). Defendants presented expert testimony characterizing the dioxin risks as minimal, and although plaintiffs experts, who sounded a strong warning regarding dioxin risks at even low doses, were also highly qualified, “[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Id. at 378, 109 S.Ct. at 1861. Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1527 (10th Cir.1992). Although plaintiffs challenge the certainty with which the defendants’ experts were able to support their opinions regarding the low level of the dioxin risks, the court finds that the effect
3699	Product Line and failed to remedy defects discovered in 2009 and 2011; causing BECO to lose sales. Id. at ¶¶ 51-57. Plaintiff alleges that in 2013, Defendant began reaching out to Plaintiffs customer's to sell them Cow ID and Product Line technology directly. Id. at ¶58. Ultimately, GTS refused to provide Plaintiff with the products at all. Id. at ¶ 61. IV. STANDARD OF DECISION A. 12(b)(6) Legal Standard A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint.. A 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990). In considering a motion to dismiss for failure to state a- claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in ^the pleader’s favor. Lazy Y. Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.2008). To survive a 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
1240	as a result of the removal.” 28 U.S.C. § 1447(c). “Assessment of costs and fees against the removing defendants is within the court’s discretion and does not require a finding of bad faith or frivolity.” Kupersteien, 457 F.Supp.2d at 472 (footnote omitted); see also Morgan Guar. Trust Co. of New York v. Republic of Palau, 971 F.2d 917, 923-24 (2d Cir.1992) (stating that § 1447(c) “affords a great deal of discretion and flexibility to the district courts in fashioning awards of costs and fees”). “Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005); see also Kuperstein, 457 F.Supp.2d at 472 (stating that courts have awarded costs when “defendants ... failed to establish a reasonable basis for removal,” but that the “mere fact that the defendant fail[ed] to carry his burden” does not justify an award) (internal quotation marks and footnote omitted). The Court, in its discretion, denies costs and attorneys’ fees. Although Defendants did not prevail in opposing the motion to remand, the fraudulent joinder claim on which the removal was based was objectively reasonable considering the circumstances and the nature of the case. See Intershoe, 97 F.Supp.2d at 476 (declining to award costs and attorneys’ fees “[i]n light of the subtleties involved in applying fraudulent joinder principles
4625	“contrary to, or involved an unreasonable application of, clearly established Federal law” or “was based on an unreasonable determination of the facts in light of the evidence presented.” § 2254(d)(1), (2). Logsdon argues that the evidence presented at his trial was insufficient to support a conviction for racketeering because the state failed to prove the existence of an enterprise, and that his crimes involved only “garden variety fraud” falling outside the ambit of the racketeering statute. In assessing a claim of insufficient evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 448 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Because the OCCA applied this standard in rejecting Logs-don’s claim on the merits, we need only determine whether its application of Jackson was reasonable. See Brown v. Sirmons, 515 F.3d 1072, 1089 (10th Cir.2008). Under the Oklahoma racketeering statute, “[n]o person employed by or associated with any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of racketeering activity or the collection of an unlawful debt.” Okla. Stat. tit. 22, § 1403(A). An “enterprise” is defined to include any individual or group of persons “involved in any lawful or unlawful project or undertaking.” Okla. Stat. tit. 22, § 1402(2). In Glenn v. State, 26 P.3d 768 (Okla.Crim.App.2001), the OCCA held that
4413	to be considered material if there is a substantial likelihood that a reasonable person would con- sider it important in deciding whether to buy or sell shares of stock.” Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 92-93 (2d Cir.2010) (citation and internal quotation marks and brackets omitted). “A[n] omission is actionable under federal securities laws only when the [defendant] is subject to a duty to disclose the omitted facts.” In re Time Warner Inc. Sec. Litig., 9 F.3d 259, 267 (2d Cir.1993). Even though Rule 10b-5 imposes no duty to disclose all material, nonpublic information, once a party chooses to speak, it has a “duty to be both accurate and complete.” Caiola v. Citibank, N.A, N.Y., 295 F.3d 312, 331 (2d Cir.2002). “[A]n entirely truthful statement may provide a basis for liability if material omissions related to the content of the statement make it ... materially misleading.” In re Bristol Myers Squibb Co. Sec. Litig., 586 F.Supp.2d 148, 160 (S.D.N.Y.2008). However, corporations are “not required to disclose a fact merely because a reasonable investor would very much like to know that fact.” In re Optionable Sec. Litig., 577 F.Supp.2d 681, 692 (S.D.N.Y.2008) (quoting In re Time Warner Inc. Sec. Litig., 9 F.3d 259, 267 (2d Cir.1993)); see also City of Roseville, 814 F.Supp.2d at 410. A. This case is about BoA’s disclosure obligations with respect to a potential lawsuit by AIG against BoA based on BoA’s sale of MBS to AIG. At
3967	the McDonnell Douglas burden shifting test. As discussed when analyzing the ADA, ADEA, and ERISA claims, Kariotis’ has not come forward with enough evidence to support her allegations. Accordingly, the instant claim also fails under a similar analysis. E.Negligent Inñiction of Emotional Distress In Navistar’s motion for summary judgment, it presented one argument as to why it was entitled to summary judgment on Kariotis’ negligent infliction of emotional distress claim: it argued that Kariotis could not recover under Illinois law due to the application of the “impact rule.” The “impact rule” says that one cannot recover for negligent infliction of emotional distress unless such distress was “accompanied by a contemporaneously physical injury to or impact on the plaintiff.” Kapoulas v. Williams Ins. Agency, Inc., 11 F.3d 1380, 1382 (7th Cir.1993). In response, Kariotis noted that Illinois law was changed recently. The new law now permits recovery without the need to show a contemporaneous physical injury. See Pasquale v. Speed Products Engineering, 166 Ill.2d 337, 211 Ill.Dec. 314, 654 N.E.2d 1365 (1995). In reply, Navistar, conceded its error and agreed that the “impact rule” is no longer applicable. Nevertheless, Navistar, in its reply brief, asserted that Kariotis could not recover because her response failed to discuss the elements necessary to maintain a negligent infliction of emotional distress action. It is Navistar, however, who was obligated to discuss the elements, not Kariotis. This issue is before the Court on Navistar’s motion for summary judgment, not Kariotis’ motion. Thus, as part of its
1001	was not made. 9 U.S.C. § 10(a). “In addition, as judicial gloss on these specific grounds for vacatur of arbitration awards, we have held that the court may set aside an arbitration award if it was rendered in manifest disregard of the law.” Schwartz v. Merrill Lynch & Co., Inc., 665 F.3d 444, 451 (2d Cir.2011) (internal quotation marks, citation, and alteration omitted). Vacating an award for manifest disregard of the law requires a showing that “the governing law alleged to have been ignored by the arbitrators was well defined, explicit, and clearly applicable,” and that “the arbitrator knew about the existence of a clearly governing legal principle but decided to ignore it or pay no attention to it.” Jock v. Sterling Jewelers Inc., 646 F.3d 113, 121 n. 1 (2d Cir.2011) (internal quotation marks omitted); see Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 208 (2d Cir.2002) (stating that vacatur requires “something beyond and different from mere error in the law or failure on the part of the arbitrators to understand or apply the law” (internal quotation marks omitted)). An arbitrator’s award may also be vacated if it is “in manifest disregard of the terms of the parties’ relevant agreement.” Schwartz v. Merrill Lynch & Co., Inc., 665 F.3d at 452 (internal quotation marks and alteration omitted). In such cases, “interpretation of the contract terms is within the province of the arbitrator and will not be overruled simply because we disagree with that interpretation”; rather, “[i]f the arbitrator
4185	accidently shot the Plaintiffs is also disputed and an issue for trial. Upon review of the designated evidence and the totality of the circumstances, the reasonableness of Officers Zotz’s and Ross’ actions during the encounter with the Plaintiffs should be determined by the trier of fact. Therefore, the Plaintiffs’ Fourth Amendment claims for excessive force and unreasonable seizure with respect to Offi cers Zotz and Ross cannot be disposed of by summary judgment. 2. Clearly Established Right The Plaintiffs’ Fourth Amendment rights must also be clearly established. “To be clearly established, at the time of the challenged conduct, the right’s contours must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Humphries v. Milwaukee Cnty., 702 F.3d 1003, 1006 (7th Cir. 2012) (citation and quotation marks omitted). “While a case directly on point is not required, existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (citation and quotation marks omitted). In the context of a claim for excessive force, “there is no doubt that [case law] clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness.” Saucier, 533 U.S. at 201-02, 121 S.Ct. 2151. Yet that is not enough. Rather, we emphasized in Anderson “that the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right
1373	or limiting the scope of disclosure or discovery to certain matters; (E) designating the persons who may be present while the discovery is conducted; (F) requiring that a deposition be sealed and opened only on court order; (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. Fed. R. Civ. P. 26(c). The Ninth Circuit determined this Rule provides the Court with “extensive control” over the discovery process, and “authorizes] courts to make any order which justice requires” to protect the parties. United States v. CBS, Inc., 666 F.2d 364, 369 (9th Cir. 1982) (internal quotation marks omitted). In general, it is rare for a court to disallow the taking of a deposition. See Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975) (“strong showing is required before a party will be denied entirely the right to take a deposition”); see also Apple Inc. v. Samsung Electronics Co., 282 F.R.D. 259, 263 (N.D. Cal. 2012) (“it is very unusual for a court to prohibit the taking of a deposition altogether absent extraordinary circumstances”). In general, under Rule 26 “the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” Phillips v. GMC, 307 F.3d 1206, 1210-1211 (9th Cir. 2002). However, when
3915	claim. Silvas’s claim for damages under TILA is likewise barred by the applicable one-year statute of limitations. See 15 U.S.C. § 1640(e); King v. California, 784 F.2d 910, 915 (9th Cir.1986) (explaining that the limitations period runs from the date of the transaction but may be suspended by equitable tolling). The district court correctly determined that Silvas’s allegations concerning equitable estoppel were bare legal conclusions unsupported by facts and were inadequate to support a claim for equitable estoppel. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Nor is equitable tolling appropriate when, as here, Silvas did not make any showing of due diligence to discover the contents of her loan documents. See Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1193 (9th Cir.2001) (en banc) (equitable tolling is appropriate “in situations where, despite all due diligence, the party invoking equitable tolling is unable to obtain vital information bearing on the existence of the claim” (internal quotation and alteration marks omitted)). Accordingly, Silvas’s TILA damages claim is time-barred. Silvas also raised a rescission claim under TILA. Although the district court did not address this claim specifically, it concluded generally that Silvas was barred from equitable relief under the doctrine of unclean hands. We affirm the district court’s denial of a preliminary injunction on this basis. Silvas wishes to continue to live in her house, but she has not offered to make any payments on her loan, she did not tender any payments when she
3391	only to the approval of the Secretary of the Interior, to designate how its funds shall be disposed of, which in-eludes the power to designate that per capita payments be made to its members. It becomes operative as to the plaintiff only when the tribal council designates her as a member of the tribe for the purpose of per capita payments, and the designation is approved by the Secretary of the Interior. While it is true that if the plaintiff is to receive per capita payments they will be paid to her as authorized by the provisions of § 676, it does not fol-'w that a federal question is presented, As stated in our former decision, the case of Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70, sets forth the essential test to determine the presence of a federal question, where it is said: “* * * To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action. * * * The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another. * * * A genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto * * * ”
457	MEMORANDUM Amadeo Sanchez, a Nevada state prisoner, appeals, pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference to his safety. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.2004). We affirm. The district court properly granted summary judgment because Sanchez failed to raise a genuine dispute of material fact as to whether Baker knew of and disregarded an excessive risk to Sanchez’s safety. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (a prison official is deliberately indifferent only if he or she “knows of and disregards an excessive risk to inmate ... safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference”); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir.1986) (summary judgment was proper where plaintiff had not provided evidence demonstrating that defendants “had any reason to believe” that plaintiff would be attacked). To the extent that Sanchez’s action challenges prior parole suitability decisions or would otherwise necessarily demonstrate the invalidity of the duration of his confinement, it is barred by Heck v. Humphrey,
1973	sustainable under the good faith exception” of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See Memorandum of Richard I. Johnson, Sr., filed June 25, 1993, at 38; see also United States v. Roberts, 852 F.2d 671 (2d Cir.), cert. denied, 488 U.S. 993, 109 S.Ct. 556, 102 L.Ed.2d 583 (1988). The Government contends that the seizure authorization was not overbroad because the businesses searched were “permeated with fraud.” It is argued that, under such circumstances, the seizure of all business records of the companies controlled by the Defendants is authorized. See National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir.1980) (citing United States v. Brien, 617 F.2d 299, 309 (1st Cir.), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980)). The Fourth Amendment requires that warrants “particularly describ[e] ... the person or things to be seized.” The particularity requirement renders “general searches ... impossible and prevents the seizure of one thing under a warrant describing another.” Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). In reviewing a warrant against a claimed lack of particularity, “the language of a warrant is to be construed in light of an illustrative list of seizable items.” United States v. Riley, 906 F.2d 841, 844 (2d Cir.1990); see also United States v. Young, 745 F.2d 733, 759-60 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1842, 85 L.Ed.2d 142 (1985). While the
4100	... is official is normally a matter of law to be determined as an interlocutory question. However, even though testimony concerning officiality may be uncontroverted, or even stipulated, when such testimony permits conflicting inferences to be drawn, the question should generally be regarded as an issue of fact for resolution by the members.” Benchbook, H 3-31-ld. In United States v. Elmore, 33 M.J. 387 (C.M.A.1991), the Court of Military Appeals observed: “[A] military judge is not strictly limited to the theories advanced by the parties, but must instruct the court members on the legal points reasonably raised by the evidence.” Id. at 396. The issue, however, was not reasonably raised by the evidence in this case. This case is unlike United States v. Johnson, 24 M.J. 101 (C.M.A.1987), upon which the appellant relies. In that case the members “were left to grope without adequate instructional guidance from the military judge” with respect to the key term “national-defense utilities.” Id. at 108. The members in appellant’s ease only had to conclude that the appellant’s statement to a base security officer was “official.” That was not a difficult task. The meaning of the word “official” contained in the term “official statement” is within the common knowledge of mankind. United States v. Galloway, 8 C.M.R. 323, 329, 1952 WL 2643 (A.B.R.1952), aff'd on other grounds, 2 C.M.A. 433, 9 C.M.R. 63,1953 WL 2606 (1953). In the instant case the testimony was un-controverted. The appellant never made the slightest suggestion that his written statement,
3623	court erred by sentencing him as an armed career criminal under 18 U.S.C. § 924(e)(1) (“In the case of a person who violates section 922(g) of this title and has three previous convictions for a violent felony or a serious drug offense, or both ... such person ... shall be imprisoned not less than fifteen years.... ”). Eason has a prior 2006 conviction for delivery of cocaine, which he does not contest qualifies as a serious drug offense for purposes of the ACCA. We now must determine whether he has two additional qualifying prior convictions such that he was properly sentenced pursuant to the ACCA. “We review de novo whether a prior conviction is a predicate offense under the ACCA.” United States v. Shockley, 816 F.3d 1058, 1062 (8th Cir. 2016) (quoting United States v. Humphrey, 759 F.3d 909, 911 (8th Cir. 2014)). At sentencing, Eason made a general objection to use of the residual clause of the ACCA, arguing it was unconstitutionally vague and could not be applied to determine whether his prior convictions qualified for purposes of the enhancement. Eason did not specifically object to any particular conviction or make any additional argument to the district court. The district court overruled the objection, without ruling on whether the two additional convictions qualified under the residual clause, the force clause, or both. While this appeal, was pending, the Supreme Court held that the residual clause of the ACCA is unconstitutionally vague. See Johnson v. United States, — U.S. -,
3999	of the claim terms in issue is most consistent with the use of the words by the inventor.” Texas Digital, 308 F.3d at 1202. In this case, Plaintiff argues that “hollow” does not mean “empty” because the patents incorporated by reference into the '833 patent describe “hollow” floatation units that may contain either air, or water, or foam. (See '833 patent, col. 3, 11. 30-33, Pis.’ Ex. 1, ECF No. 257-2.) Where the patent specification incorporates by reference other patents to help define what is disclosed, those publications are “highly relevant to one of ordinary skill in the art for ascertaining the breadth of the claim term.” AquaTex Industries, Inc. v. Techniche Solutions, 419 F.3d 1374, 1381 (Fed.Cir.2005); see also Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed.Cir.2005) (en banc) (“The specification is always highly relevant to the claim construction analysis.”). The '833 patent says that the floatation units it uses are “substantially similar to that shown in U.S. Patents 3,824,644 and 4,604,962, and the disclosure of those patents is incorporated in its entirety into this application.” '833 patent, col. 3,11. 30-33. The Guibault patent, U.S. Patent 4,604,962, states, “[e]ach floating unit 22 is water-proof and preferably hollow and may be moulded out of synthetic resins such as a high density polyethylene. A plastic foam may fill each unit 22.” '962/Guibault Patent, col. 2, 11. 35-39. Therefore, the '833 patent has a disclosure incorporated by reference that explicitly describes the floatation unit as hollow, but may be filled with
4784	does not enlarge or expand the jurisdiction of the courts but merely confers ancillary jurisdiction where jurisdiction is otherwise granted and already lodged in the court. Covington and Cincinnati Bridge Co. v. Hager, 1906, 203 U.S. 109, 111, 27 S.Ct. 24, 51 L.Ed. 111, and Knapp v. Lake Shore and Michigan Southern Ry. Co., 1905, 197 U.S. 536, 25 S.Ct. 538, 49 L.Ed. 870. The statute presupposes existing complete jurisdiction and does not contain a new grant of judicial power. In passing upon the meaning and purpose of this section this court has said: “[w]hile the section augments the power of the court in cases of existing jurisdiction, it in no wise expands or extends its territorial jurisdiction.” Edgerly v. Kennelly, 7 Cir., 1954, 215 F.2d 420, 422. There are few authorities touching upon the jurisdiction of a district court to entertain an information in the nature of quo warranto. “No instance is known of the use of writ of quo warranto in a district court of the United States other than the District Court of the District of Columbia.” Cyc. of Federal Procedure, 2d Ed., Sec. 7098. The court, in United States v. Malmin, 3 Cir., 1921, 272 F. 785, 790, indicated that quo warranto is the proper remedy to try the title of a judge of a court of the United States but did not indicate in what court it could be entertained. In a suit to enjoin defendant city from levying taxes the court noted that the
1614	should require him to draw the jury’s attention to the possible inference of guilt from a co-defendant’s silence, the trial judge’s duty is to order that the defendant be tried separately.” Elsewhere in that opinion (p. 143), the Court made explicit its premise that counsel for a defendant in a criminal case “should be free to draw all rational inferences from the failure of a co-defendant to testify, just as an attorney is free to comment on the effect of any interested party’s failure to produce material evidence in his possession or to call witnesses who have knowledge of pertinent facts.” There is no occasion now, and there may never be one in this case, to pursue that suggestion. Cf. Hayes v. United States, 329 F.2d 209, 221-222 (8th Cir.), cert. denied sub nom. Bennett v. United States, 377 U.S. 980, 84 S.Ct. 1883, 12 L.Ed.2d 748 (1964). It is enough to say that Karp has shown persuasive ground for the claim that she needs Pitkin’s evidence; that the need must almost certainly go unsatisfied in a joint trial; and that there is substantially greater likelihood of her using him if they are tried separately. Viewing the matter as one of discretion, and weighing the probabilities in light of the interest in expeditious as well as fair proceedings, I find it appropriate to order a severance now rather than to await the commencement of a joint trial and the attendant likelihood that a severance will then be required to avoid
1982	the enterprise was permeated with fraud), given the closely-connected nature of the Defendants’ businesses here, it would not have been possible “through a more particular description to segregate those business records that would be evidence of fraud from those that would not----” United States v. Offices Known as 50 State Distributing Co., 708 F.2d 1371, 1374 (9th Cir.), cert. denied, 465 U.S. 1021, 104 S.Ct. 1272, 79 L.Ed.2d 677 (1984). An affidavit in support of a search warrant need not set forth specific factual evidence demonstrating that every part of the enterprise was engaged in fraud, only sufficient factual evidence of fraudulent activity from which the issuing magistrate could infer that those activities are “just the tip of the iceberg.” United States v. Burke, 718 F.Supp. 1130, 1140 (quoting Brien, supra, at 308). That evidence could consist of proof of a “large number of fraudulent transactions,” or proof that the fraudulent operations are “inseparable” from the other business operations. See Burke, supra, at 1140-41. In Matter of Search of 4801 Flyer Avenue v. Householder, 879 F.2d 385 (8th Cir.1989), cert. denied, 494 U.S. 1026, 110 S.Ct. 1470, 108 L.Ed.2d 608 (1990), the court examined a similarly, broad search warrant executed on a company involved in the handling of hazardous wastes and accused of improper disposal of wastes and resulting contamination. Although the court disposed of the case on procedural grounds, it stated that the warrant was not overbroad because of the “pervasive pattern” of unlawful activity that permeated the entire
4268	U.S. 379, 391, 57 S.Ct. 578, 81 L.Ed. 703 (1937). See Pfeffer, This Honorable Court (1965) 322-32; Sutherland, Constitutionalism in America (1965) 528-29. . If tlie Safeway samples analyzed by plaintiff were Clearfield’s, heat-sealing cellophane was used but (for ease of opening) not heat-sealed, “the end seal depending to some degree on the adhesive quality of the cheese.” App. to Dft’s. brief, p. 2. There is thus no violation of Claims 3 and 4 shown. . See, e.g., Isaiah 30:24, 45:9; Jeremiah 18:4, 6, 19:11; Proverbs 30:18-19. . We may note that a patent applicant is charged legally with knowledge of the state of the prior art, even if in fact he believes his process to be novel. Duer v. Corbin Cabinet Lock Co., 149 U.S. 216, 223, 13 S.Ct. 850, 37 L.Ed. 707 (1893). . “John Sígalos [patent lawyer] is to give us an opinion on this point. If filling an unsealed tube will avoid an infringement of Brandenberger then we could not expect to take action against Clearfield if we own the Brandenberger patent.” App. to Deft.’s Brief p. 14. There is no evidence in the record as to what opinion Mr. Sigalos gave.
824	United States Court of Appeals for the Eighth Circuit recognizes that the parent company is the actual employer if the parent company so dominates the subsidiary’s operations that the two are one entity and therefore one employer, or if the parent company is linked to the alleged discrimination action because it controls “individual employment decisions.” Brown v. Fred’s Inc., 494 F.3d 736, 739 (8th Cir. 2007). Factors under such an analysis include whether there is interrelation of operations, common management, centralized control of labor relations, and common ownership. Scheidecker v. Arvig Enter., Inc., 122 F.Supp.2d, 1031, 1037 (D.Minn. 2000). In general, “liberal construction is ... to be given to the definition of employer’ ” under Title VII. Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 793 (8th Cir.2009). Under the circumstances of this case, even if this Court were to consider Cow Country Equipment to be a separate subsidiary and legal entity apart from Ace Steel, the circumstances of the operation indicate a single entity, or at a minimum a genuine issue of material fact as to whether there is a single entity. After all, Nelson was given information that “everyone that works at Cow Country is really working for Ace Steel,” and was provided payroll and other employment information indicating that the entity for which she worked was “Ace Steel & Recycling/Cow Country Equipment,” or Ace Steel doing business as Cow Country Equipment. III. Conclusion For the reasons contained in the Opinion and Order, it is hereby
3717	in that Order, the Court grants Plaintiff leave to amend this claim. B. Inequitable Conduct Claim Plaintiffs thirteenth cause of action alleges that all patents-in-suit are unenforceable, in part, because of Defendant’s inequitable conduct. FAC ¶¶ 345, 352-377. Plaintiff claims that the patents are unenforceable because the patent attorney failed to disclose material prior art and that Defendant concealed Lininger’s contributions to work on the patents. Id. at ¶¶ 354, 373. Defendant argues that Plaintiffs allegations sounding inequitable conduct fail to meet the heightened pleading standard required for claims sounding in fraud. MTD at 13. The Federal Circuit has made clear that inequitable conduct “while a broader concept than fraud, must be pled with particularity” under Rule 9(b). Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312, 1326 (Fed.Cir.2009). “[T]he accused infringer must prove by clear and convincing evidence that the applicant knew of the reference, knew that it was material, and made a deliberate decision to withhold it.” Therasense, Inc. v. Becton, Dickinson & Co., 649 F.3d 1276, 1290 (Fed.Cir.2011). Pleadings will only survive a motion to dismiss “if the plaintiffs complaint recites facts from which the court may reasonably infer that a specific individual both knew of invalidating information that was withheld from the [US Patent and Trade Office] and withheld that information with a specific intent.to deceive the PTO.” Delano Farms Co. v. California Table Grape Comm’n, 655 F.3d 1337, 1350 (Fed.Cir.2011). It may only require “but a few facts” to plead a viable claims, as Plaintiff
834	"a Porsche automobile — complete with the trademarked word PORSCHE as the central focus of the ad — fills almost the entire page, consumers may well think — just as Liquid Glass hopes they will — that “if Porsche backs this polish, it’ll be great on my car.” Moving to intent, there is no question as to Liquid Glass’s intent in adopting the Porsche marks: Liquid Glass was trying to attract customers by capitalizing on Porsche’s good will and reputation for quality products. Although no evidence of actual confusion has been provided to this court, proof of actual confusion, while helpful if it exists, is not necessary. Opticians Ass’n of America, 920 F.2d at 195; Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 875 (2d Cir.1986)(“it is black letter law that actual confusion need not be shown to prevail under the Lanham Act, since actual confusion is very difficult to prove and the Act only requires likelihood of confusion. ..”). Furthermore, the advertisements appear in national automotive magazines — a marketing channel used by both Porsche and Liquid Glass — and both do business in the automotive field. Moreover, the targets of their sales efforts are similar ""for, in addition to automobiles, Porsche sells car care products such as cleaners and polishes, products identical to those sold by Liquid Glass. Verif. CountercL, Exh. E. After weighing the relevant factors, this eourt finds that Liquid Glass’s advertisements could mislead the public into believing that Porsche endorsed Liquid"
4513	[the] ‘contacts,’ and not their number or status, that determines whether they amount to purposeful availment.” CompuServe, Inc., 89 F.3d at 1265 (quoting Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1119 (6th Cir.1994) and LAK, Inc. v. Deer Creek Enters., 885 F.2d 1293, 1301 (6th Cir.1989), cert. denied, 494 U.S. 1056, 110 S.Ct. 1525, 108 L.Ed.2d 764 (1990)). In addition, the record is devoid of any evidence that DNN solicited this business from National in Michigan. The Sixth Circuit addressed the relevancy of solicitation in determining the existence of purposeful availment and stated, “the question of which party solicited the business interface is irrelevant, so long as defendant then directed its activities to the forum resident.” Lanier v. American Bd. Of Endodontics, 843 F.2d 901, 910 (6th Cir.1988) (emphasis added) (citing Southern Machine, 401 F.2d at 382.). There are no facts presented by the pleadings that show the defendants directed their activities to National. In fact, DNN notes in its supplemental brief that it is merely set up to galvanize the steel and does not even own the trucks on which the steel is transported to its Windsor, Ontario facility. (Dfs.’ Supp.Br. in Sup. Mot. for Part. Summ. J. at 3). While it is true that National and DNN are engaged in a joint venture, plaintiffs have failed to demonstrate how this venture implicates any contact on behalf of DNN with the forum state. Plaintiffs have failed to present to the Court any authority for the proposition that
4555	by a. municipal policymaker, is a violation by the municipality. See Flanders v. Maricopa Cnty., 203 Ariz. 368, 378, 54 P.3d 837, 847. (Ariz.Ct.App.2002) (“Liability [under § 1983] is imposed, not on the grounds of respondeat superior, but because the agent’s status cloaks him with the governmental body’s authority.”). “To hold a local government liable for an official’s conduct [under § 1983], a plaintiff, must first establish that the official (1) had final policymaking authority ‘concerning the action alleged to have caused the particular constitutional or statutory violation at issue’ and (2) was the policymaker for the local governing body for the purposes of the particular act.” Weiner v. San Diego Cnty., 210 F.3d 1025, 1028- (9th Cir.2000) (citing McMillian :v. Monroe County Alabama, 520 U.S. 781, 785, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997)). In analyzing the second question — whether a policymaker may be associated with a particular government entity for purposes of liability — the amount of control the government entity, i.e. the county board of supervisors, possesses over the official is but one factor. Goldstein v. City of Long Beach, 715 F.3d 750, 755 (9th Cir.2013) cert. denied sub nom. Cnty. of Los Angeles, Cal. v. Goldstein, — U.S.-, 134 S.Ct. 906, 187 L.Ed.2d 778 (2014). ‘ Other factors include the county’s obligation to defend or indemnify the official, the scope of the official’s duties, and the official’s definition in the state constitution. Goldstein, 715 F.3d. at 755-762. The Court’s previous order held Arpaio “has final
751	Court shall order a new trial. Moreover, if the Court determines that the juror was disqualified, it shall likewise order a new trial. On the other hand, if the Court discovers no basis for the complaints or an absence of prejudice, the Court shall reinstate the conviction now on appeal. Remanded, with conditional suspension of the judgment of conviction. . Virginia Code § 8-596 was amended in 1968 to provide for a challenge to future sentences via habeas corpus. The statute now reads: “(3) Such petition may allege detention without lawful authority through challenge to a conviction, although the sentence imposed for such conviction is suspended or is to be served subsequently to the sentence currently being served by petitioner.” cf. Strouth v. Peyton, 404 F.2d 537 (4 Cir. 1968); Moore v. Peyton, 211 Va. 119, 176 S.E.2d 427 (1970). . In so declaring, we do not overlook the dictum found in our opinion in Jones v. Cunningham, 313 F.2d 347, 350, fn. 7 and related text (4 Cir. 1983), questioning Benton's proposition that dual prosecution of a defendant in Downey’s situation is proper under a two-count indictment. In this regard, Clark v. Commonwealth, supra, 135 Va. 490, 115 S.E. 704 (1923), and Virginia Code § 19.1-259 (Repl. Vol. 1960) were relied upon by us. However, Clark applies to cases involving one-count indictments and therefore does not affect the validity of Benton, Wesley v. Commonwealth, 190 Va. 268, 273, 56 S.E.2d 362, 364 (1949) ; and the case of Hundley
255	PLLC, 570 F.3d 471, 475 (2d Cir.2009). The court must “accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party.” Vietnam Ass’n for Victims of Agent Orange v. Dow Chemical Co., 517 F.3d 104, 115 (2d Cir.2008) (internal quotation marks omitted). The court may consider only the “facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference.” Leonard v. Israel Discount Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal quotation and citation omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter ... to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). Plausibility “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Instead, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. III.42 U.S.C. § 1983 “Section 1983 imposes liability on anyone who, under color of state law, deprives a person of any rights, privileges, or immunities secured by the Constitution” of the United States. K & A Radiologic Tech. Servs., Inc. v. Comm’r of the Dept. of Health, 189 F.3d 273, 280 (2d Cir.1999) (quoting Blessing v. Freestone, 520 U.S. 329, 340, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)). “[T]he core
465	the United States: “The mere use of the word ‘tax,’ in an act primarily designed to define and suppress crime, iá not enough to show that within the true in-tendment of the term a tax was laid. Child Labor Tax Case, ante, 20. * * * When by its very nature the imposition is a penalty, it must be so regarded. Helwig v. United States, 188 U. S. 605, 613. * * * It Lacks all the ordinary characteristics of a tax, whose primary function ‘is to provide for the support of the government,’ and clearly involves the idea of punishment for infraction of the law — the definite function of a penalty. O’Sullivan v. Felix, 233 U. S. 318, 324.” Lipke v. Lederer, 259 U. S. 557, 561, 42 S. Ct. 549, 551 (66 L. Ed. 1061). See, also, Regal Drug Co. v. Wardell, 260 U. S. 386, 391, 43 S. Ct. 152, 67 L. Ed. 318. (2) Evidence of crime — the violation of section 29 of title 2 of the act (Comp. St. Ann. Snpp. 1923, § 10138%p), either by manufacturing or selling intoxicating liquor in violation of the act — is a condition precedent and essential to the imposition of the penalty prescribed. Lipke v. Lederer, supra; Regal Drug Co. v. Wardell, supra. (3) No particular character of evidence of guilt is prescribed, nor is the quantum of proof necessary to establish guilt stated, and prior conviction of crime in a court of justice is not
2909	same country and by the same person that is “of the same general class or kind as the subject merchandise” and “like that merchandise in the purposes for which used” may reasonably be compared with the subject merchandise. Id. § 1677(16)(C). On remand, in again rejecting Union’s proposal and thereby treating Union’s laminated CORE products as “other painted” CORE products, the Department applied the “like product” definition of subparagraph (A) of § 1677(16). See Remand Redetermination 3-6. Although the Remand Redetermination does not state this point clearly, it includes text accompanied by a case citation with a parenthetical, as follows: Thus, the Department has considerable discretion in interpreting the statute and developing an appropriate model-match methodology. See Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372, 1384 (Fed.Cir.2001) (noting with respect to the subsection of 1677(16) applicable in this case, subsection (A), that “Commerce has considerable discretion in defining ‘identical in physical characteristics.’ ”). Id. at 3 (emphasis added). Defendant’s counsel, Ms. Claudia Burke, confirmed at oral argument that the Remand Redetermination applied § 1677(16)(A), as indicated by the Department’s not allowing an adjustment to normal value to account for the difference in the variable cost of manufacturing the merchandise (“difmer adjustment”) when comparing Union’s subject painted CORE products with the home market laminated CORE products. Oral Tr. 49-50 (July 16, 2010). Based on the above-quoted parenthetical and the clarification provided by defendant’s counsel, the court analyzes the issue presented by the Remand Redetermination according to the § 1677(16)(A)
4525	Advisory Committee Notes (“The burden is on the proponent to show- that the material is admissible as presented or to explain the admissible form that is anticipated.”). ‘ When ruling on a summary judgment motion, the court must' view every inference drawn from the Underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 601, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court does not make credibility determinations with'respect to evidence offered. See T.W. Elec., 809 F.2d at 630-631 (citing Matsushita, 475 U.S. at 587, 106 S.Ct. 1348). Summary judgment is therefore not appropriate, “where contradictory, inferences may reasonably be drawn from undisputed evidentiary facts.” Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324, 1335 (9th Cir.1980). II. Justiciability A. Justiciability of Claims Against Arpaio Arpaio argues the United States’ claims involving discriminatory traffic stops in Counts One, Two, Three, and Five are moot. He argues the Melendres injunction eliminated all threat of immediate and future discriminatory traffic stops, as well as the ability of this Court to provide redress for those claims. The United States argues its traffic stop claims are not moot for four reasons: (1) the Melendres injunction does not reach all of the conduct challenged in the present suit because it is necessarily tied to and based upon the immigration-related operations at issue in Melendres; (2) the federal government has unique interests which warrant providing it with its own enforcement mechanism for the
3305	first questions whether the district court improperly enhanced her sentence because “the offense resulted in substantial interference with the administration of justice.” U.S. Sentencing Guidelines Manual (USSG) § 2J1.2(b)(2). “ ‘Substantial interference with the administration of justice’ includes ... the unnecessary expenditure of substantial governmental or court resources.” USSG § 2J1.2 cmt. n. 1. Our review of the record reflects that the district court properly increased Meredith’s offense level for substantial interference with the administration of justice. Because significant government resources were invested to resolve Meredith’s attempts at obstruction, the district court did not clearly err in this conclusion. Nor did the district court erroneously “double-count” by applying the enhancement even though she was convicted of obstruction of justice. See United States v. Dudley, 941 F.2d 260, 264 (4th Cir.1991) (defendant may properly receive “substantial interference with the administration of justice” enhancement for underlying perjury offense). Meredith next questions whether the district court clearly erred in enhancing her sentence because her offense “(A) involved the destruction, alteration, or fabrication of a substantial number of records, documents, or tangible objects; ... or (C) was otherwise extensive in scope, planning, or preparation.” USSG § 2J1.2(b)(3). After reviewing the record, we hold that the district court appropriately applied this enhancement. Meredith’s attempts at obstruction were extensive in scope, planning, and preparation. Accordingly, given the statute’s disjunctive construction, whether she fabricated a “substantial number” of documents is immateriál. Finally, we review Meredith’s sentence for reasonableness using an abuse-of-discretion standard. Gall v. United States, 552
2470	Arkoma Prod. Co., 73 F.3d 779, 784 (8th Cir.1996), to support its position. Klein, however, refers not to a magistrate’s ruling vis-a-vis the district court hearing the case, but rather to the precedential effect of an appellate court’s decision on the lower court when the matter is remanded. This case is entirely different. If the Bank’s argument is correct, this Court could never alter a magistrate’s decision, or indeed, one of its own. To the contrary, it is clear that a district court may correct itself to avoid later reversal when convinced a decision “is clearly erroneous and would work a manifest injustice.” Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 n. 8 (1983); Lovett v. Gen. Motors Corp., 975 F.2d 518, 522 (8th Cir.1992); 28 U.S.C. § 636 (granting district court judge’s authority to reverse erroneous magistrate orders). In Lovett, the Eighth Circuit Court of Appeals upheld a district court’s reconsideration of its own standing decision. See id. Because the law of the case doctrine applies only to issues decided by final judgments, id., the earlier decision did not bind the court. Here, the Magistrate did permit the Bank to intervene. But the law of the case does not bar this Court’s consideration of the Bank’s standing. 2. Do Plaintiffs Have Standing? Constitutional standing requires that plaintiffs suffer some injury to justify file Court’s entry of a declaratory judgment. Standing requires either actual or threatened injury. Babbitt, 442 U.S. 289, 292, 99 S.Ct. 2301,
4136	Dockery will require additional medical procedures in the future. Because these expenses are speculative, the court will award $55,000.00 for future medical expenses, the amount quoted as sufficient to cover Dockery’s back surgery, i.e., $50,000.00 to $60,000.00 (Plaintiffs Exh. 19, Deposition of Jack Stern, M.D., page 35), should Dockery choose to have it performed. Should Dockery not elect to have the surgery, the amount awarded will assist Dockery in the event he will need physical therapy or other rehabilitative procedures and/or pain relief. B. Non-Pecuniary Damages “[A] district court reviews the evidence presented at trial in support of the challenged damage award and compares the award to other New York cases in which evidence of similar injuries was presented.” Presley v. U.S. Postal Service, 317 F.3d 167, 173 (2d Cir.2003) (citing Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 437-39, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996)). “When determining a pain and suffering award, it is appropriate for the Court to review awards in comparable cases.” Kolerski v. U.S., 2008 WL 4238924 at *5 (W.D.N.Y.2008) (citing Furey, 458 F.Supp.2d at 56). 1. Past and Future Pain and Suffering Dockery has testified about the excruciating pain on the night of the accident, the pain he suffered throughout his hospital stay and subsequent recuperation, and the continuing pain he suffers to this day. Dockery, his wife, and his son all testified regarding Dockery’s prior enjoyment of life and the litany of activities that he can now no longer enjoy. In New
2050	"assumed jurisdiction over any property involved; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation; and (4) the order in which the two courts obtained jurisdiction. 424 U.S. at 818, 96 S.Ct. at 1246-47. In its Moses H. Cone decision, the Supreme Court added the following two factors: (5) whether state or federal law controls and (6) the adequacy of the state court to protect the parties’ rights. 460 U.S. at 23-27, 103 S.Ct. at 941-43. An additional factor that courts have considered is the issue of whether the federal lawsuit is vexatious or reactive in nature. Elmendorf Grafico, Inc. v. D.S. America (East), Inc., 48 F.3d 46, 50 (1st Cir.1995); Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 947 F.2d 529, 532 (1st Cir.1991) (“Villa Marina II""). No one of these factors is determinative. Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937; Colorado River, 424 U.S. at 818, 96 S.Ct. at 1247. These factors should not be mechanically applied; rather, they require a balancing based on the facts of each case. Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937; Irizarry Pérez v. Mitsubishi Motors Corp., 758. F.Supp. 100, 101 (D.P.R.1991). The balance, however, should be “heavily weighted in favor of the exercise of jurisdiction.” Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937; Grafica, 48 F.3d at 50. The Court now proceeds to a consideration of these factors. K-Mart acknowledges — and Mar-cano does not contest"
3206	Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 849 (9th Cir.1985). A. As a preliminary matter, the EPA argues that the district court improperly considered evidence beyond the four corners of the administrative record. Generally, judicial review of agency action is limited to review of the record on which the administrative decision was based. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). “[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973), quoted in Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643 (1985); Friends of the Earth v. Hintz, 800 F.2d 822, 828-29 (9th Cir.1986). We have recognized, however, certain exceptions to this general rule. The court may find it necessary to review additional material to explain the basis of the agency’s action and the factors the agency considered. Friends of the Earth, 800 F.2d at 829; Asarco, Inc. v. EPA, 616 F.2d 1153, 1159-60 (9th Cir.1980). Moreover, the court may consider, particularly in highly technical areas, substantive evidence going to the merits of the agency’s action where such evidence is necessary as background to determine the sufficiency of the agency’s consideration. Asarco, 616 F.2d at 1160. Nonetheless, the court may not weigh the evidence to determine
418	in control” in favor of public utility commissions in the 1978 Bankruptcy Act, specifically in § 1129(a)(6), “suggests that the commission retains significant authority to govern rates throughout the bankruptcy.... [A] regulatory commission retains its traditional control over rates prior to the finalization of a plan.”) (footnote omitted). Finally, a bankruptcy trustee must “manage and operate the property according to the valid laws of the State in which such property is situated,” see 28 U.S.C. § 959(b), and we agree with our sister circuits that “the import” of this section is that “‘the general bankruptcy policy of fostering the rehabilitation of debtors [will not] serve to preempt otherwise applicable state laws dealing with public safety and welfare.’ ” Robinson v. Michigan Consol. Gas Co., 918 F.2d 579, 589 (6th Cir.1990) (quoting Saravia v. 1786 18th St., N.W., Ltd., 844 F.2d 823, 827 (D.C.Cir.1988)). The bankruptcy court and the trustee have both recognized throughout Cajun’s bankruptcy proceeding that Cajun is a regulated utility and that the LPSC has an obligation under state law to protect the public interest. The bankruptcy court ruled in 1996 that “the laws of the state of Louisiana with respect to the conduct of the rate docket during the chapter 11 proceeding are neither expressly nor implicitly preempted by the Bankruptcy Code,” and that “the LPSC is clearly authorized to act during the Chapter Eleven Proceedings insofar as the rate docket is concerned.” In fact, the trustee lodged no objection in the bankruptcy court when, as part
4583	Origin Discrimination Against Persons With Limited English Proficiency; Policy Guidance, 65 FR 50123-01, 50124 (Aug. 16, 2000); Department of Justice, Guidance- to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed.Reg. 41455, 41469-70 (Jun. 18, 2002). The McDonnell Douglas burden shifting framework applies to Title VI disparate treatment claims. ' Bashdan v. Ge-issberger, 764 F.3d 1179, 1182 (9th Cir. 2014). “First, the plaintiff has the burden of proving by [a] preponderancé of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the [treatment].’ ” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Arpaio argues he has made reasonable efforts to provide LEP inmates with meaningful access to information and services, thus defeating the United States’ claim. He cites his DI-6 Policy, which states LEP inmates are to have “the same rights and protections mandated by federal, state, and local laws.” (Doc. 345 at 10).' The United States attacks these assertions on three grounds: (1) the DI-6 Policy on which Arpaio relies was not enacted until October 2013 — eighteen months after the U.S. brought suit; (2) the pre-DI-6 Policy actions Arpaio took to address LEP discrimination were insufficient to meet
2943	(1968), and this court acknowledges the essential role that the right to an effective lawyer plays in the criminal trial. Yet the right to counsel is meaningless unless the attorney is free to devote himself to his client’s best interest. In Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the Supreme Court held that effective assistance of counsel must not be impaired by a court order requiring one lawyer to simultaneously represent conflicting interests. The Court stated that the right to counsel is “too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Id. at 76, 62 S.Ct. at 467. The Court in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), recently reaffirmed the importance of the Glasser principles. However, a single attorney’s representation of codefendants is not per se unconstitutional, for in some cases multiple defendants can appropriately be represented by one attorney. Holloway, supra, 435 U.S. at 482, 98 S.Ct. 1173. In Miller v. Cox, 457 F.2d 700 (4th Cir. 1972), cert. den., 409 U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299 (1972), the court sanctioned a lawyer’s simultaneous representation of criminal co-defendants, and in United States v. Burkley, 511 F.2d 47 (4th Cir. 1975), the court held that there was no conflict of interest where the office of the lawyer representing the defendant had prepared the affidavit that was later used to prosecute defendant.
1512	(the “Fund”), seeking confirmation of the final award. (Doc. 11). Service of the Report and Recommendation was made on the parties. On May 2, 2006, lengthy objections were filed by the Fund. (Doc. 22). On May 12, 2006, a response to those objections (Doc. 23) was filed by the plaintiff. The court approaches this case knowing that it should balance, similar to situations involving the National Labor Relations Act, 29 U.S.C. § 158 et seq., “on the one hand, an employer’s ‘freedom to contract ... including the right to transfer its assets, reorganize its business or close a portion thereof,’ ... and, on the other, ... to ‘prevent employers from evading obligations under [the applicable statute] ....’” Stardyne, Inc. v. National Labor Relations Board, 41 F.3d 141, 148 (3d Cir.1994)(internal citations omitted). With this responsibility in mind, the court reviewed the submissions of the parties and the record before the magistrate judge. The court adopts the Report and Recommendation as the opinion of the court subject to the following determinations made with respect to the Fund’s major objections. These objections are addressed se-riatim. The Fund argues first that the magistrate judge did not accord due deference to the findings of the arbitrator, and failed to understand the unique circumstances surrounding the collective bargaining agreement. The court disagrees. The magistrate judge applied the correct standard of review, adopting the arbitrator’s findings of fact, and reviewing his conclusions of law de novo. China Minmetals Materials Import and Export Co., Ltd. v. Chi
4317	957, 960 (11th Cir.1999). III. DISCUSSION We divide our discussion in two parts. First, we address whether the district court erred when it denied Weiner’s motion to remand. Second, we address whether the district court erred when it compelled Weiner and Tootsie Roll to arbitrate. A. The District Court Did Not Err when It Denied Weiner’s Motion to Remand. A defendant may remove an action to a district court that would have original jurisdiction because the citizenship of the parties is diverse and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. The parties dispute only whether Tootsie Roll established by a preponderance of the evidence that Weiner’s complaint satisfied the amount in controversy requirement. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir.2010). Because Weiner seeks declaratory relief, the amount in controversy is the “ ‘monetary value of the object of the litigation from [his] perspective.’ ” Fed. Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir.2003) (quoting Cohen v. Office Depot, Inc., 204 F.3d 1069, 1077 (11th Cir.2000)). Tootsie Roll was not “required to prove the amount in controversy beyond all doubt or to banish all uncertainty about it.” Pretka, 608 F.3d at 754. Instead, Tootsie Roll had only to present “evidence combined with reasonable deductions, reasonable inferences, or other reasonable extrapolations,” id., that the value of restoring Weiner’s right to compete exceeded $75,000. The district court did not clearly err when it found that the value of
1927	is necessary for the execution of the plan. . . . ” subsection (1). Section 1322(c) disapproves “payments over a period that is no longer than three years . . . .” but presupposes the plan will provide some payments. Section 1325(a)(2), (4) and (5) all associate the “plan” with payments as do the subsections of Section 1322(b). These are more than enabling provisions. They are the very heart of Chapter 13 relief which is payment to creditors. A proposal in Chapter 13 which does not provide for some payment to creditors is not a “plan,” it is a scheme, and it leaves its proponent deficient in meeting the simple requirement of Section 1321 that “The debtor shall file a plan.” In re Iacovoni, 2 B.R. 256, 5 Bankr.Ct.Dec. 1270, 1273 (D.Utah 1980). The payment will usually be made from the future earnings of the debtor (Section 1322(a)(1)) but it may be made from his property or the property of the estate. Section 1322(b)(8). In either event, the plan must provide for payment in some form to satisfy the requirement of Section 1321. 5 Collier on Bankruptcy, ¶ 1322.01[1], at 1322-3 (15th ed. 1979). The Debtor correctly acknowledges that even the definitional section requiring “sufficiently stable and regular” income (Section 101(24), Note 1 supra) would be mean ingless if payments under a Plan were optional. Hardship circumstances do not alter this requirement. A debtor’s confession that he is unable to pay his creditors anything does not become a “Plan” by
4194	the distinction between juvenile facilities and adult prisons. Finally, Plaintiffs rationalize the apparent inconsistency of defining a juvenile not incarcerated in a “prison” as a “prisoner.” The district court reconciled the definitions by concluding that “[t]his would simply place juveniles who have been transferred to adult facilities on the same footing as other adult prisoners.” (J.A. at 72.) Therefore, according to the district court, all inmates in adult prisons are subject to the same rules, regardless of age. 2. In a case that turns on statutory construction, we begin by examining the literal and plain language of the statute. See Robinson v. Shell Oil Co., — U.S. -, -, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997); Williams v. U.S. Merit Sys. Protection Bd., 15 F.3d 46, 49 (4th Cir.1994). If the “statutory language is unambiguous and the statutory scheme is coherent and consistent,” our inquiry ends. Robinson, — U.S. at -, 117 S.Ct. at 846 (quotation omitted); Murphy, 35 F.3d at 145. “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson, — U.S. at -, 117 S.Ct. at 846 (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477, 112 S.Ct. 2589, 2595, 120 L.Ed.2d 379 (1992)). In interpreting statutory language, words are generally given their common and ordinary meaning. See Murphy, 35 F.3d at 145. Although Congress did not define
1918	the district court. DISCUSSION As indicated, the Government opposes the motion to stay and instead seeks dismissal of the complaint based on the jurisdictional bar of 28 U.S.C. § 1500 (1982). That statute reads in pertinent part as follows: The United States Claims Court shall not have jurisdiction of any claim for or in respect to which the plaintiff ... has pending in any other court any suit or process against the United States.... The purpose of the statute is to avoid duplicative litigation: “[S]ection 1500 was enacted to prevent ... the maintaining of two suits against the United States on the same claims and at the same time in two different courts.” Wessel, Duval & Co. v. United States, 129 Ct.Cl. 464, 465, 124 F.Supp. 636, 637-38 (1954). In Tecon Engineers, Inc. v. United States, 170 Ct.Cl. 389, 343 F.2d 943 (1965), cert. denied, 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966), it was decided that a suit begun in another court after an action had been filed in the Court of Claims (now the Claims Court) was not a “pending” suit within the contemplation of the statute. Thus, section 1500 potentially applies only in those situations where the litigation that is brought here is also the subject of a previously filed action that remains pending in another forum. Further, in deciding the dimensions of a “claim” for purposes of section 1500, the court has taken a practical approach consistent with the purposes of the statute and
3700	Id. at ¶ 61. IV. STANDARD OF DECISION A. 12(b)(6) Legal Standard A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is a challenge to the sufficiency of the allegations set forth in the complaint.. A 12(b)(6) dismissal is proper where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990). In considering a motion to dismiss for failure to state a- claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in ^the pleader’s favor. Lazy Y. Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.2008). To survive a 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “The plausibility, standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Where
1305	action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5). This furthers the statute’s “twin goals of rejecting suits which the government is capable of pursuing itself, while promoting those.which the government is not equipped to bring on its own.” United States ex rel. Hampton v. Columbia/HCA Healthcare Corp., 318 F.3d 214, 217 (D.C.Cir.2003) (quoting United States ex rel. Springfield Terminal Ry. v. Quinn, 14 F.3d 645, 651 (D.C.Cir.1994)). Therefore, the rule “bar[s] ‘actions alleging the same material elements of fraud’ as an earlier suit, even if the allegations ‘incorporate somewhat different details.’ ” Id. (quoting United States ex rel. Lujan v. Hughes Aircraft Co., 243 F.3d 1181, 1189 (9th Cir.2001)). Under this standard, two complaints need not allege identical facts for the first-filed complaint to bar the later-filed complaint. Id. at 218. As a preliminary matter, Batiste urges this Court to interpret the statute to mean a later-filed complaint must be both “a related action” to and “based on the facts” underlying the first-filed complaint. He argues the district court incorrectly read the statute disjunctively to mean a later-filed complaint may be either a related action or based on the same facts. The plain language of the statute, however, is neither conjunctive nor disjunctive. It is clear that “based on the facts underlying the pending action” merely clarifies “related action.” See United States ex rel. Chovanec v. Apria Healthcare Group,
1441	invalid visa. Furthermore, in order to apply for an extension, an alien must have maintained her status and must present a valid visa. See 8 C.F.R. § 214.1(a)(3), (c)(4). The charges lodged against Westover demonstrate that the INS does not consider Westover capable of meeting these requirements. See Halabi, 15 I. & N. Dec. at 107-08 (Roberts, Chairman, dissenting). We pause to note that the practice of charging aliens with overstaying when they remain in the United States to defend themselves in removal proceedings could cause us some concern on given facts. “[T]he Fifth Amendment entitles aliens to due process of law in deportation proceedings. At the core of these due process rights is ... a meaningful opportunity to be heard.” Choeum v. INS, 129 F.3d 29, 38 (1st Cir.1997) (internal quotation marks and citation omitted); see also Lozada v. INS, 857 F.2d 10, 13 (1st Cir.1988) (due process violated if alien is prevented from reasonably presenting her case). The BIA upheld the IJ’s findings regarding the original charges that Westover was excludable at entry and was present without a valid visa, and we affirm its order of removal on these grounds, without deciding the overstay issue. F. The BIA’s Decision to Uphold the IJ’s Finding of Deportability We review the BIA’s decision in this case under the substantial evidence standard. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Cordero-Trejo v. INS, 40 F.3d 482, 488 (1st Cir.1994). Under this standard, we will
0	familiarity therewith is presumed. The present motion is brought by Houlihan, which was the valuation firm retained by U.S. Trust to render a fairness opinion in connection with the 1995 ESOP transaction. The matter is now fully briefed and ready for resolution. This Order follows. DISCUSSION Summary judgment should be granted where “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party has the responsibility of informing the Court of portions of the record or affidavits that demonstrate the absence of a triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may meet its burden of showing an absence of disputed material facts by demonstrating “that there is an absence of evidence to support the non-moving party’s case.” Id. at 325, 106 S.Ct. 2548. Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir.1988). If the moving party meets its burden, the non-moving party then has the burden of presenting specific facts to show that there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio
1350	material subject to judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688-69 (9th Cir.2001). But “courts are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. B. Rule 9(b) Fraud-based claims are subject to heightened pleading requirements under Federal Rule of Civil Procedure 9(b). In that regard, a plaintiff alleging fraud “must state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). The allegations must be “specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985). To that end, the allegations must contain “an account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (citation omitted). Averments of fraud must be accompanied by the “who, what, when, where, and how” of the misconduct charged. Vess v. Ciba-Geigy Corp. USA 317 F.3d 1097, 1106 (9th Cir.2003) (citation omitted). Additionally, “the plaintiff must plead facts explaining why the statement was false when it was made.” Smith v. Allstate Ins. Co., 160 F.Supp.2d 1150, 1152 (S.D.Cal.2001); see also In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1549 (9th Cir.1994) (en banc) (superseded by statute on
3197	recognize that this issue is far from clear-cut. The EPA’s position is not implausible and, quite frankly, neither side advances an entirely satisfactory construction of a statute that obviously was the product of some controversy and considerable compromise. The courts have long recognized, however, a presumption in favor of judicial review of administrative actions. See Block v. Community Nutrition Inst., 467 U.S. 340, 350-51, 104 S.Ct. 2450, 2456-57, 81 L.Ed.2d 270 (1984) (presumption only overcome when “the congressional intent to preclude judicial review is ‘fairly discernible in the statutory scheme’ ”); Ruff v. Hodel, 770 F.2d 839, 840 (9th Cir.1985) (“[t]he bar to judicial review ... requires a ‘persuasive reason to believe’ that Congress intended to preclude judicial review”) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967)); Moapa Band of Paiute Indians v. Department of Interior, 747 F.2d 563, 565 (9th Cir.1984) (“[pjreclusion of judicial review is not lightly inferred, and usually will not be found absent a clear command of the statute”). Moreover, we construe prohibitions against judicial review narrowly. Cf. Wallace v. Christensen, 802 F.2d 1539 (9th Cir.1986) (en banc); Moapa Band, 747 F.2d at 565. In light of these considerations, we find plaintiffs’ interpretation the most plausible, and hold that the district court had jurisdiction to review the EPA’s suspension order. II. Subsection (c)(4) provides that an emergency suspension order shall be reviewable by the district court “solely to determine whether the order of suspension was arbitrary, capricious
2981	we think the rule of lenity requires us to adopt the narrower interpretation of the statutory language. Under that well-established principle of statutory construction, ambiguities in criminal statutes must be resolved in favor of lenity for the accused. United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971); Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971). The Supreme Court has made clear that this principle applies to sentencing as well as substantive provisions. See Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980); United States v. Batchelder, 442 U.S. 114, 121, 99 S.Ct. 2198, 2203, 60 L.Ed.2d 755 (1979); Simpson v. United States, 435 U.S. 6, 14-15, 98 S.Ct. 909, 914, 55 L.Ed.2d 70 (1978). As the Court has stated, “[t]his policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 214, 3 L.Ed.2d 199 (1958). Where, as here, the legislative history and other extrinsic sources offer no guidance in resolving the ambiguity in the statutory language, we can do no more than guess as to Congress’ intent and must therefore resolve the ambiguity in favor of the accused. Accordingly, we hold that the
4763	relevant to the instant crime, the case before us involves a stipulation to facts establishing only the defendant’s status. This difference is so significant that we no longer deem Collamore’s dictum to be compelling in cases such as this. As we now reconsider the issue fully, we begin our analysis by reiterating its limited scope. A decision to honor a stipulation concerning the predicate crime in a felon-in-possession case in no way trenches upon the right of the prosecution to make a full presentation of the crime currently charged. We fully concede the government’s “right to ‘present to the jury a picture of the events relied upon,’ ” United States v. Doherty, 675 F.Supp. 714, 717 (D.Mass.1987), aff'd in part and rev’d in part, 867 F.2d 47 (1st Cir.1989), including proof of all elements of the crime for which the defendant has been brought to trial. The prosecution ordinarily may not be forced to eliminate gruesome details of a killing, the quantity of drugs, or the degree of malevolence exhibited by the defendant through a defense-proffered stipulation. This well-established right of the government to present its case as it sees fit is in no fashion weakened by requiring a stipulation to establish the defendant’s status as a felon. The status element is a discrete and independent component of the crime, a requirement reflecting a Congressional policy that possession of a firearm is categorically prohibited for those individuals who have been convicted of a wide assortment of crimes calling for a
1786	prosecution history that the terms have different meanings at different portions of the claims.” Fin Control Sys. Pty, Ltd. v. OAM, Inc., 265 F.3d 1311, 1318 (Fed.Cir. 2001). Once the claims have been construed, the analysis requires that the claim in question “be compared to the accused device or process.” PC Connector Solutions LLC, 406 F.3d at 1362. It is at this second step that a determination of infringement is made; whether a device infringes literally or under the doctrine of equivalents is a question of fact. Lockheed Martin Cow■ v■ Space Sys./Loral, Inc., 324 F.3d 1308,1318 (Fed.Cir.2003). “To establish literal infringement, every limitation set forth in a claim must be found in an accused product, exactly.” Southwall Tech., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed.Cir.), cert, denied, 516 U.S. 987, 116 S.Ct. 515, 133 L.Ed.2d 424 (1995). If even a single limitation is not present in the accused device, literal infringement does not exist as a matter of law. Such a device, however, can still be found to infringe a patent under the doctrine of equivalents. This doctrine provides that “a product or process that does not literally infringe upon the express terms of a patent claim may nonetheless be found to infringe if there is ‘equivalence’ between the elements of the accused product or process and the claimed elements of the patented invention.” Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 21, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). The doctrine recognizes
4515	policing and prison administration. MCSO is a subdivision of Maricopa County. Maricopa County’s primary governing body is the Board of Supervisors (the “Board”).- The Board consists of five Supervisors, each of .whom is elected from one of Maricopa County’s five districts. Maricopa County determines the budgets and provides the funding for its subdivisions, including municipal courts, public . schools, and law enforcement (i.e.MCSO).' Maricopa County receives federal financial assistance from the United States, which it distributes to various county subdivisions, including MCSO. II. The Prior Litigation: Melendres v. Arpaio In 2007, private individual plaintiffs initiated a class action lawsuit against Arpaio, MCSO, and Maricopa County, alleging MCSO officers engaged in racial discrimination against Latinos “under the guise of enforcing, immigration law.” Ortega-Melendres v. Arpaio, 836 F.Supp.2d 959, 969 (D.Ariz.2011), aff'd sub nom. Melendres v. Arpaio, 695 F.3d 990 (9th Cir.2012) (hereinafter “Melendres”). The case focused on “saturation patrols,” which were described as “crime suppression sweeps” in which officers saturate a given area and target persons who appeared to be Latino for investigation of their immigration status. (2:07-CV-02513-GMS, Doc. 26 at 10). Jose, de Jesus Ortega-Melendres, the named plaintiff, was stopped in his vehicle by members of the MCSO’s Human Smuggling Unit and detained without probable cause while officers investigated his immigration status, along with those of his passengers. Melendres v. Arpaio, 989 F.Supp.2d 822, 880 (D.Ariz.2013); (2:07-CV-02513-GMS, Doc. 26 at 17). The certified class of plaintiffs ¿ncompassed “[a]ll Latino persons who,' since January 2007, have been or will be in
157	proscriptions” of Section 1983); Behre v. Thomas, 665 F.Supp. 89, 92 (D.N.H.1987); see Wheeldin v. Wheeler, 373 U.S. 647, 650 n. 2, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963) (concluding that an investigator of the United States House of Representatives Un-American Activities Committee was not acting “under color” of state law for purposes of Section 1983); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339, 1346 (2d Cir.1972) (on remand) (noting that the Civil Rights Act does not apply to federal officers). However, one may bring a Section 1983 action against federal employees who conspire or act in concert with state officials to deprive a person of his civil rights under color of state law. See Tower v. Glover, 467 U.S. 914, 920, 104 S.Ct. 2820, 81 L.Ed.2d 758 (1984) (explaining that “an otherwise private person acts ‘under color of state law when engaged in a conspiracy with state officials”); Krohn v. United States, 578 F.Supp. 1441, 1447-48 (D.Mass.1983) (noting that, to make federal officers liable under Section 1983 for actions done under color of state law, the plaintiff must show either that “the deprivation of his rights was directly occasioned by acts of federal officials,” or that “federal officials participated in a conspiracy to deprive him of a constitutional right”; emphasizing that, “in either case ... the plaintiff must show that the federal officials acted or conspired to act under color of state law; it is not enough that they simply acted in concert
2320	to reopen on the basis of ineffective assistance of counsel, where he filed the motion over two years after his final order of removal, see 8 C.F.R. § 1003.23(b)(1), and he failed to demonstrate the due diligence necessary to warrant equitable tolling of the filing deadline, see Avagyan v. Holder, 646 F.3d 672, 679 (9th Cir.2011) (equitable tolling is available when a petitioner has exercised due or reasonable diligence and tolling period should end ... when petitioner definitively learns of the harm resulting from counsel’s deficiency, or obtains vital information bearing on the existence of his claim (internal quotation marks and citation omitted)). Because untimeliness is dispositive, we do not reach Oraha’s remaining contentions regarding eligibility for relief from removal. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir.2004) (“As a general rule courts ... are not required to make findings on issues the decision of which is unnecessary to the results they reach.”). PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3,
4577	1263 (1940). In Adkins, the Supreme Court held a suit involving the National Bituminous Coal Commission, a federal entity, was binding on the entire federal government. Adkins, 310 U.S. at 402, 60 S.Ct. 907 (“There is privity between officers of the same government.”). “The crucial point,” the Court stated, “[was] whether or not in the earlier litigation [the party] had authority to represent [the nonparty’s] interests in a final adjudication of the issue in controversy.” Id. at 403, 60 S.Ct. 907. The Ninth Circuit ’ and other courts' subsequently went further, holding that when interests are sufficiently aligned, there may even be privity between “governmental authorities as public enforcers of ordinances and private parties suing for enforcement as private attorneys general.” In re Schim-mels, 127 F.3d 875, 881 (9th Cir.1997). In Sturgell, the Supreme Court reframed its precedent as “endeavoring] to delineate discrete exceptions [to the bar against nonparty preclusion] that apply in ‘limited circumstances.’ ” Sturgell, 553 U.S. at 888, 128 S.Ct. 2161. The parties in Melendres jointly stipulated to dismiss Maricopa County as “ ‘not ... necessary’ to obtain ‘complete relief.’” See (2:07-CV-02513-GMS, Doc. 178); Ortega Melendres v. Arpaio, 598 F.Supp.2d 1025, 1039 (D.Ariz.2009). But the stipulation was made before the Arizona Court of Appeals ruled on MCSO’s status as a non-jural entity. The stipulation was likely related to the County’s funding structure. Because Maricopa County funds MCSO, “[w]hether the County or the Sheriff is hable fe of no practical consequence ... they both lead to the same
3754	the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing that no genuine issues of material fact remain. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322, 106 S.Ct. 2548. In ruling on a motion for summary judgment, the Court construes the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249, 106 S.Ct. 2505. In this case, neither party alleges that there are any material facts in dispute and each claims that it is entitled to judgment as a matter of law. III.Claims Plaintiff has raised facial and as-applied challenges to certain criminal provisions of the AEC. Plaintiff challenges: (1) the third definition of “specified sexual activity,” (“SSA”), as prohibited by section 3-129(3); (2) section 3-129(6), which prohibits the simulation of SSA; and (3) section 3-129(9), which prohibits certain intentional
3459	it did not strike them down in their entirety. Id. C. Due Process Consideration. Lastly, Lister argues that the district court’s finding on relevant conduct violated his right to due process because it was predicated on the unreliable testimony of Gosha and Sims. We begin by noting that “a defendant has a due process right to be sentenced on the basis of accurate information.” United States v. Townsend, 73 F.3d 747, 751 (7th Cir.1996). This right is generally satisfied when the facts in question are found by a preponderance of the evidence using information that has a “sufficient indicia of reliability to support its probable accuracy.” Id. at 751-52 (citing United States v. Salinas, 62 F.3d 855, 859 (7th Cir.1995)); United States v. Ewers, 54 F.3d 419, 421 (7th Cir.1995) (internal quotation marks omitted). We review a district court’s findings of fact regarding the quantity of drugs considered as rele vant conduct for clear error. United States v. Beler, 20 F.3d 1428, 1431 (7th Cir.1994). Contrary to Lister’s contention, the district court based its finding of relevant conduct primarily on the admission of Lister himself. The district judge weighed the facts as presented in Lister’s PSIR statement against his attorney’s unsupported argument at the sentencing hearing and found the contested relevant conduct by a preponderance of the evidence. In this evidentiary evaluation, the district court reviewed and compared Lister’s specific statements regarding dates, relevant transactions, monies paid, and the delegation of manufacturing duties. While Lister may have facially challenged the
551	"Germany. Finally, it clearly is within Congress’s power to change the effect of this ruling by passing legislation to close the jurisdictional gap. It is- for this reason that we have taken the unusual step of directing the Clerk of the Court to forward a copy of this opinion to the Chairmen of the Senate and House Armed Services and Judiciary Committees. In doing so, we should not be understood to express a view on the justice or wisdom of any potential legislation. In our system of government, “[t]he responsibility for the justice or wisdom of legislation rests with the Congress, and it is the province of the courts to enforce, not to make, the laws.” United States v. First Nat’l Bank of Detroit, 234 U.S. 245, 260, 34 S.Ct. 846, 58 L.Ed. 1298 (1914). We merely note that this issue may warrant further congressional scrutiny. In sum, we hold that 18 U.S.C. § 7(3) does not apply extraterritorially. Therefore, we conclude that Lincoln Village is not within the “special maritime and territorial jurisdiction of the United States,” and that 18 U.S.C. § 2243(a) does not apply to Gatlin’s acts. For these reasons, the judgment of conviction is reversed and the indictment is dismissed. . Article I of the SOFA defines “military authorities of the sending State” as ""those authorities of a sending State who are empowered by its law to enforce the military law of that State with respect to members of its forces or civilian components.” SOFA art."
1661	Board of Review defines it as “a sudden and overwhelming emergency, uncontrollable and unforseeable, infecting the judicial process and rendering a fair and impartial trial impossible. It does not mean expediency.” The Board’s characterization of the term as “ * * * an illusive and expansive doctrine, not susceptible of precise definition because it is designed to apply to emergent situations * * is approved by the Assistant Judge Advocate General in his communication to the Commanding General as is also its statement to the effect that “the power should be exercised with caution, and * * * be limited to the most urgent circumstances” — “a real emergency which by diligence and care could not have been averted.” Cf. United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165. The list of instances in which it is to be applied, given in the opinion of the Board of Review — where a jury is unable to agree; misconduct tainting the panel; inflammatory press releases corrupting the jury; relationship of a juror to the accused; incapacity of a juror, etc. — is illustrative only. Other situations come to mind; and if the record in the case at bar indicated that the “tactical situation” was the motivating reason for discharging the first court-martial, this court would not hesitate to hold that the doctrine is applicable. As previously pointed out, however, the absence of witnesses, rather than an emergency due to the military situation, seems to have been the reason for the
400	not constitute meaningful relief. Accordingly, the question of whether the district court could provide meaningful relief to the Plaintiffs reduces to a single inquiry: would Nyaga be “eligible to receive an immigrant visa” if the INS were to process his application on the merits and conclude that he would other wise be admissible for legal permanent residence? To answer this question, we must interpret the diversity visa statute, and our analysis begins with the language of the statute. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 760, 142 L.Ed.2d 881 (1999). “[U]nless there is some ambiguity in the language of a statute, a court’s analysis must end with the statute’s plain language.” Coggin Automotive Corp. v. Comm’r of Internal Revenue, 292 F.3d 1326, 1332 (11th Cir.2002). When we examine the meaning of statutory words or phrases, however, we cannot examine statutory provisions in isolation. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 1300-01, 146 L.Ed.2d 121 (2000). “It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Mich. Dep’t of Treas., 489 U.S. 803, 809,109 S.Ct. 1500, 1504, 103 L.Ed.2d 891 (1989). Nyaga and Kibarra have asked the Attorney General to adjust their status to that of a lawful permanent resident pursuant to 8 U.S.C. § 1255(a). Section 1255(a) states: The status of an alien who
3540	in original). Qualified immunity, however, is a defense available only to government officials sued in their individual capacities. It is not available to those sued only in their official capacities. Eng v. Cooley, 552 F.3d 1062, 1064 n. 1 (9th Cir.2009); Kentucky v. Graham, 473 U.S. 159, 165-68, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). We recognize that public employees — such as Birdsall and Chatterton-— carrying out the express legislative will of a city are ordinarily entitled to rely on its lawfulness. As we said in Dittman v. California, 191 F.3d 1020, 1027 (9th Cir.1999), “when a public official acts in reliance on a duly enacted statute or ordinance, that official is entitled to qualified immunity.” See also Grossman v. City of Portland, 33 F.3d 1200, 1210 (9th Cir.1994). As to the Dittman!Grossman rule, however, the parties hotly dispute the specific role played in this matter by Birdsall and Chatterton. Not unexpectedly, the City says its employees, who “did not vote for or authorize the lease or sale of the building,” were unmistakably acting “in furtherance of decisions made by the City Council.” CHI, on the other hand, asserts that the City’s argument “fails to recognize the primary role [Chatterton and Birdsall] played in wrongful conduct and in developing the plan and advising the Council.” During oral argument, CHI’s attorney called them the “primary movers” who deliberately and in knowing violation of the law “orchestrated” CHI’s demise. CHI refers us in this respect to our qualification in Grossman that
1980	the scheme to defraud by which the Defendants attempted to evade compliance with state and EPA regulations by falsifying documents and improperly disposing of hazardous wastes in violation of permits which had been issued to these companies. Although a mere allegation of fraud is not enough to authorize the seizure of all business records, see Roberts v. United States, 656 F.Supp. 929, 936 (S.D.N.Y.1987) (government did not establish that every aspect of the enterprise was permeated with fraud), given the closely-connected nature of the Defendants’ businesses here, it would not have been possible “through a more particular description to segregate those business records that would be evidence of fraud from those that would not----” United States v. Offices Known as 50 State Distributing Co., 708 F.2d 1371, 1374 (9th Cir.), cert. denied, 465 U.S. 1021, 104 S.Ct. 1272, 79 L.Ed.2d 677 (1984). An affidavit in support of a search warrant need not set forth specific factual evidence demonstrating that every part of the enterprise was engaged in fraud, only sufficient factual evidence of fraudulent activity from which the issuing magistrate could infer that those activities are “just the tip of the iceberg.” United States v. Burke, 718 F.Supp. 1130, 1140 (quoting Brien, supra, at 308). That evidence could consist of proof of a “large number of fraudulent transactions,” or proof that the fraudulent operations are “inseparable” from the other business operations. See Burke, supra, at 1140-41. In Matter of Search of 4801 Flyer Avenue v. Householder, 879 F.2d 385 (8th
3063	to grant summary judgment, the Court may not weigh the evidence. Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668 (1st Cir.1994). Summary judgment “admits of no room for credibility determinations, [and] no room for the measured weighing of conflicting evidence such as the trial process entails.” Id. (citing Greenburg v. Puerto Rico Maritime Shipping Authority, 835 F.2d 932, 936 (1st Cir.1987)). Accordingly, if the facts permit more than one reasonable inference, the court on summary judgment may not adopt the inference least favorable to the non-moving party. Casas Office Machines, 42 F.3d at 684. While the moving party has the burden of initially establishing that there is “an absence of evidence to support the non-moving party’s case,” Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1984); the nonmovant has a “corresponding obligation to offer the court more than steamy rhetoric and bare conclusions.” Lawton v. State Mutual Life Assurance Company of America, 101 F.3d 218, 223 (1st Cir.1996). Furthermore, “the nonmovant must produce specific facts, in suitable evidentiary form sufficient to limn a trialworthy issue ... Failure to do so allows the summary judgment engine to operate at full throttle.” Id.; see also Kelly v. United States, 924 F.2d 355, 358 (1st Cir.1991) (warning that “the decision to sit idly by and allow the summary judgment proponent to configure the record is likely to prove fraught with conse quence.”); Medina Muñoz, 896 F.2d at 8, (quoting Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d
2616	knew were materially misleading or whose materially misleading nature they recklessly disregarded and if their clients were damaged as a result of those brochures. See Rolf v. Blyth, Eastman Dillon & Co., Inc., supra, 570 F.2d at 47-48 (elements of aiding and abetting liability). It is not enough under this aiding and abetting theory that the brokers failed to carry out a fiduciary duty to investigate CIS and the representations which CIS made in its promotional literature. Nor is it enough that the brokers should have known that this literature contained materially misleading information. The brokers must have “[a]ctual knowledge, or a reckless disregard for the truth which is equivalent to actual knowledge * * *,” Katz v. Realty Equities Corp. of New York, 406 F.Supp. 802, 805 (S.D.N.Y.1976), of the specific material fraudulent representations on which plaintiffs relied. With two exceptions, the reasons for certifying and not certifying a plaintiff class against CIS apply to certification of classes against the broker defendants. The first arguable distinction involves the predominance of common questions of scienter. Each of the three theories under which plaintiffs may recover present predominating common questions. First, plaintiffs would prevail if the data in the Performance Charts are on their face so improbable that a trier of fact could reasonably infer that individuals with the knowledge and expertise of a reasonably competent broker would know that they were untrue or would act recklessly in disregarding their falsity. Second, plaintiffs could prove their case against the broker defendants
278	or the policies or customs that it has sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006). Because I have determined above that plaintiff has not established any underlying constitutional violations, his Monell claims are dismissed. V. Supplemental Jurisdiction for State Law Claims Federal courts may exercise supplemental jurisdiction when the state and federal claims are part of “a common nucleus of operative fact.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). When retaining jurisdiction over a state claim, a court must consider “the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction.” Carnegie—Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). Plaintiffs federal and state law claims are part of the common nucleus of operative fact. And, as the parties have had the opportunity to fully brief the state law claims, it is in the interests of judicial economy, convenience, and fairness for this court to exercise supplemental jurisdiction over plaintiffs remaining state law claims. Plaintiffs claim for malicious prosecution in this case is no different whether analyzed under Section 1983 or state law. See Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975). Therefore, summary judgment is appropriate in favor of the defendants on plaintiffs state law claim for malicious prosecution. Defendants challenge plaintiffs state law claims for negligent hiring,
4877	true of a pre-trial motion for judgment such as that sought by plaintiffs here. In denying plaintiffs’ motion, the district court did not abuse its discretion. To the contrary, it forged what strikes us as an acceptable accommodation of competing principles: Plaintiffs were given an opportunity to prove their allegations of misconduct, and defendants received a hearing on the merits. We likewise find no abuse in the trial court’s denial of plaintiffs’ request for a pre-trial evidentiary hearing. See Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 527 (1st Cir.1991) (trial court’s decision not to convene evidentiary hearing normally reviewable for abuse). It is well settled that “ ‘motions do not usually culminate in evidentiary hearings.’ ” United States v. Cannons Engineering Corp., 899 F.2d 79, 94 (1st Cir.1990) (quoting Aoude II, 892 F.2d at 1120). Where the parties have had a “fair opportunity to present relevant facts and argument to the court,” a matter may be “ ‘heard’ on the papers” alone. Aoude v. Mobil Oil Corp., 862 F.2d 890, 894 (1st Cir.1988) (Aoude I). Such was the case here. Plaintiffs submitted extensive pleadings and documentary evidence in support of their fraud on the court claim. In addition to Oses’s letters to Ivan Rodriguez and Agent Leonard, the court had before it copies of his 1977 trial testimony and his 1985 sworn recantation. It had, as well, the government’s written representations that no promise or inducement had been offered Oses and its offer to submit affidavits to this
590	showing on an essential element of her case with respect to which she has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by “showing ... that there is an absence of evidence to support the nonmoving party’s case.” Celotex, supra, 477 U.S. at 323, 325, 106 S.Ct. at 2552-53, 2554. Issues of fact are genuine “only if a reasonable jury, considering the evidence presented, could find for the non-moving party.” Childers v. Joseph, 842 F.2d 689, 694 (3d Cir.1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986)). Material facts are those which will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248,106 S.Ct. at 2510. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir.1988). B. Applicable Law The law concerning spoliation of evidence is set forth in Part I-D, supra. In short, federal evidentiary law and Pennsylvania substantive law are consistent in setting forth the rule that a party who is responsible for the spoliation of evidence
3116	claim in federal court. Plaintiff faces a high burden, as “courts should characterize a dispute as minor if it is even ‘arguably justified’ that the dispute turns on the application of the CBA.” Coker, 165 F.3d at 584, citing Norris, 512 U.S. at 265-66, 114 S.Ct. 2239; see also Jenisio, 187 F.3d at 972 (noting “a party shoulders a relatively light burden in establishing exclusive arbitral jurisdiction under the RLA” (citation omitted)). 2. THE DEPENDENCE OF PLAINTIFF’S CLAIMS ON THE CBA Other than the notion that it is one “grounded” in the CBA, the Ninth Circuit has provided little guidance as to what constitutes a “minor dispute.” “Since they often depend on particularized facts, minor disputes resist a rigid definition.” Saridakis v. United Airlines, 166 F.3d 1272, 1276 (9th Cir.1999). The Ninth Circuit has continually emphasized, though, that the general focus of this inquiry is the source of the rights at issue. See Saridakis, id.; Espinal v. Northwest Airlines, 90 F.3d 1452, 1456 (9th Cir.1996) (“In RLA cases then, as in LMRA cases, courts must look to the source of the right asserted by the plaintiff.”). It is clear that if Pearson’s claims solely involved the interpretation of language directly contained in the CBA, this case would be a minor dispute. In Long, the Ninth Circuit considered an ERISA suit brought to enforce the terms of the summary plan description of airline employees’ collectively bargained pension agreement. The Ninth Circuit reasoned that a “claim relating to the construction of a
3624	U.S.C. § 924(e)(1) (“In the case of a person who violates section 922(g) of this title and has three previous convictions for a violent felony or a serious drug offense, or both ... such person ... shall be imprisoned not less than fifteen years.... ”). Eason has a prior 2006 conviction for delivery of cocaine, which he does not contest qualifies as a serious drug offense for purposes of the ACCA. We now must determine whether he has two additional qualifying prior convictions such that he was properly sentenced pursuant to the ACCA. “We review de novo whether a prior conviction is a predicate offense under the ACCA.” United States v. Shockley, 816 F.3d 1058, 1062 (8th Cir. 2016) (quoting United States v. Humphrey, 759 F.3d 909, 911 (8th Cir. 2014)). At sentencing, Eason made a general objection to use of the residual clause of the ACCA, arguing it was unconstitutionally vague and could not be applied to determine whether his prior convictions qualified for purposes of the enhancement. Eason did not specifically object to any particular conviction or make any additional argument to the district court. The district court overruled the objection, without ruling on whether the two additional convictions qualified under the residual clause, the force clause, or both. While this appeal, was pending, the Supreme Court held that the residual clause of the ACCA is unconstitutionally vague. See Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015). Because Eason’s prior convictions
2799	he is entitled to proceed in the forum of his choice because he is the only claimant and is willing to offer stipulations concerning the district court’s jurisdiction'over the limitation action. (Id. at 4-5.) Under the saving to suitors clause, 28 U.S.C. § 1333, “[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of ... [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” The saving to suitors clause “preserves remedies and the concurrent jurisdiction of state courts over some admiralty and maritime claims,” including the right to a trial by jury in the claimant’s choice of forum. Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 445, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001); see also Beiswenger Enters. Corp. v. Carletta, 86 F.3d 1032, 1037 (11th Cir. 1996) (recognizing the saving to suitors clause “embodies a presumption in favor of jury trials and com mon law remedies in the forum of the claimant’s choice”). The Limitation Act, by-contrast, grants federal courts exclusive admiralty jurisdiction .over actions to determine whether a vessel owner is entitled to limited liability. See 28 U.S.C. § 1333(1) (vesting federal courts with exclusive jurisdiction over “any case of admiralty or maritime jurisdiction,” including suits pursuant to the Limitation Act). As in all admiralty cases, there is no right to a jury trial in limitation proceedings. Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 152-53 (4th
1526	"that a ""plain meaning” could be found, one could argue that when the kind of transaction in issue — here, the collective bargaining agreement — is a transaction contemplated by the statute under which the date for determining withdrawal liability may be established, the completion of the transaction could not be a means under the statute to avoid or evade liability. See discussion infra concerning the interrelated provisions of the MPPAA, especially the definition of ""obligation to contribute.” “[S]tatutory language must always be read in its proper context 'In ascertaining the plain meaning of [a] statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.’ ” McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991) (quoting K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988)). . This is not to say that a hypothetical date of withdrawal would not be precluded in cases involving a fraudulent or sham transaction. As the plaintiff pointed out, using a hypothetical date in that situation would not require ignoring a specific statutory provision, such as § 1383(a). That section unequivocally establishes the date of withdrawal, eliminating the option of setting a hypothetical date. . ERISA provides that a complete withdrawal occurs if an employer (1) permanently ceases to have an obligation to contribute under the plan, or (2) permanently ceases all covered operations under the plan."
982	govern the propriety of district court’s certification of interlocutory appeals to the circuit courts under § 1292(b).” In re Bank of New England, Corp., 218 B.R. 643, 652 (1st Cir. BAP 1998). Nevertheless, as at least one court has also stated, the analogy to that standard is “jurisprudential and not jurisdictional.” In re Williams, 215 B.R. 289, 298 n. 6 (D.R.I.1997). The discretion granted to the district courts under 28 U.S.C. § 158 is greater than the discretion, if any, under 28 U.S.C. § 1292(b). For example, appellate jurisdiction over certified questions lies in the appellate tribunal only when those “orders other than final judgments ... have a final and irreparable effect on the rights of the parties.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See also In re Harrington, 992 F.2d 3, 6 (1st Cir.1993) (same requirement of irreparable harm for mandamus and “collateral order” discretionary appellate jurisdiction). In contrast, neither the language of 28 U.S.C. § 158 nor any decision construing it prescribes a finding of irreparable effect. All directly applicable authority emphasizes discretion, even though it must be a guided and reasoned exercise of discretion. For the same reasons, I also conclude that, assuming without deciding that the “collateral order doctrine” may provide an appropriate basis for appellate jurisdiction by a district court over the interlocutory orders of a bankruptcy court, see In re Empresas Noroeste Inc., 806 F.2d 315, 317 (1st Cir.1986), an independent ground for
216	are of limited value because they did not rely on current information,” but also noted that Effendi had “not submitted evidence to show that a remand is warranted to update the record here.” Effendi timely filed this petition for review. This Court reviews the BIA’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). We remand for clarification of the standard the BIA uses when determining whether a particular group has suffered from a pattern or practice of persecution. See Mufied v. Mukasey, 508 F.3d 88 (2d Cir.2007); Firmanto v. Mukasey, 259 Fed. Appx. 366, 367 (2d Cir.2008) (summary order). “Without further elaboration, we^ are unsure how systematic, pervasive, or organized persecution must be before the Board would recognize it as a pattern or practice.” Mufied, 508 F.3d at 93. For the foregoing reasons, the petition for review is GRANTED, the BIA’s order is VACATED, and the case is REMANDED to the BIA for further proceedings consistent with this decision.
2841	address early in the morning of October 20, 1970. Indeed, the Newport address was discovered at about 8:30 or 9:00 a.m. that morning from information provided by the telephone' company as to the name and address of the subscriber listed for the intercepted calls. The law governing this situation has been long established. Nearly half a century ago, in Tynan v. United States, 297 F. 177, 179 (9th Cir.), cert. denied, 266 U.S. 604, 45 S.Ct. 91, 69 L.Ed. 463 (1924), the court stated: “No doubt a general search warrant for an entire building . . . occupied by different families or different tenants, is ordinarily null and void.” See also, United States v. Mitchell, 274 F. 128 (N.D.Cal. 1921); Hogrefe v. United States, 30 F.2d 640 (9th Cir.1929). In United States v. Barkouskas, 38 F.2d 837 (M.D.Pa. 1930), the search warrant in question authorized the search of the premises “located at 1919 Jackson St., Scranton, Pa.” The warrant did not include the name of the defendant or the occupants of the premises nor any designation of any part of the premises. The facts were that the owner of the building and his family occupied the second floor while the defendant leased the first floor. The court held that, “under these facts, there were two places included in the description, and the description was a general and not a ‘particular’ description.” Id. at 838. The search was ruled illegal and the evidence obtained thereby ordered suppressed. In United States v.
416	§ 105(a) to enjoin the LPSC’s consideration of a rate decrease based on the suspension of Cajun’s debt service or to terminate the escrow established by the LPSC’s rate order. Assuming, without deciding, that the bankruptcy court did have such authority under § 105(a), we conclude that in these circumstances the court’s issuance of such an injunction and termination of the escrow amounted to an abuse of discretion. See Indian Motocycle Assocs. Ill Ltd. Partnership v. Mass. Hous. Fin. Agency, 66 F.3d 1246, 1249 (1st Cir.1995) (“A bankruptcy court’s decision granting or denying injunctive relief pursuant to Bankruptcy Code § 105(a) is reviewed only for abuse of discretion.”); Commonwealth Oil Refining Co. v. United States Environmental Protection Agency (Matter of Commonwealth Oil Refining Co.), 805 F.2d 1175, 1188 (5th Cir.1986) (reviewing bankruptcy court’s refusal to grant stay under § 105(a) for abuse of discretion); see also Cargill, Inc. v. United States, 173 F.3d 323, 341 (5th Cir.1999) (stating that a court abuses its discretion in granting injunctive relief when it “relies on erroneous conclusions of law, or ... misapplies its factual or legal conclusions”). A. Cajun as a Regulated Utility We begin our analysis of the bankruptcy court’s injunction preventing the LPSC from considering a rate decrease based on the suspension of Cajun’s interest obligation by noting that the Bankruptcy Code “indirectly suggests continued governmental regulatory jurisdiction” during the pendency of the bankruptcy proceeding. Evan D. Flaschen & Michael J. Reilly, Bankruptcy Analysis of a Financially-Troubled Electric Utility, 59 Am.
1182	the defendants offer by way of settlement, is the most important consideration. Taifa, 846 F.Supp. at 726. The district court stated its firm belief that plaintiffs’ chances for success at trial on the merits were relatively low when compared to what defendants offered in the agreed entry. Id. In support of this belief, the district court noted that one of plaintiffs’ “principal concerns” was the assignment of prisoners to the MCC as part of a classification process rather than as the outcome of disciplinary proceedings which afford due process protections. As evidence that plaintiffs’ prospects on this issue were not favorable, the district court relied on King v. Fairman, 997 F.2d 259, 262 n. 4 (7th Cir.1993), in which we cited Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), for the proposition that “an inmate has no liberty interest in confinement at any particular state prison and that prison officials may effect discretionary transfers of an inmate without implicating the due process clause, even if the conditions at one prison are substantially worse than another.” Taifa, 846 F.Supp. at 726-27. See also Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, (1976). All of these decisions were recognized by the district court as undermining plaintiffs’ chances of success on the merits. Taifa, 846 F.Supp. at 727. The district court then observed that despite its doubt that plaintiffs
3802	Dream Palace. First, the ordinance only forbids simulation of sex acts with another person; it does not forbid solo simulation. AEC § 3-129(6). Second, workers are only prohibited from simulating SSA while simultaneously displaying or exposing a specified anatomical area. Id. However, neither qualification lessens the provision’s unconstitutional restriction on protected expressive conduct. The first qualifier, which requires a second person be involved in the simulation, is meaningless according to Plaintiff because, it contends, an audience member always constitutes the “other” person. The County, on the other hand, argues that the ordinance’s requirement of another person “saves the constitutionality of the provision” because “two people slow dancing together is not constitutionally protected expressive conduct.” (Def.’s Mem. at 12) (citing City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989)). The County’s reliance on Stang-lin is misplaced. Stanglin held that the slow dancing of teenagers in a dance hall was not protected by the First Amendment because it did not qualify as the type of intimate association or expressive association defined in Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). The dancing teenagers in Stanglin were not intimately associated or coming together to engage in activities protected by the First Amendment. Stanglin, 490 U.S. at 24-25, 109 S.Ct. 1591. Two people coming together for recreational dance in a public dance hall do not convey a message in the same sense that adult entertainers do when they perform
1234	Auto Ins. Co., 44 F.3d 256, 263 (5th Cir. 1995) (stating that although the court could consider affidavits or deposition testimony in analyzing fraudulent joinder claim, the court should not use such evidence to “determine whether a claim has been stated against the nondiverse defendant under a legal theory not alleged in the state court complaint”); Lovell v. United Airlines, Inc., No. 09-CV-146, 2009 WL 3172729, at *3 (D.Haw.2009) (stating that in evaluating fraudulent joinder, “the court may consider the plaintiffs factual assertions (whether in a brief, an affidavit, or in some other form), that elaborate on the allegations of the complaint, so long as those factual assertions are not inconsistent with the allegations of the complaint” (quoting Conk v. Richards & O’Neil, LLP, 77 F.Supp.2d 956, 961 (S.D.Ind.1999))); In re Fen-Phen, 2003 WL 22682440, at *5 n. 9 (considering documents outside the complaint to determine if complaint stated a cause of action, but refusing to consider new theories of liability not asserted in the complaint). In other words, documents outside the pleadings may be considered “only to the extent that the factual allegations ... clarify or amplify the claims actually alleged.” Griggs, 181 F.3d at 700; see also In re Fen-Phen, 2003 WL 22682440, at *5 n. 9; Rosenberg, 1984 WL 535, at *1. Thus, the Court will consider the Proposed Complaint and the other submitted documents only to evaluate the specific contract claims alleged in the Summons with Notice, but the Court notes that the result would be
4944	meaning.” See Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed.Cir.2005); see also Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed.Cir.1998) (“The claims define the scope of the right to exclude; the claim construction inquiry, therefore, begins and ends in all cases with the actual words of the claim.”). This ordinary and customary meaning “is the meaning that the terms would have to a person of ordinary skill in the art in question at the time of the invention .... ” Phillips, 415 F.3d at 1313. A patentee is presumed to have intended the ordinary meaning of a claim term in the absence of an express intent to the contrary. York Products, Inc. v. Central Tractor Farm & Family Ctr., 99 F.3d 1568, 1572 (Fed.Cir.1996). Generally speaking, the words in a claim are to be interpreted “in light of the intrinsic evidence of record, including the written description, the drawings, and the prosecution history, if in evidence.” Teleflex, Inc. v. Ficosa North Am. Corp., 299 F.3d 1313, 1324-25 (Fed.Cir.2002) (citations omitted); see also Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313, 1319 (Fed.Cir.2005) (court looks at “the ordinary meaning in the context of the written description and the prosecution history”). “Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). With regard to the intrinsic evidence, the court’s examination begins, first, with the claim language. See id. Specifically,
4639	CPD officials did not seek judicial review of the Board’s determinations, nor did they offer Buttitta a hearing before declining to reinstate him. Instead they simply referred Buttitta back to the Board for continued disability payments. Construction of the Statute In any due process case where the deprivation of property is alleged, the threshold question is whether a property interest actually exists. In that respect Buttitta’s is a case of first impression. No reported decisions of any court have considered whether Section 5-156 creates the property interest that is claimed here. As a general rule, “[pjroperty interests exist when an employer’s discretion is clearly limited so that the employee cannot be denied employment unless specific conditions are met” (Colburn v. Trustees of Indiana University, 973 F.2d 581, 589-90 (7th Cir.1992)). Paragraph 5-156 mandates a “return[] to active service” once the Board determines that an officer’s original disability has ceased. Thus the discretion of the CPD to refuse reinstatement to an officer referred back to it by the Board is “clearly limited” — but how much and in what respects? Answering that question calls for a fresh look at the final sentence of Section 5-156: When the disability ceases, the board shall discontinue payment of the benefit, and the policeman shall be returned to active service. Buttitta reads the phrase “returned to active service” to require actual reinstatement to the CPD, carrying with it a return to full salary, benefits and seniority accrual (if not an actual return to police duty).
1910	When the delay is longer than the analogous statute of limitations, “a presumption of laches will apply and plaintiff must show why the laches defense ought not be applied in the case.” Conopeo, Inc. v. Campbell Soup Co., 95 F.3d 187, 191 (2d Cir. 1996). The analogous limitations period here is New York’s six-year period for fraud claims. See id. Since Merkos’s delay is substantially longer — 17 years elapsed between its 1994 letter to Vaad and the assertion of its counterclaims— Vaad is entitled to the presumption. Merkos argues that laches ought not to bar its counterclaims for two reasons. First, it notes that laches is not a defense to intentional infringement. See, e.g., Hermes Int’l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104, 107 (2d Cir.2000). Intentional infringement is infringement done in bad faith to confuse consumers or trade on the plaintiffs goodwill. See id. (“[The infringers] intentionally traded off the Hermes name and protected products and should not have been entitled to invoke the doctrine of laches.... ”); Harley Davidson, Inc. v. Grottanelli, 164 F.3d 806, 813 (2d Cir.1999) (“[The infringer’s] intention to confuse undermines any claim of good faith.... ”). On the facts of this case, Vaad has a colorable claim that it continued to use the Kehot logo in the good-faith belief that the Rebbe’s prior approval entitled it to do so. The Court cannot rule out, however, the alternative theory that Vaad intended to sow confusion as to the source of its
3632	statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force — that is, force capable of causing physical pain or injury to another person.” 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Because Sawyer was pre-Johnson, we had no occasion to address whether or not the “physical force” required by the Arkansas robbery statute and elucidated by Arkansas’s statutory definition of that term was equivalent to the violent force sufficient to qualify ás a crime of violence under the force clause after Johnson. “It is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel.” United States v. Anderson, 771 F.3d 1064, 1066-67 (8th Cir. 2014) (quoting United States v. Betcher, 534 F.3d 820, 823 (8th Cir. 2008)). “This rule, however, does not apply when the earlier panel decision is cast into doubt by an intervening Supreme Court decision.” Id. (citing Williams, 537 F.3d at 975). Johnson “elevated the necessary quantum of force from de [minimis] to ‘violent,’ ” United States v. Winston, No. 3:01-cr-00079, 2016 WL 2757451, at *5 (W.D. Va. May 11, 2016), and thereby “casts sufficient doubt on the reasoning” of some pre-Johnson holdings regarding crimes of violence, United States v. Holloway, 630 F.3d 252, 254-55 (1st Cir. 2011). Therefore, Sawyer’s “rule that the boilerplate charging language of [robbery] alone establishes a violent felony” may be rightfully reevaluated. Id. While the reasoning of Sawyer “is no longer sound, its conclusion may still be correct
2992	conclude that the owner is not deprived of all economic use of his property because the value of upland portions is substantial. We remand for further consideration of the claim under the principles set forth in Penn Central. II The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897), prohibits the government from taking private property for public use without just compensation. The clearest sort of taking occurs when the government encroaches upon or occupies private land for its own proposed use. Our cases establish that even a minimal “permanent physical occupation of real property” requires compensation under the Clause. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 427 (1982). In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), the Court recognized that there will be instances when government actions do not encroach upon or occupy the property yet still affect and limit its use to such an extent that a taking occurs. In Justice Holmes’ well-known, if less than self-defining, formulation, “while property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking.” Id., at 415. Since Mahon, we have given some, but not too specific, guidance to courts confronted with deciding whether a particular government action goes too far and effects a regulatory taking. First, we have observed, with certain qualifications, see infra, at 629-630, that
1354	deny that they have done anything wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir.1985). To that end, the allegations must contain “an account of the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations.” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir.2007) (citation omitted). Averments of fraud must be accompanied by the “who, what, when, where, and how” of the misconduct charged. Vess v. Ciba-Geigy Corp. USA 317 F.3d 1097, 1106 (9th Cir.2003) (citation omitted). Additionally, “the plaintiff must plead facts explaining why the statement was false when it was made.” Smith v. Allstate Ins. Co., 160 F.Supp.2d 1150, 1152 (S.D.Cal.2001); see also In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1549 (9th Cir.1994) (en banc) (superseded by statute on other grounds). C. Rule 12(b)(1) A party may file a motion to dismiss with the Court for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion may be either facial or factual. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004). A facial 12(b)(1) motion involves an inquiry confined to the allegations in the complaint, whereas a factual 12(b)(1) motion permits the court to look beyond the complaint to extrinsic evidence. Id. When a defendant makes a facial challenge, all material allegations in the complaint are assumed true, and the court must determine whether lack of federal jurisdiction appears from the face of the complaint itself. Wolfe, 392 F.3d
1904	”). Vaad objects that the resolution reflects only a transfer of the “right to use” the name Kehot and is, therefore, more a license than a transfer of ownership. That interpretation, however, is belied by the overwhelming evidence that Kehot, as an entity, was folded into Merkos, which has now run its publishing operations for more than 70 years. In that role, it took steps to protect the logo by registering it under New York law. To be sure, the Rebbe served as Merkos’s president and played a major role in its management. But that role merely underscores that the steps he took to formalize the operation of Kehot was something more than a license to use its name. Cf. Levitt Corp. v. Levitt, 593 F.2d 463, 468 (2d Cir.1979) (“Where ... the infringing party has previously sold his business, including use of his name and its goodwill, to the plaintiff, sweeping injunctive relief [against his continued use of the name] is more tolerable.”). In sum, the TTAB’s finding that Merkos owned the Kehot logo was supported by substantial evidence. Indeed, even without giving any deference to that finding, the Court would reach the same conclusion as a matter of law. B. What is the Kehot logo? The function of a trademark is “to identify and distinguish goods ... and to indicate their source.” American Express Co. v. Goetz, 515 F.3d 156, 159 (2d Cir.2008) (citing 15 U.S.C. § 1127). Another type of mark — known as a certification mark
4718	Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of City of N.Y., 746 F.3d 538, 544 (2d Cir.2014) (internal quotation marks omitted). At summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., MDL No. 1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court’s goal should be “‘to isolate and dispose of factually unsupported claims.’ ” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir.2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Schatzki v. Weiser Capital Mgmt., LLC, No. 10-CV-4685, 2013 WL 6189465, at *14 (S.D.N.Y. Nov. 26, 2013) (same). “If the party opposing a summary judgment motion shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may deny the motion or allow time to take discovery.” Walden v. Sanitation Salvage Corp., No. 14-CV-112, 2015 WL 1433353, at *2 (S.D.N.Y. Mar. 30, 2015); see also Fed.R.Civ.P. 56(d) (“If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to'justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits
1280	this case voluntarily without prejudice under Rule 41(a)(1)(A)(i), Fed. R. Civ. P. That rule allows a plaintiff to “dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” Rule 41(a)(1)(A)(i), Fed. R. Civ. P. Voluntary dismissal under Rule 41(a)(1)(A)(i), Fed. R. Civ. P., is ostensibly proper in this case because defendant Pey-ton N. Jackson has filed neither an answer nor a motion for summary judgment; indeed, he has not even been served. But defendant has filed for bankruptcy, which raises the question of whether the automatic stay provision of 11 U.S.C. § 362 prohibits plaintiff from voluntarily dismissing this action. See Slay v. Living Ctrs. East, Inc., 249 B.R. 807, 807 (S.D. Ala. 2000). A plaintiff can voluntarily dismiss an action under Rule 41, Fed. R. Civ. P., because “the purposes of the Bankruptcy Code [are] in no way infringed by the dismissal by a plaintiff of a case against the bankrupt without any additional cost or risk to the bankrupt or its creditors.” Chase Manhattan Bank, N.A. v. Celotex Corp., 852 F.Supp. 226, 228 (S.D.N.Y. 1994). Because “voluntary dismissals assist rather than interfere with the goals of Chapter 11,” this action can be dismissed under Rule 41(a)(1)(A)(i), Fed. R. Civ. P. Slay, 249 B.R. at 807. Accordingly, and for good cause, It is hereby ORDERED that plaintiffs motion to dismiss his case voluntarily without prejudice (Doc. 9) is GRANTED. The Clerk is
1570	the worker receives a “fixed amount as straight time pay for whatever hours he is called upon to work in a workweek, whether few or many.” 29 C.F.R. § 778.114(a). When the fluctuating workweek method applies, any unpaid overtime is calculated by, first, dividing that worker’s regular salary for the week by the number of hours actually worked in that week, an amount known as the “regular rate”; second, awarding the worker an amount equal to half the regular rate for that particular week multiplied by the number of hours in excess of 40 worked for that particular week. See id. “When the fluctuating workweek method applies, the employee’s ‘regular rate’ for FLSA purposes is calculated anew each week O’Brien v. Town of Agawam, 350 F.3d 279, 287 (1st Cir.2003). The other method approved by the Department of Labor for calculating the regular rate is the “fixed weekly salary” method. 29 C.F.R. § 778.113(a). The fixed weekly salary method results in a much higher rate of overtime pay, because the regular rate is calculated by dividing the weekly salary by 40 hours each week, and the workers are paid 150% of the regular rate for the unpaid overtime hours, rather than only 50% of the regular rate under the fluctuating workweek method. See O’Brien, 350 F.3d at 286-87. An employer may not simply choose to pay the lower overtime rate. Id. at 288. The regulation requires that four conditions be satisfied before an employer may do so: (1) the employee’s
537	Council, Inc., 509 U.S. 155, 173, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993); see Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (“It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” (internal quotation marks omitted)); see also Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (“When it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute.”). This “canon of construction,” Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (internal quotation marks omitted), is “rooted in a number of considerations,” Smith v. United States, 507 U.S. 197, 204 n. 5, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993). It “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” Aramco, 499 U.S. at 248, 111 S.Ct. 1227. In addition, it recognizes that Congress “generally legislates with domestic concerns in mind.” Smith, 507 U.S. at 204 n. 5, 113 S.Ct. 1178; see also Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949). For these reasons, we “assume that Congress legislates against the backdrop of the presumption against extraterritoriality.” Aramco,■ 499 U.S. at 248, 111 S.Ct. 1227. In other words, absent “clear evidence of congressional intent” to apply a statute beyond our borders, the statute will
99	W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). D. Standard of Review Where, as here, an interlocutory appeal has been taken from the district court’s issuance of a permanent injunction, we may consider the underlying “merits of the case, to the extent they relate to the propriety of granting ... injunctive relief.” 11 C. Wright & A. Miller, Federal Practice & Procedure § 2962, at 629 (1973). “A district court has a wide range of discretion in framing an injunction in terms it deems reasonable to prevent wrongful conduct, and appellate review of the terms of the injunction must focus upon whether there has been an abuse of that discretion.” Spring Mills, Inc. v. Ultracashmere House, Ltd., 724 F.2d 352, 355 (2d Cir.1983) (internal citation omitted); see also 11 Federal Practice & Procedure § 2962, at 633 (“trial court has considerable discretion in determining whether the situation requires the issuance of ... a permanent injunction”). While the INS concedes that these are the proper standards for evaluating the district court’s decision, it urges us to consider the broad discretion that it has over alien and immigration matters. The Attorney General has been charged with the responsibility for the administration and enforcement of the nation’s laws relating to immigration and naturalization. 8 U.S.C. § 1103. Accordingly, the Attorney General enjoys broad discretion in this area. The Attorney General has in turn delegated that authority and discretion to the Commissioner of the INS. 8 C.F.R.
1953	745 (4th Cir.1990), cert. denied, 499 U.S. 919, 111 S.Ct. 1307, 113 L.Ed.2d 242 (1991)) (“a defendant need not know the exact identity of the chemicals disposed of, but only that the chemicals have ‘the potential to be harmful to others or to the environment’”); United States v. Goodner Bros. Aircraft, Inc. 966 F.2d 380 (8th Cir.1992) (jury instructed on listed wastes and the invalid “mixture” rule; case remanded), cert. denied,—U.S.-, 113 S.Ct. 967, 122 L.Ed.2d 123 (1993); United States v. Bay-tank (Houston), Inc., 934 F.2d 599, 613 (5th Cir.1991) (statute requires that defendant know factually what he is doing, not “that he know that there is a regulation which says what he is storing is hazardous under the RCRA”); United States v. Sellers, 926 F.2d 410, 415 (5th Cir.1991) (government need not prove that defendant knew that the waste was hazardous within the meaning of the regulations, only that the defendant knew what the waste was, i.e., “paint,” “solvent,” etc.); United States v. Hoflin, 880 F.2d 1033, 1039 (9th Cir.1989) (jury required to find that defendant “disposed of chemical waste which he knew ‘had the potential to be harmful to others or to the environment’ ”), cert. denied, 493 U.S. 1083, 110 S.Ct. 1143, 107 L.Ed.2d 1047 (1990); United States v. Greer, 850 F.2d 1447, 1452 (evidence sufficient to show that defendant knew that dumping a load of 1,1,1 triehloroethane “would pose harm to others or the environment”). In United States v. Laughlin, 768 F.Supp. 957 (N.D.N.Y.1991), the Government
680	above quoted excerpt was followed by emphasis on the fact that by having the corporations assume the debt owed by him, he reduced his exposure to. personal liability. “Thus, although Drybrough stood as security for the corporate indebtedness, he would not, as a practical matter, have been called upon to satisfy the liabilities, except in the most unusual circumstances.” 42 T.C. at 1043, 1044. Such is true, but is no more than the result in all tax free exchanges where a wholly owned corporation is successor to the assets and liabilities of a proprietorship. With reference to the inquiry into the use made by Drybrough of the proceeds of the 1953 borrowing, the language of the Ninth Circuit in Easson v. C. I. R., 294 F.2d 653, 659 (CA 9, 1961) is pertinent : “The test suggested by the Commissioner looks to the origin of the encumbrance and to the use of the proceeds derived from it. Section 112(k) [predecessor to § 357], however, says nothing about the origin of the encumbrance. It says only that if a corporation ‘acquires from the taxpayer property subject to a liability such * * * acquisition shall not be considered as’ boot, unless the taxpayer’s principal purpose regarding the acquisition is tax avoidance or not a bona fide business purpose. Nor is there anything in the section which deals with the reasons for the encumbrance, or the manner in which the mortgage proceeds are used.” (Emphasis supplied.) There was evidence also that part
3524	discrimination and disparate treatment based on disability. Id. at 1168-71. Those rulings are not before us. The court denied summary judgment to the City and the individual defendants on CHI’s remaining FHA, Establishment Clause, and Idaho constitutional claims. With respect to the individual defendants, the district court held that neither legislative nor qualified immunity applied and denied them summary judgment. II STANDARD OF REVIEW We review de novo a district court’s decision to deny summary judgment based on legislative or qualified immunity. Kaahumanu v. County of Maui, 315 F.3d 1215, 1219 (9th Cir.2003); Mabe v. San Bernardino County, 237 F.3d 1101, 1106 (9th Cir.2001). We apply the same summary judgment standard as the district court. Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d 1110, 1131 (9th Cir.2003). Summary judgment is appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Because the issues presented here on summary judgment are “purely legal ones,” we need decide only “whether the district court correctly determined that, under the facts alleged, [CHI’s] claims were barred as a matter of law.” Clipper Exxpress v. Rocky Mtn. Motor Tariff Bureau, Inc., 690 F.2d 1240, 1250 (9th Cir.1982). We accept those facts and reasonable inferences to be drawn from them in the light most favorable to CHI. Ill LEGISLATIVE IMMUNITY Local government officials
4678	waived appellate review of their RICO claim against the Fishbeins by failing to object to the portion of the magistrate judge’s February 28, 2017 report and recommendation addressing that claim despite being notified of the consequences of their failure to do so. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). Although we have discretion to excuse that waiver “in the interests of justice,” Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Cephas, 328 F.3d at 107, “[s]uch discretion is exercised based on, among other factors, whether the defaulted argument has* substantial merit or, put otherwise, whether the magistrate judge committed plain error in ruling against the defaulting party,” Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000). Upon review, we conclude that, even were we to excuse the Maitlands’ failure to object to the relevant portions of the magistrate judge’s report and recommendation, we would nonetheless affirm for substantially the reasons stated by the magistrate judge. On appeal, the Maitlands primarily argue that the district court possessed diversity jurisdiction over their state law claims and erred when it dismissed their claims for want of diversity jurisdiction (having declined to exercise supplementary jurisdiction following dismissal). “For purposes of diversity jurisdiction, a party’s citizenship depends on his domicile.” Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998). “[Establishing one’s domicile in a state generally requires both physical presence there and intent to stay.” Universal Reinsurance Co. v.
4677	L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although a court must accept as true all the factual allegations in the complaint, that requirement is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. As an initial matter, the Maitlands have waived appellate review of their RICO claim against the Fishbeins by failing to object to the portion of the magistrate judge’s February 28, 2017 report and recommendation addressing that claim despite being notified of the consequences of their failure to do so. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). Although we have discretion to excuse that waiver “in the interests of justice,” Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Cephas, 328 F.3d at 107, “[s]uch discretion is exercised based on, among other factors, whether the defaulted argument has* substantial merit or, put otherwise, whether the magistrate judge committed plain error in ruling against the defaulting party,” Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000). Upon review, we conclude that, even were we to excuse the Maitlands’ failure to object to the relevant portions of the magistrate judge’s report and recommendation, we would nonetheless affirm for substantially the reasons stated by the magistrate judge. On appeal, the Maitlands primarily argue that the district court possessed diversity jurisdiction over their state law claims and erred when it dismissed their claims
544	“special maritime and territorial jurisdiction of the United States”), appeal pending, No. 99-10232 (9th Cir.); Witten v. Pitman, 613 F.Supp. 63, 65-66 (S.D.Fla.1985) (holding that an area controlled by the United States Customs Service in the airport of Nassau, Bahamas, is within the “special maritime and territorial jurisdiction of the United States”). In addition, several courts, including this one, have repeated the Erdos holding in dicta. See, e.g., Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d 1326, 1342 (2d Cir.1992) (“Interestingly, both United States citizens and aliens alike, charged with the commission of crimes on Guantanamo Bay [in Cuba], are prosecuted under United States laws.” (citing, inter alia, 18 U.S.C. § 7)), vacated on other grounds sub nom. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 918, 113 S.Ct. 3028, 125 L.Ed.2d 716 (1993); Persinger v. Islamic Republic of Iran, 729 F.2d 835, 841^2 & n. 11 (D.C.Cir.1984); McKeel v. Islamic Republic of Iran, 722 F,2d 582, 588-89 (9th Cir.1983). On the other hand, at least one court has rejected the Erdos decision, see United States v. Bin Laden, 92 F.Supp.2d 189, 206 (S.D.N.Y.2000) (stating that the Erdos Court’s reasoning “is elliptical and disjointed”), and several commentators have criticized the decision severely, see, e.g., Jordan J. Paust, Non^Extraterritoriality of “Special Territorial Jurisdiction” of the United States: Forgotten History and the Errors of Erdos, 24 Yale J. Int’l L. 305, passim (1999); Geoffrey R. Watson, Offenders Abroad: The Case for Nationality-Based Criminal Jurisdiction, 17 Yale J. Int’l L. 41, 52-53 &
542	7, 1997) (order granting the government’s motion in limine to prohibit objection to jurisdiction as a matter of law during trial) (holding that apartments leased by the United States Secretary of State to house American embassy employees in the Philippines are within the “special maritime and territorial jurisdiction of the United States”), appeal pending, No. 99-10232 (9th Cir.); United States v. Corey, Cr. No. 96-01019DAE, slip op. at 6-9 (D.Haw. Apr. 16, 1998) (order denying defendant’s mo tion to dismiss indictment and granting the government’s motion in iimine to prohibit objection to jurisdiction) (holding that a United States Air Base in Yokota, Japan, is within the “special maritime and territorial jurisdiction of the United States”), appeal pending, No. 99-10232 (9th Cir.); Witten v. Pitman, 613 F.Supp. 63, 65-66 (S.D.Fla.1985) (holding that an area controlled by the United States Customs Service in the airport of Nassau, Bahamas, is within the “special maritime and territorial jurisdiction of the United States”). In addition, several courts, including this one, have repeated the Erdos holding in dicta. See, e.g., Haitian Ctrs. Council, Inc. v. McNary, 969 F.2d 1326, 1342 (2d Cir.1992) (“Interestingly, both United States citizens and aliens alike, charged with the commission of crimes on Guantanamo Bay [in Cuba], are prosecuted under United States laws.” (citing, inter alia, 18 U.S.C. § 7)), vacated on other grounds sub nom. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 918, 113 S.Ct. 3028, 125 L.Ed.2d 716 (1993); Persinger v. Islamic Republic of Iran, 729 F.2d 835, 841^2
2372	clarified that Compañía Galeana referred to an exception to the general rule against an award of attorneys’ fees in admiralty cases: In admiralty cases, however, it is the general rule that attorneys’ fees are not awarded. Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724 (5th Cir.1980). Platoro cites Compania Galeana, S.A. v. M/V Caribbean Mara, 565 F.2d 358 (5th Cir.1978), for the proposition that such an award lies in the discretion of the admiralty court. We pointed out in No-ritake, however, that Compañía Galea-na clearly referred to an exception to the rule: that attorneys’ fees may be awarded where the nonprevailing party has acted in bad faith. Noritake, 627 F.2d at 731 n. 5. Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 695 F.2d 893, 905-06 (5th Cir.1983) (emphasis added); see also Atlantis Marine Towing, Inc. v. M/V Elizabeth, 346 F.Supp.2d 1266, 1276 (S.D.Fla.2004) (“In Compañía Galeana and Cobb Coin Co., relied upon by both Plaintiff AMT and the district court in Treasure Salvors, Inc., attorneys’ fees were awarded based upon a finding of bad faith by the nonprevailing party. In admiralty cases, however, it is the general rule that attorneys’ fees are not awarded.... An exception to the rule [is] that attorneys’ fees may be awarded where the nonprevailing party has acted in bad faith.”) (citing Pla- toro 695 F.2d at 905-06). All the foregoing authority makes clear that an award of attorneys’ fees in this case is appropriate only upon a finding that Allstate acted in
569	Appellee in her complaint and the Trial Court in its opinion recognize that the parties to the contract contemplated an instrument to be executed by Mr. Steele other than a will. This position of Appellee and the Trial Court is conclusively sustained by the simple fact that the word ‘will’, while obviously well known to both parties to the contract, was not used.” We think the defendant here cannot so evade the force of the Williams opinion. As the able trial judge points out, the agreement was “inartistically drawn”. He determined that an ambiguity existed —that the contract was susceptible of more than one meaning, and with that we agree. This court said in United States v. Northern Pacific Ry. Co., 8 Cir., 1951, 188 F.2d 277, 280: “The question as to whether an ambiguity exists in a contract is to be determined by the court as a matter of law. 17 C.J.S. Contracts § 617; Whiting Stoker Company v. Chicago Stoker Company, 7 Cir., 171 F.2d 248; Golden Gate Bridge & Highway District of California v. United States, 9 Cir., 125 F.2d 872.” Having so determined and we think rightly, the matter became an issue of fact and, as Judge Thomas, speaking for this court in Floyd v. Ring Construction Corp., 8 Cir., 1948, 165 F.2d 125, 129, said: “The law is ‘that the terms of a contract, if it be ambiguous, are matters of fact to be determined in the same manner as other facts; by the jury,
1957	United States v. Sellers, 926 F.2d 410, 415 (5th Cir.1991) (government need not prove that defendant knew that the waste was hazardous within the meaning of the regulations, only that the defendant knew what the waste was, i.e., “paint,” “solvent,” etc.); United States v. Hoflin, 880 F.2d 1033, 1039 (9th Cir.1989) (jury required to find that defendant “disposed of chemical waste which he knew ‘had the potential to be harmful to others or to the environment’ ”), cert. denied, 493 U.S. 1083, 110 S.Ct. 1143, 107 L.Ed.2d 1047 (1990); United States v. Greer, 850 F.2d 1447, 1452 (evidence sufficient to show that defendant knew that dumping a load of 1,1,1 triehloroethane “would pose harm to others or the environment”). In United States v. Laughlin, 768 F.Supp. 957 (N.D.N.Y.1991), the Government contended that a violation of § 6928(d)(2)(A) would be proved by establishing the following four elements: (1) that the defendant knowingly stored or disposed of a substance during the time period alleged in the indictment; (2) that pursuant to RCRA, the substance was hazardous; (3) that the defendants knew that the substance had the potential to be harmful to others or the environment, “or in other words, it was not an innocuous substance like water;” and (4) that the defendants had not obtained a permit or interim status authorizing the storage or disposal of hazardous waste under RCRA. See Laughlin, swpra, at 959. Laughlin supports the Government’s position in the instant case that specificity, regarding the basis upon which the
4554	words, a violation caused by a municipal policy, e.g. a policy made by a. municipal policymaker, is a violation by the municipality. See Flanders v. Maricopa Cnty., 203 Ariz. 368, 378, 54 P.3d 837, 847. (Ariz.Ct.App.2002) (“Liability [under § 1983] is imposed, not on the grounds of respondeat superior, but because the agent’s status cloaks him with the governmental body’s authority.”). “To hold a local government liable for an official’s conduct [under § 1983], a plaintiff, must first establish that the official (1) had final policymaking authority ‘concerning the action alleged to have caused the particular constitutional or statutory violation at issue’ and (2) was the policymaker for the local governing body for the purposes of the particular act.” Weiner v. San Diego Cnty., 210 F.3d 1025, 1028- (9th Cir.2000) (citing McMillian :v. Monroe County Alabama, 520 U.S. 781, 785, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997)). In analyzing the second question — whether a policymaker may be associated with a particular government entity for purposes of liability — the amount of control the government entity, i.e. the county board of supervisors, possesses over the official is but one factor. Goldstein v. City of Long Beach, 715 F.3d 750, 755 (9th Cir.2013) cert. denied sub nom. Cnty. of Los Angeles, Cal. v. Goldstein, — U.S.-, 134 S.Ct. 906, 187 L.Ed.2d 778 (2014). ‘ Other factors include the county’s obligation to defend or indemnify the official, the scope of the official’s duties, and the official’s definition in the state constitution. Goldstein,
4193	Congress did not amend these provisions, the district court reasoned that Congress intended to maintain the distinction between juvenile facilities and adult prisons. Finally, Plaintiffs rationalize the apparent inconsistency of defining a juvenile not incarcerated in a “prison” as a “prisoner.” The district court reconciled the definitions by concluding that “[t]his would simply place juveniles who have been transferred to adult facilities on the same footing as other adult prisoners.” (J.A. at 72.) Therefore, according to the district court, all inmates in adult prisons are subject to the same rules, regardless of age. 2. In a case that turns on statutory construction, we begin by examining the literal and plain language of the statute. See Robinson v. Shell Oil Co., — U.S. -, -, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997); Williams v. U.S. Merit Sys. Protection Bd., 15 F.3d 46, 49 (4th Cir.1994). If the “statutory language is unambiguous and the statutory scheme is coherent and consistent,” our inquiry ends. Robinson, — U.S. at -, 117 S.Ct. at 846 (quotation omitted); Murphy, 35 F.3d at 145. “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson, — U.S. at -, 117 S.Ct. at 846 (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477, 112 S.Ct. 2589, 2595, 120 L.Ed.2d 379 (1992)). In interpreting statutory language, words are generally given their
3371	“It is the generally accepted rule that a designation is confusingly similar to a trade-mark if an ordinary prospective purchaser, exercising due care in the circumstances, is likely to regard it as coming from the same source as the trademarked article. * * * The question is usually one of fact * * *, which in some cases may be determined by visual comparison, as where specific differences are so marked that the general appearance could not be confusing, * * or where it is inconceivable that an ordinary purchaser examining the two labels would be deceived. * * * In other cases extrinsic evidence may be necessary. * * ” To the same effect are National Nu Grape Co. v. Guest, 10 Cir., 164 F.2d 874, cert. denied 333 U.S. 874, 68 S.Ct. 903, 92 L.Ed. 1150, and Standard Oil Co. v. Standard Oil Co., 10 Cir., 252 F.2d 65. The rule as stated in Restatement, Torts § 728 (1938): “A designation is confusingly similar to a trade-mark or trade name under the rule stated in § 717 if prospective purchasers are likely to regard it as indicating the source identified by the trade-mark or trade name” was quoted with approval in the Standard Oil ease. The same language was used in Friedman v. Sealy, Inc., 10 Cir., 274 F.2d 255. Beatrice Foods Company produced a number of witnesses who testified, in substance, that purchasers of dairy products, and others, thought the Neosho product was the same as that
1900	,..., without prejudice to the right of any party to take further testimony.”); Goya Foods, Inc. v. Tropicana Prods., Inc., 846 F.2d 848, 853 (2d Cir.1988) (“The record made in the Patent and Trademark Office is admitted in evidence, but the factfinding of that office is not conclusive, nor is the court’s consideration limited to that record.” (internal quotation marks and citation omitted)). The PTO’s conclusions of law aré reviewed de novo. See In re Thrifty, Inc., 274 F.3d 1349, 1351 (Fed.Cir.2001). Its findings of fact, by contrast, are reviewed under the “substantial evidence” standard, under which a court must accept the findings if a “ ‘reasonable mind might accept’ a particulár evidentiary record as ‘adequate to support a cohclusion.’ ” Dickinson v. Zurko, 527 U.S. 150, 162, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Matters not raised in the administrative proceeding do' not, of course, receive any deference. Vaad offers, two reasons why.the.PTO’s registration of the Kehot logo should be canceled. . Those reasons frame the follow: ing questions, .which the Court answers in turn. A. Who owns the Kehot logo? In its opposition to registration, Vaad contended that the owner of the Kehot logo was the Rebbe, and not Merkos. The TTAB. rejected the argument, finding that “Merkos is the owner of the KEHOT logo and is the proper applicant for this trademark.” Vaad, 2010 WL 3597243, at *7. Vaad argues
249	there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Lipton v. Nature Co., 71 F.3d 464, 469 (2d Cir.1995). The moving party must demonstrate the absence of any material factual issue genuinely in dispute. Id. The court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, the non-moving party may not “rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986). Nor may the non-moving party “rest upon the mere allegations or denials of his pleading.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Rather, the non-moving party must produce specific facts sufficient to establish that there is a genuine factual issue for trial. Id. at 322-23, 106 S.Ct. 2548. If the evidence is “merely colorable” or “not significantly probative,” summary judgment may be granted. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (stating that the “mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find [for
4428	at 99; see also City of Roseville, 814 F.Supp.2d at 418-19. In this case, the plaintiffs do not allege scienter on motive and opportunity grounds. There is no allegation that the defendants, who collectively owned 883,651 shares of BoA stock during the Class Period, (Nahas Deel. Ex. 31), sold a single share of BoA stock during the Class Period. There is also no allegation that that the defendants possessed any other concrete and personal motive to defraud BoA investors by concealing the AIG suit. Instead, the plaintiffs assert that the Second Amended Complaint states facts constituting strong circumstantial evidence of conscious misbehavior or recklessness. Where, as here, motive is not apparent, “the strength of the circumstantial allegations must be correspondingly greater.” Kalnit v. Eichler, 264 F.3d 131, 142 (2d Cir.2001) (internal quotation marks omitted). Plaintiffs typically allege conscious misbehavior or recklessness by pleading with specificity that the defendants had “knowledge of facts or access to information contradicting their public statements.” Novak v. Kasaks, 216 F.3d 300, 308 (2d Cir.2000). As the Second Circuit Court of Appeals has explained, “[r]eckless conduct is, at the least, conduct which is highly unreasonable and which represents an extreme departure from the standards of ordinary care ... to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.” Chill v. Gen. Elec. Co., 101 F.3d 263, 269 (2d Cir.1996) (alteration in original and internal quotation marks omitted). The facts must support a
2168	103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989); Williams v. Hanover Hous. Auth., 113 F.3d 1294, 1299 (1st Cir.1997). “However, the fact that [plaintiffs] were the prevailing parties does not mean that they can recover for all the time spent in this litigation.” Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94,102 (1st Cir.1988). Instead, the Court calculates a reasonable fee award using the lodestar method, which is “the strongly preferred method by which district courts should determine what fees to award prevailing parties” under ,§ 1988. Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 337 (1st Cir.1997) (citing Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.1992)). To arrive at a reasonable award, the Court “must evaluate the data submitted by the fee-seeker, compute a lodestar, consider the totality of the adjustment factors approved by Congress and the [Supreme] Court, and make specific, reasoned adjustments” to reduce the award if appropriate. Id. at 340 (citation omitted). Although this Court is not required to produce a “painstaking” explanation of its decision, which is reviewed “deferentially, according substantial respect to the trial court’s informed discretion,” id. at 336-37 (citing Brewster v. Dukakis, 3 F.3d 488, 492 (1st Cir.1993)), recent case law demonstrates that the First Circuit examines these “discretionary” decisions extremely closely, see, e.g., McMillan v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 140 F.3d 288, 310-11
2732	consider the distinct issue raised here, namely, whether a petitioner whose changed personal conditions (which result in his falling into a category of individuals threatened by changed country conditions) can rely on those changed country conditions in an untimely motion to reopen where the underlying change in personal conditions postdated his order to depart. This question appears to be an open one. And because the agency has yet to address it, we. decline to consider it now. See INS v. Orlando Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam) (“Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place primarily in agency hands.”); see also Ucelo-Gomez v. Gonzales, 464 F.3d 163, 168— 70 (2d Cir.2006). We therefore remand to the BIA (1) the question of the veracity of the 2003 documents; (2) the question of whether the 2003 decisions, if valid, establish a changed understanding of country conditions; and finally, (3) the question of whether Chen’s changed conditions support reopening, given the fact that they derive from changed personal conditions that occurred after Chen’s departure was ordered. CONCLUSION The petition for review is Geanted, and the case is Remanded to the BIA for further proceedings. Petitioner Dante T. Colaianni, Jr. (“Co-laianni”) seeks review of a March, 29, 2002 order of the Board of Immigration Appeals (“BIA” or “Board”) affirming the December 12, 2001 decision of Immigration Judge (“IJ”) Adam Opaciuch denying Colaianni’s claim that
2398	of Civil Procedure 12(b)(6) on the ground that the complaint fails to state a claim upon which relief can be granted. See generally Def.’s Mem. at 8-11. Although a plaintiff need not set forth “detailed factual. allegations” to withstand a Rule 12(b)(6) motion, in order to establish the “grounds” of his “entitle[ment] to relief,” a plaintiff must furnish “more.than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). The Court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). The complaint “is construed liberally in [plaintiffs] favor, and [the Court should] grant [plaintiff] the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). However, the Court need not accept inferences that are not supported by the facts alleged and legal conclusions drawn by plaintiff. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Under the ADEA it is .“unlawful
3011	circumstances in this context. The court below therefore must consider on remand the array of relevant factors under Penn Central before deciding whether any compensation is due. Justice Scalia’s inapt “government-as-thief” simile is symptomatic of the larger failing of his opinion, which is that he appears to conflate two questions. The first question is whether the enactment or application of a regulation constitutes a valid exercise of the police power. The second question is whether the State must compensate a property owner for a diminution in value effected by the State’s exercise of its police power. We have held that “[t]he ‘public use’ requirement [of the Takings Clause] is ... coterminous with the scope of a sovereign’s police powers.” Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 240 (1984). The relative timing of regulatory enactment and title acquisition, of course, does not affect the analysis of whether a State has acted within the scope of these powers in the first place. That issue appears to be the one on which Justice Scalia focuses, but it is not the matter at hand. The relevant question instead is the second question described above. It is to this inquiry that “investment-backed expectations” and the state of regulatory affairs upon acquisition of title are relevant under Penn Central. JUSTICE Scalia’s approach therefore would seem to require a revision of the Penn Central analysis that this Court has not undertaken. Justice Scalia, concurring. I write separately to make clear that my understanding of how
926	thus payments triggering the statute of limitations established by § 6511(a). The taxpayer’s argument that the statute of limitations period began to run only when he received notice that his deficiency had been paid in full and that the lien had been released is without merit. Section 6511(a) contains no reference whatsoever to notice. See 26 U.S.C. § 6511(a); see also United States v. Dalm, 494 U.S. 596, 609 & n. 7,110 S.Ct. 1361, 1368-69 & n. 7, 108 L.Ed.2d 548 (1990) (noting that under § 6511(a), the time for filing a claim for refund begins to run when the return is filed or the tax is paid, “not when the taxpayer discovers that the payment was erroneous”); United States v. Swift & Co., 282 U.S. 468, 475-76, 51 S.Ct. 202, 204-05, 75 L.Ed. 464 (1931) (holding that the limitations period begins when the commissioner approves the schedule showing that the taxpayer has been credited with an overassessment, and recognizing that this date will predate notice to the taxpayer of the credit); Poulos v. United States, 50 A.F.T.R.2d (P-H) ¶ 82-5126 (E.D.Mich.1982) (rejecting the argument that the tax was “paid” only when the taxpayer learned of the seizure because “§ 6511 does not incorporate any requirement of knowledge of payment”). The taxpayer’s argument that the limitations period should be calculated by reference to the date the IRS files the “Certificate of Release of Federal Tax Lien” pursuant to 26 U.S.C. § 6325 is also without merit. Section 6325 requires the
2660	Brooks, 469 F.Supp.2d 324, 328-29 (D.Md. 2006) (court found that an out-of-state non-party ordered to appear for an examination in aid of judgment had violated Rule 34 when it objected to discovery on the grounds that it was overly broad, vague and sought information not reasonably calculated to lead to the discovery of admissible evidence because it failed “to make particularized objections to document requests”, which constituted waiv er of those objections); St. Paul Reins. Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508, 512 (N.D.Iowa 2000) (Boilerplate objections, including that a particular document request was oppressive, burdensome and harassing, were “[i]n every respect ... textbook examples of what federal courts have routinely deemed to be improper objections.”); Momah v. Albert Einstein Med. Ctr., 164 F.R.D. 412, 417 (E.D.Pa.1996) (“Mere recitation of the familiar litany that an interrogatory or a document production request is ‘overly broad, burdensome, oppressive and irrelevant’ will not suffice.”). 2. Elk Run’s Second Set of Interrogatories The court notes that Plaintiffs answers to Elk Run’s second set of interrogatories are utterly deficient because they are not answered under oath, signed by the person making the answers as required by Rule 33(b)(1) of the Federal Rules of Civil Procedure and Saria v. Massachusetts Mutual Life Ins. Co., 228 F.R.D. 536, 539-40 (S.D.W.Va.2005). In addition to the deficiency outlined above, the court finds that the answers to interrogatory numbers 1 and 2 are inadequate, unresponsive, and inconsistent with the requirements of Rule 33. Rule 33(b)(4) states that [a]ll
764	States, or an assistant of such officer. There is nothing in the record to bear out the assumption that the indictment was returned under section 97 of the Penal Code, aside from a recital in the judgment to that effect. But whether that section will support the indictment we need not inquire. Section 47 of the Penal Code provides: “Whoever shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property- of the United States, shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both.” Comp. St. § 10214. The indictment is clearly sufficient under this latter section. Hoback v. United States (C. C. A.) 284 F. 529. The brief makes some' reference to the indictment in another ease against the plaintiff in error, arising out of the same transactions; but the record in that ease is not before us.. There is no error in the record, and the judgment is affirmed.
535	Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (“Aramco ”) (“Congress has the authority to enforce its laws beyond the territorial boundaries of the United States.”); cf. Harvard Research in International Law, Jurisdiction with Respect to Crime, 29 Am. J. Int’l L. Supp. 435, 519 (1935) (“The competence of the State to prosecute and punish its nationals on the sole basis of their nationality is universally conceded.”). Thus, the issue in this ease is one of congressional intent — -that is, statutory construction — not of congressional power. In determining whether a statute applies extraterritorially, we are guided by a general “presumption that Acts of Congress do not ordinarily apply outside our borders.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 173, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993); see Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (“It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.” (internal quotation marks omitted)); see also Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (“When it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute.”). This “canon of construction,” Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (internal quotation marks omitted), is “rooted in a number of considerations,” Smith v. United States, 507 U.S. 197, 204
417	LPSC’s rate order. Assuming, without deciding, that the bankruptcy court did have such authority under § 105(a), we conclude that in these circumstances the court’s issuance of such an injunction and termination of the escrow amounted to an abuse of discretion. See Indian Motocycle Assocs. Ill Ltd. Partnership v. Mass. Hous. Fin. Agency, 66 F.3d 1246, 1249 (1st Cir.1995) (“A bankruptcy court’s decision granting or denying injunctive relief pursuant to Bankruptcy Code § 105(a) is reviewed only for abuse of discretion.”); Commonwealth Oil Refining Co. v. United States Environmental Protection Agency (Matter of Commonwealth Oil Refining Co.), 805 F.2d 1175, 1188 (5th Cir.1986) (reviewing bankruptcy court’s refusal to grant stay under § 105(a) for abuse of discretion); see also Cargill, Inc. v. United States, 173 F.3d 323, 341 (5th Cir.1999) (stating that a court abuses its discretion in granting injunctive relief when it “relies on erroneous conclusions of law, or ... misapplies its factual or legal conclusions”). A. Cajun as a Regulated Utility We begin our analysis of the bankruptcy court’s injunction preventing the LPSC from considering a rate decrease based on the suspension of Cajun’s interest obligation by noting that the Bankruptcy Code “indirectly suggests continued governmental regulatory jurisdiction” during the pendency of the bankruptcy proceeding. Evan D. Flaschen & Michael J. Reilly, Bankruptcy Analysis of a Financially-Troubled Electric Utility, 59 Am. BaNKR.L.J. 135, 144 (1985). Congress created a specific exception from the automatic stay of proceedings against the debtor that occurs upon the debtor’s bankruptcy filing for actions
3918	application allegedly resulted from innocent errors. ANALYSIS A. Federal Rule of Civil Procedure 56(c) provides that a moving party is entitled to summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” The Rule promotes the expedient administration of justice and protects the parties’ rights. “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’ ” Celotex Corporation v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1); Cloverdale Equipment Co. v. Simon Aerials, Inc., 869 F.2d 934, 937 (6th Cir.1989). The courts construe Rule 56 “with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact ... but also for the rights of persons opposing such claims and defenses.” Celotex, 477 U.S. at 327, 106 S.Ct. at 2555. A party moving for summary judgment bears a considerable burden. The Court of Appeals for the Sixth Circuit has held that a District Court may grant a motion for summary judgment only if it finds from the whole record before it that there are no material facts which are in dispute.
810	a former law partner of the undersigned judge from 1966 to 1969. The mere fact that the undersigned judge had been law partner of plaintiffs counsel, without more, would have been insufficient to trigger this order. However, the combination of these two factors, creates a question in the mind of the undersigned judge about the propriety of his sitting in Mr. Nachman’s cases in this Court, at least for a certain period of time. The goal of the judicial disqualification statute is to foster the appearance of impartiality, and any inconvenience that might be caused to my brethren by disqualification thereunder, “is more than outweighed by the need to protect the dignity and integrity of the judicial process.” Potashnick v. Port City Construction Co., 609 F.2d 1101, 1112 (5th Cir.1980). See also, In Re United States, 666 F.2d 690 (1st Cir.1981); Brody v. Pres. & Fellows of Harvard College, 664 F.2d 10 (1st Cir. 1981). In line with the foregoing, the undersigned judge, although he expressly finds that he has no personal bias or prejudice concerning any party to this litigation, nor has any personal knowledge of disputed evidentiary facts, nor does he have any personal interest in the proceedings herein which would tend to disqualify him, nevertheless finds that because of the combined effect of Mr. Nachman’s former law partner status and counsel to the undersigned judge in a recently ended litigation, this judge’s impartiality might reasonably be questioned by an objective knowledgeable member of the public, as provided
4371	of Plaintiff, and hold that so long as Plaintiff is fully subject to federal regulation, Plaintiff is not required to pay Maine producers the minimum price set by the Maine Milk Commission on milk purchased from Maine dairy farmers and distributed to Maine consumers. The Court agrees with Plaintiffs position. Plaintiff acknowledges, as does the Court, that the Supreme Judicial Court has not addressed the precise question presented by Defendants. Nevertheless, in the absence of a determinative ruling from the Supreme Judicial Court, the Court may predict what the state’s highest court would do when “the course [the] state court[ ] would take is reasonably clear.” Porter v. Nutter, 913 F.2d 37, 41 n. 4 (1st Cir.1990); Bi-Rite Enterprises, Inc. v. Bruce Miner Co., 757 F.2d 440, 443 n. 3 (1st Cir.1985) (“it is inappropriate for a federal court to use such a [certification] procedure when the course state courts would take is reasonably clear.”) In making such a prediction, “a federal court may consider ‘analogous decisions, considered dicta, scholarly works, and any other rehable data tending convincingly to show how the highest court in the state would decide the issue at hand.’” E.G. Fischer, 857 F.2d at 7 (quoting Michelin Tires, etc. v. First Nat’l Bank of Boston, 666 F.2d 673, 682 (1st Cir.1981)). Based on existing precedent from the Supreme Judicial Court and a Superior Court decision analyzing the relationship between the state and federal systems for regulating minimum milk prices as applied to a fully federally regulated
3417	the defendant’s character. United States v. Foster, 889 F.2d 1049, 1053 (11th Cir.1989). Here, the burglary conviction placed the firearm offense in context. Accordingly, there was no error in the admission of this evidence. B. Motion for a Mistrial A district court’s denial of a motion for mistrial is reviewed for abuse of discretion. United States v. Abraham, 386 F.3d 1033, 1037 (11th Cir.2004). When a curative instruction has been given, this court will reverse only if the evidence “is so highly prejudicial as to be incurable by the trial court’s admonition.” United States v. Harriston, 329 F.3d 779, 787 n. 4 (11th Cir.2003). To justify the grant of a mistrial, the defendant must show that he was substantially prejudiced. United States v. Chastain, 198 F.3d 1338, 1352 (11th Cir. 1999). “[This court] determined whether an error had substantial influence on the outcome by weighing the record as a whole.” See United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.1999). Here, the district court did not abuse its discretion in denying the mistrial. The statement that Terrell was a multiconvicted felon was a single, isolated statement, and the jury was instructed to disregard it. We presume the jury followed the court’s instructions. United States v. Chandler, 996 F.2d 1073, 1088 (11th Cir. 1993). Moreover, Terrell cannot show substantial prejudice from the comment as the evidence in this case was overwhelming. The victim of the burglary testified that his gun was stolen, a witness identified Terrell as the man seen
599	shall be legislative in type. However, fairness may require an opportunity for cross-examination on crucial issues. The presiding officer is empowered to permit cross-examination under such circumstances. . “(b) Although any hearing shall be informal and legislative in type, this part is intended to provide more than the bare essentials of informal rule making under 5 U.S.C. 553. The additional requirements are the following: “(1) The presiding officer shall be a hearing examiner appointed under 5 U.S. C. 3105. “ (2) The presiding officer shall provide an opportunity for cross-examination on crucial issues. “(3) The hearing shall be reported verbatim, and a transcript shall be available to any interested person on such terms as the presiding officer may provide.” . See Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); City of Chicago v. FPC, 147 U.S.App.D.C. 312, 458 F.2d 731, 744 (1971), cert. denied, 405 U.S. 1074, 92 S.Ct. 1495, 31 L.Ed.2d 808 (1972); Automotive Parts & Accessories Ass’n v. Boyd, 132 U.S.App.D.C. 200, 407 F.2d 330, 334-338 (1968); Wirtz v. Baldor Electric Co., 119 U.S.App.D.C. 122, 337 F.2d 518, 525-528 (1963). . This combination is made even more confusing by a statement in the report that seems to indicate that the Conference Committee thought the substantial evidence standard was less exacting than the standard of rationality ordinarily applicable to the results of informal rulemaking. H.Rep.No. 91-1765 (1970), p. 36. For a more detailed discussion of these legislative events, see Associated Industries, 470 supra, where
132	at 145 (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)), and the court must dismiss any claim “covered by the discretionary function exception ... for lack of subject matter jurisdiction,” Kelly, 924 F.2d at 360. See 28 U.S.C. § 1346(b); see also Muniz-Rivera v. United States, 326 F.3d 8, 17 (1st Cir.2003); Irving v. United States, 909 F.2d 598, 600 (1st Cir.1990). There is a two-prong test to determine whether particular conduct falls with in the discretionary function exception: (1) “whether the challenged action was a matter of choice for the acting official”; and (2) “whether the official’s discretion was based on considerations of public policy.” Coyne, 233 F.Supp.2d at 145 (citing United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)); see Kelly, 924 F.2d at 360. With regard to the first prong, the court must focus on “the nature of the conduct, rather than the status of the actor,” Kelly, 924 F.2d at 360 (quoting Varig Airlines, 467 U.S. at 813, 104 S.Ct. 2755), and determine “whether the action is a matter of choice for the acting employee,” Kelly, 924 F.2d at 360 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). An action is outside the scope of the discretionary function exception “if a federal statute, regulation or policy specifically prescribes a course of action for [an official] to follow, because [the official] has no rightful option but to adhere to the directive.” Coyne,
2541	that in forcing the additional, fruitless expenditure of efforts and fees associated with trial preparation, Bridgeport’s motive must certainly have been retribution, and/or an effort to extract settlement dollars without any basis for doing so. Id. at 6-7. This case presents one of the rare instances in which a district court orders a party to pay attorneys’ fees and costs in spite of finding that the party advanced an objectively reasonable legal claim or theory. As this court explained in Rhyme Syndicate, “[I]t generally does not promote the purposes of the Copyright Act to award attorney fees to a prevailing defendant when the plaintiff has advanced a reasonable, yet unsuccessful claim.” 376 F.3d at 628 (citing Matthew Bender & Co. v. West Publ’g Co., 240 F.3d 116, 122 (2d Cir.2001); Lotus Dev. Corp. v. Borland Int'l, Inc., 140 F.3d 70, 75 (1st Cir.1998)). Yet, other than being a prevailing party under the Copyright Act, there is no single factor that must weigh in favor of an award of fees and costs — i.e., no factor is a necessary condition. Diamond Time, 371 F.3d at 894 (“The district court in this case correctly observed that because the Fogerty factors are nonexclusive, not every factor must weigh in favor of the prevailing party and other factors may be considered as well.”). The court recognized this when it remanded the case in spite of the district court’s earlier finding that Bridgeport’s theory was objectively reasonable. Thus, the question boils down to the following:
304	and completion schedule for proposed improvements; statements relating to any blanket encumbrances; and such other information as the Secretary of HUD might require as reasonably necessary or appropriate for protection of purchasers. 15 U.S.C. §§ 1705, 1707; see also Law, 578 F.2d at 99 n. 2 (“The property report is required to reflect information about the subdivision contained in a statement of record on file with the Secretary of [HUD] and other information deemed by the Secretary to be necessary or appropriate in the public interest or for the protection of consumers.”). The fundamental purpose of the property report requirement is to provide “information designed to assist potential buyers in making a fully-informed decision whether to purchase.” Harvey v. Lake Buena Vista Resort, LLC, 568 F.Supp.2d 1354, 1358, 2008 WL 1843909, *2 (M.D.Fla. Apr.22, 2008). It is undisputed that Sanibel provided none of the eight plaintiffs in this case with a printed property report prior to their signing of the respective Purchase Agreements. As such, if the Project is not exempt from the ILSFDA’s disclosure requirements, then Sanibel is in violation of that statute. Ultimately, then, plaintiffs’ disclosure-related claims hinge on whether or not the Project is exempt. In general, the ILSFDA excludes from the registration and disclosure requirements (including the property report) “the sale or lease of lots in a subdivision containing fewer than one hundred lots which are not exempt” under any of eight recognized statutory exemptions. 15 U.S.C. § 1702(b)(1); see generally Trotta v. Lighthouse Point Land
129	government from lawsuits “based upon the exercise or ;performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of,the Government, whether or not the discretion involved be abused.” See Coyne v. United States, 233 F.Supp.2d 135, 144-45 (D.Mass.2002). The exception is intended to prevent the courts from second-guessing “legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort.” Id. at 145 (quoting Campbell v. United States, 167 F.Supp.2d 440, 447-48 (D.Mass.2001)). The Supreme Court has described a discretionary function as one “in which there exists an ‘element of judgment or choice,’ ” Coyne, 233 F.Supp.2d at 145 (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)), and the court must dismiss any claim “covered by the discretionary function exception ... for lack of subject matter jurisdiction,” Kelly, 924 F.2d at 360. See 28 U.S.C. § 1346(b); see also Muniz-Rivera v. United States, 326 F.3d 8, 17 (1st Cir.2003); Irving v. United States, 909 F.2d 598, 600 (1st Cir.1990). There is a two-prong test to determine whether particular conduct falls with in the discretionary function exception: (1) “whether the challenged action was a matter of choice for the acting official”; and (2) “whether the official’s discretion was based on considerations of public policy.” Coyne, 233 F.Supp.2d at 145 (citing United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 113 L.Ed.2d
2087	were somehow tainted, and the search invalid, suppression would not lie in this instance for the contraband inevitably would have been discovered. Evidence which comes to light by unlawful means nonetheless can be used at trial if it ineluctably would have been revealed in some other (lawful) way, see Nix v. Williams, 467 U.S. 431, 448, 104 S.Ct. 2501, 2511, 81 L.Ed.2d 377 (1984); U.S. v. Infante-Ruiz, 13 F.3d 498, 503 (1st Cir.1994), so long as (i) the lawful means of its discovery are independent and would necessarily have been employed, (ii) discovery by that means is in fact inevitable, and (iii) application of the doctrine in a particular case will not sully the prophylaxis of the Fourth Amendment. See United States v. Silvestri, 787 F.2d 736, 744 (1st Cir.1986), cert. denied, 487 U.S. 1233, 108 S.Ct. 2897, 101 L.Ed.2d 931 (1988).” Zapata at 978. The Court continued: “courts often have held that evidence which would have turned up during an inventory search comes under the umbrella of the inevitable discovery rule.” Id. (citations omitted). Such is the situation in the present ease. The Supreme Court has recognized the validity of an inventory search, and listed various legitimate reasons for such procedure, which include: the protection of the owner’s property while in police custody, protection of the police against claims or disputes over lost or stolen property, and protection of the police from potential danger. Id. See South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49
3574	195(3) (1981). Obviously, the general rule is not absolute. Moreover, the New York case is unpersuasive. The court feels that a question of this nature must be decided on a case by case basis. The real issue is whether the contract provision is unconscionable and that inquiry is naturally fact determinative. Although the general thrust of the Michigan cases is clear, most have concerned consumers or instances of unequal bargaining power. Moreover, other courts have upheld the validity of such clauses in the face of intentional misconduct when the clause “is not a matter of interest to the public or the State but merely an agreement between persons relating entirely to their private affairs.” Knouse Foods Cooperative, Inc. v. Burns International Security Services, Inc., 519 F.Supp. 867, 869 (E.D.Pa.1981) (quoting Boyd v. Smith, 372 Pa. 306, 309—10, 94 A.2d 44, 46 (1953)). The present case involves two large sophisticated corporations, well represented by counsel. There is no indication that one party had unequal bargaining power. In addition, the contract concerns private business affairs, not a matter of interest to the public. No consumers, insurers, or common carriers are involved. Although the plaintiffs allege that the defect potentially endangered life, no one was actually injured when the shaft failed. Moreover, the contract clause does not totally exclude liability, it merely limits the damages. Finally, the very nature of a post-sale duty to warn claim lends support to the defendant’s position. The plaintiffs contend that the defendant failed to warn them after
4493	maintain Sloan’s appearance of financial health to both its existing shareholders and its potential investors. Furthermore, by failing to disclose the existence of the FTC investigation in the SEC filings or the communications to shareholders, Catsimatidis and Sloan’s had the “opportunity” to commit the alleged fraud. Moreover, even if plaintiff had failed to establish motive to commit fraud and an opportunity to do so, plaintiff has alleged facts that give rise to a strong inference of reckless or conscious behavior. Conscious behavior, for § 10(b) purposes, is found when there is either an “intent to defraud, knowledge of the falsity or a reckless disregard for the truth.” Ades v. Deloitte & Touche, 799 F.Supp. 1493, 1498-99 (S.D.N.Y.1992) (citing Breard v. Sachnoff & Weaver, Ltd., 941 F.2d 142, 144 (2d Cir. 1991)). The inference of recklessness necessary to satisfy the scienter requirement can be shown by “facts demonstrating ... that the defendant disseminated material ‘knowing [it was] false or that the method of preparation was so egregious as to render [the] dissemination reckless.’ ” Ades v. Deloitte & Touche, 799 F.Supp at 1499 (citation omitted). Applying these standards, this Court finds that the complaint satisfies the particularity requirement of Rule 9(b). The following al leged facts meet the requisite Rule 9(b) showing of both “conscious behavior” and “recklessness” and thus give rise to a “strong inference” of fraudulent intent or scienter: (1) Defendants’ knew of the FTC investigation at the time RMED acquired 226,600 shares of Sloan’s stock. Comp. ¶¶ 13,
4841	with by the application of the fifty states’ different securities laws.” Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 568 (6th Cir.1982). CTS resolves this problem by identifying the state of incorporation as the jurisdiction with regulatory authority over tender offers for the corporations it creates. This rule enhances predictability to the extent shareholders expect their rights to be governed by the laws of the state of incorporation. But more importantly it is the only rule compatible with the constitutional prohibition against inconsistent regulation. Tennessee is one of at least twenty states with which Holly Farms has significant contacts. To allow Tennessee to regulate Tyson’s tender offer for Holly Farms’ stock is to guarantee inconsistent regula tion. See Campean Corp. v. Federated Dept. Stores, 679 F.Supp. 735, 739 (S.D. Ohio 1988) (Application of Ohio takeover statute to foreign corporations “gives rise to an impermissible risk that many states could seek to regulate the acquisition of control of a national company ... which has substantial assets and principle places of business in states other than Ohio.”); TLX Acquisition Corp. v. Telex Corp., 679 F.Supp. 1022, 1030 (W.D.Okla.1987) (“It follows [from CTS] that when a state attempts to regulate voting rights in corporations other than those it has created, such corporations will be subject to the law of more than one state, which imposes an impermissible risk of inconsistent regulations by different states that may adversely affect interstate commerce.”). 3. Excessive Burden on Interstate Commerce A state statute violates the Commerce Clause
1853	progress payment requests.” Brief of June 10, 1994, p. 7. Triad suggests that what defendant construes as a claim is really a defense to the government’s claim of a right to default terminate and to its demand for unliquidated progress payments. Defendant is correct that the term “claim” as used in the Forfeiture Statute is more comprehensive than the term used in the Contract Disputes Act. It embraces any claim asserted in this court by a plaintiff. In the view of the court, however, the Forfeiture Statute has no application when a contractor is only attempting to negate a government claim under the CDA. In interpreting the predecessor to section 2514, the Court of Claims in F.B. Crovo, Jr. & Co. v. United States, 100 Ct.Cl. 368, 1943 WL 4311 (1943), wrote that the statute “is obviously aimed at fraud committed for the purpose of securing the payment of a claim.” Id. at 370. Although Tyger Const. Co. Inc. v. United States, 28 Fed.Cl. 35, 60-62 (1993), indicates that the fraud does not have to occur in the court proceeding itself, it plainly has to be relevant to the present assertion of a claim in court, arising out of the same transaction or contract. See Little v. United States, 152 F.Supp. 84, 138 Ct.Cl. 773, 778 (1957). With respect to the first “claim,” nothing is gained analytically by treating Triad’s response to the government’s claims as a separate claim for purposes of the Forfeiture Statute. The same fraud that might
1750	"allow removal of an action whenever removability is disclosed). . See In re Willis, 228 F.3d 896, 897 (8th Cir.2000) (""thirty-day period begins running on receipt of complaint only when complaint explicitly discloses [basis for federal jurisdiction]”). . See 14C Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice and Procedure § 3733 at 309-10 (1998) (noting that “depositions, answers to interrogatories, and requests for admissions, amendments to ad damnum clauses of the pleadings, and correspondence between the parties and their attorneys or between the attorneys are usually accepted as ‘other paper' sources that initiate a new thirty day period of removability,” and collecting cases). The phrase ""other paper” generally refers to ""documents generated within the state court litigation.” Zbranek v. Hofheinz, 727 F.Supp. 324, 326 (E.D.Tex.1989). . Poss v. Lieberman, 299 F.2d 358, 359 (2d Cir.1962). . See Whitaker, 261 F.3d at 204 (""The legislative history [of section 1446(b)] reflects a clear concern for ensuring that a defendant ‘know[ ] what the suit is about’ before triggering the removal clock.”). . See Soto v. Apple Towing, 111 F.Supp.2d 222, 226 (E.D.N.Y.2000) (citing Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir.1998) (a defendant must have unequivocal notice of removability that does not require ""an extensive investigation to determine the truth”)). See also DeBry v. Transamerica Corp., 601 F.2d 480, 489 (10th Cir.1979) (holding that ""if the statute is going to run, the notice ought to be unequivocal. It should not be one which may have"
3191	States. No pesticide may be sold or distributed unless it is registered with the EPA. FI-FRA §§ 3(a), 12(a)(1)(A), 7 U.S.C.A. §§ 136a(a), 136j(a)(1)(A). In order to register a pesticide, an applicant, who may be a manufacturer or user of the product, must demonstrate with sufficient scientific evidence that, “when used in accordance with widespread and commonly recognized practice^ the pesticide] will not generally cause unreasonable adverse effects on the environment.” FIFRA § 3(c)(5)(D), 7 U.S. C.A. § 136a(c)(5)(D). After a pesticide has been registered, the EPA Administrator must issue a notice of his intent to cancel its registration or change its classification “ ‘whenever there is a substantial question about the safety of a registered pesticide.’ ” Environmental Defense Fund, Inc. v. EPA, 510 F.2d 1292, 1296 n. 4 (D.C.Cir.1975) (quoting Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 594 (D.C.Cir.1971)); see FIFRA § 6(b), 7 U.S.C.A. § 136d(b). Because cancellation or reclassification proceedings may take one or two years to complete, FIFRA authorizes the Administrator to suspend a pesticide’s registration pending the outcome of the proceedings if he determines that suspension “is necessary to prevent an imminent hazard.” FIFRA § 6(c)(1), 7 U.S.C.A. § 136d(c)(1). Absent an emergency, the Administrator may not issue a suspension order until he has done two things: (1) notified registrants of the pesticide that he intends to cancel the registration and that he will issue a suspension order based upon “findings pertaining to the question of ‘imminent hazard,’ ” which he must
3487	of the other parties. II. On a motion to remand, the Court must determine whether the case was properly removed to federal court. See Ermich v. Touche Ross & Co., 846 F.2d 1190, 1194-95 (9th Cir.1988). The party seeking to remove a case to federal court generally bears the burden of establishing federal jurisdiction. Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir.1988), aff'd on other grounds, 503 U.S. 131, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992).' If the right to remove is doubtful, the case should be remanded. Lance Int’l, Inc. v. Aetna Cas. & Sur. Co., 264 F.Supp. 349, 356 (S.D.N.Y.1967). Courts, however, should be cautious about dismissal, since a decision to remand is not appealable. Roche v. American Red Cross, 680 F.Supp. 449, 451 (D.Mass.1988). Armco argues that removal is proper under 28 U.S.C. § 1442(a)(1), which states that an action may be removed by the “United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office____” 28 U.S.C. § 1442(a)(1). The purpose of the statute is to protect government officials enforcing federal laws. See Mesa v. California, 489 U.S. 121, 126, 109 S.Ct. 959, 963, 103 L.Ed.2d 99 (1989). The motivation for the enactment of § 1442(a)(1) was concern that “state governments hostile to duly enacted federal laws would be able to frustrate the implementation of
91	alien status in a timely fashion or, if provided, the documentation is misleading. They maintain that these inadequacies create problems when they seek employment and the district court found this issue to be undisputed. Plainly, plaintiffs have standing to bring this action; as LPRs they are directly in the group that allegedly has been or will be adversely affected by the INS’s policies and procedures. C. Mootness Finally, we agree with the district court that plaintiffs’ claims have not been rendered moot. The mootness doctrine, like standing, stems from Article Ill’s “case or controversy” requirement. “[A] case becomes moot ‘ “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” ’ ” Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (per curiam) (quoting United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208-09, 63 L.Ed.2d 479 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950-51, 23 L.Ed.2d 491 (1969))); see also 6A Moore’s Federal Practice ¶ 57.13, at 57-123 & n. 11 (2d ed. 1991). While standing focuses on the status of the parties when an action is commenced, the mootness doctrine requires that the plaintiffs’ claims remain alive throughout the course of the proceedings. 13A C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3533, at 211 (2d ed. 1984). The “case or controversy requirement subsists through all stages of federal judicial
3626	the Supreme Court held that the residual clause of the ACCA is unconstitutionally vague. See Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015). Because Eason’s prior convictions can no longer qualify as predicate offenses under the residual clause, the only remaining question is whether any of his prior felonies can qualify as predicate offenses under the ACCA’s force clause. The force clause of the ACCA applies to felony offenses that include “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). “Physical force ‘means violent force — that is, force capable of causing physical pain or injury to another person.’ ” United States v. Schaffer, 818 F.3d 796, 798 (8th Cir. 2016) (quoting Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)). In determining whether a prior conviction qualifies as a predicate offense for. purposes of the ACCA sentencing enhancement, we first apply the categorical approach, looking “only to the fact of conviction and the statutory definition of the prior offense.” Shockley, 816 F.3d at 1063 (quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). One of Eason’s prior convictions was for robbery under Ark. Code Ann. § 5-12-102. The Arkansas robbery statute, § 5-12-102, states “[a] person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a
4222	the statute was challenged on constitutional grounds of a substantial nature and since the remedy sought was injunction against the enforcement of a state statute, a three-judge court was providently convened. Additionally, the plaintiffs, as discussed above, have raised an issue predicated on the alleged conflict between Volume IV of the South Carolina Department of Public Welfare Policies and Procedures in Public Assistance, (see note 1), and certain provisions of the Social Security Act of 1935. This court is not compelled to reach the constitutional issues, since we deem the statutory claim to be meritorious. “This disposition of the matter does not void the jurisdiction of this three-judge court. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118.” Doe v. Swank, 332 F.Supp. 61, 63 (N.D.Ill.1971) affirmed, without opinion, sub nom, Weaver v. Doe, 404 U.S. 987, 92 S.Ct. 537, 30 L.Ed.2d 539 (1961). The question before this Court, simply stated, is whether the regulations of the South Carolina Department of Welfare requiring the mother of the needy child to name the putative father and/or prosecute him are consonant with the statutory provisions of the Social Security Act. That each participating state must operate its welfare programs consistent with the Social Security Act is beyond cavil. “Eligibility for aid under the Social • Security Act of 1935 is conditioned upon two factors. A child must be both needy and dependent. No other conditions of eligibility are required.” Doe v. Swank, supra, at page 63. The state contends
211	jurisdiction, thereby preventing the defendant from exercising its rights.” Id. at 428-29. Courts must determine, based upon a review of the parties’ conduct, whether “it is equitable to strictly apply the one-year limit.” Id. at 426. And, as part of the analysis, the court must balance the Tedford exception with the general rule construing removal jurisdiction strictly, because any “doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.” Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir.2000). “Contested issues of material fact, and any ambiguity or uncertainty in the controlling state law, are -resolved in the plaintiffs favor.” Cantor v. Wachovia Mortg., FSB, 641 F.Supp.2d 602, 606 (N.D.Tex.2009) (citing Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 259 (5th Cir.1995)). In Tedford, two plaintiffs filed suit against a pharmaceutical company and named a single non-diverse defendant, who was initially alleged to be both plaintiffs’ treating physician, even though the physician had never treated Tedford. Id. at 424. Further, the other plaintiffs claim was filed in the wrong venue. The trial court severed the plaintiffs’ claims and transferred the other plaintiffs case to another county. Id. at 425. When the pharmaceutical company discovered that the doctor treated only one of the plaintiffs, it indicated its intent to remove. Id. at 424-25. Three hours after receiving notice that the pharmaceutical company would seek removal, Tedford amended her petition to name her treating physician as a non-diverse defendant. Id. The pharmaceutical company removed
3172	of a black foreman.) The undersigned finds that Judge Kitchens’ testimony was credible and that he did not consciously or intentionally discriminate on the basis of race when he selected Ms. Mattis to serve as the foreman of Petitioner’s grand jury. The question then becomes whether that finding is sufficient to rebut the presumption of unconstitutional action that was created by establishment of the prima facie case. A review of the relevant jurisprudence must precede the answer. C. Alexander v. Louisiana “Once a prima facie case of invidious discrimination is established, the burden of proof shifts to the State to rebut the presumption of unconstitutional action by showing that permissible racially neutral selection criteria and procedures have produced the monochromatic result.” Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972). The clerk of court who served as a member of the jury commission at issue in Alexander testified that no consideration was given to race during the grand jury procedure. The Supreme Court responded that it “has squarely held, however, that affirmations of good faith in making individual selections are insufficient to dispel a prima facie case of systematic exclusion.” Id. at 632, 92 S.Ct. 1221. It added that “[t]he result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner.” Id. The clerk’s testimony in Alexander was deemed “not, in itself, adequate to meet the State’s burden of proof’ because the system employed presented the opportunity to
4595	argues “the Ninth Circuit has shifted away from [its] conclusion.” (Doc. 345 at 14). He cites Acosta v. City of Costa Mesa, for the proposition that the Ninth Circuit has “affirmatively stated that the, existence of probable cause is dispositive of a. retaliatory .arrest claim.” (Doc. 345 .at 14) (emphasis added); see Acosta v. City of Costa Mesa, 718 F.3d 800, 825 (9th Cir.2013). Acosta addressed the question of whether arresting officers were entitled to qualified immunity for claims of retaliatory arrest. The Ninth Circuit held, for purposes of qualified immunity, “there [was ho] clearly established First Amendment right to be free from a retaliatory arrest that is otherwise supported by probable cause.” Acosta, 718 F.3d at 825 (citing Reichle v. Howards, — U.S.-, 132 S.Ct. 2088, 2097, 182 L.Ed.2d 985 (2012)) (emphasis added). The United States argues, whether or not this right would have been clear to‘ an arresting officer, it exists and-applies here. The United States is correct. As the Ninth Circuit’s analysis in Ford v. City of Yakima shows, the question of the substance of a constitutional right is distinct from the question of whether that right was clearly established for purposes of qualified immunity. 706 F.3d 1188 (9th Cir.2013). The Supreme Court has held Hartman's impact on thé requirements for a claim of retaliatory arrest was “far from clear” at the time it was decided. Thus, an officer accused of retaliatory arrest could assert the defense of qualified immunity because Hartman’s rule regarding probable cause did
1364	S.Ct. 693, 145 L.Ed.2d 610 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). At least one named plaintiff must have suffered an injury in fact. See Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir.2003) (“if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class”). A suit brought by a plaintiff without Article III standing is not a “case or controversy,” and an Article III federal court therefore lacks subject matter jurisdiction over the suit. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). “A party invoking the federal court’s jurisdiction has the burden of proving the actual-existence of subject matter jurisdiction.” Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996). If a court determines that it lacks subject matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3). III. DISCUSSION Plaintiff alleges that Defendant violated state and federal labeling laws because foods labeled with the “Og trans fat” and “no cholesterol” labels failed to include required disclosure statements. Plaintiff frames his case as consisting of two facets: (1) the “unlawful” part, claiming that Defendant’s packaging and labels violate state and federal laws, making the products “misbranded” and therefore illegal to sell or possess, lacking economic
1919	stay and instead seeks dismissal of the complaint based on the jurisdictional bar of 28 U.S.C. § 1500 (1982). That statute reads in pertinent part as follows: The United States Claims Court shall not have jurisdiction of any claim for or in respect to which the plaintiff ... has pending in any other court any suit or process against the United States.... The purpose of the statute is to avoid duplicative litigation: “[S]ection 1500 was enacted to prevent ... the maintaining of two suits against the United States on the same claims and at the same time in two different courts.” Wessel, Duval & Co. v. United States, 129 Ct.Cl. 464, 465, 124 F.Supp. 636, 637-38 (1954). In Tecon Engineers, Inc. v. United States, 170 Ct.Cl. 389, 343 F.2d 943 (1965), cert. denied, 382 U.S. 976, 86 S.Ct. 545, 15 L.Ed.2d 468 (1966), it was decided that a suit begun in another court after an action had been filed in the Court of Claims (now the Claims Court) was not a “pending” suit within the contemplation of the statute. Thus, section 1500 potentially applies only in those situations where the litigation that is brought here is also the subject of a previously filed action that remains pending in another forum. Further, in deciding the dimensions of a “claim” for purposes of section 1500, the court has taken a practical approach consistent with the purposes of the statute and a litigant’s opportunity to secure full relief. In substance, the cases say
3055	Standard Fed.R.Civ.P. 56(b) provides that: “A party against whom a claim ... is asserted ... may, at any time, move with or with out supporting affidavits for a summary judgment in the party’s favor as to all or any part [of the claims asserted against him/her].” The Court may grant the mov-ant’s motion for summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986); NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28 (1st Cir.1994). “The principal judicial inquiry required by Rule 56 is whether a genuine issue of material fact exists.” Charles A. Wright, Aurthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: CM 3d § 2725, p. 401. In this regard, the First Circuit Court of Appeals has noted that for a dispute to be “genuine,” there must be sufficient evidence to permit a reasonable trier of fact to resolve the issue in favor of the non-moving party. U.S. v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992); see also Boston Athletic Assn. v. Sullivan, 867 F.2d 22, 24 (1st Cir.1989); Medinar-Muñoz v. R.J. Reynolds Tobacco, 896 F.2d 5, 8 (1st Cir.1990) (“A ‘genuine’ issue is one that must
4588	1126, 1144 (9th Cir.2000); Martinez v. State of Cal., 444 U.S. 277, 285, n. 8, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) (“A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced”). For example, in Imbler v. Pachtman, the Court held common law prosecutorial immunity applies to cases under § 1983. 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). But the Fifth Circuit refused to extend prosecutorial immunity to decisions to bring complaints before state ethics commissions, even where a state law also provides absolute privilege for those complaints. Lampton v. Diaz, 639 F.3d 223, 229 (5th Cir.2011) (“Lampton likely enjoys immunity from the state law claims under Mississippi law.... [Hjowever, federal law does not provide immunity to complainants before state ethics committees .... In the absence of congressional action, we should not create that immunity merely because it may be desirable for some policy reason.”). Arpaio cites Donahoe v. Arpaio in support of his position. 869 F.Supp.2d 1020 (D.Ariz.2012) aff'd sub nom. Stapley v. Pestalozzi, 733 F.3d 804 (9th Cir.2013). In Donahoe, Arpaio had filed suit against various Maricopa County officials — including members of the Board of Supervisors and judges — under the federal Racketeer Influenced and Corrupt Organization Act (“RICO”). He claimed the officials were improperly using their power, to obstruct a criminal investigation. Arpaio’s
1408	only material difference was the result. Without any other justification for distinguishing Coamo, the Board’s decision cannot stand. In it's brief to this court, the Board offers new reasons for not following Coamo in this case. The Board contends that the facts here are “starkly different” from those in Coamo because G/M “corralled its employees to an off-site meeting” where all the G/M owners “could watch as the Carpenters solicited employees to sign cards.” Resp’t Br. at 29. Even if the Board had explained the relevance of these alleged factual differences, we cannot address this argument because it did not appear in the Board’s orders below. We “may consider only the Board’s own reasons, not the rationalizations of counsel.” Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1080 (D.C. Cir. 1996) (citing SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 87 L.Ed. 626 (1943)). The Board’s order denying reconsideration relies solely on the absence of a claim of unlawful surveillance in distinguishing Coamo, not on any factual differences between the cases. Accordingly, we “reject[ ] the temptation to supply reasons to support the Board’s decision that the Board itself has not offered.” Detroit Newspaper Agency v. NLRB, 435 F.3d 302, 311 (D.C. Cir. 2006). We note, however, that nothing precludes the Board from making such a distinction on remand if supported by the record. See Lone Mountain, 709 F.3d at 1164. G/M and the Carpenters Union also assert that the Board’s decision was not based on substantial
2664	adequate managerial oversight, supervision, and inspection of ZD’s pilot hole drilling operations as claimed in Paragraph 17 of Plaintiffs Answer. In response, Plaintiff contends that the interrogatory misstates Paragraph 17 and, therefore, is vague and unduly burdensome. Without waiving the objection, Plaintiff states that “all facts, documents, statements, and evidence adduced to date in discovery of this matter constitute evidentiary support for Plaintiffs denial of any failure of managerial oversight, supervision, and/or inspection of ZD’s operations.” (# 38, Ex. F at 2.) Contention interrogatories like interrogatory number 2 are a beneficial means of discovery in that they “can help pin down an opponent’s legal theories in a case as well as the primary facts supporting them.” Jayne H. Lee, Inc. v. Flagstaff Indus. Corp., 173 F.R.D. 651, 652 (D.Md.1997). Plaintiffs objection is inappropriate and the subsequent answer, nonresponsive. 3. Elk Run’s Second Set of Requests for Production Elk Run’s second set of requests for production, numbers 2, 4, and 7, seek docu merits relating to specific inquiries (Section 16 of the contract, subsurface conditions, and post-contract agreements on excessive costs). Plaintiffs responses stated that Elk Run “may refer to all correspondence with Elk Run,” “may refer to all correspondence between Plaintiff and ZD,” and “may refer to ELK RUN 00713, as well as other documents produced in discovery in this litigation.” (#38, at 10-11.) In other words, Plaintiff has again relied on the large volume of documents produced with its Rule 26(a)(1) disclosures. For the reasons stated with respect to
2628	preference, the Commission maintains that its approach ensures a consistent interpretation of the word municipalities in Sections 4(f) and 7(a). See Resp. Br. at 26. This overlooks that the meaning of “municipality” is the same for both Sections 4(f) and 7(a). Rather, the relevant difference between municipalities to be notified and municipalities entitled to the municipal preference arises from the absence in Section 7(a) of the limiting clause in Section 4(f)—“affect-ed by or likely to be interested in”—that cabins the Commission’s notice obligations. “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (internal quotation omitted). Nothing in the plain text of Sections 4(f) or 7(a) rebuts this presumption. The Commission’s resort on rehearing to legislative history is also unavailing. The Commission points out that Section 7(a) was “originally enacted in the Federal Water Power Act of 1920, when the nation’s electric grid was relatively undeveloped and access to hydroelectric power was at a particular premium for municipalities seeking to provide electric power to their communities.” Rehearing Order ¶ 24. But even if Congress did not envision the magnitude of current long-distance transmission, it was aware transmission capacity would grow. Nonetheless, relying on legislative history, the Commission concluded that “Congress intended only to give a preference to states
4626	evidence presented at his trial was insufficient to support a conviction for racketeering because the state failed to prove the existence of an enterprise, and that his crimes involved only “garden variety fraud” falling outside the ambit of the racketeering statute. In assessing a claim of insufficient evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 448 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Because the OCCA applied this standard in rejecting Logs-don’s claim on the merits, we need only determine whether its application of Jackson was reasonable. See Brown v. Sirmons, 515 F.3d 1072, 1089 (10th Cir.2008). Under the Oklahoma racketeering statute, “[n]o person employed by or associated with any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of racketeering activity or the collection of an unlawful debt.” Okla. Stat. tit. 22, § 1403(A). An “enterprise” is defined to include any individual or group of persons “involved in any lawful or unlawful project or undertaking.” Okla. Stat. tit. 22, § 1402(2). In Glenn v. State, 26 P.3d 768 (Okla.Crim.App.2001), the OCCA held that the state racketeering act was not intended to apply to “garden-variety crimes” that have “no larger effect on society beyond that of the normal criminal offense” and do not “affect legitimate businesses or state government.”
1688	2001. Discussion I. Legal Standard for Failure to State a Claim In reviewing a motion to dismiss under Rule 12(b)(6), review must be limited to the complaint and documents attached or incorporated by reference thereto. See Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). Courts must “accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993) (citing IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993)). Dismissal is warranted only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). See also Bass v. Jackson, 790 F.2d 260, 262 (2d Cir.1986). “For purposes of a motion to dismiss, [the Second Circuit has] deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference ..., as well as public disclosure documents required by law to be, and that have been, filed with the SEC, and documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.” Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir.2000) (citing Cos-mas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989); Kramer, 937 F.2d at 774; and Cor-tee Industries,
1025	722, 2 L.Ed.2d 823 (1958). The Board found that the Union bargained to impasse and struck in support of six proposed clauses which the Board found to violate Section 8(e). Section 8(e) makes it “an unfair labor practice for any labor organization and any employer to enter into any contract or agreement . . . whereby such employer ceases or refrains or agrees . to cease doing business with any other person.” In determining whether the particular clauses here violate Sections 8(e) and 8(b)(4), we must inquire into “whether, under all the surrounding circumstances, the Union’s objective was preservation of work for [Amax’s] employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere.” National Woodwork Mfrs. Assoc. v. NLRB, 386 U.S. 612, 644, 87 S.Ct. 1250, 1268, 18 L.Ed.2d 357 (1967). A. Successorship Clause The Union proposed a clause that would require Amax to condition any sale or conveyance of its operations upon the successor’s assumption of Amax’s obligations under the agreement. This “successorship clause” provided: [T]his Agreement shall be binding upon all signatories hereto and their successors and assigns. In consideration of the Union’s execution of this Agreement, each Employer promises that its operations covered by this Agreement shall not be sold, conveyed, or otherwise transferred or assigned to any successor without first securing the agreement of the successor to assume the Employer’s obligations under this agreement. Provided that the Employer shall not be a guarantor or be held liable for any breach by
251	587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, the non-moving party may not “rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986). Nor may the non-moving party “rest upon the mere allegations or denials of his pleading.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Rather, the non-moving party must produce specific facts sufficient to establish that there is a genuine factual issue for trial. Id. at 322-23, 106 S.Ct. 2548. If the evidence is “merely colorable” or “not significantly probative,” summary judgment may be granted. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (stating that the “mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be insufficient; there must be evidence on which the jury could reasonably find [for the non-moving party]”). II. Standard for Motion to Dismiss Under Rule 12(c) A motion for judgment on the pleadings pursuant to Rule 12(e) of the Federal Rules of Civil Procedure is governed by the same standards as a motion to dismiss pursuant to Rule 12(b). LaFaro v. N.Y. Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir.2009). The court must “accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party.” Vietnam Ass’n for Victims
3374	be deceived. * * * In other cases extrinsic evidence may be necessary. * * ” To the same effect are National Nu Grape Co. v. Guest, 10 Cir., 164 F.2d 874, cert. denied 333 U.S. 874, 68 S.Ct. 903, 92 L.Ed. 1150, and Standard Oil Co. v. Standard Oil Co., 10 Cir., 252 F.2d 65. The rule as stated in Restatement, Torts § 728 (1938): “A designation is confusingly similar to a trade-mark or trade name under the rule stated in § 717 if prospective purchasers are likely to regard it as indicating the source identified by the trade-mark or trade name” was quoted with approval in the Standard Oil ease. The same language was used in Friedman v. Sealy, Inc., 10 Cir., 274 F.2d 255. Beatrice Foods Company produced a number of witnesses who testified, in substance, that purchasers of dairy products, and others, thought the Neosho product was the same as that marketed by Beatrice and was “something Meadow Gold put out.” No witness testified that he was confused by the trademarks used on the packages or the appearance of the packages. The trial court considered this evidence, together with the other evidence, including exhibits of the trademarks as placed upon the cartons in which the products of the two companies were offered for sale, in making its finding that a purchaser exercising ordinary prudence would not be confused. The Meadow Gold trademark appears on all packages by a prominent and unique red shield with the words
847	constitutes irreparable injury because monetary damages cannot adequately compensate for harm to good will or reputation. Opticians Ass’n of America, 920 F.2d at 196 (“a plaintiffs mark is his authentic seal; by it he vouches for the goods which bear it;' it carries his name for good or ill. If another uses it, he borrows the owner’s reputation, whose quality no longer lies within his own control. This is an injury, even though the borrower does not tarnish it, or divert any sales by its use... ”)(quoting Ambassador East, Inc. v. Orsatti, Inc., 257 F.2d 79, 82 (3d Cir.1958)). Furthermore, irreparable injury is established by a finding of likelihood of confusion. Id.; Church of Scientology Int’l v. Elmira Mission of the Church of Scientology, 794 F.2d 38, 41 (2d Cir.1986)(“high probability of confusion as to sponsorship almost inevitably establishes irreparable harm”). Because this court has found that Porsche will likely prevail on the merits of its infringement and dilution claims, irreparable harm is established. See Opticians Ass’n of America, 920 F.2d at 196; Dr. Seuss Enterprises, L.P., v. Penguin Books USA, Inc., 924 F.Supp. 1559, 1574 (S.D.Cal.1996)(irrepa-rable injury in a trademark case is presumed upon a showing of likelihood of success), aff'd, 109 F.3d 1394 (9th Cir.1997), cert. dismissed, - U.S. -, 118 S.Ct. 27, 138 L.Ed.2d 1057 (1997). C. Balancing the Hardships and Public Interest The relative harm to Liquid Glass from an injunction is minimal. Liquid Glass can still sell its products, packaged in exactly the same way,
1640	of in personam jurisdiction because although “Boeing” manufactured and delivered the plane in Seattle Washington and has its business in the State of Washington, “Boeing had no part in the decision or the act to fly the aircraft to Puerto Rico or put it in the streams of commerce.” Boeing further avers that it is not registered to do business in Puerto Rico, nor has distributors, dealers, sales agents or employees in Puerto Rico. Pursuant to the complaint it is alleged that the “jumpseat” used by Plaintiff stewardess in an American Airlines airplane manufactured by Boeing collapsed during landing causing damages to plaintiff. In deciding an in personam jurisdiction challenge the Court must use Puerto Rico’s Long Arm Statute. Pizarro v. Hoteles Concorde Int., 907 F.2d 1256, 1258 (1st Cir.1990). Under Puerto Rico’s Long Arm Statute the Court shall have jurisdiction over a non-domiciled person if said person “transacted business in Puerto Rico.” The phrase “transacted business in Puerto Rico” has been interpreted to mean “the chain of a business transaction deliberately designed, or conscientiously used by the non resident to obtain benefit in our jurisdiction.” Siderúrgica v. Thyssen Steel Caribbean, 114 D.P.R. 548 (1983). This District Court in Borschow Hosp. & Medical Supplies v. Burdick-Siemens Corp., 143 F.R.D. 472, 482 (D.P.R.1992), interpreting and citing Ind. Siderúrgica v. Thyssen Steel Caribbean, supra, followed the norm established by the Supreme Court in Siderúrgica, supra. In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) the
1461	of the body than that reflected in the initial rating. The correction did not involve a change in the diagnostic code, the fact of service connection, nor the degree of disability. Under these circumstances, this correction was of no more significance than, for example, the correction of the spelling of the appellant’s name or correction of his social security number. As a final note, the Court questions whether appellant has standing to appeal this particular issue. “As [the Fifth Circuit] has recognized, an ‘aggrieved party’ has standing to challenge administrative action only if the party has suffered ‘injury in fact’ to an interest ‘arguably within the zone of interests’ protected by the underlying statute.” Panhandle Producers & Royalty Owners Ass’n v. Economic Regulatory Admin., 847 F.2d 1168, 1173 (5th Cir.1988). The interest protected by 38 U.S.C. § 1159 is the maintenance of service connection for a disability, once effected, for ten or more years. The Board merely corrected the situs of the service-connected injury. Appellant is still service connected for residuals of a gunshot wound to the thigh, and has not shown any injury to an interest which 38 U.S.C. § 1159 was designed to protect. Appellant’s claim for an increased disability rating based on “clear and unmistakable error” is REMANDED for adjudication consistent with this opinion. The July 24, 1992, decision of the BVA denying restoration of service connection for residuals of a gunshot wound to the right thigh is AFFIRMED. KRAMER, Judge, concurring in the result: I agree
2198	trial court considers all of the related claims — that is, claims based “on a common core, of facts and on related legal theories” — both successful and unsuccess ful. Id. (citing Hensley, 461 U.S. at 435, 103 S.Ct. 1933); see also Coutin, 124 F.3d at 339 (outlining an approach that first weeds out unsuccessful, unrelated claims as not compensable and then proceeds to analyze the degree of success on the interrelated claims). B. Relief Actually Achieved The second meaning of “results obtained” focuses on the damages awarded to the plaintiff. See id. at 340. The trial court has the “discretion to reduce a fee award in response to limited relief even in the presence of complete claims-based success.” Id. (citing Cartwright v. Stamper, 7 F.3d 106, 109-10 (7th Cir.1993)). However, a plaintiff “should receive significant fees when he has won a partial victory on a civil rights claim while receiving substantially the relief he there sought_” Aubin v. Fudala, 782 F.2d 287, 291 (1st Cir.1986); cf. Hensley, 461 U.S. at 440, 103 S.Ct. 1933 (“Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised.”); Coutin, 124 F.3d at 339 (“[A] plaintiff who has limited success from a claim-by-claim standpoint, but who nevertheless obtains substantial compensation or other important relief, usually will fare much better in the fee wars, even though some of her claims failed.” (citing Hensley,
576	are acceptable conclusions which are well supported in the record. We find no error therein. Defendant further contends here that the trial court erred in finding that there had been no abandonment or failure of consideration; that the plaintiff was not guilty of laches; that the contract did not lack mutuality during the lifetime of Mr. Steele; and that it was not fatally indefinite and unjust, unfair or inequitable. These are fact issues. Such questions are to be resolved by the trial court and upon review by this court the “Findings of fact shall not be set aside unless clearly erroneous, * * * .” Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. In Cleo Syrup Corp. v. Coca-Cola Co., 8 Cir., 1943, 139 F.2d 416, at page 418, 150 A.L.R. 1056, certiorari denied 321 U.S. 781, 64 S.Ct. 638, 88 L.Ed. 1074, this court said: “In a non-jury case, this Court may not set aside a finding of fact of a trial court unless there is no substantial evidence to sustain it, unless it is against the clear weight of the evidence, or unless it was induced by an erroneous view of the law. Aetna Life Ins. Co. v. Kepler, 8 Cir., 116 F.2d 1, 4, 5; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 138 F.2d 197, 199; Travelers Mutual Casualty Co. v. Rector, supra [8 Cir., 138 F.2d 396]. * * * ” We have carefully examined the record in the light of the contentions
74	We have recently held that where the record of a credible fear interview displays the hallmarks of reliability, it can be considered in assessing an alien’s credibility. Ming Zhang v. Holder, 585 F.3d 715, 722-23 (2d Cir.2009). Here, although the record of the credible fear interview was a summary, the IJ reasonably afforded it some weight, particularly because Uddin admitted that his testimony was inconsistent with the dates that he told the asylum officer during his credible fear interview. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80 (2d Cir.2004). While Uddin argues that the IJ erred by giving limited weight to his proffered evidence, the weight afforded evidence “lies largely within the discretion of the IJ,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir.2006), and the agency need not “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006). It does appear, however, that the IJ may have been mistaken in finding that none of the letters that Uddin submitted “makes specific reference to [Uddin] having been assaulted on July 24, 2004, or on any other date.” See JA 12. The letter from a physician, reporting on treatment administered to Uddin on July 24, 2004, states “injuries caused by sharp weapon and assault in origin.” See JA 215, Exhibit 9A. The reasonable inference is that treatment administered on July 24 was for an assault that
4582	objectives of the program as respects individuals of a particular race, color, or national origin.” 28 C.F.R. § 42.104(b)(2) (emphasis added). DOJ guidance provides, a'federal funding recipient must “take reasonable steps to ensure, ‘meaningful’ access to the information and services they provide [to LEP inmates].” Department of Justice, Enforcement of Title VI of the Civil Rights Act of 1964 — National Origin Discrimination Against Persons With Limited English Proficiency; Policy Guidance, 65 FR 50123-01, 50124 (Aug. 16, 2000); Department of Justice, Guidance- to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed.Reg. 41455, 41469-70 (Jun. 18, 2002). The McDonnell Douglas burden shifting framework applies to Title VI disparate treatment claims. ' Bashdan v. Ge-issberger, 764 F.3d 1179, 1182 (9th Cir. 2014). “First, the plaintiff has the burden of proving by [a] preponderancé of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory reason for the [treatment].’ ” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Arpaio argues he has made reasonable efforts to provide LEP inmates with meaningful access to information and services, thus defeating the United States’ claim. He cites his DI-6 Policy, which states LEP inmates are to have “the
3757	offered a plea and a possible probation reduction if she serves as a witness in the “CLEO case” or if her statement about the “management activities” of Cleo’s is helpful. (Id. ¶¶ 19-20.) Ripeness determinations present two relevant inquiries: “1) whether the issues are fit for judicial decision and 2) the hardship to the parties of withholding court consideration.” Konikov v. Orange County, 410 F.3d 1317, 1322 (11th Cir.2005) (citing Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir.1997)). Under this standard, Plaintiffs challenges to the substantive criminal provisions of the AEC and its facial challenges to the suspension provisions are ripe. “[Prospective enforcement of an ordinance has been found sufficient to generate a live case.” D.H.L. Assocs. v. O’Gorman, 199 F.3d 50, 54 (1st Cir.1999). This is particularly so when constitutional claims are at issue. Id.; Sable Commc’ns of Cal., Inc. v. Pac. Tel. & Tel. Co., 890 F.2d 184, 187 (9th Cir.1989) (“A threat that emanates from a regulation, compulsory in nature, to which the plaintiff is currently subject, is real and immediate if the possibility of enforcement is more than hypothetical.”). The criminal provisions challenged here regulate the very movements an erotic dancer can make during a performance. Dancers at Cleo’s have been arrested for violating these provisions. Because the ordinances criminalize the protected expression conveyed through erotic dance, the ordinances chill the dancers’ exercise of free expression. See Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville, 274 F.3d 377, 399-400
1290	are differences in the two marks. Appellant’s mark is of a mas culine Rand and forearm, whereas appellee’s mark is of a feminine hand and forearm, and there is a heavy, allegedly masculine bracelet on the forearm in appellant’s mark but no bracelet on the forearm in appellee’s mark. There is also an octagon imprinted with the word PUREX supported by the hand in appellee’s mark but no such element in appellant’s mark as depicted in its application? However, we agree with the board that “an average purchaser [at least of low-cost, shelf goods such as those involved here] is not likely to remember symbol marks in their specific details,” cf. Columbian Steel Tank Co. v. Union Tank and Supply Co., 47 CCPA 898, 277 F. 2d 192, 125 USPQ 406 (1960), and we also agree that,' in view of the identity of posture of the hands in the parties’ marks and of the absence of reason for the purchasing public to suppose that the parties’ goods actually emanate from different sources, “purchasers thereof might well assume that the involved products all come from a common source.” Since we find no error in the board’s reasoning or decision after full consideration of the arguments, the decision of the board is affirmed. The Petition of Appeal states that the preliminaries for this appeal were taken “pursuant to Section 1071, Title 15, United States Code and Section 142, Title 35, United States Code.” The latter section pertains to appeals to this court
3722	of candor and good faith in dealing with the [PTO] ..id. at § 1.56(c) (identifying classes of individuals)). The Federal Circuit has found patents unenforceable for failure to correctly name inventors “where the named inventors acted in bad faith or with deceptive intent.” Bd. of Educ. ex rel. Bd. of Trustees of Florida State Univ. v. Am. Bioscience, Inc. (“FSU”), 333 F.3d 1330, 1343 (Fed.Cir.2003). For example, a patent was found to be unenforceable where two named inventors deliberately concealed a true inventor’s involvement in the conception of the invention and “engaged in a pattern of intentional conduct designed to deceive the attorneys and patent office as to who the true inventors were.” Frank’s Casing Crew & Rental Tools, Inc. v. PMR Technologies, Ltd., 292 F.3d 1363, 1376 (Fed.Cir.2002). In contrast, the FSU Court found that the failure to identify a former employer to PTO would not support a finding of inequitable conduct, where that employer was found not to be a co-inventor. FSU, 333 F.3d at 1344. An individual “who simply shares ideas with an inventor on the relevant subject matter” is not necessarily a co-inventor and cannot be the basis for such a finding. Brixham Solutions Ltd. v. Juniper Networks, Inc., No. 13-CV-00616-JCS, 2014 WL 250204, at *6 (N.D.Cal. Jan. 22, 2014) (citing Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456, 1460 (Fed.Cir.1998)). Thus, to survive a motion to dismiss based on the concealment of an inventor, a plaintiff must also plead facts to support that the
3137	stating that the “ ‘doctrine of necessity5 is just a fancy name for a power to depart from the Bankruptcy Code”. Id. at 871. Notwithstanding, the court found that 11 U.S.C. § 368(b)(1) allows preferential payments to vendors in limited circumstances. Id. at 873. The Seventh Circuit also indicated that in order to justify paying prepetition claims under Section 363(b), the debtor must demonstrate that: (1) the vendors in question would have ceased doing business with the debtor if the outstanding debts were not paid; and (2) disfavored creditors would be better off, or at least not worse off, as a result of the preference. Id. at 863, 873. (C) Extent of Section 105 in the First Circuit In Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S.Ct. 963, 99 L.Ed.2d 169, (1988), the U.S. Supreme Court ruled that “[w]hatever equitable powers remain in the bankruptcy courts must and can be exercised within the confines of the Bankruptcy Code” and that under Section 105 “a court may exercise its equitable power only as a means to fulfill some specific Code provision.” In Official Unsecured Creditors’ Comm. v. Stern (In re SPM Mfg. Corp.), 984 F.2d 1305, 1311 (1st Cir.1993), the Court of Appeals for the First Circuit (“First Circuit”) ruled that “Section 105(a) [does not] authorize courts to create substantive rights that are otherwise unavailable under the Code, or to expand the contractual obligations of parties.” The First Circuit also warned in Jamo v. Katahdin Fed. Credit Union
2178	billing records, the Court encountered a number of entries containing reference to two different tasks with no indication of how much time was spent on each. Whenever such an entry involved one of the enumerated uncom-pensable categories discussed in this séction, I allocated fifty percent of the hours in that entry to the category in question. 1. Unproductive or Unnecessary Hours Citing a failure by plaintiffs’ counsel to exercise “billing judgment,” the City challenges a long list of Attorney Hernandez’s time entries as unproductive or otherwise unnecessary to advance the litigation. The Court agrees with the City on a number of these entries. Hours spent by plaintiffs’ counsel talking with the press (7.2) were eliminated. See, e.g., Rum Creek Coal Sales, Inc., v. Caperton, 31 F.3d 169, 176 (4th Cir.1994) (“The legitimate goals of litigation are almost always attained in the courtroom, not in the media.”); Knight v. Alabama, 824 F.Supp. 1022, 1033 (N.D.Ala.1993) (holding that “time spent talking with the media is not compensable because it is not ‘ordinarily necessary to secure the final result obtained from the litigation’ ” (quoting Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S. 546, 561, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1985))); cf. Hart v. Bourque, 798 F.2d 519, 523 (1st Cir.1986) (disallowing time spent on “ ‘arrangements for lectures or publications about the case’ ”). The Court also disallowed time spent communicating with the Attorney General’s office (.90 hours), as there is little indication that those communications were necessary to the presentation
187	the district of Puerto Rico is proper. Further, as stated above, proper venue is Puerto Rico, because under 28 U.S.C. § 1391(a)(3) defendants are subject to personal jurisdiction in Puerto Rico. III. Is Transfer Under 28 U.S.C. § 1404(a) Warranted? Having found that there is in-personam jurisdiction of the non-resident defendants, and that venue in this action may lie in the District of Puerto Rico, the Court next addresses whether transfer to the State of New Jersey is appropriate based upon convenience to the parties and the interests of justice. In moving for a change of venue, defendants carry the burden of showing that the factors enumerated in 28 U.S.C. § 1404 militate in favor of transfer. Sergio Estrada Rivera Auto Corp. v. Kim, 717 F.Supp. 969, 973 (D.P.R.1989). “Factors to be considered by the district court in making its determination include the convenience of the parties and witnesses, the order in which jurisdiction was obtained by the district court, the availability of documents and the possibilities of consolidation.” Id., at 973 quoting Cianbro Corp. v. Curran-Lavoie, Inc., 814 F.2d 7, 11 (1st Cir.1987). As particularly relevant to the case at hand, we shall proceed to address the factor relating to the factor of convenience of the parties. Transfer will not be ordered if the result is merely to shift the inconvenience from one party to another. Buckley v. McGraw-Hill, Inc., 762 F.Supp. 430, 439 (D.N.H.1991); see also, Wright, Miller & Cooper, 15 Federal Practice and Procedure: Jurisdiction § 3848,
4460	hear appeals from “final judgments, orders and decrees [pursuant to 28 U.S.C. § 158(a)(1)] or with leave of the court, from interlocutory orders and decrees [pursuant to 28 U.S.C. § 158(a)(3)].” Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). “A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Id. at 646 (citations omitted). An interlocutory order “ ‘only decides some intervening matter pertaining to the cause, and requires further steps to be taken in order to enable the court to adjudicate the cause on the merits.’ ” Id. (quoting In re American Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985)). A bankruptcy appellate panel is duty-bound to determine its jurisdiction before proceeding to the merits even if not raised by the litigants. See In re George E. Bumpus, Jr. Constr. Co., 226 B.R. 724 (1st Cir. BAP 1998). An order dismissing a Chapter 13 case is a final order. See Fleury v. Carmichael (In re Fleury), 306 B.R. 722, 726 (1st Cir. BAP 2004); In re Bentley, 266 B.R. 229, 233-34 (1st Cir. BAP 2001). STANDARD OF REVIEW Appellate courts reviewing an appeal from the bankruptcy court generally apply the “clearly erroneous” standard to findings of fact and de novo review to conclusions of law. See T I Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir.1995); Western
1069	regulatory policy.” Id. Multiple reasons, however, suggest that the Turner rationale does not apply here. The substantive constitutional issue in Turner called for only intermediate scrutiny. The must-carry provisions in Turner were content-neutral restrictions on speech because they did not distinguish favored from disfavored speech, prompting an intermediate level of scrutiny from the Court. See Turner II, 520 U.S. at 185-86, 117 S.Ct. 1174. Intermediate scrutiny, which is itself a fairly deferential standard of review, is not applicable when legislation substantially burdens a fundamental right. See, e.g., Turner II, 520 U.S. at 225, 117 S.Ct. 1174 (Stevens, J., concurring) ( “If this statute regulated the content of speech rather than the structure of the market, our task would be quite different.”); Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988) (“[CJlassifications affecting fundamental rights ... are given the most exacting scrutiny.”); Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978) (“Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake.”). Had the must-carry provisions distinguished based on the content of speech, they would have been subjected to strict scrutiny, the Court’s most nondefer-ential standard. See Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989) (applying strict scrutiny to FCC regulations banning indecent telephone communications). The Supreme Court has held that abortion of a nonviable fetus, as a form of personal privacy, is a
4323	by Weiner exceeds the required amount in controversy. B. The District Court Did Not Err by Granting the Motion of Tootsie Roll to Compel Arbitration. “The ‘validity of an arbitration agreement is generally governed by the Federal Arbitration Act.’ ” Lambert v. Austin Ind., 544 F.3d 1192, 1195 (11th Cir.2008) (quoting Caley v. Gulfstream Aerospace Corp., 428 F.3d 1359, 1367 (11th Cir.2005)). The Act promotes enforcement of written agreements to arbitrate, see 9 U.S.C. § 2, “in the manner provided for in [the parties’] agreement,” id. § 4. As a result, contracting “parties who do agree to arbitrate” are free to “exclud[e] certain claims from the scope of their arbitration agreement.” Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 1255, 103 L.Ed.2d 488 (1989). Weiner and Tootsie Roll agreed that, “except for claims barred by the applicable survival period in [section] 8(a)” and “claims for preliminary or provisional injunctive relief ..., any and all disputes ... that relate[d] to [the] Agreement” would be “determined solely and exclusively by arbitration.” Weiner argues that a provision in the covenant not to compete allows him to litigate its validity in “a court of competent jurisdiction,” and in turn, trumps the agreement to arbitrate, but we disagree. Because the Arbitration Act “creates a presumption in favor of arbitrability,” the “parties must clearly express their intent to exclude categories of claims from their arbitration agreement.” Paladino v. Avnet Computer Techs., Inc., 134 F.3d
3113	of this pattern of the Railway Labor Act. ERISA explicitly provides: “Nothing in this sub-chapter shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States (except as provided in sections 1031 and 1137(b) of this title) or any rule or regulation issued under any such law.” 29 U.S.C. § 1144(d). 994 F.2d at 695 (9th Cir.1993) (citations omitted). See also Hastings v. Wilson, 516 F.3d 1055, 1059 (8th Cir.2008) (rejecting argument that “Congress did not intend the RLA’s mandatory arbitration scheme to apply to ERISA claims”); Jenisio, 187 F.3d at 973 n. 5 (“ERISA, which was enacted after the RLA, does not affect our analysis of the RLA’s mandatory arbitration provision”); Coker v. Trans World Airlines, Inc., 165 F.3d 579 (7th Cir.1999) (finding RLA provision applied to ERISA claims, but particular claim not barred since it was a “major dispute”). This thus leaves Pearson’s primary argument that this action cannot be categorized as a “minor dispute” falling under the exclusive jurisdiction of the system board of adjustment. Opp’n at 2-3. If this is such a dispute, though, she claims it is a “major” one and not a “minor” one. Opp’n at 3. Certainly, the RLA does not vest jurisdiction in system boards of adjustment of all disputes related to employ ment. The Supreme Court has expressly-rejected the idea that “all employment-related disputes, including those based on statutory or common law” fall under the exclusive jurisdiction of the system board of Adjustment; “the RLA’s
3998	be examined to identify “which of the different possible dictionary meanings of the claim terms in issue is most consistent with the use of the words by the inventor.” Texas Digital, 308 F.3d at 1202. In this case, Plaintiff argues that “hollow” does not mean “empty” because the patents incorporated by reference into the '833 patent describe “hollow” floatation units that may contain either air, or water, or foam. (See '833 patent, col. 3, 11. 30-33, Pis.’ Ex. 1, ECF No. 257-2.) Where the patent specification incorporates by reference other patents to help define what is disclosed, those publications are “highly relevant to one of ordinary skill in the art for ascertaining the breadth of the claim term.” AquaTex Industries, Inc. v. Techniche Solutions, 419 F.3d 1374, 1381 (Fed.Cir.2005); see also Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed.Cir.2005) (en banc) (“The specification is always highly relevant to the claim construction analysis.”). The '833 patent says that the floatation units it uses are “substantially similar to that shown in U.S. Patents 3,824,644 and 4,604,962, and the disclosure of those patents is incorporated in its entirety into this application.” '833 patent, col. 3,11. 30-33. The Guibault patent, U.S. Patent 4,604,962, states, “[e]ach floating unit 22 is water-proof and preferably hollow and may be moulded out of synthetic resins such as a high density polyethylene. A plastic foam may fill each unit 22.” '962/Guibault Patent, col. 2, 11. 35-39. Therefore, the '833 patent has a disclosure incorporated by reference that explicitly
4731	2000133, at *7 (S.D.N.Y. Aug. 17, 2005) (quoting Levinson v. Spector Motor Serv., 330 U.S. 649, 674-75, 67 S.Ct. 931, 91 L.Ed. 1158 (1947)). Because courts focus on the character of the activities, instead of the proportion of time involved in interstate activity, in determining whether an employee’s interstate activities are de minimis, courts are hesitant to apply the de minimis exception to drivers who occasionally drive interstate. See Williams, 2015 WL 305362, at *12 (holding that the “activities of one who drives in interstate commerce, however frequently or infrequently, are not trivial,” noting that “[o]ther cases have followed this reasoning when it comes to suits brought by drivers,” and collecting cases (internal quotation marks omitted)); see also Roberts v. Cowan Distribution Servs., LLC, 58 F.Supp.3d 593, 600 (E.D.Va.2014) (“An isolated delivery in interstate commerce may be de minimis such that the employee still does not qualify as a driver; however, courts have hesitated to apply the de minimis principles in this context, because driving in interstate commerce significantly affects the safety of motor vehicle operations.” (italics omitted)); Sinclair v. Beacon Gasoline Co., 447 F.Supp. 5, 11 (W.D.La.1976) (“[T]he de minimis rule should seldom, if ever, be applied to one who drives a motor vehicle carrying property of a private carrier in interstate commerce.”), aff'd, 571 F.2d 978 (5th Cir.1978). “Although the de minimis rule has limited applicability to drivers ... no court has adopted [the) blanket proposition” that the de minimis rule does not. apply to drivers. Masson, 2005
1112	preceded by the qualifying phrase ’[tjhis Letter Agreement,’ thereby indicating that it encompasses solely those disputes as to the subjects identified therein:” Id. at 14. Further, Monfared contends that the Letter Agreement does not “include any guidance with respect to resolution of disputes or claims for discrimination or retaliation under Title VII or 42 U.S.C. § 1981,” nor does the agreement “contain any broad-sweeping, ’catch-all phrases’ from which it could be reasonably inferred that the arbitration clause encompasses ’any and all disputes arising out of or related to Plaintiffs employment’ - such as Federal statutory claims.” Id. at 14-15. The Federal Arbitration Act, 9 U.S.C. §§ 1-13, establishes “a uniform federal law over contracts which fall within its scope.” Goodwin v. Elkins & Co., 730 F.2d 99, 108 (3d Cir.1984). Because neither party contests the validity of the arbitration clause, the Court confines its inquiry to assessing whether the dispute at issue falls within the scope of that clause. Further, because neither party questions the propriety of this Court determining whether the dispute is arbitrable, the Court “assume[s], without further analysis, that the [a]greement leaves the question of arbitrability to judicial determination.” See CardioNet, Inc. v. Cigna Health Corp., 751 F.3d 165, 172 (3d Cir.2014) (citing Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010)). The United States Court of Appeals for the Third Circuit recently summarized the standards governing a court’s interpretation of the scope of an arbitration clause: [The
4683	Maitlands moved to Florida in 2010, have had Florida driver’s licenses since before their complaint was filed, have advised us that they intend to remain in Florida, and have been renting their New York property to a tenant since moving. Under the circumstances of this case, where the plaintiffs are proceeding pro se, we are satisfied that these allegations are sufficient to demonstrate “both physical presence [in Florida] and intent to stay.” See Universal Reinsurance Co., 224 F.3d at 141. We therefore hereby deem the Maitlands’ pleadings amended to properly allege diversity jurisdiction, see Canedy, 126 F.3d at 103, and we remand the case for the district court to address the Mait-lands’ state law claims in the first instance, see, e.g., Farricielli v. Holbrook, 215 F.3d 241, 246 (2d Cir. 2000) (per curiam) (observing that “[i]t is [this Court’s] settled practice to allow the ’district court to address arguments in the first instance”). Accordingly, we AFFIRM the judgment of the district court with respect to the Maitlands’ federal claims, we VACATE the judgment of the district court with respect to their state law claims, and we REMAND for further proceedings consistent with this opinion. . Further, the Maitlands have abandoned all their remaining federal claims by failing to address them in their appellate brief. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995). . None of the appellees dispute that they are not citizens of Florida. However, it appears that Chase, a national banking association, is
2546	Infinity also seeks to have this Court review the Clerk’s Bill of Costs. ' The Court will address the substantive issues before discussing the latter two motions. Analysis A. Infinity’s Motion for Judgment as a Matter of Law 1. Standard of Review In ruling on a renewed motion for judgment as a matter of law in which a verdict was returned, the court may: (A) allow the judgment to stand, (B) order a new trial, or (C) direct entry of judgment as a matter of law Fed.R.Civ.P. 50(b)(1). The court “shall review all the evidence in the record, construe the evidence and inferences most favorably to the nonmoving party, and refrain from making credibility determinations and weighing evidence.” Tyler v. RE/MAX Mountain States, Inc., 232 F.3d 808, 812 (10th Cir.2000) (citation omitted). “Judgment as a matter of law is appropriate only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party’s position.” Id. 2. Discussion Infinity petitions this Court to address an issue lying at the very heart of this case: under what circumstances is an insured allowed to enter into a stipulated judgment or settlement agreement with a claimant? Infinity argues that only an outright refusal to defend, such as a denial of coverage, justifies an insured’s settlement of the case. This Court has denied similar arguments previously raised by Infinity in this case. All throughout this litigation, the Court has been of the opinion that an insured may
1366	439 (2000). B. Standing As noted, to establish Article III standing, a plaintiff must allege facts showing ah injury-in-fact, causation, and redressability such that the injury will be likely redressed by a decision in the plaintiffs favor. Lujan, 504 U.S. at 561-62, 112 S.Ct. 2130. An injury-in-fact requires showing “an invasion of a legally protected interest which is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Id. at 560, 112 S.Ct. 2130 (citations and internal quotation marks omitted). The UCL and FAL incorporate the Article III standing requirements, but additionally require that the plaintiff plead an economic injury. Kwikset Corp. v. Superior Court, 51 Cal.4th 310, 322-23, 120 Cal.Rptr.3d 741, 246 P.3d 877 (2011); see also TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 825 n. 1 (9th Cir.2011) (“Plaintiffs filing an unfair competition suit must prove a pecuniary injury ... and ‘immediate’ causation.... Neither is required for Article III standing.” (internal citations omitted)). Proposition 64 was enacted in 2004 as a means of “confin[ing] [UCL] standing to those actually injured by a defendant’s business practices and [ ] curtailing] the prior practice of filing suits on behalf of clients who have not used the defendant’s product or service, viewed the defendant’s advertising, or had any other business dealing with the defendant.” Kwikset, 51 Cal.4th at 321, 120 Cal.Rptr.3d 741, 246 P.3d 877 (internal citations omitted). Under the UCL and FAL, a plaintiff suffers an injury-in-fact when he or she has “(1) expended money due to the
4702	679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.”’ (alteration in original) (citation omitted) (quoting Fed.R.Civ.P. 8(a)(2))). For the purposes of a motion for judgment on the pleadings, as with a motion to dismiss under 12(b)(6), the Court is required to consider as true the factual allegations contained in the Complaint. See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiffs favor.” (italics and internal quotation marks omitted)); Gonzalez v. Caballero, 572 F.Supp.2d 463, 466 (S.D.N.Y.2008) (same). In deciding a motion for judgment on the pleadings, as with a motion to dismiss, “a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal quotation marks omitted) (applying standard
127	the United States owed McCloskey a duty of care. They contend that the FBI had a “special relationship” with Sampson because the agency knew that he was a violent fugitive from justice, and that the “special relationship” between the FBI and Sampson became “even more crystallized” when Sampson contacted the FBI and told Anderson that he wanted to be taken into custody. The “discretionary function exception” to the FTCA, set forth in 28 U.S.C. § 2680(a), protects the government from lawsuits “based upon the exercise or ;performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of,the Government, whether or not the discretion involved be abused.” See Coyne v. United States, 233 F.Supp.2d 135, 144-45 (D.Mass.2002). The exception is intended to prevent the courts from second-guessing “legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort.” Id. at 145 (quoting Campbell v. United States, 167 F.Supp.2d 440, 447-48 (D.Mass.2001)). The Supreme Court has described a discretionary function as one “in which there exists an ‘element of judgment or choice,’ ” Coyne, 233 F.Supp.2d at 145 (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)), and the court must dismiss any claim “covered by the discretionary function exception ... for lack of subject matter jurisdiction,” Kelly, 924 F.2d at 360. See 28 U.S.C. § 1346(b); see also Muniz-Rivera v. United States, 326
2677	Brawders for the purposes of an accounting based on the bankruptcy court’s ruling regarding the amount due under the Plan. As the County consistently argued, both before and after it entered into the Stipulation, the Plan affected only the Brawders’ personal obli gations. We therefore conclude that the Stipulation addressed only the Brawders’ personal liabilities. The Stipulation is unambiguous; nowhere in the Stipulation do the parties agree all, pre-petition property taxes and interest secured by the County’s lien against the Brawders’ property were discharged — and we cannot read the Stipulation as providing for anything more. for the bankruptcy court’s See Jeff D. v. Andrus, 899 F.2d 753 (9th Cir.1989) (stating that basic contract principles apply in interpreting stipulations) (citing Miller v. Fairchild Indus., 797 F.2d 727, 733 (9th Cir.1986)); In re Crow Winthrop Operating P’ship, 241 F.3d 1121, 1124 (9th Cir.2001) (“Under California law, if a contract’s terms are unambiguous, a court may interpret the contract without recourse to extrinsic evidence.”). We therefore conclude that the ease is not moot, and that the BAP properly concluded that the County’s lien rights were not affected by the Plan or the Stipulation. AFFIRMED. APPENDIX FILED MAY 10 2005 HAROLD S. MARENUS, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT ORDERED PUBLISHED UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT In re: ROBERT BRAWDERS and CHERYL BRAWDERS, Debtors. COUNTY OF VENTURA TAX COLLECTOR, Appellant, v. ROBERT BRAWDERS; CHERYL BRAWDERS, Appellees. BAP No. CC-04-1165-MoPK Bk. No. SV-00-15661-KL Adv. No. SV-00-01370-KL Argued
4621	supplies, and persons furnishing repairs, supplies, or other necessaries, have a maritime lien on the vessel therefor. The Kongo-, supra. Accordingly, appellant Barnes is entitled to a maritime lien for this amount. The exceptions of the appellees filed in the district court 'are sustained save for the exception with respect to the claim in question of $1,500. The case is remanded to the district court for further proceedings in accordance with this opinion. “Marine hypothecations had their origin in the necessities of commerce, and are said to be creatures of necessity and distress. When properly authorized and duly executed they are of a high and privileged character and are held in great sanctity by maritime courts.” Delaware Mut. Safety Insurance Co. v. Gossler, 1877, 96 U.S. 645, 24 L.Ed. 863. The master has authority to pledge the ship and freight to raise the necessary funds for the voyage. The pledge of the ship is effected by a contract of bottomry, the bottom or keel of the ship being figuratively used to express the whole body of the ship. Where the cargo alone is hy-pothecated, the contract is called Re-spondentia. 2 Blackstone Comm. 458. See Conard v. Atlantic Ins. Co., 1828, 26 U.S. 386, 1 Pet. 386, 7 L.Ed. 189. Be fore tko master resorts to bottomry, be must, when possible, communicate with the owner. The Oriental [1851], 7 Moore P.C.O. 398; The Panama [1870], L.R. 3 P.O. 199; or attempt to do so if, in the circumstances, it is rational
2403	or refuse to hire ... any individual ... with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). A successful claim under the ADEA requires a plaintiff to demonstrate that he “(1) ... is a member of the protected class (i.e., over 40 years of age); (2) ... was qualified for the position for ’which [he] applied; (3) ... was not hired; and (4) ’... was disadvantaged in favor of a younger person.” Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1155 (D.C.Cir.2004) (citations omitted). “[P]laintiff is not required to plead every fact necessary to establish^ a prima facie case to survive a motion to dismiss,” however. Jones v. Air Line Pilots Ass’n, Int'l, 642 F.3d 1100, 1104 (D.C.Cir.2011) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). Nevertheless, he must allege sufficient facts to put the defendant on notice of the claim against it, see Kangethe v. District of Columbia, 953 F.Supp.2d 194, 199 (D.D.C.2013), which in this case means allegations that plaintiff suffered an adverse employment action because of his age, see Montgomery v. Omnisec Int’l Sec. Servs., Inc., 961 F.Supp.2d 178, 183 (D.D.C.2013) (citing Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008)). A 'pro se plaintiff is héld to “less stringent [pleading] standards”' than lawyers are, Erickson, 551 U.S. at 94, 127 S.Ct. 2197, but still must plead facts permitting an inference of “more than the mere possibility of misconduct,”
4660	either retained or appointed.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602. The central issue here is whether the interview in the library was custodial interrogation, as Ellison says, simply because incarceration makes any interrogation custodial per se within the meaning of Miranda. Determinations about Miranda custody begin by examining all of the “circumstances surrounding the interrogation” and asking whether “a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave,” Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). This “initial determination ... depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam). Once a court finds that a reasonable person in the suspect’s position would not have felt free to end the interview and walk away, there is a further question whether the suspect would reasonably find the circumstances coercive, thus raising the concern that drove Miranda. See Berkemer v. McCarty, 468 U.S. 420, 436-37, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (acknowledging that “a traffic stop significantly curtails ... ‘freedom of action,’ ” and then deciding “whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights”). In the paradigm example of interrogating a
3863	statute, failed to satisfy the goals of sentencing, strained the plain meaning of the statute, and violated the rule of lenity. Santos Mendez reiterates these claims and further asserts that his sentence should be reduced based on considerations of “fundamental fairness.” The District Court did not abuse its discretion. Jose Mendez and Louis Corde-ro claim that they are entitled to a reduced sentence because § 3582(c) requires only that a sentence be “based on” a lowered § 2D1.1 range and their sentences were, at least in part, based on a reduced range. They also argue that the Commission’s policy statements are merely “advisory” and that the District Court erred in treating them as binding. We rejected these precise arguments in United States v. Doe, 564 F.3d 305 (3d Cir.2009), where we found that the Commission’s policy statements are indeed binding and “require that the amendment must actually have had the effect of lowering the Guideline range.” Id. at 310-11. Accordingly, we held that the Amendments did not lower the guideline range applicable to defendant Doe’s offense, because the range was set by a mandatory minimum and not by § 2D1.1. Id. at 315. The District Court correctly denied Cordero and Jose Mendez’s claims. We also agree with the District Court’s conclusion that Santos Mendez’s guideline range was not subject to the Amendments’ reduction because of the large quantity of cocaine Mendez possessed. Santos Mendez’s “fundamental fairness” and policy arguments do not overcome the Sentencing Guidelines’ unambiguous limitation — that a
3549	refuse to consider it. We do note, however, that the individual defendants including Chatterton and Birdsall did generally raise this issue in their amended memorandum in support of their motion for summary judgment. They argued that their motion fairly read was addressed to all claims against them, including the FHA claim. Appellate courts will generally not entertain arguments that were not raised in the district court. However, we may exercise our discretion to consider an issue first raised on appeal if it “is a pure question of law and the record is sufficient to review the issue.” United States v. Alisal Water Corp., 431 F.3d 643, 654 n. 4 (9th Cir.2005). Qualified immunity is such an issue. Bibeau v. Pac. Nw. Research Found., Inc., 188 F.3d 1105, 1111 n. 5 (9th Cir.1999), as amended, 208 F.3d 831 (9th Cir.2000) (“Because qualified immunity presents a pure question of law which we review de novo, any decision by the district court would be entitled to no deference.”). We have on occasion considered qualified immunity sua sponte. Graves v. City of Coeur D’Alene, 339 F.3d 828, 846 n. 23 (9th Cir.2003), abrogated on other grounds by Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004). CHI will not be prejudiced by our consideration of qualified immunity on the FHA claims because, as we have noted, we assume all disputed facts in CHI’s favor, and the dispositive issue — which was fully addressed during oral
2691	that Debtors had any such intent. See Fed. R. Bankr.P. 3007 (claims objections) and 7001(1), (2), and (9) (adversary proceeding required for avoidance of hen, or determination of its “validity, priority, or extent,” or declaratory judgment of same). As the Ninth Circuit stated in Enewally: Although confirmed plans are res judica-ta to issues therein, the confirmed plan has no preclusive effect on issues that must be brought by an adversary proceeding, or were not sufficiently evidenced in a plan to provide adequate notice to the creditor. * * :!= “[I]f an issue must be raised through an adversary proceeding it is not part of the confirmation process and, unless it is actually litigated, confirmation will not have a preclusive effect.” Cen-Pen Corp. v. Hanson, 58 F.3d 89, 93 (4th Cir.1995) (quoting In re Beard, 112 B.R. 951, 956 (Bankr.N.D.Ind.1990)). Enewally, 368 F.3d at 1173 (emphasis added). See also Shook v. CBIC (In re Shook), 278 B.R. 815, 824 (9th Cir.BAP 2002) (plan can effectively determine value and/or avoid a lien only if creditor receives “clear notice” that the plan will do so). Debtors argue that the order confirming the Plan states, “The court finds that the plan meets the requirements of 11 U.S.C. § 1325,” implying that such requirements were “actually litigated.” Section 1325 provides that, unless collateral is surrendered or the holders of allowed secured claims agree otherwise, they must retain their liens and the value of distributions under the Chapter 13 plan must be “not less than the
631	nonprofessional. I. Appropriate Bargaining Unit A. St. Luke’s Affect on St. Francis II At the outset, we find the Board’s “disparity of interests” test as adopted in St. Francis II comports with our decision in St. Luke’s. The Hospital errs in interpreting St. Luke’s so rigidly. We are content that in St. Francis II the Board’s formulation of its “disparity of interests” test took into account — as we mandated in St. Luke’s — the admonition of Congress against the proliferation of bargaining units in the health care field. 271 N.L.R.B. at 953. Thus, when a bargaining unit satisfies the “disparity of interests” test, it necessarily complies with the congressional directive against unnecessary fragmentation of bargaining units. See Southwest Community Health Servs. v. NLRB, 726 F.2d 611, 613 (10th Cir.1984) (“The [disparity of interests] standard thus ensures compliance with the congressional mandate to avoid undue proliferation of bargaining units in the health care industry.”). B. Application of “Disparity of Interests” Test Our standard of review of the Board’s choice of a bargaining unit in the health care field is “whether the Board properly focused on the ‘disparity of interests’ between employee groups which would prohibit or inhibit fair representation of employee interests.” Southwest Community Health Servs., 726 F.2d at 613 (quoting NLRB v. St. Francis Hosp. of Lynwood, 601 F.2d 404, 419 (9th Cir.1979)). This standard is more searching than the “arbitrary and without substantial support” standard traditionally applied to unit determinations in non-health care industries. Southwest Community Health Servs.,
3394	of the United States must be an essential element of the plaintiff’s cause of action, and the right or immunity must be such that it will be supported if one construction or effect is given to the laws of the United States and will be defeated if another construction or effect is given. And a genuine and present controversy of that kind must be disclosed upon the face of the complaint, unaided by the petition for removal or the answer. Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205; Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Regents of New Mexico College of Agriculture & Mechanic Arts v. Albuquerque Broadcasting Co., 10 Cir., 158 F.2d 900.” The law is settled that “a mere statement that a construction of certain federal statutes is involved in a case is not sufficient to bestow such jurisdiction. The dispute must involve a substantial question as to construction of the federal statutes, and not a colorless or frivolous one, * * * or a mere makeshift, for the purpose of securing such jurisdiction.” Jefferson v. Gypsy Oil Co., 8 Cir., 27 F.2d 304, 305. An Indian, because he is an Indian, has no greater right to sue in Federal Court than any other litigant. Deere v. St. Lawrence River Power Co., 2 Cir., 32 F.2d 550. Plaintiff’s claim does not depend upon a construction of a Federal statute. It is based entirely upon a
1690	that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). See also Bass v. Jackson, 790 F.2d 260, 262 (2d Cir.1986). “For purposes of a motion to dismiss, [the Second Circuit has] deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference ..., as well as public disclosure documents required by law to be, and that have been, filed with the SEC, and documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.” Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir.2000) (citing Cos-mas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989); Kramer, 937 F.2d at 774; and Cor-tee Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991), cert, denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992)). The documents attached to the complaint as Exhibits A-D are appropriately considered under this standard. II. Breach of Fiduciary Duty SG Cowen has moved to dismiss the breach of fiduciary duty claim against it on the grounds that the complaint alleges that SG Cowen was merely a “clearing broker” that settled trades for May Davis rather than acting as a personal stockbroker for Rozsa (Compl.1ffl 5, 23), and as such, SG Cowen had no fiduciary duty to Rozsa.
2482	supports this position by citing Ross v. Neff, 905 F.2d 1349 (10th Cir.1990), in which a state police officer arrested an Indian in Indian Country in a non-Public Law 280 state. This arrest led to a civil rights case involving potential municipal liability. The Court finds Ross insufficient to support this claim. It is clear that potential liability stemming from a filed complaint can be sufficient to create standing. See Va. Sur. Co. v. Northrop Grumman Co., 144 F.3d 1243, 1246 (9th Cir.1998). On the other hand, an amorphous threat of future liability alone does not result in injury. If such an inchoate claim could support standing, a court could intervene whenever any entity faced the possibility of future litigation. See O’Shea v. Littleton, 414 U.S. 488, 497, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (finding plaintiffs lacked standing to complain of an injury that would occur “if they proceeded] to violate an unchallenged law and if they [were] charged, held to answer and tried in any proceedings”); Caribbean Marine Serv. Co., Inc. v. Baldrige, 844 F.2d 668, 675 (9th Cir.1988) (finding no standing where plaintiffs claim increased exposure to liability dependent on multiple contingencies); City of South Lake Tahoe v. Cal. Tahoe Reg’l Planning Agency, 625 F.2d 231, 238-39 (9th Cir.1980) (finding no standing where exposure to civil liability is speculative). Here, the County’s exposure to liability depends on the likelihood of its officers’ violating the constitutional rights of Mille Lacs Band members by reason of municipal policy or
2754	that Morris, who in 2003 had been sentenced to concurrent terms of 230 months and 120 months of imprisonment in connection with crack cocaine offenses, was not entitled to relief pursuant to § 3582(c)(2) or 28 U.S.C. § 2241 because he was a career offender. In considering Morris’s motion to proceed IFP, the district court concluded that he had failed to raise a nonfrivolous issue for appeal and certified that an appeal would not be in good faith. Morris is challenging the certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997). Our inquiry “is limited to whether the appeal involves legal points arguable on their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983) (internal quotation marks and citation omitted). Morris’s poorly drafted pleadings suggest an intent to argue that the Guidelines were incorrectly applied at sentencing and that the career offender designation should not apply in his case. However, Morris does not provide coherent argument that addresses the district court’s determinations that § 3582(c)(2) and § 2241 do not provide the relief that he requested. His assertions thus do not amount to legal argument that addresses the district court’s denial of relief. See Fed. R.App. P. 28(a)(5)-(9); Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.1995). By failing to provide argument that addresses the district court’s analysis, Morris has failed to adequately present any argument for this court’s consideration. Morris’s appeal is without
4661	person [would] have felt he or she was not at liberty to terminate the interrogation and leave,” Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). This “initial determination ... depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam). Once a court finds that a reasonable person in the suspect’s position would not have felt free to end the interview and walk away, there is a further question whether the suspect would reasonably find the circumstances coercive, thus raising the concern that drove Miranda. See Berkemer v. McCarty, 468 U.S. 420, 436-37, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (acknowledging that “a traffic stop significantly curtails ... ‘freedom of action,’ ” and then deciding “whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights”). In the paradigm example of interrogating a suspect at a police station, the answer is obvious, in the absence of unusual facts: that was the situation in Miranda and the warnings are the required antidote to the stationhouse pressures observed there. Miranda is to be “enforced strictly ... in those types of situations in which the concerns that powered the decision are implicated.” Id. at 437, 104 S.Ct. 3138.
2644	representation on venire lists is not extremely disproportionate to the Negro population in the parish [county], the burden may be a heavy one.” Labat v. Bennett, 5 Cir., 1966, 365 F.2d 698, 712. However, juries must be drawn from a fair cross section of the community. Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ; Thiel v. Southern Pac. Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); Scott v. Walker, 5 Cir., 1966, 358 F.2d 561, 564. The jury must, therefore, be “drawn from a pool of persons broadly representative of the community”, Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34, 45, for “It is part of the established tradition in the use of juries' as instruments of public justice that the jury be a body truly representative of the community.” Smith v. State of Texas, supra. In compiling jury lists, both the need for competency and for a fair cross section of the community are important elements but the desire for competency must not be pursued to the extent that it prevents a fair cross section and any attempt to gain competent jurors that would result in a less representative cross section than one drawn from the statutorily qualified pool would destroy the right to serve on juries which Congress intended to confer (i. e., by its enactment of a uniform set of
1520	with the Union in the spring to resolve issues associated with the effects of the closing. One of these issues — how long SUPERVALU would continue to contribute to the pension plan— had significant economic repercussions for SUPERVALU. The MPPAA provides that an employer, for various reasons, may opt out of a mul-tiemployer pension plan. Where there is a complete withdrawal the employer immediately incurs “withdrawal liability” to the Fund. This liability is defined as “the employer’s proportionate share of the plan’s ‘unfunded benefits,’ calculated as the difference between the present value of the vested benefits and the current value of the plan’s assets.” Robbins v. Pepsi Metro. Bottling Co., 636 F.Supp. 641, 647 (N.D.Ill.1986)(quoting Pension Ben. Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 725, 104 S.Ct. 2709, 81 L.Ed.2d 601 (1984)). The Act specifies that withdrawal liability is to be calculated with reference to a plan’s unfunded benefits outstanding at the end of the plan year preceding the year of an employer’s withdrawal. 29 U.S.C. § 1391(b)(2)(A)(ii). Because the Fund’s plan year ended on June 30, the amount owing in the event of SUPERVA-LU’s withdrawal during the 2002 plan year would have been based on the Fund’s unfunded vested benefits as of June 30, 2001. Similarly, withdrawal liability for the plan year 2003 would have been calculated on the basis of unfunded vested benefits outstanding as of June 30, 2002. In April 2002, SUPERVALU consulted the Fund’s actuary. It learned that if it withdrew in plan
2950	petitioner. Although his brief does not deal with the other points, petitioner further asserts that counsel (vii) failed to properly pursue a motion for a change of venue, (viii) allowed improper jurors to sit on the jury, and (ix) did not take steps to see that the jury took only the proper exhibits with them into the jury room. Respondent contends that Simpson and Tisinger were properly competent and that matters of trial tactics are beyond this court’s scope of review. In determining whether a criminal defendant has been denied his constitutional right to the effective assistance of counsel, this court adheres to the competence standard announced in Marzullo v. State, 561 F.2d 540 (4th Cir. 1977). The Marzullo court, following McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), used this measure: “Was the defense counsel’s representation within the range of competence demanded of attorneys in criminal cases?” 561 F.2d at 543. This court has reviewed the transcript of petitioner’s trial, and the court holds that Simpson’s and Tisinger’s representation was well within the competence of counsel demanded in criminal cases. The effective assistance of counsel has not been denied simply because counsel failed to obtain an acquittal. United States v. Robinson, 502 F.2d 894 (7th Cir. 1974). Rather, the determination of whether counsel met the constitutional minimum requires a more detailed analysis. See generally, Annot., “Modern Status of Rule as to Test in Federal Court of Effective Representation by Counsel,” 26 A.L.R. Fed. 218
2205	Michael Henderson, a key witness for the plaintiffs on their emotional distress claim. • However, it is unclear from Pram’s invoice submitted with the petition how a number of the individuals he contacted or services he performed are related to the successful claims in this case. Therefore, I deduct $4351.32 from the costs associated with Prum. I did not deduct costs for delivery service, travel (parking and mileage), faxes, or postage. The City argues that these and other like items should be absorbed as part of overhead in the attorney’s reasonable hourly rate. However, identifiable, out-of-pocket costs such as these, which are normally billed separately to the client, “are not properly treated as overhead éxpenses for purposes of a fee award.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir.1998) (citing numerous cases); see also, e.g., West Virginia Univ. Hosps., Inc. v. Casey, 898 F.2d 357, 366 (3d Cir.1990) (finding that telephone and photocopying charges are not part of overhead and are allowable under 42 U.S.C. § 1988); International Woodworkers, Local 5-376 v. Champion Int’l Corp., 790 F.2d 1174, 1183 (5th Cir.1986) (Rubin, J., concurring and dissenting) (distinguishing general “office overhead and secretarial expense, normally paid by the attorney out of his fee,” from travel costs, long-distance telephone bills, consultant fees, and the like, “normally bill[ed] separately to the client” and awarded under § 1988). Finally, I also allow the $80 that plaintiffs requested for anticipated costs associated with this fee petition. IV. Effect of the Rule 68 Offer of
311	does not imply that they were not subject to a common promotional plan, where all unsold units were in the same inventory pool at all times. This conclusion is bolstered by other provisions of the HUD Guidelines. In particular, the Guidelines provide that “essential elements of a common promotional plan are a thread of common ownership or developers acting in concert.” 61 Fed. Reg. at 13602. The “common ownership” element is unquestionably present here. Furthermore, the Guidelines point to the following additional factors to be used in assessing the presence of a common promotional plan: (a) same or similar name or identity; (b) common sales agents; (c) common sales facilities; (d) common advertising; and (e) common inventory. Id.; see Eaton v. Dorchester Development, Inc., 692 F.2d 727, 731 (11th Cir.1982) (identifying relevant factors for purposes of determining whether common promotional plan exists as including “a thread of common ownership; common sales agents; common sales facilities; common advertising; common inventory”). All 108 units of the development were subject to common ownership, a common name, and common inventory. At any given moment, all unsold units in inventory were treated the same way by Sanibel and/or its listing agent for purposes of marketing and promotion. That those marketing tactics shifted over time (beginning with internal marketing to certain favored company principals or investors, before switching to external marketing to the public of all unsold inventory) in no way bespeaks the absence of a common promotional plan. For these reasons, the Court finds that
1559	the quality of the state judiciary but also would totally eliminate any possibility of Section 2 violations. Alternatively, LOJE suggests that if the court is restricted to providing remedies only in “guilty” judicial districts, then merit selection can and should be employed in those districts, thus encouraging the Legislature to extend the process statewide. The court is convinced that it is not free to write upon a clean slate; neither is it proper to anticipate and make provision for violations which will probably arise in the future, given the system employed by the state. It is well settled that a federal district court, in fashioning a remedy for voting rights violations should not “intrude upon state policy any more than necessary.” White v. Weiser, 412 U.S. 783, 795, 93 S.Ct. 2348, 2355, 37 L.Ed.2d 335 (1973) (reapportionment plan). Federal courts should follow policies expressed in state statutory and constitutional provisions whenever adherence to state policy would not detract from federal constitutional requirements. Id. This same rule of deference applies in Section 2 cases. McGhee v. Granville County, N.C., 860 F.2d 110 (4th Cir.1988). As was noted by Judge Barbour in considering the Mississippi judicial election system, a federal court in fashioning a remedy in a judicial election case should conform to state policies as set forth in “existing state election and political laws” as much as possible. Martin v. Mabus, 700 F.Supp. 327, 330 (S.D.Miss.1988). All of the parties to this Louisiana litigation appear to agree that the basic goal
4795	the presence of counsel and without objection, at the suppression hearing and the subsequent trial. In reaching the conclusion that the defendants were not deprived of due process in this case, we do not intend to intimate that we will, in other and more aggravated circumstances, condone the use by prosecuting attorneys of pre-testimony courtroom confrontations to “firm up” the uncertain memories of potential witnesses. In this respect we agree with the District of Columbia Circuit that, where a normal jailhouse lineup could have been arranged, the use of a non-lineup confrontation “ * * * is, at the least, a practice fraught with perils to a degree suggesting its sparing use as the part of prudence.” Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1240-1241 (1968). Rather, we decide here only that the circumstances of the present case are not so “impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification,” Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L.Ed.2d 1247 (1968), quoted in Coleman v. Alabama, supra, 399 U.S. at 5, 90 S.Ct. 1999. With reference to the confrontation incident, defendant Willis invokes not only the Due Process Clause of the Fifth Amendment, but the Assistance of Counsel Clause of the Sixth Amendment. In support of this argument, Willis places primary reliance upon the lineup eases, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S.
3539	than a mere defense to liability,’ we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter, 502 U.S. at 227, 112 S.Ct. 534 (citation deleted) (emphasis in original). Qualified immunity, however, is a defense available only to government officials sued in their individual capacities. It is not available to those sued only in their official capacities. Eng v. Cooley, 552 F.3d 1062, 1064 n. 1 (9th Cir.2009); Kentucky v. Graham, 473 U.S. 159, 165-68, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). We recognize that public employees — such as Birdsall and Chatterton-— carrying out the express legislative will of a city are ordinarily entitled to rely on its lawfulness. As we said in Dittman v. California, 191 F.3d 1020, 1027 (9th Cir.1999), “when a public official acts in reliance on a duly enacted statute or ordinance, that official is entitled to qualified immunity.” See also Grossman v. City of Portland, 33 F.3d 1200, 1210 (9th Cir.1994). As to the Dittman!Grossman rule, however, the parties hotly dispute the specific role played in this matter by Birdsall and Chatterton. Not unexpectedly, the City says its employees, who “did not vote for or authorize the lease or sale of the building,” were unmistakably acting “in furtherance of decisions made by the City Council.” CHI, on the other hand, asserts that the City’s argument “fails to recognize the primary role [Chatterton and Birdsall] played in wrongful conduct and in developing the plan and advising the Council.”
2187	planning,” or “Trial planning/Trial preparations.” These descriptions simply do not fit the bill, see Tennessee Gas, 32 F.3d at 634 (approving the reduction of fees for similar entries), especially in a complex, multiclaim case. 3. Unsuccessful Claims With one exception, the Court did not deduct specific hours spent on claims that were ultimately unsuccessful. See, e.g., McMillan, 140 F.3d at 311 (permitting courts to make such deductions in certain circumstances); Coutin, 124 F.3d at 337 (same) (citing Hensley, 461 U.S. at 435, 103 S.Ct. 1933). It declined to do so for three principal, reasons. First, “attempts to allocate hours between claims may be unwarranted where an action involves related legal theories applied to a common core of facts.” Phetosomphone v. Allison Reed Group, Inc., 984 F.2d 4, 7 (1st Cir.1993) (citing Hensley, 461 U.S. at 434-35, 103 S.Ct. 1933); cf, e.g., McMillan, 140 F.3d at 311. Second, the Court should not attempt to parse out work on unsuccessful claims hour-by-hour “ ‘[wjhere it would be an exercise in futility.’ ” Lipsett, 975 F.2d at 940-41 (alteration in original) (quoting General Dynamics Corp. v. Horrigan, 848 F.2d 321, 325 (1st Cir.1988)). Third, because the Court may consider less-than-complete success as a factor in adjusting the lodestar, see, e.g., Coutin, 124 F.3d at 339-40, extraction of “unsuccessful” hours when calculating the lodestar would run the risk of doubly reducing the award, see Phetosomphone, 984 F.2d at 8. The one exception is that the Court eliminated, to the extent it was discernible, much
4823	...” An ALJ’s decision becomes the Commissioner’s final decision if the Appeals Council denies a request for review. Wolfe v. Shalala, 997 F.2d 321, 322 (7th Cir.1993). Under such circumstances, the decision reviewed by the district court is the decision of the ALJ. Eads v. Secretary of the Dept. Of Health & Human Serv., 983 F.2d 815, 816 (7th Cir.1993). A reviewing court may not decide facts anew, reweigh the evidence, or substitute its own judgment for that of the Commissioner. Knight v. Chater, 55 F.3d 309, 313 (7th Cir.1995). Judicial review is limited to determining whether the ALJ applied the correct legal standards in reaching its decision and whether there is substantial evidence in the record to support his findings. Scivally v. Sullivan, 966 F.2d 1070, 1075 (7th Cir.1992); 42 U.S .C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). The court may reverse the Commissioner’s decision only if the evidence “compels” reversal, not merely because the evidence supports a contrary decision. INS v. EliasZacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815 n. 1, 117 L.Ed.2d 38 (1992). The SSA gives a court the power to enter a judgment “affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). III. THE DECISION OF THE ALJ The
277	Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization’s failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006). Because I have determined above that plaintiff has not established any underlying constitutional violations, his Monell claims are dismissed. V. Supplemental Jurisdiction for State Law Claims Federal courts may exercise supplemental jurisdiction when the state and federal claims are part of “a common nucleus of operative fact.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). When retaining jurisdiction over a state claim, a court must consider “the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction.” Carnegie—Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). Plaintiffs federal and state law claims are part of the common nucleus of operative fact. And, as the parties have had the opportunity to fully brief the state law claims, it is in the interests of judicial economy, convenience, and fairness for this court to exercise supplemental jurisdiction over plaintiffs remaining state law claims. Plaintiffs claim for malicious prosecution in this case is no different whether analyzed under Section 1983 or state
3044	chemicals and industrial fluids containing the contaminants that TDY used while operating the manufacturing plant on the Site. This evidence was disputed, inconclusive and ultimately unhelpful in an analysis of contribution based on ownership of facilities. Although progress payments that included indirect costs, for example, purportedly gave the Government title to the chemicals during contract periods, title to these products reverted to TDY at the conclusion of a contract. Regardless, ownership of the hazardous substance is not dispositive. In assessing the roles of the parties before the Court, the critical issue for an equitable allocation under CERCLA is control over the disposal of the contaminants at the Site, not which party held title to the contaminants. See e.g., Lockheed Martin Corp. v. United States, 35 F.Supp.3d 92, 134-135 (D.D.C.2014) (holding that “the critical issue is not ownership in the first instance, but rather the parties’ respective control over the disposal” of hazardous substances). Similarly the Court does not afford much weight to the simple fact of ownership of “facilities” in assessing responsibility. It is undisputed that the Government owned equipment at the Site, some of which is related to the contamination. For example, the Government for some period owned electrical transformers installed at the Site. There was also evidence that prior to 1979, the Government owned hydraulic presses, chemical processing, tanks and other machining equipment used by TDY to manufacture products. TDY also owned equipment related to the contamination at times simultaneous with the Government’s ownership, and owned all of
4125	tired to even go to a movie. Tr. at 156. Dockery testified that prior to the accident, he had no trouble sleeping, but since the accident, he has trouble sleeping through the night due to discomfort and pain. Tr. at 138. Lisa Dockery testified that when Dockery wakes up in the night from the pain, her own ability to sleep suffers. Tr. at 157. She also testified that due to the accident, the couple’s intimate relationship has diminished to next to nothing. Tr. at 158. II. The Federal Tort Claims Act (FTCA) generally “The United States enjoys sovereign immunity; it cannot be sued without its consent, and such consent is a prerequisite for jurisdiction.” See United States v. Navajo Nation, 537 U.S. 488, 502, 123 S.Ct. 1079, 155 L.Ed.2d 60 (2003). “Congress has given limited consent to suit in the FTCA, which does not create new causes of action, but only waives immunity under circumstances that would create liability ‘in the same manner and to the same extent as a private individual under like circumstances.’ ” Dorking Genetics v. United States, 76 F.3d 1261, 1266 (2d Cir. 1996) (quoting 28 U.S.C. § 2674). To satisfy the elements of the FTCA, a claim must be: against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office
4820	filed a timely request for review of the ALJ’s finding that he was not disabled after December 23, 1993 with SSA’s Appeals Council. (R. 12). On March 26, 1999, the Appeals Council denied York’s request making ALJ Dougherty’s decision the final determination of the Commissioner. (R. 5-6). On May 28, 1999, York filed this action requesting judicial review of the ALJ’s decision. II. STANDARD OF REVIEW Judicial review of a Commissioner’s final decision is governed by 42 U.S.C. § 405(g) which provides that the “findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive ...” An ALJ’s decision becomes the Commissioner’s final decision if the Appeals Council denies a request for review. Wolfe v. Shalala, 997 F.2d 321, 322 (7th Cir.1993). Under such circumstances, the decision reviewed by the district court is the decision of the ALJ. Eads v. Secretary of the Dept. Of Health & Human Serv., 983 F.2d 815, 816 (7th Cir.1993). A reviewing court may not decide facts anew, reweigh the evidence, or substitute its own judgment for that of the Commissioner. Knight v. Chater, 55 F.3d 309, 313 (7th Cir.1995). Judicial review is limited to determining whether the ALJ applied the correct legal standards in reaching its decision and whether there is substantial evidence in the record to support his findings. Scivally v. Sullivan, 966 F.2d 1070, 1075 (7th Cir.1992); 42 U.S .C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept
2743	adverse impact on older individuals who have returned to school in an effort to buttress their academic credibility in anticipation of applying to law school. Despite this-sweeping assertion, Plaintiff has produced no evidence that this practice has affected anyone other than himself. The rejection of Plaintiffs application to law school hardly constitutes evidence of a disparate impact on the group identified by Plaintiff, or any other group, for that matter. Second, Plaintiff contends that discrimination may be inferred because “age was his only distinguishing feature, Plaintiff being a white, blue-eyed, Viking-Irish, American male.” (Pl.’s Resp. Defs.’ Mot. Summ.J. at 6.) The law is exceptionally clear that such an argument does nothing to advance an equal protection discrimination claim. See Coyne v. City of Somerville, 972 F.2d 440, 444 (1st Cir.1992) (“A plaintiff may not prevail simply by asserting an inequity and tacking on the self-serving conclusion that the defendant was motivated by a discriminatory animus.”) (quotations omitted). Finally, Plaintiff argues simply that the Admissions Committee’s application of a subjective standard to the evaluation of his average LSAT score evidences a discriminatory intent. The only evidence in the record on this issue is that the Admissions Committee considers an applicant’s average LSAT score in addition to a number of other factors when evaluating applications. This fact simply does not permit a reasonable inference that the admissions process is discriminatory in any way. See Judge v. City of Lowell, 160 F.3d 67, 72 (1st Cir.1998) (plaintiff must “ ‘put forward specific, nonconclusory
1909	relief.” Id. Without that defense, “a plaintiff could delay filing suit indefinitely.” Id. To prevail on a laches defense, the defendant must show “that plaintiff had knowledge of defendant’s use of its marks, that plaintiff inexcusably delayed in taking action with respect thereto, and that defendant will be prejudiced by permitting plaintiff inequitably to assert its rights at this time.” Saratoga Vichy Spring Co. v. Lehman, 625 F.2d 1037, 1040 (2d Cir.1980) (quoting Cuban Cigar Brands, N.V. v. Upmann Int’l, Inc., 457 F.Supp. 1090, 1096 (S.D.N.Y.1978)). When the delay is longer than the analogous statute of limitations, “a presumption of laches will apply and plaintiff must show why the laches defense ought not be applied in the case.” Conopeo, Inc. v. Campbell Soup Co., 95 F.3d 187, 191 (2d Cir. 1996). The analogous limitations period here is New York’s six-year period for fraud claims. See id. Since Merkos’s delay is substantially longer — 17 years elapsed between its 1994 letter to Vaad and the assertion of its counterclaims— Vaad is entitled to the presumption. Merkos argues that laches ought not to bar its counterclaims for two reasons. First, it notes that laches is not a defense to intentional infringement. See, e.g., Hermes Int’l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104, 107 (2d Cir.2000). Intentional infringement is infringement done in bad faith to confuse consumers or trade on the plaintiffs goodwill. See id. (“[The infringers] intentionally traded off the Hermes name and protected products and should not have
33	(7th Cir.2000) (“Only when the jurisdictional error is ‘egregious’ will courts treat the judgment as void.”). Here, the district court clearly had diversity jurisdiction over the litigation between Callón and Frontier; moreover, the jurisdictional error, if any, in entering judgment after the Order to Show Cause does not appear to be “egregious.” The Superintendent argues, however, that insurance regulation should be an exception to the general rule that state courts are powerless to restrain federal courts sitting in diversity jurisdiction : “Congress has evinced a strong federal policy in favor of deferring to state regula tion of insolvent insurance companies as reflected in the McCarran-Ferguson Act and the express exclusion of insurance companies from the federal Bankruptcy Code.” Munich American Reinsurance Co. v. Crawford, 141 F.3d 585, 595 (5th Cir.1998) (emphasis added). He further points out that because “insurance regulation has long been recognized as an area of traditional state concern,” Gross v. Weingarten, 217 F.3d 208, 223 (4th Cir.2000), federal courts routinely confront the conflict between their exercise of federal jurisdiction and state laws establishing exclusive claims proceedings for insurance insolvencies. Federal courts normally manage this conflict by exercising Burford abstention to avoid interfering with state rehabilitation proceedings. Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). Although Burford abstention is generally considered the exception rather than the rule, the insurance insolvency context presents the classic example of the doctrine’s goal of preventing “needless conflict with state policy.” Burford, 319 U.S. at 327,
1474	and (b) enjoining that infringement? 3. Did the trial court err in (a) finding that Industrial infringed claims of the ’617 patent before the ’373 reissue patent issued and (b) holding Industrial liable for that infringement? Ill Validity A. Section 103 — “Obviousness” We are, once again, confronted with a challenge to a trial court’s judgment on the issue of obviousness. We begin, as usual, with a careful review of the district court’s fact-findings made according to the Supreme Court’s prescribed ritual: “the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved.” Graham v. John Deere Co., 383 U.S. 1, 17, 86 S.Ct. 684, 693, 15 L.Ed.2d 545, 148 USPQ 459, 467 (1966). We cannot and will not set these fact-findings aside unless the appellant persuades us that the findings are clearly erroneous. Fed.R.Civ.P. 52(a). Since Industrial has not left us here with a definite and firm conviction that the trial judge has committed a mistake, we rely fully on the district court’s findings. 1. Factual Determinations a. Scope and Content of the Prior Art Before trial, Industrial identified as prior art some seventy United States patents, three West German patents, a 1960 Association of American Railroads (“AAR”) publication entitled “Rules Governing the Loading of Steel Products Including Pipe on Open Top Cars,” and a United States Government leaflet on storage and materials
1119	raised here. See Tripp v. Renaissance Advantage Charter Sch., No. CIV.A. 02-9366, 2003 WL 22519433, at *3 (E.D.Pa. Oct. 8, 2003) (concluding that a plaintiffs Fair Labor Standards Act claim fell within an, arbitration clause in her employment agreement stating that “[a]ll disputes arising out of or concerning this Agreement shall be submitted to binding arbitration”); Goodman v. ESPE Am., Inc., No. 00-CV-862, 2001 WL 64749, at *1 (E.D.Pa. Jan. 19, 2001) (concluding that Title VII claims fell within a clause in an employment contract mandating arbitration of “[any] controversy, dispute or difference arising out of or relative to this Agreement or an alleged breach thereof or otherwise relating to the Employee’s employment with the Company”). See also Esaka v. Nanticoke Health Servs., Inc., 752 F.Supp.2d 476, 482-83 (D.Del.2010) (concluding that Title VII claims fell within a clause submitting to arbitration “all claims or controversies concerning this Agreement or arising in any way out of the performance of this Agreement”); Gillespie v. Colonial Life & Accident Ins. Co., No. CIV.A. 08-689, 2009 WL 890579, at *7 (W.D.Pa. Mar. 30, 2009) (concluding the same under a clause stating “every claim, controversy or dispute arising out of or related to this Agreement, or the breach thereof,... shall be settled by binding arbitration”); Hearon v. AstraZeneca LP, No. CIV.A. 02-3189, 2003 WL 21250640, at *5-7 (E.D.Pa. May 24, 2003) (concluding the same under a clause stating that any claim “arising out of or relating to any provision of this Contract or the Employee’s
2537	discretion “if the district court relied on erroneous findings of fact, applied the wrong legal standard, misapplied the correct legal standard when reaching a conclusion, or made a clear error of judgment.” Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th Cir.2006) (brackets and internal quotation marks omitted), cert. denied, — U.S. -, 127 S.Ct. 2886, 167 L.Ed.2d 1153 (2007). The Copyright Act provides that in civil suits the district court, in its discretion, may award costs, including reasonable attorneys’ fees, to the prevailing party. 17 U.S.C. § 505. This discretion must be exercised in an evenhanded manner with respect to prevailing plaintiffs and prevailing defendants, and in a manner consistent with the primary purposes of the Copyright Act. Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). The grant of fees and costs “is the rule rather than the exception and [they] should be awarded routinely.” Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 380 (5th Cir.2004); see also Thoroughbred Software Int’l, Inc. v. Dice Corp., 488 F.3d 352, 362 (6th Cir.2007) (same). Rejecting both a “dual standard” under which a prevailing defendant is required to show frivolousness or bad faith and the “British Rule” of automatic recovery of attorneys’ fees and costs by the prevailing party, the Fogerty Court explained: “There is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised in light of the considerations we have identified.” 510
4379	agreement to enter into the restrictive covenant was supported by additional consideration beyond his at-will employment. Defendants dispute that there was additional bargained for consideration beyond Olson’s employment. 1. Adequacy of Consideration The parties do not dispute that Olson’s contract with Plaintiff was ancillary to his employment. Therefore, the Court must first consider whether Plaintiff provided Olson with adequate consideration for his contractual promises. The fact that the Court must consider the adequacy of consideration here is a departure from the usual rule in Illinois, in which courts merely assess the presence of consideration but do not assess its adequacy. See Brown & Brown, Inc. v. Mudron, 379 Ill.App.3d 724, 320 Ill.Dec. 293, 887 N.E.2d 437, 440 (2008) (citing Curtis 1000, Inc. v. Suess, 24 F.3d 941, 945-46 (7th Cir.1994). In this context, courts depart because they recognize that “a promise of continued employment may be an illusory benefit when the employment is at will.” See id. For that reason, Illinois courts, including the Illinois Supreme Court, have required that consideration based upon employment continue for a “substantial” period of time. See Melena v. Anheuser- Busch, Inc., 219 Ill.2d 135, 301 Ill.Dec. 440, 847 N.E.2d 99, 109 (2006). How much time constitutes a “substantial” period of time is currently unclear as a matter of Illinois law. As a rule of thumb, Illinois appellate courts have suggested that at-will employment for two years can serve as adequate consideration. See, e.g., Brown & Brown v. Mudron, 379 Ill.App.3d 724, 320 Ill.Dec. 293,
4977	were corrected by the PTO to substitute “inode.” Nathan Decl., Ex. 14 (Aug. 26, 2008, Certificate of Correction). However, the PTO’s corrections do not apply retroactively to the claims for damages in this lawsuit because it was filed before the corrections were made. Novo Industries, L.P. v. Micro Molds Corp., 350 F.3d 1348, 1355-56 (Fed.Cir.2003). District Courts may correct errors when “(1) the correction is not subject to reasonable debate based on consideration of the claim language and the specification and (2) the prosecution history does not suggest a different interpretation of the claims.” Novo Industries, 350 F.3d at 1354. The District Court may only correct minor errors that are “evident on the face of the patent.” Group One, Ltd. v. Hallmark Cards, Inc., 407 F.3d 1297, 1303 (Fed.Cir.2005). If an error is not subject to correction by the Court, the claim is invalid for indefiniteness. Id. For the reasons stated by NetApp in its papers and at the hearing, the Court determines that the “mode” error is plainly evident on the face of the patent, is not subject to reasonable debate and is not contradicted by the prosecution history. The Court did not find the testimony of Sun’s expert credible on this issue. The Court therefore corrects the errors to replace the instances of “mode” with inode. As to construction of “inode operations”/ “the inode layer operations,” Sun proposes “operations on inodes,” and NetApp proposes “operations performed on inodes.” Finding no substantive difference between the parties’ proposals, the Court
2536	Int’l Publ’g, Inc., No. 3:01-0706, R & R at 7 (M.D.Tenn. Oct. 20, 2005) (the “R & R”). He recommended that the district court award the same amount of fees and costs. Id. Over the parties’ objections, the district court adopted the report and recommendation. Bridgeport timely appealed. II A. Attorneys’ Fees and Costs under the Copyright Act We review the district court’s decision to award attorneys’ fees and costs to UPIP for abuse of discretion. Rhyme Syndicate, 376 F.3d at 625-26. There is an abuse of discretion “if the district court relied on erroneous findings of fact, applied the wrong legal standard, misapplied the correct legal standard when reaching a conclusion, or made a clear error of judgment.” Nafziger v. McDermott Int’l, Inc., 467 F.3d 514, 522 (6th Cir.2006) (brackets and internal quotation marks omitted), cert. denied, — U.S. -, 127 S.Ct. 2886, 167 L.Ed.2d 1153 (2007). The Copyright Act provides that in civil suits the district court, in its discretion, may award costs, including reasonable attorneys’ fees, to the prevailing party. 17 U.S.C. § 505. This discretion must be exercised in an evenhanded manner with respect to prevailing plaintiffs and prevailing defendants, and in a manner consistent with the primary purposes of the Copyright Act. Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994). The grant of fees and costs “is the rule rather than the exception and [they] should be awarded routinely.” Positive Black Talk Inc. v. Cash Money Records, Inc.,
3057	also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986); NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28 (1st Cir.1994). “The principal judicial inquiry required by Rule 56 is whether a genuine issue of material fact exists.” Charles A. Wright, Aurthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: CM 3d § 2725, p. 401. In this regard, the First Circuit Court of Appeals has noted that for a dispute to be “genuine,” there must be sufficient evidence to permit a reasonable trier of fact to resolve the issue in favor of the non-moving party. U.S. v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992); see also Boston Athletic Assn. v. Sullivan, 867 F.2d 22, 24 (1st Cir.1989); Medinar-Muñoz v. R.J. Reynolds Tobacco, 896 F.2d 5, 8 (1st Cir.1990) (“A ‘genuine’ issue is one that must be decided at trial because the evidence, viewed in the light most favorable to the nonmovant, would permit a rational factfinder to resolve the issue in favor of either party.”) (citations omitted). By like token, “material” means that the fact is one that might affect the outcome of the suit under the governing law. Morris v. Government Development Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.1994). “A fact is material if it tends to resolve any of the issues that have been properly raised by the parties.” Wright, Miller & Kane, supra, § 2725 at p. 419. “Not every genuine
505	in dispute here. Nationwide, this all-requirements contract has been utilized by the Administrator to serve as the primary source of collateral for loans and loan guarantees of the REA. This type of contract assures that the long-term financing costs of providing power to beneficiaries of the Act, such as Southwestern, are equitably distributed. This all-requirements contract is a basic and important element of the rural electrification system. The Seventh Circuit has recognized that the “doctrine of standing is a complex web, and all the parts of it must be satisfied; but attention to the details of the doctrine does not require us to give up our common sense. ‘[T]he constitutional standing requirement [cannot be made] a mechanical exercise.’ ” Palmer v. City of Chicago, 755 F.2d 560, 580 (7th Cir.1985) quoting Allen v. Wright, 104 S.Ct. at 3325. In light of the foregoing, the defendant’s arguments in support of its Motion to Dismiss must fail. The Court has recognized that the plaintiffs all have standing to sue and that this controversy is properly litigated as a declaratory judgment. Moreover, the Court finds that the REA and CFC are not attempting, in the declaratory judgment action, to inappropriately exert pressure as creditors of Southwestern for the benefit of Soyland. Rather, as creditors of both, the REA and CFC have an interest in determining the validity of the contract. Accordingly, the Court finds that the REA and CFC have standing to bring this declaratory judgment action, together with Soyland, and that a
3198	entirely satisfactory construction of a statute that obviously was the product of some controversy and considerable compromise. The courts have long recognized, however, a presumption in favor of judicial review of administrative actions. See Block v. Community Nutrition Inst., 467 U.S. 340, 350-51, 104 S.Ct. 2450, 2456-57, 81 L.Ed.2d 270 (1984) (presumption only overcome when “the congressional intent to preclude judicial review is ‘fairly discernible in the statutory scheme’ ”); Ruff v. Hodel, 770 F.2d 839, 840 (9th Cir.1985) (“[t]he bar to judicial review ... requires a ‘persuasive reason to believe’ that Congress intended to preclude judicial review”) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967)); Moapa Band of Paiute Indians v. Department of Interior, 747 F.2d 563, 565 (9th Cir.1984) (“[pjreclusion of judicial review is not lightly inferred, and usually will not be found absent a clear command of the statute”). Moreover, we construe prohibitions against judicial review narrowly. Cf. Wallace v. Christensen, 802 F.2d 1539 (9th Cir.1986) (en banc); Moapa Band, 747 F.2d at 565. In light of these considerations, we find plaintiffs’ interpretation the most plausible, and hold that the district court had jurisdiction to review the EPA’s suspension order. II. Subsection (c)(4) provides that an emergency suspension order shall be reviewable by the district court “solely to determine whether the order of suspension was arbitrary, capricious or an abuse of discretion, or whether the order was issued in accordance with procedures established by law.” We review the
4955	Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed.Cir.2003) (“ ‘growing’ and ‘isolating’ are not merely circumstances in which the method may be useful, but instead are the raison d’etre of the claimed method itself’). However, the Court would not construe the preamble as a limitation on this basis alone. Sun further argues that the specification touts increasing a number of persistent consistency points as fundamental to the invention: “The present invention overcomes the disadvantages of the prior art by providing an on-disk storage arrangement that increases the number of persistent consistency point images (PCPIs) that may be maintained for a volume of a storage system.” '720 patent, col. 5:14-18. Sun relies on On Demand Machine Corp. v. Ingram Indust., Inc., 442 F.3d 1331, 1344 (Fed.Cir.2006), where the Federal Circuit distinguished mere statements of purpose from limiting preambles that are “ ‘necessary to give life, meaning and vitality to the claims.’ ” Id. at 1344 (internal citations omitted). In On Demand, the preamble was “a method of high speed manufacture of a single copy of a book.” Id. at 1336. In holding that the preamble there was limiting, the Court relied on the specification’s teaching that “[t]he high speed manufacture of a single copy is fundamental” to the invention, so that “the entirety of the claim implements the preamble’s high speed manufacture of single copy.” Id. at 1344. NetApp concedes that the specification uses the phrase “increasing a number of persistent consistency point images (PCPIs),” but contends
1000	or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. 9 U.S.C. § 10(a). “In addition, as judicial gloss on these specific grounds for vacatur of arbitration awards, we have held that the court may set aside an arbitration award if it was rendered in manifest disregard of the law.” Schwartz v. Merrill Lynch & Co., Inc., 665 F.3d 444, 451 (2d Cir.2011) (internal quotation marks, citation, and alteration omitted). Vacating an award for manifest disregard of the law requires a showing that “the governing law alleged to have been ignored by the arbitrators was well defined, explicit, and clearly applicable,” and that “the arbitrator knew about the existence of a clearly governing legal principle but decided to ignore it or pay no attention to it.” Jock v. Sterling Jewelers Inc., 646 F.3d 113, 121 n. 1 (2d Cir.2011) (internal quotation marks omitted); see Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 208 (2d Cir.2002) (stating that vacatur requires “something beyond and different from mere error in the law or failure on the part of the arbitrators to understand or apply the
1273	efforts on new golf balls.” Id. at *5-6. By contrast, Brittingham was employed by Allen’s as a “time and attendance specialist.” To the extent the record reflects anything about Brittingham’s job duties, it reflects that she was charged with the relatively limited task of keeping track of employee hours. Brittingham’s alleged statements were (a) that Miller was “a racist”; and (b) that Miller had stated that Nichols was incompetent and that the altercation between Nichols and Whiteman had been Nichols’s fault. A reasonable reviewer of the record could conclude that these statements did not concern matters within the scope of Brittingham’s employment. Therefore, the District Court did not abuse its discretion in declining to consider the statements. See Ansell v. Green Acres Constr. Co., 347 F.3d 515, 519 (3d Cir.2003) (“We will not disturb a trial court’s exercise of discretion [in making evidentiary rulings] unless no reasonable person would adopt the district court’s view.” (internal quotation marks omitted)). B. We now turn to Nichols’s claim that the District Court erred in granting summary judgment in favor of Bennett and Allen’s on all counts of her complaint. Upon de novo review, we apply the same standard as the district court. Kautz v. Met-Pro Corp., 412 F.3d 463, 466 (3d Cir.2005). Summary judgment is proper only if it appears “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[T]he non-moving party ... is
4732	de minimis exception to drivers who occasionally drive interstate. See Williams, 2015 WL 305362, at *12 (holding that the “activities of one who drives in interstate commerce, however frequently or infrequently, are not trivial,” noting that “[o]ther cases have followed this reasoning when it comes to suits brought by drivers,” and collecting cases (internal quotation marks omitted)); see also Roberts v. Cowan Distribution Servs., LLC, 58 F.Supp.3d 593, 600 (E.D.Va.2014) (“An isolated delivery in interstate commerce may be de minimis such that the employee still does not qualify as a driver; however, courts have hesitated to apply the de minimis principles in this context, because driving in interstate commerce significantly affects the safety of motor vehicle operations.” (italics omitted)); Sinclair v. Beacon Gasoline Co., 447 F.Supp. 5, 11 (W.D.La.1976) (“[T]he de minimis rule should seldom, if ever, be applied to one who drives a motor vehicle carrying property of a private carrier in interstate commerce.”), aff'd, 571 F.2d 978 (5th Cir.1978). “Although the de minimis rule has limited applicability to drivers ... no court has adopted [the) blanket proposition” that the de minimis rule does not. apply to drivers. Masson, 2005 WL 2000133, at *8; see also id. (“To extend the motor carrier exemption to any driving activity, no matter how infrequent or trivial, would be to encourage employers to send their employees on a minimal number of interstate trips simply to avoid the overtime compensation provisions of FLSA.”). Furthermore, while some courts, including courts within the Second Circuit, have
3728	Thys Co., 379 U.S. 29, 85 S.Ct. 176, 13 L.Ed.2d 99 (1964)). In these cases the Federal Circuit has found that “when the patentee has used restrictive conditions on licenses or sales to broaden the scope of the patent grant, [] an accused infringer may invoke the doctrine of patent misuse to defeat the patentee’s claim.” Id. at 1328. However, in cases like this one, where a plaintiff does not allege an activity that is patent misuse per se, a “rule of reason” analysis applies. Monsanto Co., 363 F.3d at 1341 (Fed.Cir.2004). In such cases, “a factual determination must reveal that the overall effect of the license tends to restrain competition unlawfully in an appropriately defined relevant market.” Windsurfing Int’l Inc. v. AMF, Inc., 782 F.2d 995, 1001-02 (Fed.Cir.1986). The Court reads the email as a representation made by GTS that it would file suit if BECO sold products without its consent outside the U.S., and that it would not grant any company exclusive rights to its patents unless it agreed to minimum sales numbers. Considered in a light most favorable to Plaintiff, BECO’s representations may impermissibly broaden the scope of its patent if Plaintiff can show that GTS prevented sales conducted entirely outside the U.S. Cybiotronics, Ltd. v. Golden Source Electronics Ltd., 130 F.Supp.2d 1152, 1171 (C.D.Cal.2001) (“[A]n ‘offer to sell’ made within the United States that contemplates a ‘sale’ of goods outside of the United States is not within the permissible scope of liability for 35 U.S.C. §
1952	proof after trial, specifically the defendants’ knowledge of the hazardous nature of the substances involved, and the charge to the jury. See United States v. Goldsmith, 978 F.2d 643, 646 (11th Cir.1992) (quoting United States v. Dee, 912 F.2d 741, 745 (4th Cir.1990), cert. denied, 499 U.S. 919, 111 S.Ct. 1307, 113 L.Ed.2d 242 (1991)) (“a defendant need not know the exact identity of the chemicals disposed of, but only that the chemicals have ‘the potential to be harmful to others or to the environment’”); United States v. Goodner Bros. Aircraft, Inc. 966 F.2d 380 (8th Cir.1992) (jury instructed on listed wastes and the invalid “mixture” rule; case remanded), cert. denied,—U.S.-, 113 S.Ct. 967, 122 L.Ed.2d 123 (1993); United States v. Bay-tank (Houston), Inc., 934 F.2d 599, 613 (5th Cir.1991) (statute requires that defendant know factually what he is doing, not “that he know that there is a regulation which says what he is storing is hazardous under the RCRA”); United States v. Sellers, 926 F.2d 410, 415 (5th Cir.1991) (government need not prove that defendant knew that the waste was hazardous within the meaning of the regulations, only that the defendant knew what the waste was, i.e., “paint,” “solvent,” etc.); United States v. Hoflin, 880 F.2d 1033, 1039 (9th Cir.1989) (jury required to find that defendant “disposed of chemical waste which he knew ‘had the potential to be harmful to others or to the environment’ ”), cert. denied, 493 U.S. 1083, 110 S.Ct. 1143, 107 L.Ed.2d 1047 (1990); United
3671	over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary review over the district court’s legal conclusions and apply a clearly erroneous standard to its factual findings. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002). Upon review, we agree with the district court’s dismissal. A § 2255 motion is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). A federal prisoner may proceed under § 2241 only if the remedy provided by § 2255 is inadequate or ineffective to test the legality of his detention. See 28 U.S.C. § 2255; In re Dorsainvil, 119 F.3d 245, 249-251 (3d Cir.1997). “A § 2255 motion is inadequate or ineffective only where the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his claims.” Cradle, 290 F.3d at 538. On appeal, Black argues that his 18 U.S.C. § 924(c) conviction must be vacated in light of the Supreme Court’s decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) and Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). The Fourth Circuit, however, found Black’s Bailey claim untimely under the applicable one-year period of limitation. Section 2255 is not inadequate or ineffective merely because the petitioner
2764	and (4) Reilly’s purported change of opinion with respect to its position on non-infringement. Not surprisingly, these considerations are intertwined. A. Pre-Suit Attorney-Client Privilege. At the outset, with respect to the attorney-client privilege, it is generally agreed that a “defendant asserting an adviee-of-counsel defense must be deemed to have waived the privilege as to all communications between counsel and client concerning the subject matter of the opinion.” Steelcase, Inc. v. Haworth, Inc., 954 F.Supp. 1195, 1198 (W.D.Mich.1997). “Documents and testimony relating to that advice are relevant in that they are probative of the alleged infringer’s intent. They are admissible because the alleged infringer has waived the privilege as to the subject matter of the advice.” Thorn EMI North America, Inc. v. Miaron Technology, Inc., 837 F.Supp. 616, 621 (D.Del.1993). Therefore, the Court finds that Reilly has waived the attorney-client privilege with respect to pre-suit communications and, to the extent it has not already done so, Reilly must disclose all communications, including documents that were exchanged between Reilly and counsel, regarding the subject matter of the original opinion letter. This waiver includes the time period after Reilly received the opinion letter through the filing of this action. B. Pre-Suit Work Product. However, the Court’s inquiry does not stop there, as BASF seeks all documents relating to the opinion of counsel regardless of whether they were shared with or communicated to Reilly. On this issue, courts are divided into two camps. In the leading case in this district on this issue, Judge
4589	in Imbler v. Pachtman, the Court held common law prosecutorial immunity applies to cases under § 1983. 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). But the Fifth Circuit refused to extend prosecutorial immunity to decisions to bring complaints before state ethics commissions, even where a state law also provides absolute privilege for those complaints. Lampton v. Diaz, 639 F.3d 223, 229 (5th Cir.2011) (“Lampton likely enjoys immunity from the state law claims under Mississippi law.... [Hjowever, federal law does not provide immunity to complainants before state ethics committees .... In the absence of congressional action, we should not create that immunity merely because it may be desirable for some policy reason.”). Arpaio cites Donahoe v. Arpaio in support of his position. 869 F.Supp.2d 1020 (D.Ariz.2012) aff'd sub nom. Stapley v. Pestalozzi, 733 F.3d 804 (9th Cir.2013). In Donahoe, Arpaio had filed suit against various Maricopa County officials — including members of the Board of Supervisors and judges — under the federal Racketeer Influenced and Corrupt Organization Act (“RICO”). He claimed the officials were improperly using their power, to obstruct a criminal investigation. Arpaio’s allegations spanned a variety of conduct and included his adversaries’ filing of bar complaints against the County Attorney. Id. The officials sued Arpaio for retaliation for the exercise of their First Amendment rights. Id. The district court held Arpaio’s alleged injuries were not actionable under RICO, nor was the conduct on which the claim was based, including bar complaints. Id. at 1053. Donahoe is
2756	factors in this case, and while your own personal circumstances are not generally relevant, I understand you’re a single mother with a 12-year old child, who at least has a family, your parents to take care of her. Because no matter what happens in this case, you’re going to end up being in jail for a period of time that’s more than one would expect with somebody that has no criminal history. (App. at 116 (emphasis added).) On those grounds, the Court sentenced Duong to 70 months’ imprisonment, varying downward eight months from the recommended guidelines range. Duong did not object to the sentence at the time. This appeal ensued. II. Discussion We review Duong’s sentence for plain error. See United States v. Flores-Mejia, 759 F.3d 253, 255 (3d Cir. 2014) (en banc) (“We now hold that .,. when a party wishes to take an appeal based on a procedural error at sentencing ... that party must object to the procedural error complained of after sentence is imposed in order to avoid plain error review on appeal.”). For there to be plain error, “[tjhere must be an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’ ” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (second alteration in Olano) (quoting Fed. R. Crim. P. 52). Moreover, we do not correct such an error unless it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id, (alteration in original) (quoting United States
3909	seq., and the Truth in Lending Act (TILA), 15 U.S.C. § 1601 et seq. Silvas argues that the district court erroneously found that the statute of limitations barred her FHA and TILA damages claims, and that it failed to consider her TILA rescission claim. We review the denial of a preliminary injunction for an abuse of discretion. Playmakers LLC v. ESPN, Inc., 376 F.3d 894, 896 (9th Cir.2004). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). The party requesting a preliminary injunction must carry its burden of persuasion by a “ ‘clear showing’ ” of these four elements. Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam). Silvas failed to show a likelihood of success on the merits of her FHA. claim because the two-year statute of limitations had run. See 42 U.S.C. § 3613(a)(1)(A). Silvas obtained the loan at issue in 2006 and did not join the class action suit until 2009, after the statute of limitations had expired. This case does not fall within the “continuing violation” exception to the statute of limitations because the execution of the loan in question was
1961	under RCRA are facts which the Government will have the burden of establishing at trial. Therefore, Counts I, II and III of the Indictment are facially sufficient, and any challenge to the sufficiency of the Government’s evidence that the wastes handled by Defendants were in fact hazardous is more appropriately addressed to the trial court after the close of the Government’s proof. 7. Dismissal Motion based on Duplicitousness. Turning to the arguments of Defendant Rosinski, a review of the Indictment indicates that Count I alleges a single conspiracy and is, therefore, not duplicitous. “An indictment is duplicitous if it joins two or more distinct crimes in a single count.” United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir.1992) (citing United States v. Murray, 618 F.2d 892, 896 (2d Cir.1980)). However, “[a] single count is not duplicitous merely because it contains several allegations that could have been stated as separate offenses.” United States v. Sugar, 606 F.Supp. 1134, 1146 (S.D.N.Y.1985). The issue is whether the “policy considerations underlying the doctrine” are offended. See Sugar, supra. Those considerations include avoiding the uncertainty of whether a general verdict of guilty conceals a finding of guilty as to one crime and a finding of not guilty as to another, avoiding the risk that the jurors may not have been unanimous as to any of the crimes charged, assuring the defendant adequate notice, providing the basis for appropriate sentencing, and protecting against double jeopardy in a subsequent prosecution. United States v. Margiotta, 646 F.2d
86	for the purposes of § 1292(a)(1) if it is relief that ... could have been granted, in equity.” Id. ¶ 110.20[1], at 220. The district court’s order relating to the adequacy of the temporary LPR documentation is, therefore, properly before us. B. Standing The INS also advances a jurisdictional argument. It contends that the plaintiff class lacks standing to maintain this action. The central question regarding the standing doctrine is “whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962)) (emphasis added in Warth, 422 U.S. 490, 95 S.Ct. 2197). The Supreme Court has broadly defined the constitutional requirements that a litigant must satisfy to establish standing: Art. Ill requires the party who invokes the court’s authority to show [1] that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury [2] fairly can be traced to the challenged action and [3] is likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982) (internal quotations and citations
1344	dog chips; 7-Select original potato chips; and 7-Select sour cream & onion chips. Id. at ¶ 4. Plaintiff alleges the following causes of actions: violation of California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof.Code § 17200 et seq., (counts 1-3); violation of the False Advertising Law (“FAL”), Cal. Bus. & Prof.Code § 17500 et seq., (counts 4-5); and violation of the Consumers Legal Remedies Act (“CLRA”), Cal. Civ.Code § 1750 et seq., (count 6). Id. ¶¶ 109-66. II. LEGAL STANDARD A. Rule 8(a) Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with sufficient specificity to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotations omitted). A complaint which falls short of the Rule 8(a) standard may be dismissed if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir.2008). Moreover, the factual allegations “must be enough to raise a right to relief above the speculative level” such that the claim “is plausible on its face.” Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955. When deciding whether to grant a motion to dismiss, the court
4664	told only that his cooperation would be brought to the attention of the prosecutor, who would determine what benefit, if any, Ellison would receive. Ellison also argues that the interrogation should have ceased once he invoked his right to counsel. But the district court found as a fact that Ellison’s testimony that he had demanded to speak with counsel “at least five times” was not credible (though the judge did conclude that “there probably was some discussion of counsel” that the officer “brush[ed] aside”). But even if Ellison had clearly expressed a desire to speak with a lawyer, he could not have invoked any constitutional right to do that in a noncustodial interrogation conducted before he was formally charged. See United States v. Wyatt, 179 F.3d 532, 537 (7th Cir.1999) (“The Fifth Amendment right to counsel safeguarded by Miranda cannot be invoked when a suspect is not in custody....”); United States v. Boskic, 545 F.3d 69, 84 (1st Cir.2008) (“The Sixth Amendment takes hold when the investigation gives way to a prosecution.... ”). Suppression could not, therefore, vindicate the Constitution. In any event, the district court’s finding pretermits any issue based on the requests alleged. III The judgment of the district court is affirmed. . In Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), a suspect's answers incriminating him in tax fraud, given to federal investigators while he was imprisoned on a state conviction, were held inadmissible because no Miranda warnings had been given.
1282	copy of this Order to the pro se plaintiff, all counsel of record, Bankruptcy Judge Robert G. Mayer of the United States Bankruptcy Court for the Eastern District of Virginia, the Clerk of the United States Bankruptcy Court for the Eastern District of Virginia, and to place this matter among the ended causes. . See Peyton Nelson Jackson, No. 1:16—bk— 12102 (Bankr. E.D. Va. June 16, 2016). . As relevant here, that provision stays the “commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title.” 11 U.S.C. § 362(a)(1). . See also Arnold v. Garlock Inc., 288 F.3d 234, 236 (5th Cir. 2002) (“[District courts retain jurisdiction to determine the applicability of the [automatic] stay to litigation pending before them, and to enter orders not inconsistent with the terms of the stay.”).
1598	section 301 but, if the parties did reach impasse, the court did not. Liberty faults the district court for construing its jurisdictional challenge as a facial attack and for assuming MEBA’s view that impasse was not reached in determining its jurisdiction under section 301; according to Liberty, the district court should have first resolved whether or not impasse occurred, a fact it dubs “jurisdictional,” If the court had resolved the question in Liberty’s favor (that is, impasse occurred), then the court would have been obligated to dismiss the case for lack of jurisdiction. Although a court must generally resolve a disputed jurisdictional fact if a so-called factual attack on the court’s subject matter jurisdiction is made, see, e.g., Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C.Cir.1992), impasse vel non is not a jurisdictional fact. Section 301 of the LMRA grants the district court jurisdiction of “[s]uits for violation of contracts between an employer and a labor organization.” 29 U.S.C. § 185(a). For a district court to exercise jurisdiction, then, there need not be a valid contract but only a suit for violation of a contract. The existence of the contract is instead an element of the cause of action. See Winnett v. Caterpillar, Inc., 553 F.3d 1000, 1005-06 (6th Cir.2009) (section 301’s “contract requirement is non-jurisdictional” and instead constitutes “an element of a cause of action”); Pittsburgh Mack Sales & Serv., Inc. v. Int’l Union of Operating Eng’rs, Local Union No. 66, 580 F.3d 185, 189 (3d
1783	in question at the time of the invention.” Phillips v. AWH Cow415 F.3d 1303, 1312-13 (Fed.Cir. 2005) (en banc), cert, denied, 546 U.S. 1170, 126 S.Ct. 1332,164 L.Ed.2d 49 (2006) (citation omitted). See also Texas Digital Systems, Inc. v. Telegenix, Inc., 308 F.3d 1193, 1202 (Fed.Cir.2002), cert, denied; 538 U.S. 1058, 123 S.Ct. 2230, 155 L.Ed.2d 1108 (2003) (collecting cases). Because the claims “do not stand alone”, however, they must be interpreted in light of the specification. As the Federal Circuit reiterated in Phillips, “the specification ‘is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.’ ” Phillips, 415 F.3d at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996)). Moreover, where the same term appears in more than one claim, it is presumed that the terms have “the same meaning unless it is clear from the specification and prosecution history that the terms have different meanings at different portions of the claims.” Fin Control Sys. Pty, Ltd. v. OAM, Inc., 265 F.3d 1311, 1318 (Fed.Cir. 2001). Once the claims have been construed, the analysis requires that the claim in question “be compared to the accused device or process.” PC Connector Solutions LLC, 406 F.3d at 1362. It is at this second step that a determination of infringement is made; whether a device infringes literally or under the doctrine of equivalents is a question of fact. Lockheed Martin Cow■ v■ Space
772	1255 (5th Cir.1980). There is ample evidence in the record to support the district court’s award of attorney’s fees. E. The district couH did err in dismissing Cromer-Tyler’s claim for a distribution under the Profit Sharing Plan. Cromer-Tyler cross-appealed the district court’s dismissal of her claim under the Profit Sharing Plan. CromerTyler argues that because Teitel’s letter informing her that all her benefits under the Profit Sharing Plan were terminated was inadequate, the district court should have remanded her claim to the plan administrator so that she could make an out-of-time appeal. We agree. The appropriate remedy for an inadequate benefits determination letter is “remand to the plan administrator for an out-of time administrative appeal.” Counts v. Am. Gen. Life and Accident Ins. Co., 111 F. 3d 105, 108 (11th Cir.1997). For a benefit determination letter to be adequate, it must contain the specific reason for the determination, reference to the specific plan provisions on which the determination is based, and a description of the plan’s procedures for review of the claim and the applicable time limits. 29 U.S.C. § 1138; 29 C.F.R. § 2560.503-l(g). In this case, Teitel’s September 10, 1998 letter to Cromer-Tyler notifying her that she was not vested in the Profit Sharing Plan and accordingly had no rights under it was an inadequate benefits determination letter. It provided a determination of benefits without stating a specific reason for the determination. It did not specify the particular provision on which the determination was based. Finally, it did
3370	in the field of advertising and sales promotion. Restatement, Torts § 715 (1938); Avrick v. Rockmont Envelope Co., supra. The statutory test of infringement is whether the “use is likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods * * 15 U.S.C.A. § 1114. This court has discussed the concept of trademark infringement on several occasions. In Schneider Brewing Co. v. Century Distilling Co., supra, 107 F.2d at 704, we said: “The test is whether the similitude in the labels would probably deceive a purchaser who exercises ordinary prudence, not the careless buyer who makes no examination.” This test was quoted and followed in Nebraska Consol. Mills Co. v. Shawnee Milling Co., 10 Cir., 198 F.2d 36. In Avrick v. Rockmont Envelope Co., supra, 155 F.2d at 572, it was said: “It is the generally accepted rule that a designation is confusingly similar to a trade-mark if an ordinary prospective purchaser, exercising due care in the circumstances, is likely to regard it as coming from the same source as the trademarked article. * * * The question is usually one of fact * * *, which in some cases may be determined by visual comparison, as where specific differences are so marked that the general appearance could not be confusing, * * or where it is inconceivable that an ordinary purchaser examining the two labels would be deceived. * * * In other cases extrinsic evidence may be necessary. *
4319	Not Err when It Denied Weiner’s Motion to Remand. A defendant may remove an action to a district court that would have original jurisdiction because the citizenship of the parties is diverse and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332. The parties dispute only whether Tootsie Roll established by a preponderance of the evidence that Weiner’s complaint satisfied the amount in controversy requirement. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir.2010). Because Weiner seeks declaratory relief, the amount in controversy is the “ ‘monetary value of the object of the litigation from [his] perspective.’ ” Fed. Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir.2003) (quoting Cohen v. Office Depot, Inc., 204 F.3d 1069, 1077 (11th Cir.2000)). Tootsie Roll was not “required to prove the amount in controversy beyond all doubt or to banish all uncertainty about it.” Pretka, 608 F.3d at 754. Instead, Tootsie Roll had only to present “evidence combined with reasonable deductions, reasonable inferences, or other reasonable extrapolations,” id., that the value of restoring Weiner’s right to compete exceeded $75,000. The district court did not clearly err when it found that the value of the object of Weiner’s complaint against Tootsie Roll exceeded $75,000. Although a covenant not to compete “generally [is] not susceptible to an abstract fair market valuation,” Better Beverages, Inc. v. United States, 619 F.2d 424, 429 (5th Cir.1980), Tootsie Roll does not seek to “tether[] [value] to the fact of
3658	business days after the date of disclosure,” and not more than two years after Commerce issued the Final Results as plaintiffs sought to do in this case. Furthermore, Nissan supports the methodology that Commerce used to adjust Nissan’s related-supplier transfer prices. Nissan claims Commerce’s methodology is supported by substantial evidence and is otherwise in accordance with law. Standard of Review The appropriate standard for the Court’s review of Commerce’s Remand Results is whether the agency’s determination is supported by substantial evidence on the record and is otherwise in accordance with law. 19 U.S.C. § 1516a(b)(l)(B) (1988). “Substantial evidence is something more than a ‘mere scintilla,’ and must be enough reasonably to support a conclusion.” Ceramica Regiomontana S.A. v. United States, 10 CIT 399, 405, 636 F. Supp. 961, 966 (1986), aff'd, 5 Fed. Cir. (T) 77, 810 F.2d 1137 (1987) (citations omitted). “When applying the substantial evidence standard, the court may not substitute its judgment for that of the agency when the choice is between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Budd Co. v. United States, 14 CIT 595, 600, 746 F. Supp. 1093, 1097 (1990) (quotations and citations omitted). Furthermore, as long as the methodology and procedures used by Commerce are “reasonable means of effectuating the statutory purpose, and there is substantial evidence in the record supporting the agency’s conclusions, the court will not impose its own views as to the sufficiency
4888	relevancy determinations will be disturbed only upon a finding of abuse, St. Michael’s Credit Union, 880 F.2d at 600. Defendants argued to the district court that their knowledge of Ivan Rodriguez’s criminal record and the seizure of weapons was relevant to show their belief that this was not an ordinary kidnapping and that, in entering the Fernandez home, they faced a particularly great risk of a dangerous encounter. In a case such as this, alleging excessive and unreasonable force, liability depends upon whether the defendants’ actions were “reasonable in light of the facts and circumstances confronting them” at the time of the incident. See Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989); Dean v. City of Worcester, 924 F.2d 364, 367 (1st Cir.1991). We have little trouble seeing how defendants’ knowledge both of the cache of weapons seized from the Fernandez home and Rodriguez’s criminal history might have informed their judgment at the time in question. See Dean, 924 F.2d at 367-69 (police officer’s belief that plaintiff was an escaped felon is relevant to determination of whether excessive and unreasonable force was used). Accordingly, we decline to disturb the district court’s relevancy ruling. The court’s balancing of the probative value of this evidence against its prejudicial effect, on the other hand, gives us some pause. Evidence is excludable if “its probative value is substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403. We agree with plaintiffs that the contested evidence was prejudicial
284	Proceedings In November 2008, after W3i notified Westchester of the underlying claims and requested coverage, Westchester advised W3i that coverage was not available. W3i filed a breach of contract and declaratory judgment action in federal district court, and Westchester moved for summary judgment. The district court granted Westchester’s motion, finding “Westchester ha[d] no duty to defend or indemnify W3i for expenses associated with the [underlying [c]laims.” The district court concluded the products exclusion precluded recovery because the underlying claims in volved W3i’s product and that the illusory-coverage doctrine did not apply in these circumstances under Minnesota law. W3i appeals. II. DISCUSSION We review the district court’s grant of summary judgment and its interpretation of state law de novo. Babinski v. Am. Family Ins. Grp., 569 F.3d 349, 351 (8th Cir.2009). We may affirm a grant of summary judgment “on any grounds supported by the record.” Moyle v. Anderson, 571 F.3d 814, 817 (8th Cir.2009). “Summary judgment is proper when the evidence viewed in the light most favorable to the nonmoving party presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. See also Fed.R.Civ.P. 56(a) (amended effective Dec. 1, 2010). Minnesota law governs our interpretation of the insurance policy in this diversity action. See Babinski, 569 F.3d at 351-52. Under Minnesota law, “[g]eneral principles of contract interpretation apply to insurance policies.” Carlson v. Allstate Ins. Co., 749 N.W.2d 41, 45 (Minn. 2008) (quoting Lobeck v. State Farm Mut. Auto.
3638	"proceeding would have been different ""had the evidence been disclosed to the defense.”). . The government sought and obtained a concession from Eason at sentencing that ""there is no objection that Mr. Eason falls with[in] the residual clause,” and did not introduce any evidence or argument to support a finding that any of Eason’s prior convictions qualified under the ""force clause.” . While we have held that force that produces even a minimal degree of bodily injury constitutes violent force, see United States v. Rice, 813 F.3d 704, 706 (8th Cir. 2016), actual bodily injury is not required to establish a robbery under Arkansas law. We have also held, however, that not every unwanted touching constitutes violent force. See, e.g., United States v. Ossana, 638 F.3d 895, 900 (8th Cir. 2011) (holding that the Arizona simple assault statute, Ariz. Rev. Stat. § 13-1203, which could be violated “with any degree of contact by ‘Dcjnowingly touching another person with the intent to ... insult or provoke such person,' ” did not qualify as the use of physical force because it was not violent force). Other courts have similarly held that not all unwanted touchings rise to the level of violence required by the force clause. See, e.g., United States v. Gardner, 823 F.3d 793, 803-04, No. 14-4533, 2016 WL 2893881, at *7 (4th Cir. May 18, 2016) (holding that the force required under North Carolina’s robbery statute was insufficient to qualify categorically as a crime of violence, and supporting that result"
3813	a delayed suit, but Plaintiff also argues that the lack of a time restraint allows the County to manipulate the process and “stack a suspension or revocation” proceeding against the license holder. (First Am. Compl. ¶ 32; Doc. 95 at 17.) The lack of a time limit in which the County, in conjunction with the tax collector, must suspend a license based on certain convictions or violations of the law does not render the provision an unconstitutional prior restraint. “The lack of time limits on revocation [or suspension] in [the ordinance] is not of substantial concern in a prior restraint analysis because no speech is chilled prior to the time that the permit is actually revoked.” United Youth Careers, Inc. v. City of Ames, 412 F.Supp.2d 994, 1006 (S.D.Iowa 2006) (citing Jake’s Ltd., Inc. v. City of Coates, 284 F.3d 884, 890 (8th Cir.2002)). The law “makes a firm distinction between prior restraints and subsequent punishments.” Id. (citing Alexander v. United States, 509 U.S. 544, 553-54, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993)). “Thus, if it takes two days before revocation or two years, no speech has been unduly impinged by the lack of time restraints on revoking a permit issued under the ordinance.” Id. The ordinance allows notice to the license holder, timely challenge in front of a hearing officer, and timely appeal and judicial review. See id.; AEC § 3-37. During such time, the suspension is abated and the license holder can continue operating. The provision is not
2551	construing that evidence most favorably to the Plaintiffs, there is sufficient evidence of such quality and weight to support the jury’s findings. See Tyler, 232 F.3d at 812. Therefore Defendant Infinity Insurance Company’s Motion for Judgment as a Matter of Law is DENIED. B. Infinity’s Motion for a New Trial 1. Standard of Review The decision of whether to grant a new trial is up to the discretion of the court. MidAmerica Fed. Sav. and Loan Ass’n v. Shearson/American Exp., Inc., 886 F.2d 1249, 1262 (10th Cir.1989). “Where a new trial motion asserts that the jury verdict is not supported by the evidence, the verdict must stand unless it is clearly, decidedly, or overwhelmingly against the weight of the evidence.” Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1284 (10th Cir.1999) (internal citation and quotation omitted). A new trial , motion asserting evidentiary errors should be granted only where there is a clear showing of prejudice and that the ruling was inconsistent with substantial justice. Coletti v. Cudd Pressure Control, 165 F.3d 767, 773 (10th Cir.1999). 2. Discussion Infinity first argues that the jury’s finding of bad faith was against the overwhelming weight of the evidence. Infinity contends that there was no evidence to support a finding that Infinity intended not to settle the case. However, Infinity’s arguments ignore Wyoming law which states the requisite intent to a finding of bad faith is the intent to do a particular act. See Farmers Ins. Exchange v. Shirley, 958 P.2d 1040, 1051 (Wyo.1998).
3622	have helped resolve. Therefore, we cannot conclude that the district court abused its discretion in excluding the photographs. 3. Sufficiency of the Evidence Eason alleges that there was not enough evidence for the jury to find him guilty of being a felon in possession of ammunition as charged in Count 2. We review the sufficiency of the evidence to support a conviction de novo, viewing the .evidence in the light most favorable to the jury’s verdict and accepting all reasonable inferences in support of the verdict. United States v. Armstrong, 782 F.3d 1028, 1035 (8th Cir. 2015). “[W]e will reverse only if no reasonable jury could have found [Ea-son] guilty beyond a reasonable doubt.” Id. (first alteration in original) (quoting United States v. McCraney, 612 F.3d 1057, 1063 (8th Cir. 2010)). Eason argues the government failed to prove he knowingly possessed ammunition on April 9, 2013. He asserts that the main evidence on this issue was the testimony of Hiawatha Williams, who admitted he could not conclusively say Eason possessed the ammunition. Williams testified, “a shot was fired from I don’t know exactly if it came from Mr. Eason. My belief it was.” However, the evidence also included Williams’s testimony that he saw Eason leave Williams’s home with “something that looked like a gun,” and that Eason had a “big pistol.” The jury also heard evidence about the spent bullet casings found at the Williams residence, the 911 call from Erica Davis telling officers Eason had a gun, and the
487	issue is not which, of all the information ITA has to choose from, is the best information available, but rather, whether the information chosen by ITA is supported by substantial evidence on the record. The “substantial evidence test” restricts the scope of the Court’s review of the agency record. Because much deference is given to the agency’s interpretation, it will be upheld, as long as it is sufficiently reasonable. See Hercules, Inc. v. U.S., — CIT-, 673 F.Supp. 454 (1987); Seattle Marine supra. Furthermore, “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Matsushita Electric Industrial Co. v. U.S., 750 F.2d 927, 933 (Fed.Cir.1984) (quoting Consola v. Federal Maritime Commission, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966)). For the foregoing reasons the Court sustains the ITA’s use of the best information rule and finds that ITA’s determination is supported by substantial evidence and in accordance with law. . Although Extraco was nominally the submitter, the real party at interest was the plaintiff importer, as they would bear any additional duties imposed. . See Kendo. Rubber Industrial Co., Ltd., et al. v. U.S., — CIT-, 630 F.Supp. 354, 358 n. 4 (1986).
4562	to the recipient and an opportunity to come into voluntary compliance while a judicially implied system of enforcement permits substantial liability without regard to the recipient’s knowledge.or its corrective actions upon receiving notice.”) (emphasis in original). This sort of “deliberate indifference” is a form of intentional discrimination by the employer/principal directly, not a form of vicarious liability. See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 182, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). An institution is also directly .liable for its “own official decision[s].” Gebser, 524 U.S. at 290-291, 118 S.Ct. 1989. The Ninth Circuit and others have held a separate finding of “deliberate indifference” is not necessary when an institutional policy violates the statute. Mansourian v. Regents of Univ. of California, 602 F.3d 957, 967-969 (9th Cir.2010). See also Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170, 1178 (10th Cir.2007) (“[A] funding recipient can be said to have ‘intentionally ácted in clear violation of Title IX,’ when the violation is caused by official policy.”) (citing Davis, 526 U.S. at 642, 119 S.Ct. 1661). Because a “policymaker” is not acting individually, but on behalf of the institution/entity, and his policies are the policies of the entity, no imputation takes place in charging the entity with violations stemming .from those policies — they are the policies of the entity, not merely the individual. This logic parallels the reasoning that undergirds- the law establishing “policymaker” liability under § 1983 and applies with equal- force to Title VI. Maricopa County
4994	that Teleflex stopped selling APUs to Fitzpatrick in March 2006 and that Fitzpatrick claims he lost a sale as of that date. Without question, Fitzpatrick was injured in fact more than two years prior to the commencement of litigation. Moreover, that injury involved the most important stick in the bundle of rights he had as a dealer: the right to sell APUs to customers. “Law of the case is an amorphous concept. As most commonly defined, the doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case. Law of the case directs a court’s discretion, it does not limit the tribunal’s power.” Harlow v. Children’s Hosp., 432 F.3d 50, 55 (1st Cir.2005) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)). Moreover, the doctrine does not strictly apply to interlocutory orders. “Interlocutory orders, including denials of motions to dismiss, remain open to trial court reconsideration, and do not constitute the law of the case.” Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994) (holding that trial court was free to enter an order dismissing claims as time barred after prior ruling to the contrary). Given the picture developed in the course of discovery and presented to the Court in both parties’ summary judgment statements, Fitzpatrick’s claim under the Franchise Laws is time barred. Mr. Fitzpatrick contests this outcome on the ground that a mere refusal to
2804	"28, at 2.) However, Trawler argues that the saving to suitors clause is applicable only to actions filed in state court. (Id. at 9.) Trawler therefore argues that because Maciura pursued remedies in the District of New Jersey, rather than in a state court, the saving to suitors clause is not applicable and the injunction should not be lifted. (Id. at 9-10.) The issue in this case centers upon the operation of the saving to suitors clause with respect to Maciura bringing a personal injury suit in a different federal district court. The saving to suitors clause permits a litigant “to take advantage of the procedural differences between the federal court % admiralty"" and that of the non-maritime- court.” Bourgeois v. Weber Marine, LLC, 80 F.Supp.3d 721, 724 (M.D. La. 2015) (citations omitted). As discussed by the Fourth Circuit Court of Appeals, “the effect of the saving-to-suitprs clause is to permit maritime in personam claims to be pursued in federal court as maritime (and thus non-jury) claims, in state court as legal claims, or in federal court as legal claims (for which a jury trial is available) if an independent basis for federal jurisdiction exists.” In re Lockheed Martin Corp., 503 F.3d 351, 356 (4th Cir. 2007). Thus, the saving to suitors clause does allow a claimant to pursue a common-law remedy in federal district court. See In re Norfolk Dredging Co., No. 7:02-CV-110-FL, 2003 WL 23335933, at *3-4 (E.D.N.C. Dec. 17, 2003) (ruling that a claimant could proceed with"
2157	a hazardous substance; (3) The release has caused the plaintiff to incur “necessary costs of response” that are consistent with the NCP; and (4) The defendant is in one of four categories of potentially responsible parties. Regional Airport Authority of Louisville v. LFG, LLC, 460 F.3d 697, 703 (6th Cir.2006), citing, Franklin County Convention Facilities Authority v. American Premier Underwriters, Inc., 240 F.3d 534, 541 (6th Cir.2001). 500 Associates cannot identify a “release” or “threatened release” by VAC which created an imminent threat to which 500 Associates responded. As noted in Regional Airport Authority, there must be an “actual and real threat” which “exist[s] before initiating a response action.” Regional Airport Authority, 460 F.3d at 703. See also, Sherwin-Williams Company v. City of Hamtramck, 840 F.Supp. 470, 475 (E.D.Mich.1993)(“[R]emoval actions are short term responses to imminent threats to the public safety or the environment. They are to be undertaken ‘in response to an immediate threat to the public welfare or to the environment.’ ”). Only costs incurred in response to a release which created an imminent threat are recoverable under the statute. When 500 Associates incurred these costs, VAC had not been conducting operations on the property for in excess of ten years. However, the record reflects that in the 1990s 500 Associates’ (1) failure to exercise due care in evaluating the risks of contamination on this industrial property; (2) careless demolition of structures on the property; (3) exposure of materials and structures to' the elements; (4) and failure to
2591	Miller, Federal Practice and Procedure § 1781, at 87-97 & n. 33 (1972). CIS also concedes that the issue of scienter—whether CIS knew that its representations were materially misleading or recklessly disregarded their misleading nature —is amenable to class treatment. CIS insists, however, that proof of materiality, reliance, and damages will vary for each member of the class with enough frequency and to such a degree that these questions affecting individual members predominate over common questions. The Court cannot accept these arguments. i. Materiality The standard of materiality in Rule 14a-9 is as follows: “An omitted fact is material if there is a substantial likelihood that a reasonable shareholder would consider it important in deciding how to vote.” TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449, 96 S.Ct. 2126, 2132, 48 L.Ed.2d 757 (1976). That is also the standard for the materiality of misrepresentations and omissions under § 206 of the Investment Advisers Act. Materiality depends on the total mix of information available to the investor because materiality requires “a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available.” Ibid, (footnote omitted). Performance Chart No. 1 is surely not a material part of the total mix of information if it is not part of that mix. Each class member must establish receipt of the Chart as a condition of recovery. Although the parties dispute what percentage of class members
4447	circumstances that justified its inception. This also has the beneficial effect of moving admiralty practice closer to the mainstream of civil litigation, an evolution that has progressed slowly for a number of years. For these reasons, we dismiss the appeal and await its ripening to address the merits of the question pressed on us. We sympathize with the appellant, who argues that it makes little sense from the point of judicial economy to dismiss the appeal, the court already having heard the case on the merits. Nevertheless, while our treatment of this case may require us to bear short-term inefficiency, the proper development of the law over the long term requires such immediate sacrifices. Cf. Digital Equip. Corp. v. Desktop Direct, Inc., — U.S.-,-, 114 S.Ct. 1992, 1996, 128 L.Ed.2d 842, 849 (1994) (admonishing that in considering whether certain appeals are to be allowed under the collateral order doctrine, “the issue of ap-pealability under § 1291 is to be determined for the entire category to which a claim belongs, without regard to the chance that the litigation at hand might be speeded, or a particular injustice averted” (quotation and citation omitted)). DISMISSED. . Cases in which the appellate courts have dismissed appeals based on a narrow reading of 28 U.S.C. § 1292(a)(3) include City of Ft. Madison v. EMERALD LADY, supra; Burghacher v. University of Pittsburgh, supra; Seattle-First Nat'l Bank v. Bluewater Partnership, supra; Hollywood Marine v. M/V ARTIE JAMES, supra; Seahorse Boat & Barge Corp. v. Jacksonville Shipyards, Inc.,
1870	cross-examination and hold that the court did not abuse its discretion in allowing the Government’s cross-examination. Both the challenged lines of inquiry involve what has been called “bad acts” evidence. Rule 404(b) of the Federal Rules of Evidence prohibits the use of other bad acts to prove bad character and conforming conduct. Such evidence, however, is admissible for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). Rule 404(b) is read in light of Rule 403. United States v. James, 555 F.2d 992, 999 (D.C.Cir.1977). Rule 403 precludes the introduction of otherwise admissible evidence where “its probative value is substantially outweighed by the danger of unfair prejudice.” In United States v. Bailleaux, 685 F.2d 1105 (9th Cir.1982), the court addressed the question of whether the circumstances of a prior conviction could be used to rebut the same type of direct testimony as was given in this case. The court held that there was no need to determine whether the circumstances of the prior conviction might be unfairly prejudicial because the defendant brought the prior conviction into the case during his direct examination. Id. at 1110. “[H]aving opened the subject in his direct testimony, [the defendant could] not object to the Government’s subsequent inquiries into the relevant aspects of his prior conviction.” Id. In Bailleaux, as in this case, the Government inquired into the defendant’s prior conviction to rebut the inference that the defendant would have pleaded guilty to
2060	that the claimant’s RFC was limited by “borderline intellectual functioning” but did not critically evaluate the additional functional limitations supported by the psychiatric evaluation submitted as the sole evidence of claimant’s mental limitations. Id. at 121. Unlike in Burns, the ALJ compared several medical diagnoses with evidence of claimant’s daily activities before describing the effect claimant’s depressive disorder had on her RFC. Pursuant to Social Security Ruling 96-6p, it was proper for the ALJ to give the consultative evaluations significant, but not controlling, weight in determining claimant’s RFC. Impairments “that are medically supported but are also contradicted by other evidence in the record may or may not be found credible— the ALJ can choose to credit portions of the existing evidence.” Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir.2005). Although claimant argues that the hypothetical question posed by the ALJ does not adequately represent her functional limitations, it is apparent that the hypothetical in fact directly tracks the RFC finding. The claimant’s challenge, therefore, amounts to an argument that the ALJ’s determination of her RFC is not supported by substantial evidence. See Rutherford, 399 F.3d at 554 n. 8. A review of the record and the ALJ’s opinion demonstrates that this argument fails because the limitations cited by the claimant were “reasonably discounted by the ALJ, so that the hypothetical submitted to the vocational expert included all of the limitations credibly established by the record.” Id. at 555. The ALJ based his RFC determination on a chronological comparison of
2839	were closed for the day. Testimony was given by the telephone company official that, if the need were great enough, it would be possible to gain access to the records after regular business hours. Furthermore, the Government admits that it had knowledge that a narcotics pick-up was to be made from the Newport address early in the morning of October 20, 1970. Indeed, the Newport address was discovered at about 8:30 or 9:00 a.m. that morning from information provided by the telephone' company as to the name and address of the subscriber listed for the intercepted calls. The law governing this situation has been long established. Nearly half a century ago, in Tynan v. United States, 297 F. 177, 179 (9th Cir.), cert. denied, 266 U.S. 604, 45 S.Ct. 91, 69 L.Ed. 463 (1924), the court stated: “No doubt a general search warrant for an entire building . . . occupied by different families or different tenants, is ordinarily null and void.” See also, United States v. Mitchell, 274 F. 128 (N.D.Cal. 1921); Hogrefe v. United States, 30 F.2d 640 (9th Cir.1929). In United States v. Barkouskas, 38 F.2d 837 (M.D.Pa. 1930), the search warrant in question authorized the search of the premises “located at 1919 Jackson St., Scranton, Pa.” The warrant did not include the name of the defendant or the occupants of the premises nor any designation of any part of the premises. The facts were that the owner of the building and his family occupied the second
1933	computers’ Temporary Internet Files and unallocated space. The government failed to present foundational evidence that Jackson “exercised dominion and control over the images.” United States v. Romm, 455 F.3d 990, 998 (9th Cir.2006); see United States v. Kuchinski, 469 F.3d 853, 863 (9th Cir.2006). However, in view of the properly admitted evidence that Jackson exercised dominion and control over thirteen videos of child pornography, any error was harmless. See United States v. Schales, 546 F.3d 965, 976 (9th Cir.2008) (holding that a district court’s erroneous ruling “will be reversed only if such error more likely than not affected the verdict”). Additionally, the district court did not abuse its discretion by questioning Agent Weg, and therefore, did not commit judicial misconduct. See Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir.1995) (holding that it “is perfectly appropriate for a judge to take part where necessary to clarify testimony and assist the jury in understanding the evidence”); United States v. Parker, 241 F.3d 1114, 1119 (9th Cir.2001). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
2300	district court may affirm, reverse or modify the bankruptcy court’s rulings or remand the case with instructions for further proceedings. Fed.R.Bankr.P. 8013. Conclusions of law are reviewed de novo. United States v. Richman (In re Talbot), 124 F.3d 1201, 1206 (10th Cir.1997). However, this court is bound by the factual findings of the bankruptcy court unless such findings are clearly erroneous. Securities Investor Protection Corp. v. Stellatos (In re Blinder, Robinson & Co.), 124 F.3d 1238, 1241 (10th Cir.1997); Richman, 124 F.3d at 1206. “A finding is clearly erroneous if it is unsupported by any facts of record or if the appellate court after reviewing all the evidence is left with the definite and firm belief that a mistake was made.” In re Smith, 195 B.R. 468, 470 n. 1 (D.Kan.1996). Thus, if there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous. In re Stanton, 136 B.R. 562, 563 (D.Kan.1992). In addition, “due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses.” Wittman v. Toll (In re Cordry), 149 B.R. 970, 974 (D.Kan.1993). II. Factual Background The debtor, dot, previously operated a chain of retail drugstores throughout the United States. Jerry Gaddis was a shareholder and officer of dot. On December 6, 1991, he acquired all of dot’s outstanding common stock from the other existing shareholders and became the company’s sole shareholder, officer and director. As an employee and officer of dot, Gaddis
3948	substantially true and that summary judgment was therefore improper. II Federal Rule of Civil Procedure 56(c) provides that granting summary judgment is proper where there is no genuine issue of material fact and the moving party is enti tied to judgment as a matter of law. In determining whether the district court appropriately granted summary judgment, all factual inferences must be taken in favor of the opposing party and against the moving party. Local Beauty Supply, Inc. v. Lamaur, Inc., 787 F.2d 1197, 1200 (7th Cir.1986). “Once a motion for summary judgment has been made and properly supported, however, the nonmovant does have the burden of setting forth specific facts showing the existence of a genuine issue of fact for trial.” Shlay v. Montgomery, 802 F.2d 918, 920 (7th Cir.1986) (citing Fed.R. Civ.P. 56(e)). In the case at hand, the district court granted Central Newspapers’ motion for summary judgment based upon one of its defenses, the substantial truth of the printed statements. In support, Central Newspapers filed, among other documents, Vachet’s deposition in which he admitted that he was arrested for harboring a fugitive, Michael Saucerman. Under Illinois law, truth has historically been a defense to claims of libel. Cook v. East Shore Newspapers, 327 Ill.App. 559, 576, 64 N.E.2d 751, 759 (1946). Vachet submits that the newspaper articles were not completely true because they stated he was arrested on a warrant issued by the Knox County Superi- or Court when, in fact, no warrant had been issued. To establish
4630	discovery Buttitta filed his present motion, seeking summary judgment as to liability only. That motion is now fully briefed (defendants having obtained leave to file a brief surreply memorandum). At the close of their brief in opposition to Buttitta’s motion, defendants requested summary judgment or, in the alternative, denial of Buttitta’s motion. That motion too is ripe for decision. Rule 56 Standards Rule 56 requires this Court to rule in favor of the moving party if “there is no genuine issue as to any material fact and ... [he] is entitled to a judgment as a matter of law.” “Genuine” issues exist if the record evidence would permit a reasonable factfinder to adopt the view of the nonmoving party (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Old Republic Ins. Co. v. Federal Crop Ins. Corp., 947 F.2d 269, 274 (7th Cir.1991.)). “As to materiality, the substantive law will identify which facts are material” (Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Pritchard v. Rainfair, Inc., 945 F.2d 185, 191 (7th Cir.1991)). It is the movant’s burden to establish the lack of a genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). In deciding whether that burden has been met, the court must draw “all reasonable inferences” in favor of the nonmovant (Allensworth v. General Motors Corp., 945 F.2d 174, 178 (7th Cir. 1991)), and must
2805	"clause with respect to Maciura bringing a personal injury suit in a different federal district court. The saving to suitors clause permits a litigant “to take advantage of the procedural differences between the federal court % admiralty"" and that of the non-maritime- court.” Bourgeois v. Weber Marine, LLC, 80 F.Supp.3d 721, 724 (M.D. La. 2015) (citations omitted). As discussed by the Fourth Circuit Court of Appeals, “the effect of the saving-to-suitprs clause is to permit maritime in personam claims to be pursued in federal court as maritime (and thus non-jury) claims, in state court as legal claims, or in federal court as legal claims (for which a jury trial is available) if an independent basis for federal jurisdiction exists.” In re Lockheed Martin Corp., 503 F.3d 351, 356 (4th Cir. 2007). Thus, the saving to suitors clause does allow a claimant to pursue a common-law remedy in federal district court. See In re Norfolk Dredging Co., No. 7:02-CV-110-FL, 2003 WL 23335933, at *3-4 (E.D.N.C. Dec. 17, 2003) (ruling that a claimant could proceed with his Jones Act and general maritime claims pending on the law side of the district court upon diversity of the parties, during which time the limitation action would be stayed, if he entered into certain stipulations acknowledging the admiralty court’s jurisdiction over the limitation action). Although the saving to suitors clause affords a claimant the option of bringing maritime claims as part of a civil action in federal court, this grant of jurisdiction is limited to"
320	a controlling question of law and this court granted permission for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). We affirm. UCB’s federal claim alleges a violation of section 10(b) of the Securities Exchange Act of 1934 (hereinafter Act) and rule 10b-5 promulgated thereunder. The Act does not contain a statute of limitation applicable to section 10(b) and federal courts have consistently rejected attempts to apply to section 10(b) other statutes of limitation found in the Act and in the Securities Act of 1933. When, as in a case such as this, the statute is silent, we look to “an appropriate local law of limitations.” In previous 10b-5 eases, we have applied the applicable state statute of limitations for fraud. Errion v. Connell, 236 F.2d 447, 455 (9th Cir. 1956); Fratt v. Robinson, 203 F.2d 627, 634 (9th Cir. 1953). Relying upon Errion and Fratt, we have adopted the California general fraud limitations period, Code Civ.P. § 338, for securities fraud cases arising in that state. Hecht v. Harris, Upham & Co., 430 F.2d 1202, 1210 (9th Cir. 1970); Sackett v. Beaman, 399 F.2d 884, 890 (9th Cir. 1968); Turner v. Lundquist, 377 F.2d 44, 46 (9th Cir. 1967). However, in Douglass v. Glenn E. Hinton Investments, Inc., 440 F.2d 912 (9th Cir. 1971), we were faced with a choice between the Washington fraud statute adopted in Fratt and Errion, supra, and a special limitations statute for securities fraud enacted in the interim. We adhered to our selection of
2694	and that Debtors would treat confirmation as the equivalent of an adversary proceeding. See Repp, 307 B.R. at 152-53 (creditor entitled to expect that adversary proceeding rules will be applied when required). An adversary proceeding is commenced by the filing of a complaint and service of a summons and the complaint on the defendant. Fed. R. Bankr.P. 7003 and 7004. Thus, the creditor is specifically put on notice that the validity of its lien is at issue and that it must respond in order to preserve its rights. If the process contemplated by the applicable rules is not followed, a creditor’s rights can be affected only if the requirements of due process are otherwise met. See GMAC Mortgage Corp. v. Salisbury (In re Loloee), 241 B.R. 655, 662 (9th Cir.BAP1999) (the greater the deviation from the process set out in the rules, “the greater the quality and amount of notice needed in order to comply with due process”). As we have held in an analogous Chapter 11 case involving claim objections under Rule 3007: Neither the statute nor the rules say, “oh, by the way, we [plan proponents] can also sandbag you by sneaking an objection into a reorganization plan and hoping you do not realize that we can use this device to circumvent the claim objection procedure mandated by the rules.” That is not the law, and if it were the law, it would be a material disservice to public confidence in the integrity of the bankruptcy system. While
3852	so long as it continuously uses the mark in commerce.” Ford Motor Co., 930 F.2d at 292. However, where a senior user of a mark later expands into another industry and finds an intervening junior user, priority in the mark in the second industry depends on whether the senior user would normally or reasonably have been expected to expand into that industry. See J. Wiss & Sons Co. v. W.E. Bassett Company, 59 C.C.P.A. 1269, 462 F.2d 567, 569 (1972). This, in turn, depends on whether the nature of the industries was such that purchasers would reasonably expect the services rendered by these industries to originate from a common source. See id. at 569; see also McCarthy, Trademarks, § 16:5; Volkswagenwerk Aktiengesellschaft v. Wheeler, 814 F.2d 812, 815 (1st Cir.1987). In addition to establishing validity and ownership, “a plaintiff must also prove likelihood of confusion, which is said to exist ‘when the consumers viewing the defendant’s mark would probably assume that the product or service it represents is associated with the source of a different product or service identified by a similar mark.’ ” Ford Motor, 930 F.2d at 292 (quoting Scott Paper Co., 589 F.2d... at 1229). The likelihood of confusion analysis requires the evaluation of a number of factors including: (1) the degree of similarity between the owner’s mark and the alleged infringing mark; (2) the strength of the owner’s mark; (3) the price of the goods and other factors indicative of the care and attention expected of
2986	been “compelled” to make that communication; it occurred without any request on the part of the authorities and before any interrogation was undertaken. Similarly, any facial expressions one chooses to exhibit at trial are voluntary; they are exhibited, moreover, in the presence of counsel, from whom the defendant has the opportunity to obtain advice. Jurors are apt to notice the demeanor of nontestifying as well as testifying parties present in the courtroom whether the matter is mentioned in summation or not. Moreover, the evils at which the Fifth Amendment privilege is aimed do not appear to be involved here. There is no involuntarily imposed “trilemma” involving a choice between risking contempt, perjury or conviction by one’s own testimonial assertions, see Murphy v. Waterfront Commission, 378 U.S. 52, 55-57, 84 S.Ct. 1594, 1596-98, 12 L.Ed.2d 678 (1964). Nor is there any question of “crime ... to be ferreted out by searching the conscience of the accused,” O.W. Holmes, Law in Science — Science in Law, in O.W. Holmes, Collected Legal Papers 213 (1921). Any inference which could be drawn from smiles, at the time of arrest or in court, does not present a Fifth Amendment or due process violation justifying federal intervention to vacate petitioner’s conviction. III Petitioner further argues that the state court jury verdicts were inconsistent. This state law issue presents no federal question. See Harris v. Rivera, 454 U.S. 339, 345-46, 102 S.Ct. 460, 464, 70 L.Ed.2d 530 (1981). IV Petitioner questions the trial court’s instructions concerning aiding
384	328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). See Brecht, 507 U.S. at 636, 113 S.Ct. at 1721 (“[I]t scarcely seems logical to require federal habeas courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review.”). In support of its decision, the Brecht Court adverted to the State’s interest in the finality of convictions that survive direct review within the state court system. Id. at 635, 113 S.Ct. at 1720. The Court relied also on the principles of comity and federalism: “ ‘Federal intrusions into state criminal trials frustrate both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.’ ” Id. (quoting Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982)). Federal courts cannot justify abstaining from the enforcement of an individual’s constitutional right in deference to the systemic values of finality, federalism, and comity, however, unless there has in fact been a good-faith State effort to protect constitutional rights by applying the Chapman standard. See id.; John H. Blume & Stephen P. Garvey, Harmless Error in Federal Habeas Corpus After Brecht v. Abrahamson, 35 Wm. & Mary L. Rev. 163, 183-84 (Fall 1993). Furthermore, Brecht was a non-capital case; it did not present, and the Court did not address, the applicability of its new rule to capital cases. “[T]he Eighth Amendment requires increased reliability of the process by which capital punishment may be imposed.”
2397	Joseph I. Sussman, P.C., 953 F.Supp.2d 102, 107-08 (D.D.C.2013). B. Defendant’s Motion to Dismiss Under Rule 12(b)(6) ' Alternatively, the DCHA moves to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) on the ground that the complaint fails to state a claim upon which relief can be granted. See generally Def.’s Mem. at 8-11. Although a plaintiff need not set forth “detailed factual. allegations” to withstand a Rule 12(b)(6) motion, in order to establish the “grounds” of his “entitle[ment] to relief,” a plaintiff must furnish “more.than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). The Court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). The complaint “is construed liberally in [plaintiffs] favor, and [the Court should] grant [plaintiff] the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). However, the Court need not accept inferences that are not supported by the facts alleged and legal conclusions drawn by plaintiff. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”
2302	Securities Investor Protection Corp. v. Stellatos (In re Blinder, Robinson & Co.), 124 F.3d 1238, 1241 (10th Cir.1997); Richman, 124 F.3d at 1206. “A finding is clearly erroneous if it is unsupported by any facts of record or if the appellate court after reviewing all the evidence is left with the definite and firm belief that a mistake was made.” In re Smith, 195 B.R. 468, 470 n. 1 (D.Kan.1996). Thus, if there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous. In re Stanton, 136 B.R. 562, 563 (D.Kan.1992). In addition, “due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses.” Wittman v. Toll (In re Cordry), 149 B.R. 970, 974 (D.Kan.1993). II. Factual Background The debtor, dot, previously operated a chain of retail drugstores throughout the United States. Jerry Gaddis was a shareholder and officer of dot. On December 6, 1991, he acquired all of dot’s outstanding common stock from the other existing shareholders and became the company’s sole shareholder, officer and director. As an employee and officer of dot, Gaddis was paid $75,000.00 per year, plus a $25,000.00 bonus. At the time Gaddis acquired dot’s outstanding stock, dot was suffering from extreme financial difficulty. As of November 30, 1991, and at all times thereafter, dot was insolvent. In December 1991, Gaddis determined dot would have to discontinue operations and conduct a liquidation of its assets. Bergen Brunswig Drug Company (“Bergen”) was
1367	citations omitted)). Proposition 64 was enacted in 2004 as a means of “confin[ing] [UCL] standing to those actually injured by a defendant’s business practices and [ ] curtailing] the prior practice of filing suits on behalf of clients who have not used the defendant’s product or service, viewed the defendant’s advertising, or had any other business dealing with the defendant.” Kwikset, 51 Cal.4th at 321, 120 Cal.Rptr.3d 741, 246 P.3d 877 (internal citations omitted). Under the UCL and FAL, a plaintiff suffers an injury-in-fact when he or she has “(1) expended money due to the defendants’ acts of unfair competition; (2) lost money or property; or (3) been denied money to which he or she has a cognizable claim.” Chacanaca v. Quaker Oats Co., 752 F.Supp.2d 1111, 1125 (N.D.Cal.2010). To satisfy the injury-in-fact requirement for unfair competition claims, “courts in California require that plaintiffs demonstrate the purchase of products as a result of deceptive advertising.” Id. To plead actual reliance, the “plaintiff must allege that the defendant’s misrepresentations were an immediate cause of the injury-causing conduct.” In re Tobacco II Cases, 46 Cal.4th 298, 328, 93 Cal.Rptr.3d 559, 207 P.3d 20 (2009). However, “the plaintiff is not required to allege that those misrepresentations were the sole or even the decisive cause of the injury-producing conduct.” Id. A plaintiff can satisfy the UCL’s standing requirement by alleging that he or she would not have bought the product but for the alleged misrepresentation. Kwikset, 51 Cal.4th at 330, 120 Cal.Rptr.3d 741, 246
1063	significant body of medical opinion that holds the contrary. The evidence indicates that the same disagreement among experts found by the Supreme Court in Stenberg existed throughout the time that Congress was considering the legislation, despite Congress’s findings to the contrary. III. CONCLUSIONS OF LAW A. The Court Only Reaches the Health-Exception Issue To decide this case, the Court need only reach the health-exception challenge. Although the parties have expended considerable time and effort arguing the other bases for which Plaintiffs allege the Act may be unconstitutional, the Court believes it prudent to refrain from making constitutional rulings that are unnecessary to the resolution of the case. “[There exists an] obligation of the Judicial Branch to avoid deciding constitutional issues needlessly.” Christopher v. Harbury, 536 U.S. 403, 417, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002); see also Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1932) (Brandéis, J., concurring) (“ ‘It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of a case.’ ”) (quoting Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905)). The Act as a whole cannot be sustained because it does not provide for an exception to protect the health of the mother; addressing the other alleged constitutional defects is unnecessary to the resolution of this case. Therefore, this opinion will not address the alternative arguments that Plaintiffs have raised. B. Level
2396	service of process based on exceeding the time limits of Rule 4(m). See, e.g., Hardy v. Joseph I. Sussman, P.C., 953 F.Supp.2d 102, 107-08 (D.D.C.2013). B. Defendant’s Motion to Dismiss Under Rule 12(b)(6) ' Alternatively, the DCHA moves to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) on the ground that the complaint fails to state a claim upon which relief can be granted. See generally Def.’s Mem. at 8-11. Although a plaintiff need not set forth “detailed factual. allegations” to withstand a Rule 12(b)(6) motion, in order to establish the “grounds” of his “entitle[ment] to relief,” a plaintiff must furnish “more.than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). The Court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). The complaint “is construed liberally in [plaintiffs] favor, and [the Court should] grant [plaintiff] the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). However, the Court need not accept inferences that are not supported by the facts alleged and legal conclusions drawn by plaintiff. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). “Threadbare recitals
3418	of this evidence. B. Motion for a Mistrial A district court’s denial of a motion for mistrial is reviewed for abuse of discretion. United States v. Abraham, 386 F.3d 1033, 1037 (11th Cir.2004). When a curative instruction has been given, this court will reverse only if the evidence “is so highly prejudicial as to be incurable by the trial court’s admonition.” United States v. Harriston, 329 F.3d 779, 787 n. 4 (11th Cir.2003). To justify the grant of a mistrial, the defendant must show that he was substantially prejudiced. United States v. Chastain, 198 F.3d 1338, 1352 (11th Cir. 1999). “[This court] determined whether an error had substantial influence on the outcome by weighing the record as a whole.” See United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.1999). Here, the district court did not abuse its discretion in denying the mistrial. The statement that Terrell was a multiconvicted felon was a single, isolated statement, and the jury was instructed to disregard it. We presume the jury followed the court’s instructions. United States v. Chandler, 996 F.2d 1073, 1088 (11th Cir. 1993). Moreover, Terrell cannot show substantial prejudice from the comment as the evidence in this case was overwhelming. The victim of the burglary testified that his gun was stolen, a witness identified Terrell as the man seen climbing into the victim’s residence through the window, and Terrell fled from the scene. See, e.g., United States v. Wright, 392 F.3d 1269, 1278 (11th Cir.2004), petition for cert, filed, (No.
2930	P.2d 8 (1970); In re Quantius’ Will, 58 N.M. 807, 277 P.2d 306 (1954). Moreover, as we interpret the contract, the Alexanders’ obligation to make the mortgage payments was not absolute, but was conditional upon the payments the Blacks were required to make under the real estate contract. The escrow agent is required to make mortgage payments only “out of payments received by the Alexanders.” If the Blacks fail to make a payment, the Alexanders have no obligation under the real estate contract or escrow agreement to do so. “A gift must be complete, subject to no condition precedent, or it is void, is no gift at all.” Dresselhuys v. Commissioner, 40 B.T.A. 30 (1939), acq. 1939-2 C.B. 11. See also Tower v. Commissioner, 148 F.2d 388, 390 (6th Cir. 1945), rev’d on other grounds, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670 (1946); City Bank Farmers Trust v. Hoey, 101 F.2d 9 (2d Cir. 1939); 5 J. Mertens, The Law of Federal Estate and Gift Taxation 146-47 (1959). There is an exception that if the value of a gift subject to a condition precedent can be actuarially determined, it is presently taxable. Rosenthal v. Commissioner, supra, 205 F.2d at 509. Because of the condition precedent to the Alexanders’ obligation to make the mortgage payments, there was no present gift of the amount of those payments that was subject to tax. The value of the future mortgage payments is not actuarially determinable because there is no way in which
3099	95, 104, 101 S.Ct. 411, 415, 420, 66 L.Ed.2d 308, 313, 319 (1980). Relitigation of such issues “decided after a full and fair hearing in a * * * court simply because the * * * court’s decision may have been erroneous” is not even allowed. Id. 449 U.S. at 101, 101 S.Ct. at 418, 66 L.Ed.2d at 317 (footnote omitted). Here, we think the trial court’s decision refusing the change of plea was not only “not erroneous” but well within the court’s discretion and fully supported by the factual record in the case. A criminal conviction for federal income tax evasion “works a collateral estoppel on the issue of fraud in a subsequent civil suit over a fraud penalty.” Moore v. United States, 360 F.2d 353, 354 (4th Cir. 1966), cert. denied, 385 U.S. 1001, 87 S.Ct. 704, 17 L.Ed.2d 541 (1967), cited with approval in Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 327 n.16, 91 S.Ct. 1434, 1442 n.16, 28 L.Ed.2d 788 (1971). See also Allen v. McCurry, 449 U.S. at 95 n.6, 101 S.Ct. at 414 n.6, 66 L.Ed.2d at 313 n.6. Fontneau argues, however, that this case presents an exception to the application of the doctrine of collateral estoppel under the principles set forth in Worcester v. Commissioner, 370 F.2d 713 (1st Cir. 1966). In Worcester this court refused to collaterally estop Worcester from relitigating the issue of civil tax fraud where the trial court, in the criminal action, in offering to
140	47, 57 (D.Mass.2005) (noting that the FTCA liability arises only in circumstances where a private person would be liable to the plaintiff under the law of the state where the act or omission took place); see Sea Air Shuttle Corp. v. United States, 112 F.3d 532, 536 (1st Cir.1997) (explaining that “violation of a federal statute by governmental actors does not create liability unless state law would impose liability on a ‘private individual under like circumstances,’ 28 U.S.C. § 2674”). To prevail on a negligence claim under Massachusetts law, the plaintiff must establish that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached that duty, (3) proximately or legally causing (4) the plaintiffs actual injury or damages. Fithian v. Reed, 204 F.3d 306, 308-09 (1st Cir.2000) (explaining that, while “such matters most often comprise grist for the jury’s mill, they may be resolved on summary judgment when the facts lead ineluctably to a particular outcome”); see Primus v. Galgano, 329 F.3d 236, (1st Cir.2003); Magarian v. Hawkins, 321 F.3d 235, 238 (1st Cir.2003); Jorgensen v. Massachusetts Port Auth., 905 F.2d 515, 522 (1st Cir.1990). In the context of an FTCA claim, a legal duty of care exists where there is “some relationship between the governmental employee[s] and the plaintiff to which state law would attach a duty of care in purely private circumstances.” Sea Air Shuttle Corp., 112 F.3d at 537 (quoting Myers v. United States, 17 F.3d 890, 899 (6th Cir.1994)). In defining the duty
4545	the County could deny MCSO reimbursement for funds expended in an effort to resist the investigation, as such resistance was “putside the scope of the employment of any elected or appointed official.” (Doc. 333-3 at 10). This evidence and the Arizona Attorney General’s interpretation of the relevant statutes, show Maricopa County has the ability to afford at least partial redress for violations committed by Arpaio, MCSO, and Maricopa County. In addition, another district court recently upheld taxpayers’ standing to sue Maricopa County'in challenging the expenditure of municipal funds for MCSO’s enforcement of an allegedly discriminatory statute. Puente Arizona v. Arpaio, 76 F.Supp.3d 833, 853 (D.Ariz.2015) (“[A] favorable decision would .., prevent[] further expenditures for enforcement of the identity theft laws.”) (citing Hinrichs v. Bosma, 440 F.3d 393, 397-98 (7th Cir.2006) (“Such an injury is redressed not by giving the tax money back ,.. but by ending the unconstitutional spending practice.”)). See also We Are Am/Somos Am., Coal. of Arizona v. Maricopa Cnty. Bd. of Supervisors, 809 F.Supp.2d 1084, 1104 (D.Ariz. 2011) (finding plaintiffs had alleged injury sufficient to confer standing to sue county/Board of Supervisors, the sheriff, and others in action seeking suspension of the use of municipal funds for MCSO enforcement of discriminatory policy). In Puente, as here, Maricopa County argued its inability to control the County’s criminal law enforcement meant that allowing Maricopa County to remain a party “could result in it being ‘bound by an injunction that is not within its authority to comply with under Arizona
3616	address the issue the following day. Nevertheless, we will further assume the district court’s response of “[n]ot in front of the jury” was a denial of the request. However, Eason’s counsel stated the video was “not relevant to this case in that it’s not about this case.” The district court repeated that the video had “nothing to do with this case,” to which the defense responded “[cjorrect.” “[A] witness may not be impeached on a collateral matter by the use of extrinsic evidence.” United States v. Grooms, 978 F.2d 425, 428 (8th Cir. 1992). Eason conceded that the video as presented to the court was not a “matter material to the substantive issues of the case,” id. at 429 (quoting Cwach v. United States, 212 F.2d 520, 530 (8th Cir. 1954)), and thus it “could not be shown in evidence for any purpose independent of the contradiction.” United States v. Roulette, 75 F.3d 418, 423 (8th Cir. 1996). The video was “therefore inadmissible” based on the information given by defense counsel at the time. Id. The district court allowed Eason to question Officer Kuykendall about the video, agreeing with Eason that this line of impeachment was acceptable. And Eason followed up by questioning Officer Kuyken-dall about whether he had a “video unit” in his squad car. The district court did not abuse its discretion in not permitting the defense to play the video during initial recross examination. Eason also asserts error when the district court denied his later request to
3117	F.3d at 584, citing Norris, 512 U.S. at 265-66, 114 S.Ct. 2239; see also Jenisio, 187 F.3d at 972 (noting “a party shoulders a relatively light burden in establishing exclusive arbitral jurisdiction under the RLA” (citation omitted)). 2. THE DEPENDENCE OF PLAINTIFF’S CLAIMS ON THE CBA Other than the notion that it is one “grounded” in the CBA, the Ninth Circuit has provided little guidance as to what constitutes a “minor dispute.” “Since they often depend on particularized facts, minor disputes resist a rigid definition.” Saridakis v. United Airlines, 166 F.3d 1272, 1276 (9th Cir.1999). The Ninth Circuit has continually emphasized, though, that the general focus of this inquiry is the source of the rights at issue. See Saridakis, id.; Espinal v. Northwest Airlines, 90 F.3d 1452, 1456 (9th Cir.1996) (“In RLA cases then, as in LMRA cases, courts must look to the source of the right asserted by the plaintiff.”). It is clear that if Pearson’s claims solely involved the interpretation of language directly contained in the CBA, this case would be a minor dispute. In Long, the Ninth Circuit considered an ERISA suit brought to enforce the terms of the summary plan description of airline employees’ collectively bargained pension agreement. The Ninth Circuit reasoned that a “claim relating to the construction of a pension plan” is not one deriving from any independent ERISA substantive right. 994 F.2d at 695. Thus, it was a minor dispute under section 204, and the board of adjustment had jurisdiction to determine “the
2776	held that the waiver includes all attorney-client communications relating to the same subject matter of the opinion, even if it is from trial counsel.” [Docket No. 82, p. 6]. As noted above, AKEVA and Chiron extend the waiver to the broadest possible limits, requiring disclosure of both attorney-client communications and work product, regardless of whether shared with the alleged infringer, through trial. Without regurgitating its analysis, the Court disagrees with such a broad waiver. Moreover, “[t]he willfulness of allegedly infringing activity is determined as of the date the activity began or the date on which the alleged infringer became aware of the patent, whichever is later.” Eli Lilly and Co. v. Zenith Goldline Pharmaceuticals, Inc., 149 F.Supp.2d 659, 662 (S.D.Ind.2001), citing Jurgens v. McKasy, 927 F.2d 1552, 1562 (Fed.Cir.1991), and Odetics, Inc. v. Storage Technology Corp., 185 F.3d 1259, 1276 (Fed.Cir.1999) (“The proper time to assess willfulness is at the time the in-fringer received notice ... making the relevance of later developments ... questionable at best.”)- See also Johns Hopkins University v. CellPro, Inc., 152 F.3d 1342, 1362 (Fed.Cir.1998). In this instance, the Court finds that Reilly has waived the attorney-client privilege and work product protections, to the extent disclosed to Reilly, post-lawsuit relating to the subject matter of the opinion of counsel. However, the Court does so not because the matter involves a continuing infringement, but rather, as explained above in detail, because Reilly has proffered a new and seemingly contradictory opinion during the lawsuit. III. Conclusion. The Court
12	of Foreign Arbitral Awards, contend that arbitration should be compelled pursuant to the insurance policies’ arbitration clauses. The Court agrees. A The Convention on the Recognition and Enforcement of Foreign Arbitral Awards is anchored to the Constitution’s treaty power. The United States is a party to the Convention, which Congress implemented at 9 U.S.C. § 201, “mak[ing] the Convention the highest law of the land.” Sedco, Inc. v. Petroleos Mexicanos Nat’l Oil Co., 767 F.2d 1140, 1145 (5th Cir.1985). The Fifth Circuit has observed that the purpose of ratifying the Convention was “to secure for United States citizens predictable enforcement by foreign governments of certain arbitral contracts and awards made in this and other signatory nations.” McDermott Int’l, Inc. v. Lloyds Underwriters of London, 944 F.2d 1199, 1207 (5th Cir.1991). Section 202 of the Convention, which addresses the Convention’s coverage, provides: An arbitration agreement or arbitral award arising out of a legal relationship, whether contractual or not, which is considered as commercial, including a transaction, contract, or agreement described in section 2 of this title, falls under the Convention. An agreement or award arising out of such a relationship which is entirely between citizens of the United States shall be deemed not to fall under the Convention unless the relationship involves property located abroad, envisages performance or enforcement abroad, or has some other reasonable relation with one or more foreign states. For the purpose of this section a corporation is a citizen of the United States if it is incorporated
3630	theft, the person employs or threatens to immediately employ physical force upon another person.” Id. Physical force under Arkansas law is defined as “any ... [b]odily impact, restraint, or confinement; or [t]hreat of any bodily impact, restraint, or confinement.” Ark. Code Ann. § 5-12-101. After Johnson, this definition, on its face, falls short of requiring “force capable of causing physical pain or injury to another person.” In United States v. Sawyer, 588 F.3d 548, 556 (8th Cir. 2009), we stated that “[b]y definition, robbery in Arkansas qualifies as a crime of violence under § 4B1.2(a)(l)” of the United States Sentencing Guidelines because the statute states that “the person employs or threatens to immediately employ physical force upon another person.” See United States v. Williams, 537 F.3d 969, 971 (8th Cir. 2008) (“[W]e are bound by cases interpreting whether an offense is a crime of violence under the Guidelines as well as cases interpreting whether an offense is a violent felony under the [ACCA].”). Subsequently, the Supreme Court wrote in Johnson v. United States that “in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force — that is, force capable of causing physical pain or injury to another person.” 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Because Sawyer was pre-Johnson, we had no occasion to address whether or not the “physical force” required by the Arkansas robbery statute and elucidated by Arkansas’s statutory definition of that term was equivalent to
4764	prior conviction would outweigh the prejudice to the defendant from admission of those details, there may be permutations that presently escape our vision. We therefore do not announce a per se rule of exclusion. Even in such unusual circumstances, however, evidence beyond the fact of the prior conviction is inadmissible absent adequate trial court findings that its noneu-mulative relevance is sufficiently compelling to survive the balancing test of Fed.R.Evid. 403. (“[Ejvidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice_”). Our conclusion on this issue is supported by a considerable number, though not all, of the other circuits. The Eleventh Circuit applies the same abuse of discretion standard that we adopt today. See United States v. O’Shea, 724 F.2d 1514, 1516-17 (11th Cir.1984). The D.C. Circuit also has held in a felon-in-possession case that “the Government’s right to introduce its proof is always subject to the trial court’s responsibility under Fed.R.Evid. 403 to limit unduly prejudicial or cumulative evidence.” See United States v. Dockery, 955 F.2d 50, 54 (D.C.Cir.1992). And the Fifth and Tenth Circuits similarly have recognized the district court’s authority to decide on the admissibility of prior crimes evidence. See United States v. Brinklow, 560 F.2d 1003, 1006 (10th Cir. 1977) (case involving interstate transportation of explosives by a convicted felon); United States v. Spletzer, 535 F.2d 950, 955-56 (5th Cir.1976) (case involving escape). The Second and Fourth Circuits affirmatively reject admission of evidence concerning the nature of the prior crime,
1024	the complaint as nonmandatory subjects. Thus paragraph 17(k) of the Board’s complaint reads: Respondent has refused to bargain in good faith with the employer, has engaged in surface bargaining, has negotiated with the employer in bad faith, has exhibited a predetermined resolve not to agree to any proposal but their own, and has insisted upon including nonmandatory and unlawful clauses in any collective bargaining agreement. Although evidence was received on the Union’s bargaining position about these proposals, these issues were not fully litigated. Thus, under the circumstances, it was not unreasonable for the ALJ to conclude. that the Union had not received adequate notice and to decide these issues would deny the Union a fair trial. See Boyle’s Famous Corned Beef Co. v. NLRB, 400 F.2d 154, 163 (8th Cir. 1968) (“General Counsel’s position . . . would not be consonant with administrative due process or fundamental fairness [because] . [where] specific acts violative of the section are enumerated, the proof and subsequent findings should be limited to those matters, absent amendment.”) IV. CONTRACT PROPOSALS VIOLATIVE OF SECTION 8(e) Section 8(b)(4)(A) makes it an unfair labor practice for a union to engage in a strike or other coercive conduct where “an object thereof is . forcing or requiring any employer ... to enter into any agreement” which is prohibited by Section 8(e). A union violates its bargaining duty under Section 8(b)(3) if it insists to impasse that an employer agree to a clause which violates Section 8(e). See NLRB v.
4197	1997’s implicit definition of “jail, prison, or other correctional facility” (which excludes juvenile facilities), we conclude that the phrase is ambiguous. Cf. Robinson, — U.S. at -, 117 S.Ct. at 847 (holding that the term “employee” standing alone is ambiguous in Title VII because some sections of Title VII define the term to include former employees, while other sections do not). Having determined that the phrase at issue is ambiguous, we apply the traditional tools of statutory construction. Id. at -, 117 S.Ct. at 848. In doing so, “[w]e begin with the premise that all parts of the statute must be read together, neither taking specific words out of context, nor interpreting one part so as to render another meaningless.” United States v. Snider, 502 F.2d 645, 652 (4th Cir.1974) (citations omitted). A cardinal rule of statutory construction is that statutes which are originally part of the same Act should be construed together. Cf. Robinson, — U.S. at-, 117 S.Ct. at 849 (interpreting ambiguous statutory term so as to be “more consistent with the broad context of [the Act] and the primary purpose of the [section at issue]”); New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 1677, 131 L.Ed.2d 695 (1995) (“[W]e begin as we do in any exercise of statutory construction with the text of the provision in question, and move on, as need be, to the structure and purpose of the Act in which
4690	pursuant to Rule 12(b).”). On a motion to dismiss pursuant to Rule 12(b)(1), a court must dismiss a claim if it “lacks the statutory or constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (internal quotation marks omitted), aff'd, 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). Additionally, the difference between a motion made under Rule 12(b)(1) and one made under Rule 12(h)(3) “is largely academic, and the same standards are applicable to both types of motions.” Greystone Bank v. Tavarez, No. 09-CV-5192, 2010 WL 3325203, at *1 (E.D.N.Y. Aug. 19, 2010). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005). In deciding a Rule 12 motion to dismiss, the Court “‘must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,’ ” Morrison, 547 F.3d at 170 (quoting Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir.2006) (citation and internal quotation marks omitted)), but “ ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it,’” id. (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003)). In deciding the motion, the court “may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements
1633	regulations of state agencies by the Fourteenth Amendment. School District of Abington v. Schempp, 374 U.S. 203, 215, 83 S.Ct. 1560, 10 L.Ed.2d 844; Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213. The contemporary Supreme Court has often written to the effect that the very basis of our government is religion and that we are basically a religious nation. In Engel v. Vitale, 370 U.S. 421, 434, 82 S.Ct. 1261, 1268, 8 L.Ed.2d 601, the Court said: “The history of man is inseparable from the history of religion. And * * * since the beginning of that history many people have devoutly believed that ‘More things are wrought by prayer than this world dreams of’.” In Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 684, 96 L.Ed. 954, the Court said, “we are a religious people whose institutions presuppose a Supreme Being.” In School District of Abington v. Schempp, supra, the Court states, “the fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself.” In 1870, Judge Taft, father of the late Chief Justice Taft, in an unpublished opinion appearing in “The Bible In the Common Schools” (Robert Clarke and Co., 1870), spoke of the “absolute equality before the law of all religious opinions and sects * * * ” and “the government is neutral, and,
3629	110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). One of Eason’s prior convictions was for robbery under Ark. Code Ann. § 5-12-102. The Arkansas robbery statute, § 5-12-102, states “[a] person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person.” Id. Physical force under Arkansas law is defined as “any ... [b]odily impact, restraint, or confinement; or [t]hreat of any bodily impact, restraint, or confinement.” Ark. Code Ann. § 5-12-101. After Johnson, this definition, on its face, falls short of requiring “force capable of causing physical pain or injury to another person.” In United States v. Sawyer, 588 F.3d 548, 556 (8th Cir. 2009), we stated that “[b]y definition, robbery in Arkansas qualifies as a crime of violence under § 4B1.2(a)(l)” of the United States Sentencing Guidelines because the statute states that “the person employs or threatens to immediately employ physical force upon another person.” See United States v. Williams, 537 F.3d 969, 971 (8th Cir. 2008) (“[W]e are bound by cases interpreting whether an offense is a crime of violence under the Guidelines as well as cases interpreting whether an offense is a violent felony under the [ACCA].”). Subsequently, the Supreme Court wrote in Johnson v. United States that “in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force — that is, force capable of
3833	highway in a city, on which the public have a right to pass and repass, and on any portion of which any person has a right to stop-temporarily, though it be upon a portion upon which private premises abut, and that such temporary stopping cannot be construed to give to the abutting owner any claim for compensation for the use and occupation of the highway. In The Hercules (D. C.) 28 Fed. 475, it was said’: “Such use would clearly not give rise to a claim for wharfage by the general maritime law, which requires that the vessel shall make use of the-wharf for the purpose of loading or unloading goods or passengers in order to be subject to that lien. Ex parte Easton, 95 U. S. 68 [24 L. Ed. 373]; The Gem, 1 Brown’s Adm. 37 [Fed. Cas. No. 5,303].” Counsel for the libelant point out the fact that the question decided by the court in this case was that of liability for wharfage under a Michigan statute, and questions the dictum as to the general maritime-law, saying that neither of the authorities cited involved any question ■ of overlapping. In Ex parte Easton, 93 U. S. 76, 24 L. Ed. 373, it was-said: “From an early period wharf owners have been allowed to exact from ships- and vessels using a berth at their wharves a reasonable compensation for the use of the same, and a ship or vessel enjoying such a privilege has always been accustomed to
3003	take into account the effect on owners at the time of enactment, who are prejudiced as well. Should an owner attempt to challenge a new regulation, but not survive the process of ripening his or her claim (which, as this case demonstrates, will often take years), under the proposed rule the right to compensation may not be asserted by an heir or successor, and so may not be asserted at all. The State’s rule would work a critical alteration to the nature of property, as the newly regulated landowner is stripped of the ability to transfer the interest which was possessed prior to the regulation. The State may not by this means secure a windfall for itself. See Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 164 (1980) (“[A] State, by ipse dixit, may not transform private property into public property without compensation”); cf. Ellickson, Property in Land, 102 Yale L. J. 1315, 1368-1369 (1993) (right to transfer interest in land is a defining characteristic of the fee simple estate). The proposed rule is, furthermore, capricious in effect. The young owner contrasted with the older owner, the owner with the resources to hold contrasted with the owner with the need to sell, would be in different positions. The Takings Clause is not so quixotic. A blanket rule that purchasers with notice have no compensation right when a claim becomes ripe is too blunt an instrument to accord with the duty to compensate for what is taken. Direct condemnation,
4972	a method and an apparatus for handling file level and block level remote file accesses comprising: a block level server providing service through implementation in terms of the inode layer operations as recited in claims 1 and 12.” '417 Patent File History, March 2, 2004 Notice of Allowability at 2. Significantly, the Notice of Allowability made no mention of the management layer, or of the position of servers relative to the storage layer, but instead relied on the amendment. Sun contends that this prosecution history demonstrates that both NetApp and the Examiner interpreted claim 1 as requiring a specific software layer arrangement where the storage layer is above the management layer to gain allowance over the prior art. See Rheox, Inc. v. Entact, Inc., 276 F.3d 1319, 1325 (Fed.Cir.2002) (“Explicit arguments made during prosecution to overcome prior art can lead to a narrow claim interpretation because ‘[t]he public has a right to rely on such definitive statements made during prosecution.’ ”) (quoting Digital Biometrics, Inc. v. Identix, Inc., 149 F.3d 1335, 1347 (Fed.Cir.1998)); Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed.Cir.1995) (“Claims may not be construed one way in order to obtain their allowance and in a different way against accused infringers.”). NetApp concedes, as it must, that the prosecuting attorney’s argument was inartfully worded at best and notes that it was ultimately unnecessary for allowance. NetApp argues that the real thrust of the applicants’ argument was that it would not have been obvious to combine
1205	14.) The Court held oral argument on December 7, 2009. II. Discussion A. Standard of Review Federal courts have original jurisdiction over civil actions in which the dispute is between citizens of different states and in which the sum in controversy exceeds $75,000. See 28 U.S.C. § 1332(a). In order to obtain diversity jurisdiction, there must be “complete diversity” so that no adverse parties are citizens of the same state. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996). The federal removal statute allows a defendant to remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a); see Lincoln Prop. Co. v. Roche, 546 U.S. 81, 84, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005) (“Defendants may remove an action on the basis of diversity of citizenship if there is complete diversity----”). A diversity case may only be removed if none of the properly joined defendants is a citizen of the state in which the action was brought. 28 U.S.C. § 1441(b). A defendant must file a notice of removal within thirty days of receipt “of the initial pleading setting forth the claim for relief upon which such action or proceeding is based....” Id. § 1446(b). “If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant ... of a copy of an amended pleading,
4180	Plaintiffs to show their hands as they attempted to exit the vehicle, and Officers Zotz and Ross severely injuring the Plaintiffs when they collectively fired eleven shots into the backseat of the vehicle. The Defendants argue that the Plaintiffs were not seized because the Plaintiffs’ injuries were unintentional. The Defendants also claim that Officers Zotz and Ross did not use unreasonable force against the Plaintiffs when firing shots into the backseat of the vehicle because they were aiming at Morris. The Plaintiffs rely on several United States Supreme Court cases when asserting that a person is clearly seized within the meaning of the Fourth Amendment only if “a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (explaining that the following circumstances might indicate a seizure, even where the person did not attempt to leave: the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled); see also Brendlin v. California, 551 U.S. 249, 257, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (holding that passengers of automobiles that are pulled over by a police officer for a traffic stop are seized under the Fourth Amendment); Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980) (stopping an automobile
1219	this basis alone, without even considering Defendants’ allegations” that RBCCMC was improperly joined. (Id. at 1.) It is true that the well-pleaded complaint rule generally requires a district court to determine if a complaint includes any causes of action that on their face give a federal court jurisdiction. See Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998). However, an exception to this general principle exists when a defendant asserts removal based on “fraudulent joinder.” See Whitaker, 261 F.3d at 206-07 (“[A] plaintiff may not defeat a federal court’s diversity jurisdiction and a defendant’s right of removal by merely joining as defendants parties with no real connection with the controversy.” (quoting Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460-61 (2d Cir.1998)) (alteration in original)); Intershoe, Inc. v. Filanto S.P.A., 97 F.Supp.2d 471, 474 (S.D.N.Y.2000) (stating that “[a]n exception to th[e] principles [of diversity] applies when a non-diverse party is ‘fraudulently joined’ in order to defeat complete diversity”). Courts regularly review pleadings to determine if there has been a fraudulent joinder of parties and will “disregard parties with no real connection with the controversy” or who are “not a real party in interest.” Intershoe, 97 F.Supp.2d at 474 (internal quotation marks omitted); see also Pampillonia, 138 F.3d at 460-61. The Court sees no reason why a summons with notice, which may be an initial pleading under Whitaker, should be treated differently than a complaint for the purpose of analyzing removal based on
469	fines and penalties, but always in some way observed and yielded to.” Mr. Justice Curtis in Murray v. Hoboken Land Co., 59 U. S. (18 How.) 272, 15 L. Ed. 372. The nation from which we inherited the phrase “due process of law” has never relied upon courts of justice for the collection of her public revenues. “Taxes have not, as a general rule, in this country since its independence, „nor in England before that time, been collected by regular judicial proceedings. The necessities of government, the nature of the duty to be performed, and the customary usages of the people, have established a different procedure, which, in regard to that matter, is, and always has been, due process of law.” Kelly v. Pittsburgh, 104 U. S. 78, 80 (26 L. Ed. 658). In the ease at bar the element of public policy arising out of the necessity of the government to have its revenues promptly and without delay is 'wholly lacking. The government does not depend upon nor look to moneys collected as fines or penalties for violation of criminal statutes for revenue with which to perform its governmental functions or to cany on its public activities. Neither do the settled usages or methods of proceeding existing in the common or statute law of England, prior to the emigration of our ancestors, lend any support to the establishment of summary administrative procedure for the infliction of punishment for the violation of penal laws. Whoever heard of penalties imposed as
2110	of the “clearly erroneous” test, the standard of review which petitioner urges this Court to adopt in declaratory judgment actions relating to transfers of property from the United States is the substantial evidence rule. This rule has been held to be an appropriate measure of review for administrative findings of fact. See Abbott Laboratories v. Gardner, 387 U.S. 136, 143 (1967). See also Camp v. Pitts, 411 U.S. 138, 141 (1973); United States v. First City Nat. Bank, 386 U.S. 361, 366-367 (1967); Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966); Gilbertville Trucking Co. v. United States, 371 U.S. 115, 126 (1962); Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 490-491 (1951); Federal Security Administration v. Quaker Oats Co., 318 U.S. 218, 228 (1943). The Supreme Court has defined the substantial evidence rule, inter alia, as requiring “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolo v. Federal Maritime Commission, supra at 620. A close reading of the legislative history underlying section 7477 fails to shed any light on exactly what Congress intended the measure of judicial review to be in such cases. Nevertheless, it is clear that Congress did not intend the Court’s judgment to be a mere de novo redetermination but, rather, to be “based upon” a redetermination of respondent’s determination, as stated in the Senate report, in pertinent part (S. Rept. 94-938, 1976-3 C.B. (Yol. 3) 299, 304): The Tax Court is to review whether
144	plaintiffs actual injury or damages. Fithian v. Reed, 204 F.3d 306, 308-09 (1st Cir.2000) (explaining that, while “such matters most often comprise grist for the jury’s mill, they may be resolved on summary judgment when the facts lead ineluctably to a particular outcome”); see Primus v. Galgano, 329 F.3d 236, (1st Cir.2003); Magarian v. Hawkins, 321 F.3d 235, 238 (1st Cir.2003); Jorgensen v. Massachusetts Port Auth., 905 F.2d 515, 522 (1st Cir.1990). In the context of an FTCA claim, a legal duty of care exists where there is “some relationship between the governmental employee[s] and the plaintiff to which state law would attach a duty of care in purely private circumstances.” Sea Air Shuttle Corp., 112 F.3d at 537 (quoting Myers v. United States, 17 F.3d 890, 899 (6th Cir.1994)). In defining the duty of care in tort actions, Massachusetts follows the Restatement (Second) Of Torts § 315 (1965) (“Section 315”). Mosko v. Raytheon Co., 416 Mass. 395, 400 n. 7, 622 N.E.2d 1066 (1993); Jean v. Commonwealth, 414 Mass. 496, 513, 610 N.E.2d 305 (1993); see Rakes, 352 F.Supp.2d at 59 (discussing Section 315 and citing Jean). Section 315 “recognizes two types of special relationships that may form the basis of an exception to the general principle that a person has no duty to control the conduct of a third person.” Jean, 414 Mass. at 513, 610 N.E.2d 305. The first arises where “a special relation exists between the actor [i.e., the person whose duty is at issue] and
4177	as a broad general proposition.” Id. 1. Violation of a Constitutional Right The Plaintiffs allege that the Defendants violated their Fourth Amendment right when the Defendants unreasonably seized the Plaintiffs and used excessive force. Excessive force claims are analyzed using the Fourth Amendment’s “reasonableness” standard in the context of “an arrest, an investigatory stop or any other type of seizure.” Stainback v. Dixon, 569 F.3d 767, 771 (7th Cir. 2009). The Fourth Amendment protects against the use of force that is not “objectively reasonable.” Kinney v. Ind. Youth Ctr., 950 F.2d 462, 465 (7th Cir. 1991). The “right to make an arrest.. .necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). However, this right is not without limits; a “police officer’s use of force is unconstitutional if, judging from the totality of circumstances at the time of the arrest, the officer used greater force than was reasonably necessary to make the arrest.” Payne v. Pauley, 337 F.3d 767, 778 (7th Cir. 2003) (citation and quotation marks omitted). Fourth Amendment unreasonable seizure claims, like excessive force claims, are analyzed in light of the totality of the circumstances to determine the objective reasonableness of the seizure. To determine the reasonableness and therefore the constitutionality of a seizure, courts must “balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the
2642	York, 332 U.S. 261, 285, 67 S.Ct. 1613, 1626, 91 L.Ed. 2043 (1947). Purposeful discrimination may not be assumed or merely asserted, it must be proven. Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). “When Negro representation on venire lists is not extremely disproportionate to the Negro population in the parish [county], the burden may be a heavy one.” Labat v. Bennett, 5 Cir., 1966, 365 F.2d 698, 712. However, juries must be drawn from a fair cross section of the community. Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ; Thiel v. Southern Pac. Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); Scott v. Walker, 5 Cir., 1966, 358 F.2d 561, 564. The jury must, therefore, be “drawn from a pool of persons broadly representative of the community”, Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34, 45, for “It is part of the established tradition in the use of juries' as instruments of public justice that the jury be a body truly representative of the community.” Smith v. State of Texas, supra. In compiling jury lists, both the need for competency and for a fair cross section of the community are important elements but the desire for competency must not be pursued to the extent that it prevents a fair cross section and any attempt to
2993	his property because the value of upland portions is substantial. We remand for further consideration of the claim under the principles set forth in Penn Central. II The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897), prohibits the government from taking private property for public use without just compensation. The clearest sort of taking occurs when the government encroaches upon or occupies private land for its own proposed use. Our cases establish that even a minimal “permanent physical occupation of real property” requires compensation under the Clause. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 427 (1982). In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), the Court recognized that there will be instances when government actions do not encroach upon or occupy the property yet still affect and limit its use to such an extent that a taking occurs. In Justice Holmes’ well-known, if less than self-defining, formulation, “while property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking.” Id., at 415. Since Mahon, we have given some, but not too specific, guidance to courts confronted with deciding whether a particular government action goes too far and effects a regulatory taking. First, we have observed, with certain qualifications, see infra, at 629-630, that a regulation which “denies all economically beneficial or productive use of land”
3975	to Dismiss. This contention is correct, but they also concede that Local Rule 9014 — 4(f) for the Bankruptcy Court for the Southern District of California directs that failure to file a timely opposition to a contested motion allows the court to deem the parties’ silence as consent to granting the motion. Schlegels contend the bankruptcy court erred by concluding they failed to contest the Motion to Dismiss when they otherwise actively sought a hardship discharge. Courts have broad discretion to interpret their local rules. Only in rare cases will an appellate court question the exercise of discretion in connection with the application of the local rules. Qualls v. Blue Cross, 22 F.3d 889, 842 (9th Cir. 1994); Katz v. Pike (In re Pike), 243 B.R. 66, 69 (9th Cir. BAP 1999) (“The bankruptcy court has broad discretion to apply its local rules.”). Whether or not the bankruptcy court considered the Motion to Dismiss to be “uncontested,” the Schlegels fail to state what difference it would make had the bankruptcy court considered the matter “contested.” It appears the court considered their oral arguments against dismissal to some extent at the Hardship Motion hearing. Even if not, the court clearly had discretion to deem Schlegels’ lack of a written opposition as consent to granting the Motion to Dismiss, as long as it was meritorious. We agree with the bankruptcy court’s conclusion that Schlegels failed to contest the Motion to Dismiss. A. Dismissal under 1307(c) Section 1307(c) allows the bankruptcy court to
1767	for whom the defendant is accountable under U.S.S.G. § 1B1.3. United States v. Thomas, 155 F.3d 833, 838-39 (7th Cir.1998). We review for clear error the district court’s factual determination that a defendant’s conduct evidenced an intent to carry out a threat and will reverse only when that determination is “so inconsistent with the evidence” as to constitute clear error. See United States v. Sullivan, 75 F.3d 297, 302-03 (7th Cir.1996). Throughout his briefs, Siegler attempts to portray the August 31 letter as a solicitation rather than a threat, in effect trying to challenge his conviction for violating 18 U.S.C. § 876. By pleading guilty, however, Siegler admitted both of the elements of Count II (mailing a threatening communication). See McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (“[A] guilty plea is an admission of all the elements of a formal criminal charge.”); United States v. Gilliam, 255 F.3d 428, 433 (7th Cir.2001) (same). In the written plea agreement and during the plea hearing, Siegler admitted that on August 31, 1999, he wrote and mailed to Hester a letter threatening Hauger; no more was required for a conviction under 18 U.S.C. § 876. See United States v. Geisler, 143 F.3d 1070, 1071-72 (7th Cir.1998) (conviction under 18 U.S.C. § 876 requires proof of two elements: (1) a threatening communication (2) was sent through the mail); United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir.1990) (conviction under 18 U.S.C. § 876 does not
3542	904, 913 (9th Cir.2010) (Kozinski, C.J.). The record as it stands is ripe and adequate to do so. To fail to do so risks continuing confusion in the district court, a possible new amended complaint, and a trial on issues not properly in the case. Thus, we take counsel for CHI at his word and address the question of qualified immunity as it applies to the Establishment Clause and FHA claims against Chatterton and Birdsall in their individual capacities. A qualified immunity analysis consists of two prongs: (1) whether, “[t]aken in the light most favorable to the party asserting the injury, ... the facts alleged show the [official’s] conduct violated a constitutional right”; and (2) whether that right was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), modified by Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Addressing the two prongs of the test in this order is often beneficial, but it is not mandatory. Courts may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 129 S.Ct. at 818. To determine whether a right was clearly established, a court turns to Supreme Court and Ninth Circuit law existing at the time of the alleged act. See Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir.1996). In the absence of binding precedent, courts should
2373	fees in admiralty cases: In admiralty cases, however, it is the general rule that attorneys’ fees are not awarded. Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724 (5th Cir.1980). Platoro cites Compania Galeana, S.A. v. M/V Caribbean Mara, 565 F.2d 358 (5th Cir.1978), for the proposition that such an award lies in the discretion of the admiralty court. We pointed out in No-ritake, however, that Compañía Galea-na clearly referred to an exception to the rule: that attorneys’ fees may be awarded where the nonprevailing party has acted in bad faith. Noritake, 627 F.2d at 731 n. 5. Platoro Ltd., Inc. v. Unidentified Remains of a Vessel, 695 F.2d 893, 905-06 (5th Cir.1983) (emphasis added); see also Atlantis Marine Towing, Inc. v. M/V Elizabeth, 346 F.Supp.2d 1266, 1276 (S.D.Fla.2004) (“In Compañía Galeana and Cobb Coin Co., relied upon by both Plaintiff AMT and the district court in Treasure Salvors, Inc., attorneys’ fees were awarded based upon a finding of bad faith by the nonprevailing party. In admiralty cases, however, it is the general rule that attorneys’ fees are not awarded.... An exception to the rule [is] that attorneys’ fees may be awarded where the nonprevailing party has acted in bad faith.”) (citing Pla- toro 695 F.2d at 905-06). All the foregoing authority makes clear that an award of attorneys’ fees in this case is appropriate only upon a finding that Allstate acted in bad faith. Finally, perhaps realizing the overwhelming authority contra its first two arguments, plaintiff contends Allstate acted
1491	Relying upon a 1979 federal district court opinion, plaintiff argues against the application of ERISA on the notion that “general principles of contract law may be applied where there is no inconsistency with the Congressional purpose in enacting ERISA.” Shaw v. Kruidenier, 470 F.Supp. 1375 (S.D.Iowa 1980), aff'd without opinion, 620 F.2d 307 (8th Cir.1980). Shaw is not the controlling law on this point, however, as the Supreme Court has since held that the statutory preemption provision “was intended to displace all state laws that fall within its sphere, even including state laws that are consistent with ERISA’s substantive requirements.” Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739, 105 S.Ct. 2380, 2389, 85 L.Ed.2d 728 (1985), citing Shaw v. Delta Airlines, Inc., 463 U.S. 85, 98-99, 103 S.Ct. 2890, 2900-01, 77 L.Ed.2d 490 (1983); see also Salomon v. Transamerica Occidental Life Ins. Co., 801 F.2d 659 (4th Cir.1986) (holding that Virginia state law claims for breach of contract are preempted by ERISA in suit involving deceased employee’s death benefits). While there is some authority for the proposition that ERISA does not preempt state laws regulating the insurance industry, the instant lawsuit involves common-law contract principles; state laws regarding the regulation of the insurance industry are simply not implicated. See Metropolitan Life Ins. Co. v. Taylor, Mich., 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Based on the above authority, it is the determination of this Court that plaintiff’s state law claims are preempted by ERISA. However,
1932	pursuant to 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the facts, we recite them only as necessary. The district court may have abused its discretion by overruling Jackson’s objection at trial to admitting into evidence the still photo images of child pornography found in his computers’ Temporary Internet Files and unallocated space. The government failed to present foundational evidence that Jackson “exercised dominion and control over the images.” United States v. Romm, 455 F.3d 990, 998 (9th Cir.2006); see United States v. Kuchinski, 469 F.3d 853, 863 (9th Cir.2006). However, in view of the properly admitted evidence that Jackson exercised dominion and control over thirteen videos of child pornography, any error was harmless. See United States v. Schales, 546 F.3d 965, 976 (9th Cir.2008) (holding that a district court’s erroneous ruling “will be reversed only if such error more likely than not affected the verdict”). Additionally, the district court did not abuse its discretion by questioning Agent Weg, and therefore, did not commit judicial misconduct. See Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir.1995) (holding that it “is perfectly appropriate for a judge to take part where necessary to clarify testimony and assist the jury in understanding the evidence”); United States v. Parker, 241 F.3d 1114, 1119 (9th Cir.2001). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
1226	amount in controversy requirement was satisfied). Accordingly, the Court finds that Defendants have established by a preponderance of evidence that Plaintiffs’ damages, if proven, would exceed $75,000. However, the Court must analyze the fraudulent joinder claim in order to decide if removal was proper. C. Fraudulent Joinder Claim 1. General Principles To demonstrate that a non-diverse defendant has been fraudulently joined to defeat diversity, a defendant must show, by clear and convincing evidence, either that there has been outright fraud committed in the plaintiffs pleadings (a claim not made here), or that there is no possibility, based on the pleadings, that a plaintiff can state a cause of action against the non-diverse defendant in state court. See Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 302 (2d Cir.2004); Whitaker, 261 F.3d at 207; Pampillonia, 138 F.3d at 461. “Even if non-diverse defendants are joined solely to prevent removal to federal court, fraudulent joinder is not shown if the plaintiff does in fact have a valid claim against the non-diverse defendants.” Brown ex rel. Brown v. Noxubee Gen. Hosp. (In re Zyprexa Prods. Liab. Litig.), No. 08-CV-3249, 2008 WL 4561628, at *3 (E.D.N.Y. Oct. 10, 2008). “The defendant seeking removal bears a heavy burden of proving fraudulent joinder, and all factual and legal issues must be resolved in favor of the plaintiff.” Pampillonia, 138 F.3d at 461; see also Briarpatch, 373 F.3d at 302 (same). “[T]he test of whether or not there has been fraudulent joinder is uniformly whether
75	722-23 (2d Cir.2009). Here, although the record of the credible fear interview was a summary, the IJ reasonably afforded it some weight, particularly because Uddin admitted that his testimony was inconsistent with the dates that he told the asylum officer during his credible fear interview. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80 (2d Cir.2004). While Uddin argues that the IJ erred by giving limited weight to his proffered evidence, the weight afforded evidence “lies largely within the discretion of the IJ,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir.2006), and the agency need not “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006). It does appear, however, that the IJ may have been mistaken in finding that none of the letters that Uddin submitted “makes specific reference to [Uddin] having been assaulted on July 24, 2004, or on any other date.” See JA 12. The letter from a physician, reporting on treatment administered to Uddin on July 24, 2004, states “injuries caused by sharp weapon and assault in origin.” See JA 215, Exhibit 9A. The reasonable inference is that treatment administered on July 24 was for an assault that occurred on that date. Remand to correct this apparent mistake would be futile, however, as we can confidently predict that the agency would make the same decision based on the numerous inconsistencies on which
2518	Agreement, and therefore by making purchases after February 14, 2000, they entered into the New Agreement and are subject to its arbitration provision. “Proof that a letter properly directed was placed in a U.S. post office mail receptacle creates a presumption that it reached its destination in the usual time and was actually received by the person to whom it was addressed.” Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir.1989); see also U.S. v. Wilson, 322 F.3d 353, 362-63 (5th Cir.2003). Defendants need not prove actual receipt of the Notice or New Agreement; rather, proof of receipt “may be accomplished by presenting circumstantial evidence, including evidence of customary mailing practices used in the sender’s business.” Marsh v. First USA Bank, N.A., 103 F.Supp.2d 909, 918 (N.D.Tex.2000) (citing Wells Fargo Bus. Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir.1983)); Myer v. Callahan, 974 F.Supp. 578, 584 n. 7 (E.D.Tex.1997). In addition, the affiant in support of the mailing need not have personal knowledge of the letter’s mailing, but “at a minimum the affiant must have personal knowledge of the procedures in place at the time of mailing.” Burton v. Banta Global Turnkey Ltd., 170 Fed.Appx. 918, 924 (5th Cir. Mar.23, 2006) (citing Feb.R.Evid. 602). The court finds that the totality of the factual record does not establish that plaintiffs received the Notice or the New Agreement. Indeed, Ms. Koehler’s declaration is lacking certain key facts that other courts (including in some of the cases cited
116	not a proper defendant” on counts I, IV, V, and VI. Id. (dismissing the FTCA claims against the FBI for lack of subject matter jurisdiction). c. Claims against the United States— the discretionary function exception The United States may be sued only if it has consented to be sued. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (explaining that “the United States, as sovereign, ‘is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit’” [citation omitted]); see United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); see also United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (emphasizing that the waiver of sovereign immunity must be “unequivocally expressed”); Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957) (noting that the Supreme Court “has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied”). The Federal Defendants agree that the FTCA is a limited consent to suit. The Federal Defendants argue that this court does not have subject matter jurisdiction of the Plaintiffs’ claims against the United States because: (1) the challenged actions fall
3235	of labor disputes. See id. at 457, 77 S.Ct. at 918. The principles of accord and satisfaction are well established in both the general common law and the law of Michigan where the present contract originates. International Union, UAW v. Yard-Man, Inc., 716 F.2d 1476, 1487 (6th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1002, 79 L.Ed.2d 234 (1984). The basic elements of an accord and satisfaction or discharge by substituted performance are: a disputed claim; a substituted performance agreed upon and accomplished; and valuable consideration. Yard-Man, 716 F.2d at 1487-88. See also 6 Corbin on Contracts §§ 1276-1292 (1962 ed.). There can be “no accord and satisfaction without expression of assent.” 6 Corbin § 1277. See Bennett v. Machined Metals Co., Inc., 591 F.Supp. 600, 607-08 (E.D.Pa.1984); International Longshoremen’s and Warehousemen’s Union, Local 34 v. Cargill, Inc., 372 F.Supp. 807 (N.D.Cal.1974); United Garment Manufacturing Co. v. Minnesota Joint Board, Amalgamated Clothing Workers of America, 211 F.Supp. 414, 418 (D.Minn.1962). In order that a performance rendered by an obligor shall operate as a satisfaction of the claim against him, it must be offered as such to the creditor. There must be accompanying expressions sufficient to make the creditor understand, or to make it unreasonable for him not to understand, that the performance is offered to him as full satisfaction of his claim and not otherwise. If it is not so rendered, there is no accord, either exec-utory or executed, for the reason that there are no operative expressions of
2970	and respond to all portions of the presentence report except the sentencing recommendation, and that was sufficient to satisfy due process. Headspeth contends next that the district court committed reversible error in refusing to give his requested instruction on the definition of “reasonable doubt.” This argument is without merit. We have frequently admonished district courts not to attempt to define reasonable doubt in their instructions to the jury absent a specific request from the jury itself. See, e.g., Murphy v. Holland, 776 F.2d 470, 475 (4th Cir.1985), vacated on other grounds, 475 U.S. 1138, 106 S.Ct. 1787, 90 L.Ed.2d 334 (1986); United States v. Love, 767 F.2d 1052, 1060 (4th Cir.1985); United States v. Moss, 756 F.2d 329, 333 (4th Cir.1985); Smith v. Bordenkircher, 718 F.2d 1273, 1276 (4th Cir.1983). We have done so on the theory that the term reasonable doubt has a “self-evident meaning comprehensible to the lay juror,” which judicial efforts to define generally do more to obscure than to illuminate. See Murphy, 776 F.2d at 475. So long as the trial court properly instructs the jury that the government must prove the defendant’s guilt beyond a reasonable doubt and that this burden remains with the government throughout the trial, the failure to give an additional instruction defining reasonable doubt, even when requested by the defendant, is therefore not reversible error. See United States v. Marquardt, 786 F.2d 771, 784 (7th Cir.1986); cf. United States v. Woods, 812 F.2d 1483, 1487-88 (4th Cir.1987) (not error to refuse
4952	block at a predetermined location on disk of the storage system, the volinfo block comprising a plurality of pointers configured to reference the fsinfo and PCPI fsinfo blocks. '720 patent, col. 13:59-14:5; 14:32-39; 14:56-15:5 (emphasis added). a. Preamble First, Sun argues that the phrase “increasing a number of persistent consistency point images (PCPIs),” which appears in the preamble of claim 1, is a claim limitation. '720 patent, col. 13:59-61. “If the claim preamble, when read in the context of the entire claim, recites limitations of the claim, or, if the claim preamble is ‘necessary to give life, meaning, and vitality’ to the claim, then the claim preamble should be construed as if in the balance of the claim.” Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed.Cir.1999) (citation omitted). “Indeed, when discussing the ‘claim’ in such a circumstance, there is no meaningful distinction to be drawn between the claim preamble and the rest of the claim, for only together do they comprise the ‘claim.’ If, however, the body of the claim fully and intrinsically sets forth the complete inven tion, including all of its limitations, and the preamble offers no distinct definition of any of the claimed invention’s limitations, but rather merely states, for example, the purpose or intended use of the invention, then the preamble is of no significance to claim construction because it cannot be said to constitute or explain a claim limitation.” Id. A preamble gives meaning to the claim especially where claim terms in
1510	v. Nuccio, supra note 7, 373 F.2d at 171. See also Blair v. United States, supra note 10, 130 U.S.App.D.C. at 325, 401 F.2d at 390. . We note that on cross-examination the officer denied that he had ever shared a bed with the witness. See note 5, supra. Presumably the witness, if permitted to testify, would have contradicted that statement, but this circumstance did not qualify the disputed testimony for admission. As we have had occasion to state, “generally the inquiring party is concluded by the witness’ answer when cross-examination relates to a matter collateral to the issues, and he may not later rebut it for purposes of impeachment.” Ewing v. United States, 77 U.S.App.D.C. 14, 21, 135 F.2d 633, 640, cert. denied 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145 (1941). See also Lee v. United States, 125 U.S.App.D.C. 126, 129, 368 F.2d 834, 837 (1966); 3 J. Wigmore, Evidence §§ 1000-1003 (3d ed. 1940). And the term “collateral,” we said, “can mean no more than the matter inquired about is not logically relevant, independently of ‘pure’ impeachment, to the issues or cause on trial or is so only in so remote and indirect a manner that the authoritative tribunal thinks it should not be inquired into in a case of contradiction by extrinsic testimony or, in one of self-contradiction, further than to make inquiry of the witness.” Ewing v. United States, supra, 77 U.S.App.D.C. at 21, 135 F.2d at 640. We have no difficulty in concluding
3395	by the petition for removal or the answer. Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205; Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Regents of New Mexico College of Agriculture & Mechanic Arts v. Albuquerque Broadcasting Co., 10 Cir., 158 F.2d 900.” The law is settled that “a mere statement that a construction of certain federal statutes is involved in a case is not sufficient to bestow such jurisdiction. The dispute must involve a substantial question as to construction of the federal statutes, and not a colorless or frivolous one, * * * or a mere makeshift, for the purpose of securing such jurisdiction.” Jefferson v. Gypsy Oil Co., 8 Cir., 27 F.2d 304, 305. An Indian, because he is an Indian, has no greater right to sue in Federal Court than any other litigant. Deere v. St. Lawrence River Power Co., 2 Cir., 32 F.2d 550. Plaintiff’s claim does not depend upon a construction of a Federal statute. It is based entirely upon a failure of the tribe to designate her as one entitled to per capita payments. If the plaintiff has rights under § 676, the relief sought in the complaint does not involve the application of that section. The plaintiff seeks a decree which, in effect, would direct the tribe to designate her as one of its members and thereby entitle her to tribal benefits. There is no allegation that the Secretary, who is
2004	whether all three elements of a PTSD claim are required to be met in this case. As a general matter, the veteran is entitled to have his case adjudicated under whichever regulatory or Manual M21-1 provision would be more favorable to him in light of regulatory change (not specifically made prospective only) while his case was on appeal to the BVA See Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991) (“where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should ... apply unless Congress provided otherwise or permitted the Secretary ... to do otherwise and the Secretary did so”); Fugere v. Derwinski, 1 Vet.App. 103, 109 (1990) (without adherence to Administrative Procedure Act notice-and-comment process and specific notice to the public of intent to revoke Manual M21-1 provision protecting benefit entitlement, Secretary cannot revoke that provision); see also Austin v. Brown, 6 Vet.App. 547, 554-55 (1994) (discussing 38 C.F.R. § 1.551(e)’s prohibition against adversely affecting anyone by matter not published in Federal Register). This Court previously has held that the Manual M21-1 provisions in paragraph 7.46 dealing with PTSD are substantive rules that are “the equivalent of [VA][r]egulations”. Hayes, 5 Vet.App. at 67. The adoption of the specific PTSD C.F.R. regulation in May 1993 rendered moot the Manual M21-1 provisions regarding PTSD adjudications except where the Manual M21-1 is more favorable to the claimant. See Hayes, Austin, Kamas,
2749	limitation of motion” and “decreased sensation.” In addition, plaintiff repeatedly questioned whether Dr. Simon had received adequate information to evaluate plaintiffs condition, and requested an opportunity to cross-examine Dr. Simon. The court determines that in these circumstances, the ALJ abused his discretion in failing to subpoena Dr. Simon to testify at the hearings. See Cruz v. Shalala, No. CV 93-5916, 1995 WL 302505 at *1 (E.D.N.Y. May 5, 1995). Because Dr. Simon did not indicate whether he received or reviewed plaintiffs medical records, including those of plaintiffs treating physician, Dr. Esteban, plaintiffs objections to the reliability of Dr. Simon’s report were “sufficiently controversial to merit cross-examination.” Fernandez v. Schweiker, 650 F.2d 5, 8 (2d Cir.1981), quoting McLaughlin v. Secretary of Health, Education and Welfare, 612 F.2d 701, 704 n. 2 (2d Cir.1980). For the ALJ, without the advice of a medical witness, to dismiss the significance of the reports of the doctors finding plaintiff disabled and rely so heavily on the perfunctory report of Dr. Simon who did not even have the MRI and CAT records before him suggests that the ALJ unjustifiably transmogrified himself into a neurologist and psychiatrist. All of plaintiffs doctors were retained by the Fire Department until Dr. Head. Yet some of those retained took plaintiffs injuries more seriously than the ALJ, who never even referred to their reports in his decision. This omission is disturbing not only because some of those reports conflicted with Dr. Simon’s assessment, but also because they document plaintiffs consistent allegations
3782	conduct protected by the First Amendment. The rational basis test would not adequately protect the interests at stake. Also inappropriate is the strict standard of review advocated by Plaintiff. Strict scrutiny is the exacting review required for regulations that target speech or expressive conduct, based on its content. See United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). While the ordinances at issue may be content-based if considered without regard to the legislative purpose behind them, the evolution of nude-dancing jurisprudence has made clear that when an ordinance’s aim is to reduce or eliminate the deleterious secondary effects associated with adult entertainment establishments, the ordinance is, legally, content-neutral. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301, 1306 (11th Cir.2003) (titling this category as “content-based regulations treated as content-neutral”) (capitalization omitted); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1364 (11th Cir.1999); see also Clark, 259 F.3d at 1004 (“Restrictions upon nude dancing are considered content-neutral because they are aimed at the so-called secondary effects of nude dancing and not at expressive conduct.”) (citing Pap’s A.M., 529 U.S. at 289-92, 120 S.Ct. 1382). That is, when the claimed intent of the law is not to suppress expressive conduct based on its message but to combat the societal ills which arguably naturally flow from that conduct, then the law
949	for a term of imprisonment exceeding one year.” In light of our recent decision in United States v. Simmons, 649 F.3d 237 (4th Cir.2011) (en banc), we reverse Ross’ conviction and remand for further proceedings. This appeal turns on § 922(g)(l)’s prohibition of the possession of a firearm by any person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1). At the time of Ross’ indictment and conviction, this court determined whether a prior conviction qualified as a felony for purposes of § 922(g)(1) by considering “the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history.” United States v. Harp, 406 F.3d 242, 246 (4th Cir.2005). While Ross’ appeal was pending, however, Harp was overruled by the en banc decision in Simmons. See Simmons, 649 F.3d at 241-42. Simmons held that a prior North Carolina offense was punishable for a term exceeding one year only if the particular defendant before the court had been eligible for such a sentence under the applicable statutory scheme, taking into account his criminal history and the nature of his offense. Id., at 247-48; see also N.C. Gen.Stat. § 15A1340.17(c)-(d) (2009) (setting forth North Carolina’s structured sentencing scheme). We agree with Ross that, on the record before us, he was not eligible on his North Carolina convictions to receive a sentence exceeding one year. Because Simmons directs the conclusion that Ross
4038	471 F.3d 353, 357 (2d Cir.2006); see also Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). The agency’s regulations provide that, although motions to rescind in absentia orders in exclusion proceedings are not subject to time or numerical limitations, to obtain rescission an alien must demonstrate that he had reasonable cause for his failure to appear. See 8 C.F.R. § 1003.23(b)(4)(iii)(B); Matter of N-B-, 22 I. & N. Dec. 590, 591 (B.I.A. 1999). Contrary to Jassi’s argument that the agency did not take his affidavit into account in reaching its decision, both the IJ and the BIA referred to the claims Jassi made in his affidavit in their decisions on the motion. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006) (“[W]e presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise.”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (holding that the BIA does not abuse its discretion by giving summary consideration to evidence presented in a motion to reopen). Jassi further argues that the agency abused its discretion in reaching a decision based solely on a finding that he failed to exercise due diligence, because he successfully demonstrated that he failed to appear for his May 1997 hearing due to ineffective assistance of counsel, and he adequately explained why he waited over 12 years to move to reopen his proceedings. This argument
2796	documents ‘requires a high level of technical expertise,’ we must defer to ‘the informed discretion of the responsible federal agencies.’ ” 490 U.S. at 377, 109 S.Ct. at 1861 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412, 96 S.Ct. 2718, 2731, 49 L.Ed.2d 576 (1976)). Defendants presented expert testimony characterizing the dioxin risks as minimal, and although plaintiffs experts, who sounded a strong warning regarding dioxin risks at even low doses, were also highly qualified, “[w]hen specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Id. at 378, 109 S.Ct. at 1861. Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1527 (10th Cir.1992). Although plaintiffs challenge the certainty with which the defendants’ experts were able to support their opinions regarding the low level of the dioxin risks, the court finds that the effect of the arguments raised is simply to emphasize the lack of definitive information available. See REC Report at 66-64 (“Large uncertainties exist in estimates of exposure, dose, background, and hazard or risk_ The general knowledge of hazardous waste incinerators as a source of dioxins has changed little since the early 1980s.”). The court finds that the Army has carefully reviewed the dioxin issue and its current uncertainties, and that the Army’s evaluation of the significance of the asserted new information is not arbitrary or capricious. Existence of alternative technologies. 13.Plaintiffs
1897	Vaad’s full name means “Council for Distribution of the Sichos.” Thus, between 1967 and 1994, Vaad submitted its weekly pamphlets to the Rebbe. Upon receiving his approval, Vaad would publish and distribute the pamphlets under the Kehot logo. In addition, the Rebbe put Vaad in charge of some of Kehot’s printing operations in 1979. The Rebbe’s failing health and eventual passing in 1994 precipitated a leadership crisis in the Lubavitcher community. Rabbi Yehuda Krinsky took over direction of Kehot and Merkos, but no one acceded to the position of Rebbe. Instead, the movement has been run in accordance with the Rebbe’s directives. .As the present case attests, not everyone agrees as .to what those directives were. See also Merkos L’Inyonei Chinuch, Inc. v. Sharf, 172 F.Supp.2d 383, 384 (E.D.N.Y.2001) (“Sharf and the other putative defendants hold the heartfelt belief that, notwithstanding his physical passing in 1994, the Rebbe still lives. Those authorized to act on behalf of Merkos in respect to the copyrighted- volumes of the Rebbe’s letters do not share this belief....”). . In January 1994, Rabbi Krinsky sent Vaad a letter purporting to terminate its relationship with Merkos and Kehot. The letter demanded that Vaad stop using the Kehot logo. Notwithstanding the letter, Vaad has continued to publish numerous works under the logo; the works contain the sichos and other content previously approved by the Rebbe. In September 2001, Merkos applied -to the PTO to register the logo as a trademark for use on “books, magazines, charts, maps,
491	Wholesale Power Contract between Soy- land and Southwestern, entered into on May 26, 1976, was void under the doctrines of mutual mistake of fact and frustration of purpose. The state court action was voluntarily dismissed by Southwestern in response to the filing of the declaratory judgment action by the United States, et al., in this Court. The parties agree that Count II of the complaint for injunctive relief is now moot. Accordingly, the Motion to Dismiss Count II of the complaint is GRANTED. To sustain dismissal of a complaint under Fed.R.Civ.P. 12(b)(6), the Court must take all well-pleaded allegations as true and construe the complaint in the light most favorable to the plaintiffs to determine whether they are entitled to relief. Conley v. Gibson, 355 U.S. 41, 45-56, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1975). “The issue is not whether plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support his claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). I — FACTS Southwestern is an Illinois not-for-profit corporation formed in 1939 to distribute electrical power to its members in the rural service area. Soyland is an Illinois not-for-profit corporation which serves as a regional generation and transmission cooperative (G & T) engaged in the wholesale production and supply of electricity to its members. Soyland’s members consist of fifteen (15) rural Illinois power cooperatives. The REA is a United States Government lending agency which, pursuant to the
3513	court permitted removal based on the extent of the government’s involvement with the matter under contention. See Winters, 901 F.Supp. at 1199; Akin, 851 F.Supp. at 823-24. Neither of these cases, however, was based exclusively on a failure to warn theory of liability and neither court considered whether the role of the government in supplying plans and specifications for construction or manufacture was sufficient to establish government control of indirectly related matters, including safety. This Court finds this distinction to be determinative. See Good, 914 F.Supp. 1125, 1130 (holding removal not appropriate when based only upon “general assertions that the government imposed specifications in the contracts” without a showing that the specific injury complained of resulted from government order); Bahrs v. Hughes Aircraft Co., 795 F.Supp. 965, 970 (D.Ariz.1992) (holding defendant sued for injuries sustained by plaintiffs as a result of the dumping of toxic substances into the ground failed to show it was acting under federal authority because there was no evidence to indicate that the government controlled the method of waste disposal). The Court also believes that blanket absolution of liability for all acts of neglect, whether or not committed under specific and direct order, would encourage laxity at the expense of human lives without any corresponding benefit. Finally, the Court can find no threat to the enforcement of federal laws if the instant ease is adjudicated in state court. “There is little or no outward indication that the civilian actions could be a direct or indirect manifestation
3059	evidence to permit a reasonable trier of fact to resolve the issue in favor of the non-moving party. U.S. v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992); see also Boston Athletic Assn. v. Sullivan, 867 F.2d 22, 24 (1st Cir.1989); Medinar-Muñoz v. R.J. Reynolds Tobacco, 896 F.2d 5, 8 (1st Cir.1990) (“A ‘genuine’ issue is one that must be decided at trial because the evidence, viewed in the light most favorable to the nonmovant, would permit a rational factfinder to resolve the issue in favor of either party.”) (citations omitted). By like token, “material” means that the fact is one that might affect the outcome of the suit under the governing law. Morris v. Government Development Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.1994). “A fact is material if it tends to resolve any of the issues that have been properly raised by the parties.” Wright, Miller & Kane, supra, § 2725 at p. 419. “Not every genuine factual conflict necessitates a trial. It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared.” Martinez v. Colón, 54 F.3d 980, 983-984 (1st Cir.1995). In addition, when determining whether to grant summary judgment, the Court may not weigh the evidence. Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668 (1st Cir.1994). Summary judgment “admits of no room for credibility determinations,
2243	been filed. LEGAL STANDARD Federal Rule of Civil Procedure 12(f) provides in relevant part that: ... the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. “Scandalous matter” has been defined as “that which improperly casts a derogatory light on someone, most typically on a party to the action.” 5 Wright and Miller, Federal Practice and Procedure, Civil, Section 1382 at 826 (footnote omitted). See also Gilbert v. Eli Lilly & Co., Inc., 56 F.R.D. 116 (D.C.PR 1972). “Scandalous pleading for purposes of Rule 12(f) must ‘reflect cruelly’ upon the defendant’s moral character, use ‘repulsive language’ or ‘detract from the dignity of the court.’ ” See Doc. No. 8 at 4, quoting Skadegaard v. Farrell, 578 F.Supp. 1209, 1221 (D.N.J.1984), citing 2A Moore’s Federal Practice, Section 12.21 at 2426. Although the invocation of Fed.R.Civ.P. 12(f) to strike an entire complaint is rare, especially in pro se matters, such an action is not unknown. Ex Parte Tyler, 70 F.R.D. 456, 457 (E.D.Mo.1976), citing Hohensee v. Watson, 188 F.Supp. 941 (M.D.Pa.1959), aff'd, 283 F.2d 950 (3d Cir.1960); Skolnick v. Hallet, 350 F.2d 861 (7th Cir.1965); See also, Agran v. Isaacs, 306 F.Supp. 945 (D.C.Ill.1969); Theriault v. Silber, 574 F.2d 197 (5th Cir.1978), cert. denied, 440 U.S. 917, 99 S.Ct. 1236, 59 L.Ed.2d 648. DISCUSSION Plaintiff accuses Allenwood officials of failing to forward favorable information to the United States Parole Commission and improperly maintaining his prison file. It is Plaintiff’s belief that the named
2519	New Agreement and are subject to its arbitration provision. “Proof that a letter properly directed was placed in a U.S. post office mail receptacle creates a presumption that it reached its destination in the usual time and was actually received by the person to whom it was addressed.” Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir.1989); see also U.S. v. Wilson, 322 F.3d 353, 362-63 (5th Cir.2003). Defendants need not prove actual receipt of the Notice or New Agreement; rather, proof of receipt “may be accomplished by presenting circumstantial evidence, including evidence of customary mailing practices used in the sender’s business.” Marsh v. First USA Bank, N.A., 103 F.Supp.2d 909, 918 (N.D.Tex.2000) (citing Wells Fargo Bus. Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir.1983)); Myer v. Callahan, 974 F.Supp. 578, 584 n. 7 (E.D.Tex.1997). In addition, the affiant in support of the mailing need not have personal knowledge of the letter’s mailing, but “at a minimum the affiant must have personal knowledge of the procedures in place at the time of mailing.” Burton v. Banta Global Turnkey Ltd., 170 Fed.Appx. 918, 924 (5th Cir. Mar.23, 2006) (citing Feb.R.Evid. 602). The court finds that the totality of the factual record does not establish that plaintiffs received the Notice or the New Agreement. Indeed, Ms. Koehler’s declaration is lacking certain key facts that other courts (including in some of the cases cited by defendants) have found significant in finding that a presumption of receipt had been
2092	the inventory search. Thus, by asking him regarding the existence of drugs, weapons or money in the car without providing the required Miranda warnings, the officer compelled Luis Fernandez Santana to needlessly incriminate himself. In the future, we advise law enforcement officers to provide the Miranda warnings immediately following the arrest of the sus pects. Such conduct will help prevent allegations of coercive interrogations and misunderstandings whether statements uttered by the defendants were voluntary or not. Registration of Luis Fernandez Santana’s Wallet was Proper Defendant Luis Fernandez Santana also claims that the evidence seized from his wallet was improperly obtained, and thus should be suppressed as a “fruit of the poisonous tree.” The First Circuit faced a similar situation in United States v. Sheehan, 583 F.2d 30 (1st Cir.1978). In Sheehan, the police detained a suspect in a bank robbery investigation. After learning he had an outstanding warrant for a motor vehicle violation, the officer arrested the suspect. At the station the policeman searched appellant’s wallet and reproduced with a photocopy machine several papers, including a piece of paper with several names and telephone numbers, then returned the originals to the wallet. The policeman sent the copies to an FBI agent, who checked on the information and determined that the paper constituted evidence that linked the appellant to a bank robbery. After his conviction, appellant argued that seizure of the list of names and phone numbers from his wallet was illegal, since it was “mere evidence of an unrelated crime.”
4791	tainted the witnesses’ ability to make reliable in-court identification and thereby deprived defendants of due process. The motion was denied. At the trial the five eyewitnesses repeated their in-eourt identifications of defendants. While witness Welch was making her identification the court again, without objection, had all of the defendants stand. During the trial defendants several times renewed their motions to suppress the in-court identifications, but the motions were denied. All of the defendants here contend that the in-court identifications described above deprived them of due process of law. Defendants are entitled to reversal if the confrontation on September 1, 1970, “was so unnecessarily suggestive and conducive to irreparable mistaken identification” as to amount to a denial of due process of law. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L. Ed.2d 1199 (1967); Foster v. California, 394 U.S. 440, 442, 89 S.Ct. 1127, 22 L. Ed.2d 402 (1969); Coleman v. Alabama, 399 U.S. 1, 3-6, 90 S.Ct. 1999, 26 L.Ed. 2d 387 (1970). See Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed. 2d 1267 (1968). As observed in Stovall, 388 U.S. at 302, 87 S.Ct. 1967, such a claimed violation of due process of law depends upon the totality of the circumstances surrounding the confrontation at issue. Stovall further indicates that the relevant considerations are not limited to those bearing upon the suggestive character of the confrontation itself, but include those pertaining to the reasons why the confrontation occurred. In addition, Foster, supra, 394
73	Uddin’s explanations for the inconsistencies that it “slipped his mind” or was a “mistake.” See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). The IJ also reasonably relied on additional inconsistencies between Uddin’s hearing testimony and his credible fear interview. We have recently held that where the record of a credible fear interview displays the hallmarks of reliability, it can be considered in assessing an alien’s credibility. Ming Zhang v. Holder, 585 F.3d 715, 722-23 (2d Cir.2009). Here, although the record of the credible fear interview was a summary, the IJ reasonably afforded it some weight, particularly because Uddin admitted that his testimony was inconsistent with the dates that he told the asylum officer during his credible fear interview. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80 (2d Cir.2004). While Uddin argues that the IJ erred by giving limited weight to his proffered evidence, the weight afforded evidence “lies largely within the discretion of the IJ,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir.2006), and the agency need not “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner.” Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006). It does appear, however, that the IJ may have been mistaken in finding that none of the letters that Uddin submitted “makes specific reference to [Uddin] having been assaulted on July 24, 2004, or on any other date.” See JA 12. The letter from a
405	INS’s failure to process Nyaga’s application does not extend Nyaga’s statutorily-limited period of eligibility for a diversity visa. “Eligible to receive such visa” is unambiguous, and because the phrase is unambiguous, our inquiry must end with the statute’s plain language. In reaching this conclusion based on the statute’s plain meaning, we are not alone. See Iddir v. INS, 301 F.3d 492, 500-01 (7th Cir.2002) (concluding that even if the INS were to adjudicate applications after the fiscal year ended, visas could not be issued); id. at 502 (Flaum, J., concurring) (concluding that the plaintiffs are no longer eligible to receive visas); Fornalik v. Perryman, 223 F.3d 523, 526 (7th Cir.2000); Vladagina v. Ashcroft, 2002 WL 1162426 (S.D.N.Y. Apr. 8, 2002) (unpublished); Iddir v. INS, 166 F.Supp.2d 1250, 1259 (N.D.Ill.2001) (holding that “[t]he end of fiscal year 1998 was September 30, 1998, which means that plaintiffs are no longer eligible to receive visas”), aff'd on other grounds, 301 F.3d 492 (7th Cir.2002); Zapata v. INS, 93 F.Supp.2d 355, 358 (S.D.N.Y.2000) (“The plain meaning of § 1154 is that after the fiscal year has ended on September 30, no diversity visas may be issued nunc pro tunc based on the results of the previous fiscal year’s visa lottery.”); Diallo v. Reno, 61 F.Supp.2d 1361, 1368 (N.D.Ga.1999). The Plaintiffs contend that when the phrase “shall remain eligible to receive such visa” is construed in light of its context, the phrase actually means “shall remain eligible to apply for such visa.” The Plaintiffs rely
3409	(3) his sentence as an armed career criminal is unconstitutional in light of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); and (4) the court erred by imposing consecutive sentences. A. Extrinsic Evidence We review a district court’s evidentiary rulings for abuse of discretion, but will not reverse if the error had “no substantial influence on the outcome.” United States v. Gunn, 369 F.3d 1229, 1236 (11th Cir.), cert. denied, — U.S. -, 125 S.Ct. 324, 160 L.Ed.2d 244 (2004); see also Fed. R.Crim.P. 52(a) (noting that errors that do not affect substantial rights must be disregarded). An error is harmless unless “there is a reasonable likelihood that [it] affected the defendant’s substantial rights.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.1990). Federal Rule of Evidence 404(b) provides Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). “To be admissible, 404(b) evidence must (1) be relevant to one of the enumerated issues and not to the defendant’s character; (2) the prior act must be proved sufficiently to permit a jury determination that the defendant committed the act; and (3) the evidence’s probative value cannot be substantially outweighed by its undue prejudice, and the evidence must satisfy Rule 403.” United
3553	S.Ct. 2451, 159 L.Ed.2d 292 (2004). CHI will not be prejudiced by our consideration of qualified immunity on the FHA claims because, as we have noted, we assume all disputed facts in CHI’s favor, and the dispositive issue — which was fully addressed during oral argument — is one of law only. We turn now to the merits. C.The Fair Housing Act The FHA applies only to “dwellings.” 42 U.S.C. § 3604. A dwelling is a structure “occupied as, or designed or intended for occupancy as, a residence,” id. at § 3602(b), an “abode or habitation to which one intends to return as distinguished from the place of temporary sojourn or transient visit,” Lakeside Resort Enters., LP v. Bd. of Supervisors of Palmyra Township, 455 F.3d 154, 157 (3d Cir.2006) (citation and internal quotation marks omitted). This court’s previous application of the FHA to Community House — which did not involve the question of qualified immunity — was based on the state of the record at the time of the preliminary injunction appeal, when the building contained an emergency shelter and SROs, where residents would stay for up to a year and a half. Cmty. House I, 490 F.3d at 1048 n. 2. We did not determine whether the River of Life facility under the BRM’s management would also be a dwelling. In fact, after our decision in Community House I, the Idaho District Court determined in a separate case that the very facility at issue, as operated by the
4950	specification, but limitations from the specification are not to be read into the claims.”) (citations omitted); CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed.Cir.2002) (“a patentee need not describe in the specification every conceivable and possible future embodiment of his invention”). “[TJhere is sometimes a fine line between reading a claim in light of the specification, and reading a limitation into the claim from the specification_ [Attempting to resolve that problem in the context of the particular patent is likely to capture the scope of the actual invention more accurately than either strictly limiting the scope of the claims to the embodiments disclosed in the specification or divorcing the claim language from the specification.” Decisioning.com, Inc. v. Federated Dept. Stores, Inc., 527 F.3d 1300, 1307-08 (Fed.Cir.2008) (quoting Comark Comm’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed.Cir.1998)). There is therefore “no magic formula or catechism for conducting claim construction,” and the court must “read the specification in light of its purposes in order to determine whether the patentee is setting out specific examples of the invention to accomplish those goals, or whether the patentee instead intends for the claims and the embodiments in the specification to be strictly coextensive.” Id. (internal citations omitted). Finally, as part of the intrinsic evidence analysis, the court “should also consider the patent’s prosecution history, if it is in evidence.” Phillips, 415 F.3d at 1317. The court should take into account, however, that the prosecution history “often lacks the clarity of
628	move for summary judgment. Meanwhile, this court decided St. Luke’s and held that the traditional “community of interests” standard could not be applied to the determination of bargaining units in the health care field. 653 F.2d at 455. We reasoned that for health care facilities the Board must pay heed to the legislative history of the 1974 Amendments to the National Labor Relations Act in which Congress directed the Board to prevent undue proliferation of bargaining units in the health care field. Id. at 453. Given Congress’ admonition, we concluded that “traditional factors used in scope determinations ‘must be put in balance against the public interest in preventing fragmentation in the health care field.’ ” Id. at 455 (quoting St. Vincent’s Hosp. v. NLRB, 567 F.2d 588, 592 (3d Cir.1977)). Finally, we held that the proper analysis necessitates focusing on the “disparity of interests” between employee groups which inhibits fair representation rather than similarities of interest which the traditional “community of interests” test mandates. St. Luke’s, 653 F.2d at 456. In light of St. Luke’s and similar decisions in other circuits , the Board — subse quent to the initial unit determination in the case before us — decided St. Francis Hosp., 271 N.L.R.B. 948 (1984) (St. Francis II), rev’d, International Bhd. of Elec. Workers v. NLRB, 814 F.2d 697 (D.C.Cir.1987). There, the Board formally adopted the “disparity of interests” test for unit determinations in the health care field. 271 N.L.R.B. at 953. Because of this change, the Board denied
4124	p.m., and is too tired to even go to a movie. Tr. at 156. Dockery testified that prior to the accident, he had no trouble sleeping, but since the accident, he has trouble sleeping through the night due to discomfort and pain. Tr. at 138. Lisa Dockery testified that when Dockery wakes up in the night from the pain, her own ability to sleep suffers. Tr. at 157. She also testified that due to the accident, the couple’s intimate relationship has diminished to next to nothing. Tr. at 158. II. The Federal Tort Claims Act (FTCA) generally “The United States enjoys sovereign immunity; it cannot be sued without its consent, and such consent is a prerequisite for jurisdiction.” See United States v. Navajo Nation, 537 U.S. 488, 502, 123 S.Ct. 1079, 155 L.Ed.2d 60 (2003). “Congress has given limited consent to suit in the FTCA, which does not create new causes of action, but only waives immunity under circumstances that would create liability ‘in the same manner and to the same extent as a private individual under like circumstances.’ ” Dorking Genetics v. United States, 76 F.3d 1261, 1266 (2d Cir. 1996) (quoting 28 U.S.C. § 2674). To satisfy the elements of the FTCA, a claim must be: against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the
3617	request. However, Eason’s counsel stated the video was “not relevant to this case in that it’s not about this case.” The district court repeated that the video had “nothing to do with this case,” to which the defense responded “[cjorrect.” “[A] witness may not be impeached on a collateral matter by the use of extrinsic evidence.” United States v. Grooms, 978 F.2d 425, 428 (8th Cir. 1992). Eason conceded that the video as presented to the court was not a “matter material to the substantive issues of the case,” id. at 429 (quoting Cwach v. United States, 212 F.2d 520, 530 (8th Cir. 1954)), and thus it “could not be shown in evidence for any purpose independent of the contradiction.” United States v. Roulette, 75 F.3d 418, 423 (8th Cir. 1996). The video was “therefore inadmissible” based on the information given by defense counsel at the time. Id. The district court allowed Eason to question Officer Kuykendall about the video, agreeing with Eason that this line of impeachment was acceptable. And Eason followed up by questioning Officer Kuyken-dall about whether he had a “video unit” in his squad car. The district court did not abuse its discretion in not permitting the defense to play the video during initial recross examination. Eason also asserts error when the district court denied his later request to show the video to Officer Kuykendall for the purpose of impeaching him. The government objected, this time asserting a Rule 16 discovery violation. The reciprocal discovery rule,
4943	letter as procedurally improper and misstating the record (docket no. 111). The Court hereby grants the motion to strike Sun’s letter brief (docket no. 109) pursuant to Civil Local Rule 7-3(d). The procedural history of this action is summarized in the December 22, 2008 Order, 2008 WL 5384081, construing the Sun patents. Having read the papers and considered the arguments of counsel and the relevant legal authority, the Court hereby rules as follows. I. LEGAL STANDARD In construing claims, the court must begin with an examination of the claim language itself. The terms used in the claims are generally given their “ordinary and customary meaning.” See Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed.Cir.2005); see also Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed.Cir.1998) (“The claims define the scope of the right to exclude; the claim construction inquiry, therefore, begins and ends in all cases with the actual words of the claim.”). This ordinary and customary meaning “is the meaning that the terms would have to a person of ordinary skill in the art in question at the time of the invention .... ” Phillips, 415 F.3d at 1313. A patentee is presumed to have intended the ordinary meaning of a claim term in the absence of an express intent to the contrary. York Products, Inc. v. Central Tractor Farm & Family Ctr., 99 F.3d 1568, 1572 (Fed.Cir.1996). Generally speaking, the words in a claim are to be interpreted “in light of the intrinsic evidence
4426	particularity than BoA provided. E. The plaintiffs also argue that the defendants were obliged to disclose the imminence and amount of the AIG suit under Item 303. However, no such disclosure was required under Item 303 because the imminence and amount of AIG’s suit were insufficiently certain. Item 303 requires that companies disclose “any known trends ... or uncertainties that will result in or that are reasonably likely” to have a material effect on liquidity. 17 C.F.R. § 229.303(a)(1). “[T]he Regulation imposes a disclosure duty where a trend, demand, commitment, event or uncertainty is both [1] presently known to management and [2] reasonably likely to have material effects on the registrant’s financial condition or results of operations.” Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114, 120 (2d Cir.2012) (internal quotation marks omitted). As an initial matter, the plaintiffs’ Item 303 claim fails because the Second Amended Complaint contains no allegation that the eventual filing of the AIG suit was ever presently known to BoA management, as Item 303 requires. See Panther Partners, 681 F.3d at 120 (finding sufficient knowledge where company knew that it would have to accept returns of all product or else take substantial action). However, the plaintiffs Item 303 claim also fails because the plaintiffs have not sufficiently alleged that the AIG suit was “reasonably likely” to generate any loss, let alone a material loss. The plaintiffs allege that the likelihood that BoA would incur losses as a result of the AIG suit was “reasonably
2189	factor in adjusting the lodestar, see, e.g., Coutin, 124 F.3d at 339-40, extraction of “unsuccessful” hours when calculating the lodestar would run the risk of doubly reducing the award, see Phetosomphone, 984 F.2d at 8. The one exception is that the Court eliminated, to the extent it was discernible, much of the time spent working on the malicious prosecution claim on the ground that the claim was tangentially related to the successful claims in the case. “Attorneys’ fees normally should not be awarded for time spent in litigating (or preparing to litigate) unsuccessful, severable claims.” Coutin, 124 F.3d at 339 (citing Hensley, 461 U.S. at 435, 103 S.Ct. 1933, and Lipsett, 975 F.2d at 940); see also, e.g., Koster v. Trans World Airlines, Inc.,. 181 F.3d 24, 38 (1st Cir.1999). Claims are severable when they “rest on different facts and legal theories.” Coutin, 124 F.3d at 339; see also, e.g., Koster, 181 F.3d at 38. The malicious prosecution claim stemmed from a distinct set of events that occurred after the incidents at Night Games and in the holding cell — namely, defendant Aufiero’s compilation of the incident report, defendants’ decision to charge plaintiffs with affray, apd the resulting criminal trials. See Goodwin v. Metts, 973 F.2d 378, 382-83 (4th Cir.1992) (holding that civil rights plaintiffs’ malicious prosecution claims were unrelated to their other claims); Lenard v. Argento, 808 F.2d 1242, 1246-47 (7th Cir.1987) (finding plaintiffs malicious prosecution claim temporally and conceptually distinct from his excessive force claim). It is not
586	and so leave to amend should not be granted. A. Standard for Leave to Amend Amendment of pleadings is governed by Federal Rule of Civil Procedure 15, which provides in part that “leave shall be freely given when justice so requires.” Fed. R.Civ.P. 15(a). Amendment under Rule 15(a) would include amendment of an answer to include an affirmative defense. Charpen-tier v. Godsil, 937 F.2d 859, 863-64 (3d Cir. 1991). “Unless the opposing party will be prejudiced, leave to amend should generally be allowed.” Charpentier, 937 F.2d at 864. An exception to this general rule would be that “leave to amend may be denied where amendment would be futile because the defenses sought to be added are legally insufficient.” United States v. Fleetwood Enterprises, Inc., 702 F.Supp. 1082, 1085 (D.Del. 1988). B. Pleading of Affirmative Defenses A party defending a claim is required to plead a matter which constitutes avoidance or an affirmative defense. Fed. R.Civ.P. 8(c). Failure to plead an affirmative defense leads to waiver of the defense, supra note 2, unless amendment to the responsive pleading is permitted. Charpentier, 937 F.2d at 863-64. “Matters treated as affirmative defenses under state law are generally treated in the same way by federal courts in diversity cases.” Charpentier, 937 F.2d at 863. The question in this case, then, is whether spoliation of evidence is an affirmative defense. If so, then leave to amend should be granted; if not, the matter is superfluous and leave to amend will not be granted. It should
1183	part of a classification process rather than as the outcome of disciplinary proceedings which afford due process protections. As evidence that plaintiffs’ prospects on this issue were not favorable, the district court relied on King v. Fairman, 997 F.2d 259, 262 n. 4 (7th Cir.1993), in which we cited Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), for the proposition that “an inmate has no liberty interest in confinement at any particular state prison and that prison officials may effect discretionary transfers of an inmate without implicating the due process clause, even if the conditions at one prison are substantially worse than another.” Taifa, 846 F.Supp. at 726-27. See also Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); Montanye v. Haymes, 427 U.S. 236, 242, 96 S.Ct. 2543, 2547, (1976). All of these decisions were recognized by the district court as undermining plaintiffs’ chances of success on the merits. Taifa, 846 F.Supp. at 727. The district court then observed that despite its doubt that plaintiffs would prevail with their claims regarding their transfer to and indefinite confinement at the MCC, the defendants had agreed both to specific criteria to be utilized for the assignment of prisoners to the MCC and to specific procedures and conditions for transfer from the MCC. Id. Similarly, the district court described plaintiffs’ burden of demonstrating that conditions at the MCC violated the Eighth Amendment as “formidable”. Id. Counsel for plaintiff class concede
1905	the operation of Kehot was something more than a license to use its name. Cf. Levitt Corp. v. Levitt, 593 F.2d 463, 468 (2d Cir.1979) (“Where ... the infringing party has previously sold his business, including use of his name and its goodwill, to the plaintiff, sweeping injunctive relief [against his continued use of the name] is more tolerable.”). In sum, the TTAB’s finding that Merkos owned the Kehot logo was supported by substantial evidence. Indeed, even without giving any deference to that finding, the Court would reach the same conclusion as a matter of law. B. What is the Kehot logo? The function of a trademark is “to identify and distinguish goods ... and to indicate their source.” American Express Co. v. Goetz, 515 F.3d 156, 159 (2d Cir.2008) (citing 15 U.S.C. § 1127). Another type of mark — known as a certification mark — is used “to certify regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics of [goods or services].” 15 U.S.C. § 1127. Thus, “[o]ne who sees a certification mark on a product or in connection with a service is entitled to assume that that product or service in fact meets whatever standards of safety or quality have been set up and advertised by the certifier.” 1 McCarthy on Trademarks § 4:15. An example— particularly apt in this case — are the various hechsherim used to certify that food products comply with Jewish dietary laws. Vaad argues that the Kehot logo is
4548	County claims that because “Congress knew how to authorize- a lawsuit by [the United States],” there is ‘“strong evidence’ that no lawsuit was . authorized here.” (Doc. 334 at 6). The United States challenges this assertion through interpretation of the phrase “any other means authorized by law” in Title VI. 42 U.S.C. § 2000d-1. Under Title VI, compliance may be effected “by termination of or refusal to grant or to continue assistance” or “by any other means authorized by law.” 42 U.S.C. § 2000d-l. The parties focus-, on the interpretation of the phrase “any other means authorized by law.” The United States relies on National Black Police Association Inc. v. Velde, 712 F.2d 569, 575 (D.C.Cir.1983) and United States v. Baylor University Medical Center, 736 F.2d 1039, 1050 (5th Cir.1-984), each of which recognizes “any other means authorized by law” as including enforcement options beyond administrative action. See also Guardians Ass’n v. Civil Serv. Comm’n of City of New York, 463 U.S. 582, 630, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) (J. Marshall, dissenting) (“[I]n extending grants the United States has always retained an inherent right to sue for enforcement of the recipient’s obligation.”). Maricopa County claims Velde and Baylor University Medical Center do not represent the current approach to statutory interpretation which was abandoned by the Supreme Court in Alexander v. Sandoval. 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). In Sandoval, the Supreme Court condemned lower courts’ liberal implication of private rights of action “to provide
4876	the need to maintain institutional integrity and the desirability of deterring future misconduct.” Aoude II, 892 F.2d at 1118. Dismissal, we have cautioned, is “an extreme remedy, and should not lightly be engaged.” Id. Manifestly, the same would be true of a pre-trial motion for judgment such as that sought by plaintiffs here. In denying plaintiffs’ motion, the district court did not abuse its discretion. To the contrary, it forged what strikes us as an acceptable accommodation of competing principles: Plaintiffs were given an opportunity to prove their allegations of misconduct, and defendants received a hearing on the merits. We likewise find no abuse in the trial court’s denial of plaintiffs’ request for a pre-trial evidentiary hearing. See Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 527 (1st Cir.1991) (trial court’s decision not to convene evidentiary hearing normally reviewable for abuse). It is well settled that “ ‘motions do not usually culminate in evidentiary hearings.’ ” United States v. Cannons Engineering Corp., 899 F.2d 79, 94 (1st Cir.1990) (quoting Aoude II, 892 F.2d at 1120). Where the parties have had a “fair opportunity to present relevant facts and argument to the court,” a matter may be “ ‘heard’ on the papers” alone. Aoude v. Mobil Oil Corp., 862 F.2d 890, 894 (1st Cir.1988) (Aoude I). Such was the case here. Plaintiffs submitted extensive pleadings and documentary evidence in support of their fraud on the court claim. In addition to Oses’s letters to Ivan Rodriguez and Agent Leonard, the court
4401	the reasons explained below, the motion to dismiss is granted. I. In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiffs’ favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). A complaint should not be dismissed if the plaintiffs have stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff[s] plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While factual allegations should be construed in the light most favorable to the plaintiffs, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. A claim under Section 10(b) of the Securities Exchange Act sounds in fraud and must meet the pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure and the Private Securities Litigation
1956	Cir.1991) (statute requires that defendant know factually what he is doing, not “that he know that there is a regulation which says what he is storing is hazardous under the RCRA”); United States v. Sellers, 926 F.2d 410, 415 (5th Cir.1991) (government need not prove that defendant knew that the waste was hazardous within the meaning of the regulations, only that the defendant knew what the waste was, i.e., “paint,” “solvent,” etc.); United States v. Hoflin, 880 F.2d 1033, 1039 (9th Cir.1989) (jury required to find that defendant “disposed of chemical waste which he knew ‘had the potential to be harmful to others or to the environment’ ”), cert. denied, 493 U.S. 1083, 110 S.Ct. 1143, 107 L.Ed.2d 1047 (1990); United States v. Greer, 850 F.2d 1447, 1452 (evidence sufficient to show that defendant knew that dumping a load of 1,1,1 triehloroethane “would pose harm to others or the environment”). In United States v. Laughlin, 768 F.Supp. 957 (N.D.N.Y.1991), the Government contended that a violation of § 6928(d)(2)(A) would be proved by establishing the following four elements: (1) that the defendant knowingly stored or disposed of a substance during the time period alleged in the indictment; (2) that pursuant to RCRA, the substance was hazardous; (3) that the defendants knew that the substance had the potential to be harmful to others or the environment, “or in other words, it was not an innocuous substance like water;” and (4) that the defendants had not obtained a permit or interim status authorizing
3809	"her to wear more than pasties and a G-string. As the Seventh Circuit has held, “it is still the case that to avoid the Ordinance!],] dancers must not convey an erotic message through their movements (or they must wear significantly more clothing than the amount we have considered to be [a de minimis burden] in past cases).” R.V.S., 361 F.3d at 414. The First Amendment cannot both protect the expressive element of erotic dancing and also restrict and contort it by prohibiting the very movements that contribute to its erotic message. ""While the public en masse may not approve of such explicit performances, the First Amendment does not turn on generally accepted views of propriety. “[O]ne man’s vulgarity is another’s lyric.” Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). While the County may properly prohibit overt sex acts as part of a performance, the AEC’s simulation provision tramples too heavily on free expression by “interfer[ing] substantially with the dancer’s ability to communicate her erotic message.” Schulte, 228 F.3d at 847. Section 3-129(6), as written, is unconstitutional; it is severed pursuant to section 1-11 of the Orange County Code. C. Intentional Touching Provision — ■ Section 3-129(9) Section 3-129(9) makes it a crime for an adult entertainment establishment worker to “[i]ntentionally touch the clothed or unclothed body of any customer at the adult entertainment establishment, at any point below the waist and above the knee of the person” or to “intentionally touch the clothed or"
1788	"in an accused product, exactly.” Southwall Tech., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed.Cir.), cert, denied, 516 U.S. 987, 116 S.Ct. 515, 133 L.Ed.2d 424 (1995). If even a single limitation is not present in the accused device, literal infringement does not exist as a matter of law. Such a device, however, can still be found to infringe a patent under the doctrine of equivalents. This doctrine provides that “a product or process that does not literally infringe upon the express terms of a patent claim may nonetheless be found to infringe if there is ‘equivalence’ between the elements of the accused product or process and the claimed elements of the patented invention.” Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 21, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997). The doctrine recognizes that to permit imitation of a patented invention which does not copy every literal detail would be to convert the protection of the patent grant into a hollow and useless thing. Such a limitation would leave room for — indeed encourage — the unscrupulous copyist to ""make unimportant and insubstantial changes and substitutions in the patent which, though adding nothing, would be enough to take the copied matter outside the claim, and hence outside the reach of law. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 607, 70 S.Ct. 854, 94 L.Ed. 1097 (1950). Under the doctrine of equivalents, a product can infringe an asserted patent claim"
499	as to Southwestern. The defendant makes no attempt to assert that this contract is against public policy, and the Court finds that it is not. Moreover, requiring Southwestern and Soy-land to enter into the contract, as a method of securing their loans, was well within the power of the Administrator of the REA. 7 U.S.C. § 904. Ill — STANDING TO SUE The Supreme Court in Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) addressed the requirements of standing under Article III. The Court stated that “in essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Id. at 3325 (quoting Worth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975)). Allen discussed the various elements of the complaint which are to be considered'in determining the existence of standing: A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief (citations omitted).... The injury must be, for example, “distinct and palpable,” ... and not “abstract” or “conjectural” or “hypothetical”.... The injury must be “fairly” traceable to the challenged action, and relief from the injury must be “likely” to follow from a favorable decision. Id. (citations omitted). The Allen Court cautions that “the standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an adjudication
53	of illegal reentry. He contends that his sentence is substantively unreasonable because it is greater than necessary to satisfy the 18 U.S.C. § 3558(a) factors. We review the substantive reasonableness of a sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.2008). “The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009). Duran-Olvera’s arguments that his sentence is substantively unreasonable because U.S.S.G. § 2L1.2 lacks an empirical basis, double-counted his prior conviction in the calculation of the offense level and criminal history score, and overstates the seriousness of illegal reentry are unavailing. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.2009); United States v. Juarez-Duarte, 513 F.3d 204, 212 (5th Cir.2008); United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.2006). The district court was aware of the impact of Duran-Olvera’s prior conviction on the calculation of the guidelines range and his other mitigating factors. However, the district court imposed a sentence at the bottom of the guidelines range because Duran-Olvera evinced a lack of respect for the law by
3815	95 at 17.) The lack of a time limit in which the County, in conjunction with the tax collector, must suspend a license based on certain convictions or violations of the law does not render the provision an unconstitutional prior restraint. “The lack of time limits on revocation [or suspension] in [the ordinance] is not of substantial concern in a prior restraint analysis because no speech is chilled prior to the time that the permit is actually revoked.” United Youth Careers, Inc. v. City of Ames, 412 F.Supp.2d 994, 1006 (S.D.Iowa 2006) (citing Jake’s Ltd., Inc. v. City of Coates, 284 F.3d 884, 890 (8th Cir.2002)). The law “makes a firm distinction between prior restraints and subsequent punishments.” Id. (citing Alexander v. United States, 509 U.S. 544, 553-54, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993)). “Thus, if it takes two days before revocation or two years, no speech has been unduly impinged by the lack of time restraints on revoking a permit issued under the ordinance.” Id. The ordinance allows notice to the license holder, timely challenge in front of a hearing officer, and timely appeal and judicial review. See id.; AEC § 3-37. During such time, the suspension is abated and the license holder can continue operating. The provision is not facially infirm. D. Section 3-36(c), Revocation Based on an Operator’s Convictions or Violations Plaintiff also challenges section 3-36(e), which allows license revocation upon an operator’s commission of three or more specified criminal acts at the adult entertainment establishment
2024	provisions discussed in part II.B.l.a., above, and then relying on independent medical evidence providing a basis for any such rejec tion. See West and Colvin, both supra; Wilkinson v. Brown, 8 Vet.App. 263, 271 (1995). In addition, the Court notes that in this case, because the veteran’s PTSD claim was well grounded, if the Board was in doubt as to the sufficiency of the veteran’s medical evidence, as it clearly was here, then fulfillment of the statutory duty to assist under section 5107(a) would require that VA provide a comprehensive, current examination in accordance with the applicable DSM criteria; the Board could not just deny the claim without providing such assistance. See Allday v. Brown, 7 Vet.App. 517, 526 (1995) (citing Suttmann v. Brown, 5 Vet.App. 127, 138 (1993) and Green (Victor) v. Derwinski, 1 Vet.App. 121, 124 (1991) (duty to assist may include “the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one”)). In view of the foregoing, the Court holds, on this record, that the undisputed, unequivocal diagnoses of PTSD by the three mental-health professionals establish the current disability as a matter of law. As a result, the asserted stressors in this ease in terms of the veteran’s experiences in the war are, as a general matter, presumed — and here have actually been found by three mental-health professionals as shown by their current
2399	in order to establish the “grounds” of his “entitle[ment] to relief,” a plaintiff must furnish “more.than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). The Court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). The complaint “is construed liberally in [plaintiffs] favor, and [the Court should] grant [plaintiff] the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). However, the Court need not accept inferences that are not supported by the facts alleged and legal conclusions drawn by plaintiff. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Under the ADEA it is .“unlawful for an employer ... to fail or refuse to hire ... any individual ... with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). A successful claim under the ADEA requires a plaintiff
4370	would rule. Plaintiff contends that the Law Court would answer Defendant’s proposed question in favor of Plaintiff, and hold that so long as Plaintiff is fully subject to federal regulation, Plaintiff is not required to pay Maine producers the minimum price set by the Maine Milk Commission on milk purchased from Maine dairy farmers and distributed to Maine consumers. The Court agrees with Plaintiffs position. Plaintiff acknowledges, as does the Court, that the Supreme Judicial Court has not addressed the precise question presented by Defendants. Nevertheless, in the absence of a determinative ruling from the Supreme Judicial Court, the Court may predict what the state’s highest court would do when “the course [the] state court[ ] would take is reasonably clear.” Porter v. Nutter, 913 F.2d 37, 41 n. 4 (1st Cir.1990); Bi-Rite Enterprises, Inc. v. Bruce Miner Co., 757 F.2d 440, 443 n. 3 (1st Cir.1985) (“it is inappropriate for a federal court to use such a [certification] procedure when the course state courts would take is reasonably clear.”) In making such a prediction, “a federal court may consider ‘analogous decisions, considered dicta, scholarly works, and any other rehable data tending convincingly to show how the highest court in the state would decide the issue at hand.’” E.G. Fischer, 857 F.2d at 7 (quoting Michelin Tires, etc. v. First Nat’l Bank of Boston, 666 F.2d 673, 682 (1st Cir.1981)). Based on existing precedent from the Supreme Judicial Court and a Superior Court decision analyzing the relationship between the state
3692	Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir.2002) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). Even assuming the Jensens could satisfy the other requirements under the test, they failed to establish that the County lacked a rational basis for having complaint-driven enforcement of an ordinance or for prohibiting the outdoor storage of non-operative vehicles while allowing the indoor storage of such vehicles, the outdoor storage of operative vehicles, and the outdoor storage of historic vehicles. While a complaint-driven system of enforcement could theoretically leave some unreported violations unabated, an efficient allocation of limited enforcement resources provides a rational basis for a complaint-based system. Cf. Rosenbaum v. City and Cnty. of San Francisco, 484 F.3d 1142, 1155 (9th Cir.2007) (“[T]he police may legitimately respond to citizen complaints and stop excessive amplified sound, especially if unpermitted.”). And the County’s stated environmental concerns are sufficient to justify its distinction between the outdoor storage of non-operative vehicles and other permitted vehicle storage. The County also had a rational basis for concluding that the Jensens did not have a protected grandfathered use of their property pursuant to Hansen Brothers Enterprises, Inc. v. Board of Supervisors, 12 Cal.4th 533, 48 Cal.Rptr.2d 778, 907 P.2d 1324 (1996). The County could only have committed a substantive due process violation in denying the Jensens’ grandfathered use if it “could have had no legitimate reason for its decision.” Richardson v. City and Cnty. of Honolulu, 124 F.3d 1150,
4433	v. Arbitron Inc., 741 F.Supp.2d 474, 488 (S.D.N.Y.2010). Further, “in determining whether the pleaded facts give rise to a ‘strong’ inference of scienter, the court must take into account plausible opposing inferences.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). A complaint sufficiently alleges scienter when “a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.” Id. at 324, 127 S.Ct. 2499; ATSI, 493 F.3d 87, 99 (2d Cir.2007). Because the plaintiffs allege fraudulent omissions, rather than false statements, “it is especially important to rigorously apply the standard for pleading intent.” In re GeoPharma, Inc. Sec. Litig., 411 F.Supp.2d 434, 437 (S.D.N.Y.2006). The Second Amended Complaint does not sufficiently allege that the defendants acted with reckless disregard for a known or obvious duty. Several factors, including third party disclosure of relevant information, BoA’s own disclosures, and BoA’s apparent compliance with relevant regulatory provisions, support an inference against scienter that is far stronger than the competing inference that the plaintiffs’ suggest. The public domain contained media reports that disclosed the probability of AIG’s suit and its approximate amount. Additionally, AIG published a precise breakdown of its MBS portfolio, complete with counterparties and losses. The market’s access to this information about the AIG suit supports a compelling inference that any failure to disclose occurred because the defendants reasonably believed that no further disclosure was required.
3509	must also prove “a federal nexus between the actions for which [it is] being sued and the directives of federal officers.” Ryan, 781 F.Supp. at 945. The nexus requirement is established by showing that the state prosecution “has arisen out of the acts done by [the defendant] under color of federal authority and in enforcement of federal law.” Mesa, 489 U.S. at 131-32, 109 S.Ct. at 966 (quoting Maryland v. Soper, 270 U.S. 9, 33, 46 S.Ct. 185, 190-91, 70 L.Ed. 449 (1926)); Ryan, 781 F.Supp. at 946 (“Critical under the statute is ‘to what extent defendants acted under federal direction’ at the time they were engaged in the conduct now being sued upon.”) (quoting Gurda Farms, Inc. v. Monroe County Legal Assistance Corp., 358 F.Supp. 841, 844 (S.D.N.Y.1973)). To sustain this burden, the defendant must also “by direct averment exclude the possibflity that [the state action] was based on acts or conduct of his not justified by his federal duty.” Mesa, 489 U.S. at 132, 109 S.Ct. at 966. Because the claims asserted by the Estate in this case are predicated on negligence and limited to a failure to warn theory of liability, Armeo must show that the government authority it operated under directly interfered with its ability to fulfill its state law obligation to warn its employees of safety hazards. See Ryan, 781 F.Supp. at 950 (holding removal improper under § 1442(a)(1) because defendants were sued for producing a product comprised of components developed without government control and
4747	which has come into being by operation of law, are the same that existed between the service provider and the failed financial institution. Because the language of the statute creates contractual rights and relationships, the implicit remedy for a violation of the statute is an action for breach of contract, and not necessarily an independent private federal action based on the statute itself. The conduct prohibited by Section 471— failing to continue to provide services to RTC transferees — directly benefits RTC transferees. Similarly, a violation of Section 471 would directly injure an RTC transferee. Thus, an RTC transferee appears from the language of the statute itself to be “one of the class for whose especial benefit the statute was enacted.” Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975). However, “the fact that an enactment is designed to benefit a particular class does not end the inquiry; instead, it must also be asked whether the language of the statute indicates that Congress intended that it be enforced through private litigation.” Universities Research Ass’n v. Coutu, 450 U.S. 754, 771, 101 S.Ct. 1451, 1462, 67 L.Ed.2d 662 (1981); see also Touche Ross & Co., 442 U.S. at 576, 99 S.Ct. at 2489 (“Certainly, the mere fact that § 17(a) was designed to provide protection for brokers’ customers does not require the implication of a private damages action in their behalf.”). The language of the statute does not appear to create any remedy for the
1118	also Sweet Dreams Unlimited, Inc. v. Dial-A-Mattress Int’l, Ltd., 1 F.3d 639, 641 (7th Cir.1993). Indeed, while the FAA “embodies a strong federal policy in favor of arbitration, ... the duty to arbitrate remains one assumed by contract.” Sweet Dreams Unlimited, 1 F.3d at 641. Thus, the presumption of arbitrability applies only where an arbitration agreement is ambiguous about whether it covers the dispute at hand. See Granite Rock, 130 S.Ct. at 2858-59. Otherwise, the plain language of the contract controls. CardioNet, Inc., 751 F.3d at 172-73. Defendants emphasize the fact that, under Third Circuit precedent, “when phrases such as ‘arising under’ and ‘arising out of appear in arbitration provisions, they are normally given broad construction ....” Defs.’ Mem. 8 (quoting Battaglia v. McKendry, 233 F.3d 720, 727 (3d Cir.2000)); see also Medtronic AVE Inc. v. Cordis Corp., 100 Fed.Appx. 865, 868 (3d Cir.2004) (“Coupled with [the Third Circuit’s] usual’ strong presumption in favor of arbitrability ... a clause providing for the arbitration of all matters ‘arising from’ an agreement overwhelmingly suggests that a given dispute is arbitrable.”). In addition, Defendants cite several cases in which courts in this circuit have found broad arbitration clauses in employment agreements to encompass statutory claims such as those raised here. See Tripp v. Renaissance Advantage Charter Sch., No. CIV.A. 02-9366, 2003 WL 22519433, at *3 (E.D.Pa. Oct. 8, 2003) (concluding that a plaintiffs Fair Labor Standards Act claim fell within an, arbitration clause in her employment agreement stating that “[a]ll disputes arising out
2823	well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (2000). An applicant can establish refugee status based on past persecution in her native country on account of a protected ground. 8 C.F.R. § 1208.13(b)(1) (2005). “An applicant who demonstrates that [s]he was the subject of past persecution is presumed to have a well-founded fear of persecution.” Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.2004) (alteration added). To establish eligibility for withholding of removal, an alien must show a clear probability that, if she was removed to her native country, her “life or freedom would be threatened” on a protected ground. 8 U.S.C. § 1231(b)(3)(A) (2000); see Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir.2004). An applicant has the burden of demonstrating her eligibility for asylum. 8 C.F.R. § 1208.13(a) (2005); Gonahasa v. INS, 181 F.3d 538, 541 (4th Cir.1999). Credibility findings are reviewed for substantial evidence. A trier of fact who rejects an applicant’s testimony on credibility grounds must offer specific, cogent reasons for doing so. Figeroa v. INS, 886 F.2d 76, 78 (4th Cir.1989). This court accords broad, though not unlimited, deference to credibility findings supported by substantial evidence. Camara, 378 F.3d at 367. A determination regarding eligibility for asylum or withholding of removal is conclusive if supported by substantial evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Administrative
823	single entity. See Pulitzer Publ’g Co. v. Nat’l Labors Relations Bd., 618 F.2d 1275, 1279 (8th Cir. 1980). When analyzing whether a parent company is an employer under Title VII, the United States Court of Appeals for the Eighth Circuit recognizes that the parent company is the actual employer if the parent company so dominates the subsidiary’s operations that the two are one entity and therefore one employer, or if the parent company is linked to the alleged discrimination action because it controls “individual employment decisions.” Brown v. Fred’s Inc., 494 F.3d 736, 739 (8th Cir. 2007). Factors under such an analysis include whether there is interrelation of operations, common management, centralized control of labor relations, and common ownership. Scheidecker v. Arvig Enter., Inc., 122 F.Supp.2d, 1031, 1037 (D.Minn. 2000). In general, “liberal construction is ... to be given to the definition of employer’ ” under Title VII. Sandoval v. Am. Bldg. Maint. Indus., Inc., 578 F.3d 787, 793 (8th Cir.2009). Under the circumstances of this case, even if this Court were to consider Cow Country Equipment to be a separate subsidiary and legal entity apart from Ace Steel, the circumstances of the operation indicate a single entity, or at a minimum a genuine issue of material fact as to whether there is a single entity. After all, Nelson was given information that “everyone that works at Cow Country is really working for Ace Steel,” and was provided payroll and other employment information indicating that the entity for which she
94	(1982) (per curiam) (quoting United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208-09, 63 L.Ed.2d 479 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1950-51, 23 L.Ed.2d 491 (1969))); see also 6A Moore’s Federal Practice ¶ 57.13, at 57-123 & n. 11 (2d ed. 1991). While standing focuses on the status of the parties when an action is commenced, the mootness doctrine requires that the plaintiffs’ claims remain alive throughout the course of the proceedings. 13A C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3533, at 211 (2d ed. 1984). The “case or controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). In assessing whether a case is moot, we must examine all the facts and circumstances. Where, as here, a class action is involved, the Supreme Court has indicated that a “flexible” approach to the mootness doctrine is warranted. Geraghty, 445 U.S. at 400, 100 S.Ct. at 1210-11. As the Supreme Court recently has reiterated, even when the class representatives’ claims have been rendered moot, the claims of the unnamed members of the class may remain alive. County of Riverside v. McLaughlin, — U.S. —, 111 S.Ct. 1661, 1667, 114 L.Ed.2d 49 (1991). Moreover, the party seeking to have the case dismissed bears the burden of demonstrating mootness and that burden “is a heavy one.” County
1609	on several grounds of varying substantiality: a. The prosecution notes that both Karp and Gleason have made prior motions. It stresses particularly that defendant Gleason “made a motion for severance pursuant to Rule 14 which was denied.” Affidavit in Opposition, par. 4 (emphasis in original). It omits, however, that Gleason’s motion was upon an entirely different ground. In the end, neither that motion nor any of the others presents any weighty reason for denying the present one. Indeed, the supplying of particulars and other developments as this case has moved, somewhat slowly, toward trial would seem to make the motion more appropriate and persuasive now than it might have been at some “relatively early stage of the proceedings * * United States v. Ber-man, 24 F.R.D. 26, 29 (S.D.N.Y.1959). b. The Government points out. that Rule 8(b) allows joinder in cases like this one and that there is a broad measure of discretion in deciding motions for severance under Rule 14. This helps to define the problem. It is not, nor is it claimed to be, sufficient ground for decision either way. c. The Assistant United States Attorney reports that he has spoken to Pit-kin’s attorney, who says “he would advise the defendant Pitkin to invoke his privilege under the Fifth Amendment” if Pitkin were called to testify “before a final disposition of his case * * Affidavit in Opposition, par. 9. Accordingly, the prosecutor adds (ibid): “It is hard to believe that defendant Karp does not suspect this and
4887	of mind. On appeal, plaintiffs contend that the court committed reversible error. We earlier have noted that relevancy determinations will be disturbed only upon a finding of abuse, St. Michael’s Credit Union, 880 F.2d at 600. Defendants argued to the district court that their knowledge of Ivan Rodriguez’s criminal record and the seizure of weapons was relevant to show their belief that this was not an ordinary kidnapping and that, in entering the Fernandez home, they faced a particularly great risk of a dangerous encounter. In a case such as this, alleging excessive and unreasonable force, liability depends upon whether the defendants’ actions were “reasonable in light of the facts and circumstances confronting them” at the time of the incident. See Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989); Dean v. City of Worcester, 924 F.2d 364, 367 (1st Cir.1991). We have little trouble seeing how defendants’ knowledge both of the cache of weapons seized from the Fernandez home and Rodriguez’s criminal history might have informed their judgment at the time in question. See Dean, 924 F.2d at 367-69 (police officer’s belief that plaintiff was an escaped felon is relevant to determination of whether excessive and unreasonable force was used). Accordingly, we decline to disturb the district court’s relevancy ruling. The court’s balancing of the probative value of this evidence against its prejudicial effect, on the other hand, gives us some pause. Evidence is excludable if “its probative value is substantially outweighed by
844	any car sales due to the advertisements” (PL Opp. Br. at 24) and that Porsche will not be harmed because it is receiving “an indefinite benefit” from the free “favorable advertising.” Pl. Opp. Br. at 16. Because Liquid Glass “used one of the personal cars of the President of Liquid Glass to show the beauty which can be achieved when Liquid Glass is applied to an automobile[,] Porsche should be flattered by the advertisements and videos produced by the Plaintiff.” PL Opp. Br. at 20. Although it has been said that “imitation is the sincerest form of flattery,” it is equally true, especially in the context of trademark litigation, that “flattery will often get you nowhere.” Bausch & Lomb Inc. v. Nevitt Sales Corp., 810 F.Supp. 466, 468 (W.D.N.Y.1993)(citing to Charles C. Cotton, 1 Lacon, No. 183 (1820-22), quoted in Bartlett’s Familiar Quotations at 393:5 (Justin Kaplan ed., 16th ed.1992)). In the context of trademark litigation, “grounds for 'irreparable harm include loss of control of reputation, loss of trade, and loss of goodwill,” regardless of whether the infringer is putting the mark to a good or favorable use. S & R Corp. v. Jiffy Lube Int'l, Inc., 968 F.2d 371, 378 (3d Cir.1992)(citing to Opticians Ass’n of America, 920 F.2d at 195). Liquid Glass’s unauthorized use of the Porsche marks inhibits Porsche’s ability to control which products its reputation and good will are being used to promote or endorse. This lack of control and potential damage to Porsche’s reputation constitutes
128	became “even more crystallized” when Sampson contacted the FBI and told Anderson that he wanted to be taken into custody. The “discretionary function exception” to the FTCA, set forth in 28 U.S.C. § 2680(a), protects the government from lawsuits “based upon the exercise or ;performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of,the Government, whether or not the discretion involved be abused.” See Coyne v. United States, 233 F.Supp.2d 135, 144-45 (D.Mass.2002). The exception is intended to prevent the courts from second-guessing “legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort.” Id. at 145 (quoting Campbell v. United States, 167 F.Supp.2d 440, 447-48 (D.Mass.2001)). The Supreme Court has described a discretionary function as one “in which there exists an ‘element of judgment or choice,’ ” Coyne, 233 F.Supp.2d at 145 (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)), and the court must dismiss any claim “covered by the discretionary function exception ... for lack of subject matter jurisdiction,” Kelly, 924 F.2d at 360. See 28 U.S.C. § 1346(b); see also Muniz-Rivera v. United States, 326 F.3d 8, 17 (1st Cir.2003); Irving v. United States, 909 F.2d 598, 600 (1st Cir.1990). There is a two-prong test to determine whether particular conduct falls with in the discretionary function exception: (1) “whether the challenged action was a matter of choice
2727	since the BIA dismissed his appeal in 1995; and, as such, Chen failed to show that conditions in China have changed. But even if the policy reflected in the Shou Yung Guo documents is a longstanding one, it might, nonetheless, be possible that the finding of these documents (assuming, yet again, that they are real) constitutes the equivalent of changed country conditions, notwithstanding the date of their issuance. This is so because they might vary the perception of the State Department, upon which the immigration courts rely, which would warrant reopening under 8 C.F.R. § 1003.2(c). In Norani v. Gonzales, for instance, we noted that recent reports, both by the State Department and the press, “describefd] a sharply deteriorating human rights situation” in Iran, 451 F.3d 292, 294 (2d Cir.2006) (per curiam), without pausing to parse whether it was our perception of the situation in Iran or the situation itself that had changed. Indeed, this court and the BIA routinely rely on the State Department and the press in assessing the situation in foreign countries. It would make little sense to distinguish between the “actual” changed situation and the situation as we have come to perceive it to be, on the basis of sometimes long delayed information that has only recently percolated up from our sources. But we need not determine whether the Shou Yung Guo documents may establish “changed country conditions” even if they reflect a longstanding policy. In accordance with Gonzales v. Thomas, 547 U.S. 183, 126 S.Ct.
3736	always in mind that the principle of finality of judgments serves a most useful purpose for society, the courts, and the litigants — in a word, for all concerned.” The facts in Gould well illustrate how the rule operates. In a proceeding to condemn land, the government had stipulated that the value of the defendant’s interest was $31,200. Thereafter, the government filed timely motion to vacate the consent judgment on the ground that it had misunderstood the nature of the defendant’s interest in the land and the property owner was actually entitled to receive no more than nominal damages. The refusal of the trial court to set aside the judgment was held to be an abuse of discretion. In Laguna Royalty Co. v. Marsh, 350 F.2d 817 (5 Cir. 1965), the court made the following pertinent comment: “In analyzing the 60(b) aspect, we recognize that Rule 60(b) is to be construed liberally to do substantial justice. Serio v. Badger Mut. Ins. Co., 5 Cir., 1959, 266 F.2d 418; 3 Barron & Holtzoff, Federal Practice & Procedure §§ 1322, 1328 (Wright ed. 1958). The rule is broadly phrased and many of the itemized grounds are overlapping, freeing Courts to do justice in hard cases where the circumstances generally measure up to one or more of the itemized grounds.” (at p. 823). In 1970, the Fifth Circuit again spoke of Rule 60(b) in these words: “The provisions of this rule must be carefully interpreted to preserve the delicate balance between the sanctity
1766	the offense and that is “substantially and directly connected to the offense,” and (2) conduct that occurred during the offense. U.S. Sentencing Guidelines Manual § 2A6.1, cmt. n. 2. We have interpreted the commentary to allow the district court to consider the defendant’s overt activity “substantially and directly” connected to the threat as well as the conduct of others for whom the defendant is accountable under U.S.S.G. § 1B1.3. United States v. Thomas, 155 F.3d 833, 838-39 (7th Cir.1998). We review for clear error the district court’s factual determination that a defendant’s conduct evidenced an intent to carry out a threat and will reverse only when that determination is “so inconsistent with the evidence” as to constitute clear error. See United States v. Sullivan, 75 F.3d 297, 302-03 (7th Cir.1996). Throughout his briefs, Siegler attempts to portray the August 31 letter as a solicitation rather than a threat, in effect trying to challenge his conviction for violating 18 U.S.C. § 876. By pleading guilty, however, Siegler admitted both of the elements of Count II (mailing a threatening communication). See McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (“[A] guilty plea is an admission of all the elements of a formal criminal charge.”); United States v. Gilliam, 255 F.3d 428, 433 (7th Cir.2001) (same). In the written plea agreement and during the plea hearing, Siegler admitted that on August 31, 1999, he wrote and mailed to Hester a letter threatening Hauger; no more was
4510	King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). On the facts presented by the parties in the pleadings, it is clear that the DNN defendants have not “purposefully availed” themselves of the benefits or protections of Michigan law. Plaintiffs stress that the DNN defendants operate a steel galvanizing facility at which a substantial portion of National’s steel is galvanized. However, the Sixth Circuit has held that the amount of business conducted with the non-resident defendant is not supportive of a purposeful availment argument. “It is the ‘quality’ of [the] ‘contacts,’ and not their number or status, that determines whether they amount to purposeful availment.” CompuServe, Inc., 89 F.3d at 1265 (quoting Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1119 (6th Cir.1994) and LAK, Inc. v. Deer Creek Enters., 885 F.2d 1293, 1301 (6th Cir.1989), cert. denied, 494 U.S. 1056, 110 S.Ct. 1525, 108 L.Ed.2d 764 (1990)). In addition, the record is devoid of any evidence that DNN solicited this business from National in Michigan. The Sixth Circuit addressed the relevancy of solicitation in determining the existence of purposeful availment and stated, “the question of which party solicited the business interface is irrelevant, so long as defendant then directed its activities to the forum resident.” Lanier v. American Bd. Of Endodontics, 843 F.2d 901, 910 (6th Cir.1988) (emphasis added) (citing Southern Machine, 401 F.2d at 382.). There are no facts presented by the pleadings that show the defendants directed their activities to
4954	the claim preamble.” Id. The Federal Circuit concluded, “it is essential that the court charged with claim construction construe the preamble and the remainder of the claim, as we have done here, as one unified and internally consistent recitation of the claimed invention.” Id. Although the term “PCPI” is not as clearly defined by the preamble here as the term “spots” was defined in the preamble construed in Pitney Bowes, the term “PCPI” as used in the body of the claims 1, 18, and 19 (but not 11) relies on the preamble’s explanation of the abbreviation “PCPI.” Further, the preamble reinforces the centrality of “increasing a number of persistent consistency point images” to the entire invention. See Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp., 320 F.3d 1339, 1345 (Fed.Cir.2003) (“ ‘growing’ and ‘isolating’ are not merely circumstances in which the method may be useful, but instead are the raison d’etre of the claimed method itself’). However, the Court would not construe the preamble as a limitation on this basis alone. Sun further argues that the specification touts increasing a number of persistent consistency points as fundamental to the invention: “The present invention overcomes the disadvantages of the prior art by providing an on-disk storage arrangement that increases the number of persistent consistency point images (PCPIs) that may be maintained for a volume of a storage system.” '720 patent, col. 5:14-18. Sun relies on On Demand Machine Corp. v. Ingram Indust., Inc., 442 F.3d 1331, 1344 (Fed.Cir.2006), where the Federal Circuit
2526	alleged to have been waived. Id. at 119. The court therefore held that because there was no evidence that either of the customers had “voluntarily and knowingly waived” their right to sue in court, the arbitration agreement was unenforceable. Id. at 119-20. In so holding, the court expressly rejected the reasoning of courts in other jurisdictions that have upheld implicit waivers of the right of access to the courts, noting that “waiving the right to have access to the courts is something much more significant and of a different character than changing the terms and conditions of a bank account, assent for which can be obtained simply be the continued use of the account.” Id. at 120. See also McCreary v. Liberty Nat’l Life, 6 F.Supp.2d 920, 920-21 (N.D.Miss.1998) (denying motion to compel arbitration where plaintiff signed insurance policy application but never signed endorsement containing arbitration provision and therefore “[tjhere was no notice, no discussion, and no negotiation of the arbitration endorsement, circumstances, which, in this court’s view, hardly signify either agreement or waiver”) (cited with approval in Rogers, 912 So.2d at 119). Similarly, in Galle v. MBNA Amer. Bank, 2006 WL 839581, at *2 (S.D.Miss. Mar. 28, 2006), plaintiff opened an account with Hancock Bank, which was subsequently purchased by MBNA. MBNA mailed a notice to plaintiff informing him of the purchase and notifying him of changes in the terms of his account, including an arbitration agreement. The notice advised plaintiff that in order to opt out of the
4700	standard of review on a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) is the same standard of. review applied to a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).” Marte v. Safety Bldg. Cleaning Corp., No. 08-CV-1233, 2009 WL 2827976, at . *1 (S.D.N.Y. Sept. 2, 2009). With respect to Rule 12(b)(6) motions, the Supreme Court has held that although a complaint “does not need detailed factual allegations” to survive, .a motion to dismiss, “a plaintiffs obligation to provide the ‘grounds’ of his [or her] tentitlebnent] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (second alteration in original) (citations -omitted). Instead, the Supreme Court has emphasized that “[Qactual allegations must be enough to raise a right to relief above the speculative level,” id., and that “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563, 127 S.Ct. 1955. A plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570,127 S.Ct. 1955. But if a plaintiff has “not nudged [his or her] claims across the line from conceivable to plausible, the[] complaint must be dismissed.” Id.; see also Ashcroft v. Iqbal, 556
2331	may be such as entitle the inventor to broad claims and to a liberal construe tion of those he has made. Smith v. Snow, 294 U.S. 1, 14, 55 S.Ct. 279, 79 L.Ed. 721. It is also to be remembered that the doctrine of equivalents is applied to other than primary or generic patents and that, while the range of equivalents depends upon the extent and nature of the invention, even a nongeneric or specific patent is entitled to some range of equivalents. “Any patent, however, has some range of equivalents, unless form is made the indispensable thing. And the rule is especially applicable where the infringer takes the whole gist of the invention, as in this case.” Frick Co. v. Lindsay, 4 Cir., 27 F.2d 59, 62. See, also, McDonough v. Johnson-Wentworth Co., 8 Cir., 30 F.2d 375, 384; Freeman v. Altvater, 8 Cir., 66 F.2d 506, 510, 511. It is argued, however, that the prior art limited, and in fact destroyed, Claim 4 of the Packwood patent. We think a detailed discussion of all of the prior art patents contained in the record is not necessary. The patent to Lewin, cited as a reference by the Patent Office, shows a liquid-soap dispenser using a dispensing element not unlike the dispensing element of Packwood. Lewin’s dispenser consists of a cup attached to the lower end of a rod which extends upwardly through the discharge opening of the container and is of less diameter than such opening. The rod is
4551	be the only federal court of appeals to have addressed the meaning of “any other means authorized by law” as it applies to means of government enforcement following Sandoval. The Sixth Circuit acknowledged the gve-Sandoval understanding of the phrase and found it authorized the government to bring suit to enforce a statutory provision. United States v. Miami Univ., 294 F.3d 797, 808 (6th Cir.2002) (“We believe that the fourth alternative [‘take any other action authorized by law with respect to the recipient’] expressly permits the [agency] to bring suit'to enforce the [statutory] conditions in lieu of its administrative rém-edies.”) (citing Baylor Univ. Med. Ctr., 736 F.2d at 1050; Nat’l Black Police Ass’n, 712 F.2d at 575). Cf. United States v. Marion Cnty. Sch. Dist., 625 F.2d 607, 611 (5th Cir.1980) (“[T]he government's right to sue to enforce its contracts exists as' a matter of federal common law, without necessity of & statute ... Congress may nullify the right, but, as the Supreme Court has repeatedly emphasized, courts are entitled to conclude that Congress has done so only , if the evidence of Congress’ intent is extremely, even unmistakably, clear.”). Maricopa County claims Congress rejected an amendment to Title VI explicitly authorizing public judicial enforcement of Title VI. The rejected amendment provided that a recipient of federal funds “assume[d] a legally enforcible [sic] undertaking ... [and the] United States,.district courts [would] have jurisdiction [over] civil actions brought in connection with such undertakings, by either the United States or by any recipient
4169	favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). “However, inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion.” Dorsey v. Morgan Stanley, 507 F.3d 624, 627 (7th Cir. 2007) (citation and quotation marks omitted). Additionally, “[a] party who bears the burden of proof on a particular issue .may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007) (citation omitted). “The opposing party cannot meet this burden with eonclusory statements or speculation but only with appropriate citations to relevant admissible evidence.” Sink v. Knox County Hosp., 900 F.Supp. 1065, 1072 (S.D. Ind. 1995) (citations omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of [the] claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citations and quotation marks omitted). “[N]either the mere existence of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and quotation marks omitted). III. DISCUSSION The Defendants moved for summary judgment on
4423	were not disclosed in BoA’s public filings but could later materialize, the defendants had no duty to say more. See In re ProShares Trust Sec. Litig., 728 F.3d 96, 103 (2d Cir.2013) (“Disclosure is not a rite of confession or exercise in common law pleading.”). Taken together and in context, the disclosures that BoA made would not have misled a reasonable investor. See Hunt, 159 F.3d at 731. The plaintiffs maintain that the defendants extensive risk disclosures were misleading because they concealed an actualized risk. It is true that “[i]f a party is aware of an actual danger or cause for concern, the party may not rely on a generic disclaimer in order to avoid liability.” Edison Fund v. Cogent Inv. Strategies Fund, Ltd., 551 F.Supp.2d 210, 226 (S.D.N.Y.2008). However, the risk of the AIG suit was adequately subsumed in the disclosures with respect to the increasing risks of litigation that could have a material adverse effect on BoA’s financial condition. Although that risk became an actual danger to BoA when the AIG suit was in fact filed, that event was promptly disclosed, and it ended the Class Period on August 8, 2011. Prior to that time, BoA could not determine that the lawsuit would in fact be filed. The Second Amended Complaint alleges that BoA participated in an unsuccessful mediation as late as July 2011 (SAC ¶ 104), and AIG never filed a lawsuit against several other firms with which it had tolling agreements. The timing of any lawsuit
4680	we conclude that, even were we to excuse the Maitlands’ failure to object to the relevant portions of the magistrate judge’s report and recommendation, we would nonetheless affirm for substantially the reasons stated by the magistrate judge. On appeal, the Maitlands primarily argue that the district court possessed diversity jurisdiction over their state law claims and erred when it dismissed their claims for want of diversity jurisdiction (having declined to exercise supplementary jurisdiction following dismissal). “For purposes of diversity jurisdiction, a party’s citizenship depends on his domicile.” Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998). “[Establishing one’s domicile in a state generally requires both physical presence there and intent to stay.” Universal Reinsurance Co. v. St. Paul Fire & Marine Ins. Co., 224 F.3d 139, 141 (2d Cir. 2000). The magistrate judge properly concluded, in a report and recommendation adopted in its entirety by the district court, that the Maitlands failed to adequately plead diversity jurisdiction. The complaint alleged only that the Maitlands resided in Florida, the Fishbeins resided in New York, and Chase’s main office was in New Yoi’k. .This was insufficient to show that the Maitlands were domiciled in, and thus citizens of (within the meaning of 28 § U.S.C. 1332), Florida, especially considering that their lawsuit involved a property they owned in New York. See, e.g., Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc., 87 F.3d 44, 47 (2d Cir. 1996) (“It is ... clear that a statement of the parties’ residence is insufficient to
2838	could also have learned of the dual occupancy, were closed for the day. Testimony was given by the telephone company official that, if the need were great enough, it would be possible to gain access to the records after regular business hours. Furthermore, the Government admits that it had knowledge that a narcotics pick-up was to be made from the Newport address early in the morning of October 20, 1970. Indeed, the Newport address was discovered at about 8:30 or 9:00 a.m. that morning from information provided by the telephone' company as to the name and address of the subscriber listed for the intercepted calls. The law governing this situation has been long established. Nearly half a century ago, in Tynan v. United States, 297 F. 177, 179 (9th Cir.), cert. denied, 266 U.S. 604, 45 S.Ct. 91, 69 L.Ed. 463 (1924), the court stated: “No doubt a general search warrant for an entire building . . . occupied by different families or different tenants, is ordinarily null and void.” See also, United States v. Mitchell, 274 F. 128 (N.D.Cal. 1921); Hogrefe v. United States, 30 F.2d 640 (9th Cir.1929). In United States v. Barkouskas, 38 F.2d 837 (M.D.Pa. 1930), the search warrant in question authorized the search of the premises “located at 1919 Jackson St., Scranton, Pa.” The warrant did not include the name of the defendant or the occupants of the premises nor any designation of any part of the premises. The facts were that the owner of
514	regulation which found that Title II applied to employment. Id. at 1172-73, citing 28 C.F.R. § 35.140(a) (1998). Defendants contend that Zimmerman mandates dismissal of plaintiffs’ ADA claim because it similarly involves employment, employment training, and employment services. However, contrary to defendants’ argument, this case does not involve “employment,” but instead involves the state’s provision (or failure to provide) “integrated employment services, including supported employment programs.” Complaint, ¶¶ 2, 6 (emphasis added). Even a cursory review of the “inputs” versus “outputs” analysis cited in Zimmerman reveals that the integrated employment services sought by plaintiffs are “services, programs, and activities” offered by defendants, not merely the “means to deliver the services, programs, and activities.” Zimmerman, 170 F.3d at 1174, citing Decker v. Univ. of Houston, 970 F.Supp. 575, 578 (S.D.Tex. 1997), affirmed, 159 F.3d 1355 (5th Cir. 1998). Plaintiffs simply do not seek to become state employees or contend that the state discriminates against them in employing them. Instead, they contend that the state has failed to provide services to them which would make it possible for them to become and remain competitively employed in the community. Thus, this court concludes that Zimmerman is no barrier to plaintiffs’ claim under Title II of the ADA. B. Applicability of Integration Mandate to Employment-Related Services Defendants also contend that the integration mandate does not apply to the provision of employment-related services. They raise several arguments to support this contention. First, defendants contend that the court should give no deference to the Department of
3505	state civil or criminal suit were performed pursuant to an officer’s direct orders or to comprehensive and detailed regulations.” Ryan, 781 F.Supp. at 947. It is not enough to prove only that “the relevant acts occurred under the general auspices of a federal officer” or that “a corporation participates in a regulated industry.” Id.; see also Fung, 816 F.Supp. at 572. The official must have direct and detailed control over the defendant. Fung, 816 F.Supp. at 572; Good v. Armstrong World Indus., Inc., 914 F.Supp. 1125, 1128 (E.D.Pa.1996). Direct and detailed control is established by showing strong government involvement and the possibility that a defendant could be sued in state court as a result of the federal control. Pack v. AC and S, Inc., 838 F.Supp. 1099, 1103 (D.Md.1993); Fung, 816 F.Supp. at 572. “The issue is not simply whether the defendants acted under [federal] officials but whether they are in danger of being sued in state court ‘based on action taken pursuant to federal direction.’ ” Ryan, 781 F.Supp. at 950 (quoting Gulati v. Zuckerman, 723 F.Supp. 353, 358 (E.D.Pa. 1989)); see also Brown & Williamson Tobacco Corp., 913 F.Supp. at 532-33 (holding that the suit to be removed must be based on activities performed under federal direction); Bakalis v. Crossland Sav. Bank, 781 F.Supp. 140, 144 — 45 (E.D.N.Y.1991) (holding the particular conduct being sued upon must be closely linked to detañed and specific regulations). Armco must also prove “a federal nexus between the actions for which [it
4221	promulgated thereunder by the Department of Health, Education and Welfare (DHEW). Since the statute was challenged on constitutional grounds of a substantial nature and since the remedy sought was injunction against the enforcement of a state statute, a three-judge court was providently convened. Additionally, the plaintiffs, as discussed above, have raised an issue predicated on the alleged conflict between Volume IV of the South Carolina Department of Public Welfare Policies and Procedures in Public Assistance, (see note 1), and certain provisions of the Social Security Act of 1935. This court is not compelled to reach the constitutional issues, since we deem the statutory claim to be meritorious. “This disposition of the matter does not void the jurisdiction of this three-judge court. King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118.” Doe v. Swank, 332 F.Supp. 61, 63 (N.D.Ill.1971) affirmed, without opinion, sub nom, Weaver v. Doe, 404 U.S. 987, 92 S.Ct. 537, 30 L.Ed.2d 539 (1961). The question before this Court, simply stated, is whether the regulations of the South Carolina Department of Welfare requiring the mother of the needy child to name the putative father and/or prosecute him are consonant with the statutory provisions of the Social Security Act. That each participating state must operate its welfare programs consistent with the Social Security Act is beyond cavil. “Eligibility for aid under the Social • Security Act of 1935 is conditioned upon two factors. A child must be both needy and dependent. No other conditions of eligibility
2929	law or contract is not consideration. Hale v. Brewster, 81 N.M. 342, 467 P.2d 8 (1970); In re Quantius’ Will, 58 N.M. 807, 277 P.2d 306 (1954). Moreover, as we interpret the contract, the Alexanders’ obligation to make the mortgage payments was not absolute, but was conditional upon the payments the Blacks were required to make under the real estate contract. The escrow agent is required to make mortgage payments only “out of payments received by the Alexanders.” If the Blacks fail to make a payment, the Alexanders have no obligation under the real estate contract or escrow agreement to do so. “A gift must be complete, subject to no condition precedent, or it is void, is no gift at all.” Dresselhuys v. Commissioner, 40 B.T.A. 30 (1939), acq. 1939-2 C.B. 11. See also Tower v. Commissioner, 148 F.2d 388, 390 (6th Cir. 1945), rev’d on other grounds, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670 (1946); City Bank Farmers Trust v. Hoey, 101 F.2d 9 (2d Cir. 1939); 5 J. Mertens, The Law of Federal Estate and Gift Taxation 146-47 (1959). There is an exception that if the value of a gift subject to a condition precedent can be actuarially determined, it is presently taxable. Rosenthal v. Commissioner, supra, 205 F.2d at 509. Because of the condition precedent to the Alexanders’ obligation to make the mortgage payments, there was no present gift of the amount of those payments that was subject to tax. The value of the future
4497	a properly supported Rule 12(b)(2) motion, the plaintiff must set forth facts establishing personal jurisdiction. Id. at 1458. Where, as in this case, the court does not hold an evidentiary hearing on the matter, “the court must consider the pleadings and affidavits in a light most favorable to the plaintiff.... To defeat such a motion, [the plaintiff] need only make a prima facie showing of jurisdiction.” Dean v. Motel 6 Operating L.P., 134 F.3d 1269, 1272 (6th Cir.1998) (quoting CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th Cir.1996)). A prima facie showing requires the plaintiff to “ ‘demonstrate facts which support a finding of jurisdiction....’” Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir.1980) (quoting Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir.1977), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981)). Furthermore, a court does not weigh the controverting assertions of the party seeking dismissal. Dean, 134 F.3d at 1272 (quoting CompuServe, Inc., 89 F.3d at 1262). Therefore, in order to decide this motion, the Court must ascertain only whether plaintiffs have established a prima facie case of personal jurisdiction. The Court will review the pleadings, including the deposition testimony offered by plaintiffs, in a light most favorable to plaintiffs, to determine whether plaintiffs have adduced sufficient facts on which the Court can conclude it is appropriate to exercise personal jurisdiction over the DNN defendants. Plaintiffs argue for the presence of both general and limited jurisdiction. The Due Process
3118	court, rather than the RLA arbitration board, has jurisdiction over ERISA claims that are independent of an interpretation or application of any collective bargaining agreements, even if the pension plan is created or maintained pursuant to a collective bargaining agreement.” Hastings v. Wilson, 516 F.3d 1055, 1059 (8th Cir.2008) (emphasis added). Accordingly, one district court has presented the “minor dispute” inquiry as a two-step process. “To determine whether a claim is independent of a collective bargaining agreement, a court first considers whether the alleged right derives from a source extrinsic to the collective bargaining agreement itself. If so, the claim is not precluded unless enforcement of that right is ‘inextricably intertwined’ with the consideration of the collective bargaining agreement.” Sturge v. Northwest Airlines, Inc., 600 F.Supp.2d 1040, 1043 (D.Minn.2009). The approach utilized in these cases is consistent with the law of the Ninth Circuit, in that they attempt to determine whether the dispute “involve[s] rights that emanate from sources outside the agreement.” Where a benefit plan is “incorporated” into the CBA, or enforcement would be “inextricably intertwined” with an interpretation of the CBA, the rights at issue effectively derive from the CBA itself. This is consistent with Long, where the issue was the interpretation of the documents associated with a collectively-bargained for pension plan, not solely the CBA itself. As such, the court will employ the Eighth Circuit’s analysis in determining whether the action involves a minor dispute or major dispute. a. The LTD Policy is Incorporated into the CBA
3373	the circumstances, is likely to regard it as coming from the same source as the trademarked article. * * * The question is usually one of fact * * *, which in some cases may be determined by visual comparison, as where specific differences are so marked that the general appearance could not be confusing, * * or where it is inconceivable that an ordinary purchaser examining the two labels would be deceived. * * * In other cases extrinsic evidence may be necessary. * * ” To the same effect are National Nu Grape Co. v. Guest, 10 Cir., 164 F.2d 874, cert. denied 333 U.S. 874, 68 S.Ct. 903, 92 L.Ed. 1150, and Standard Oil Co. v. Standard Oil Co., 10 Cir., 252 F.2d 65. The rule as stated in Restatement, Torts § 728 (1938): “A designation is confusingly similar to a trade-mark or trade name under the rule stated in § 717 if prospective purchasers are likely to regard it as indicating the source identified by the trade-mark or trade name” was quoted with approval in the Standard Oil ease. The same language was used in Friedman v. Sealy, Inc., 10 Cir., 274 F.2d 255. Beatrice Foods Company produced a number of witnesses who testified, in substance, that purchasers of dairy products, and others, thought the Neosho product was the same as that marketed by Beatrice and was “something Meadow Gold put out.” No witness testified that he was confused by the trademarks used on the packages
486	Thus, in challenges of the use of best information available the issue is not which, of all the information ITA has to choose from, is the best information available, but rather, whether the information chosen by ITA is supported by substantial evidence on the record. The “substantial evidence test” restricts the scope of the Court’s review of the agency record. Because much deference is given to the agency’s interpretation, it will be upheld, as long as it is sufficiently reasonable. See Hercules, Inc. v. U.S., — CIT-, 673 F.Supp. 454 (1987); Seattle Marine supra. Furthermore, “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Matsushita Electric Industrial Co. v. U.S., 750 F.2d 927, 933 (Fed.Cir.1984) (quoting Consola v. Federal Maritime Commission, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966)). For the foregoing reasons the Court sustains the ITA’s use of the best information rule and finds that ITA’s determination is supported by substantial evidence and in accordance with law. . Although Extraco was nominally the submitter, the real party at interest was the plaintiff importer, as they would bear any additional duties imposed. . See Kendo. Rubber Industrial Co., Ltd., et al. v. U.S., — CIT-, 630 F.Supp. 354, 358 n. 4 (1986).
4694	"and draw all reasonable inferences in favor of plaintiff,’ ” Morrison, 547 F.3d at 170 (quoting Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir.2006) (citation and internal quotation marks omitted)), but “ ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it,’” id. (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003)). In deciding the motion, the court “may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits.” J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir.2004); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (“In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ... may refer to evidence outside the pleadings.”). b. Afialysis Addressing first the issue of "" subject matter jurisdiction, 28 U.S.C. § 1331 provides that “[t]he district courts .... have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Plaintiff asserts that, because he brings claims under the FLSA, the Court has federal question jurisdiction over his federal claims and has supplemental jurisdiction over his state law claims. (See PL’s Mem. 5.), Defendants, conversely, argue that the motor carrier exemption to the FLSA exempts Defendants from having to follow the FLSA with respect to"
1930	MEMORANDUM Shawn Jackson appeals his conviction for receipt of child pornography in viola tion of 18 U.S.C. § 2252A(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the facts, we recite them only as necessary. The district court may have abused its discretion by overruling Jackson’s objection at trial to admitting into evidence the still photo images of child pornography found in his computers’ Temporary Internet Files and unallocated space. The government failed to present foundational evidence that Jackson “exercised dominion and control over the images.” United States v. Romm, 455 F.3d 990, 998 (9th Cir.2006); see United States v. Kuchinski, 469 F.3d 853, 863 (9th Cir.2006). However, in view of the properly admitted evidence that Jackson exercised dominion and control over thirteen videos of child pornography, any error was harmless. See United States v. Schales, 546 F.3d 965, 976 (9th Cir.2008) (holding that a district court’s erroneous ruling “will be reversed only if such error more likely than not affected the verdict”). Additionally, the district court did not abuse its discretion by questioning Agent Weg, and therefore, did not commit judicial misconduct. See Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir.1995) (holding that it “is perfectly appropriate for a judge to take part where necessary to clarify testimony and assist the jury in understanding
4114	Thus, only the “nullity” claims remained. In a final judgment, the district court dismissed the claims against all defendants, including those based on the nullity of the subcontracts and those against CH2M. The relators timely appealed. In their Notice of Appeal, the relators advise that they are appealing the district court’s orders with respect to Counts 1, 4, and 7 of the Second Amended Complaint, including the district court’s dismissal of “all claims or counts based on the nullity and falsity of claims arising from Defendants’ installation subcontracts (and payments and damages therefrom).” II. This court reviews the district court’s grant of summary judgment de novo and applies the same standard as the district court. Langhoff Props., LLC v. BP Prods. N. Am., Inc., 519 F.3d 256, 260 (5th Cir. 2008). Summary judgment shall be granted by a court “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A movant must support such a showing by citing to “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Id. 56(c)(1)(a). The court weighs any reasonable inferences or doubts in favor of the non-moving party. Lcmghoff Props., 519 F.3d at 260. III. The relators contend that defendants Shaw, CH2M, and Fluor filed false claims against FEMA, a government agency, in violation of the FCA.
4434	and made certain disclosures earlier than they actually did.” Edison, 551 F.Supp.2d at 228 (quoting Novak, 216 F.3d at 308). Such assertions “do not suffice to make out a claim of securities fraud.” Id. Viewed holistically, the allegations in the Second Amended Complaint do not support a cogent inference that the defendants’ conduct was highly unreasonable and violative of a known or obvious duty. The much more compelling conclusion is that the defendants did not think that there was any need for public disclosure in view of the information already in the marketplace, the aggregate disclosure in BoA’s filings, and the lack of any definitive regulatory requirement requiring the disclosure of a possible lawsuit of indeterminate amount. See In re Hardinge, Inc. Sec. Litig., 696 F.Supp.2d 309, 332 (W.D.N.Y.2010) (“[T]he most likely inference from the facts alleged is that defendants did not make certain disclosures ... because they believed that they were under no obligation to do so____”). Accordingly, the plaintiffs have not alleged particular facts supporting a strong inference of scienter with respect to any individual defendant, as the PSLRA requires. Because the plaintiffs also fail to show that any individual whose intent can be imputed to BoA acted with scienter, the plaintiffs have also failed to plead scienter with respect to BoA. Teamsters Local 445 Freight Div. Pension Fund v. Dynex Capital Inc., 531 F.3d 190, 195 (2d Cir.2008). Accordingly, the plaintiffs have failed to allege scienter with respect to any defendant and their claim pursuant to Section
299	cases devoid of any need for factual determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir.1987) (citation omitted). “The applicable Rule 56 standard is not affected by the filing of cross-motions for summary judgment.” Godard v. Alabama Pilot, Inc., 485 F.Supp.2d 1284, 1291 (S.D.Ala.2007); see also May v. A Parcel of Land, 458 F.Supp.2d 1324, 1333 (S.D.Ala.2006) (same). Indeed, the Eleventh Circuit has explained that “[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir.1984) (citation omitted); see also Wermager v. Cormorant Tp. Bd., 716 F.2d 1211, 1214 (8th Cir.1983) (“the filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits”). Nonetheless, “cross-motions may be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the disposi-tive legal theories and material facts.” Godard, 485 F.Supp.2d at 1291; see also May, 458 F.Supp.2d at 1333. That is precisely the case here, at least with respect to the ILSFDA exemption issue, as all parties appear to concur that the exempt or nonexempt status of the Project is a purely legal question for the Court to decide. IV. Analysis
2167	“prevailing party” status. See, e.g., Farrar v. Hobby, 506 U.S. 103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989); Williams v. Hanover Hous. Auth., 113 F.3d 1294, 1299 (1st Cir.1997). “However, the fact that [plaintiffs] were the prevailing parties does not mean that they can recover for all the time spent in this litigation.” Culebras Enters. Corp. v. Rivera-Rios, 846 F.2d 94,102 (1st Cir.1988). Instead, the Court calculates a reasonable fee award using the lodestar method, which is “the strongly preferred method by which district courts should determine what fees to award prevailing parties” under ,§ 1988. Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 337 (1st Cir.1997) (citing Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.1992)). To arrive at a reasonable award, the Court “must evaluate the data submitted by the fee-seeker, compute a lodestar, consider the totality of the adjustment factors approved by Congress and the [Supreme] Court, and make specific, reasoned adjustments” to reduce the award if appropriate. Id. at 340 (citation omitted). Although this Court is not required to produce a “painstaking” explanation of its decision, which is reviewed “deferentially, according substantial respect to the trial court’s informed discretion,” id. at 336-37 (citing Brewster v. Dukakis, 3 F.3d 488, 492 (1st Cir.1993)), recent case law demonstrates that the First Circuit examines these “discretionary” decisions extremely closely, see, e.g., McMillan v. Massachusetts Soc’y for
4605	"and not by referring to the complaint or other document — the act or acts restrained or required.” Fed,R.Civ.P. 65(d). As such, “blanket injunctions to obey the law are disfavored.” Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F.Supp.2d 1197, 1226 (C.D.Cal. 2007) (quoting Mulcahy v. Cheetah Learning LLC, 386 F.3d 849, 852 n. 1 (8th Cir.2004)) (internal quotation marks omitted). But district courts have broad discretion to shape equitable remedies. See Monsanto Co. v. Geertson Seed Farms, 561 U.S, 139, 175, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010). When an appellate court finds a trial court abused its discretion by issuing an 'overly broad order, it may strike those provisions “dissociated from those [acts] which a defendant has committed.” N.L.R.B. v. Express Pub. Co., 312 U.S. 426, 435, 61 S.Ct. 693, 85 L.Ed. 930 (1941). See, e.g., S.E.C. v. Smyth, 420 F.3d 1225, 1233 (11th Cir.2005) (holding general “obey-the-law” injunctions unenforceable). The purpose of Rule 65(d) is to ensure defendants have, fair notice of what conduct is prohibited and to avoid undue restraint. The- Ninth Circuit has “not adopted.a rule-against ‘obey the law injunctions per se.” F.T.C. v. EDebitPay, LLC, 695 F.3d 938, 944 (9th Cir.2012). Instead the court recognizes, in certain circumstances, “injunctioh[s] ... framed in language almost identical to the statutory mandate ... [are"" not] vagué” because they “adequately describe' the impermissible conduct.” United States v. Miller, 588 F.2d 1256, 1261 (9th Cir.1978). See also E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 842 (7th Cir.2013) (holding “obey-the-law” injunctions"
4129	FTCA’s purpose is both to allow recovery by people injured by federal employees or by agents of the Federal Government, and, at the same time, to immunize such employees and agents from liability for negligent or wrongful acts done in the scope of their employment.” Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 80 (2d Cir.2005). “Under the FTCA, the liability of the United States for the negligence acts of its agents is governed by the law of the state in which the alleged negligence occurred.” Gerace v. U.S., 2006 WL 2376696 (N.D.N.Y.2006). In other words, “the court [should] apply the substantive law of the place where the events occurred.” Giordano v. U.S., 2009 WL 1362979 (N.D.N.Y.2009) (citing Castro v. United States, 34 F.3d 106, 110 (2d Cir.1994)). III. Negligence / Duty To Warn / Reasonable Care “Under New York law, the elements of a negligence claim are: (i) a duty owed to the plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially caused by that breach.” Lombard v. Booz-Allen & Hamilton, Inc., 280 F.3d 209, 215 (2d Cir.2002). In this state, “negligence is defined as conduct which falls ‘below that of a reasonably prudent person under similar circumstances judged at the time of the conduct at issue.’ Thus, a plaintiff who asserts a negligence claim against the United States pursuant to the FTCA ‘must prove by a preponderance of the evidence that: (1) the Government owed a duty to [him or her]; (2)
150	sovereign immunity, suits against federal agencies and against federal employees, acting in their official capacities, are deemed to be suits against the United States. The Plaintiffs acknowledge that, by its terms, Section 1983 claims concern the actions of state agencies or employees and do not apply to the United States or its agencies and employees. The Plaintiffs concede that their complaint does not allege any action under color of state law by the Federal Defendants, but speculate that discovery may provide a basis for a Section 1983 claim by revealing the nature of Anderson’s FBI employment or “the potential involvement or application of any [s]tate law or regulation” to the facts of this case. They cite Tritsis v. Backer, 355 F.Supp. 225 (N.D.Ill.1973), aff'd, 501 F.2d 1021 (7th Cir.1974), and Peck v. United States, 470 F.Supp. 1003 (S.D.N.Y.1979), in support of this position. The Plaintiffs argue that, in the interests of justice, I should defer ruling on their Section 1983 claims until discovery is completed. They say that, because the same discovery is involved in all the claims asserted, the defendants will not be prejudiced if I were temporarily to retain jurisdiction over the Section 1983 claims. The Plaintiffs also state that they may be prepared voluntarily to dismiss their Section 1983 claims if discovery confirms that the facts of this case do not implicate or involve any state law or regulation, and that the matter is limited to issues of federal law. In their reply memorandum, the Federal Defendants
485	is not, as plaintiffs would argue, whose information becomes the best information otherwise available, but whether or not evidence on the record supports the ITA’s decision.” Id. — CIT at-, 679 F.Supp. at 1128. (Emphasis in original.) Thus, in challenges of the use of best information available the issue is not which, of all the information ITA has to choose from, is the best information available, but rather, whether the information chosen by ITA is supported by substantial evidence on the record. The “substantial evidence test” restricts the scope of the Court’s review of the agency record. Because much deference is given to the agency’s interpretation, it will be upheld, as long as it is sufficiently reasonable. See Hercules, Inc. v. U.S., — CIT-, 673 F.Supp. 454 (1987); Seattle Marine supra. Furthermore, “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Matsushita Electric Industrial Co. v. U.S., 750 F.2d 927, 933 (Fed.Cir.1984) (quoting Consola v. Federal Maritime Commission, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966)). For the foregoing reasons the Court sustains the ITA’s use of the best information rule and finds that ITA’s determination is supported by substantial evidence and in accordance with law. . Although Extraco was nominally the submitter, the real party at interest was the plaintiff importer, as they would bear any additional duties imposed. . See Kendo. Rubber Industrial Co., Ltd., et al. v. U.S., —
1501	that have been related to me, in which [the officer] was in the home of [the witness], his living room, and they had an unnatural sex relation, these two men, and that this happened again, Your Honor, on one other occasion that I have been told about, at [the witness’] house, at his apartment. . See Salgado v. United States, 278 F.2d 830, 831 (1st Cir. 1950) (“It is true that such character evidence is not relevant to the question of the witness’s veracity, and is therefore not admissible to discredit him in that regard. Nor could defendant introduce the evidence merely as contradiction of the witness’s own denial that he was ‘an immoral pervert.’ ” [citations omitted]); United States v. Xuccio, 2 Cir., 373 F.2d 168, 171, cert. denied 387 U.S. 906, 87 S.Ct. 1688, 18 D.Ed.2d 623 (1967) (“ * * * it would indeed have been wrong to permit cross-examination on the score of homosexuality merely to discredit [a witness’] character * * *.”) . Wynn v. United States, 130 U.S.App.D.C. 60, 62-63, 397 F.2d 621, 623, 624 (1967); Villaroman v. United States, 87 U.S.App.D.C. 240, 241, 184 F.2d 261, 262, 21 A.D.R.2d 1074 (1950). . Villaroman v. United States, supra note 8, 87 U.S.App.D.C. at 241, 184 F.2d at 262; McFarland v. United States, 85 U.S.App.D.C. 19, 21 n. 3, 174 F.2d 538, 540 n. 3 (1949). . Wynn v. United States, supra note 8, 130 U.S.App.D.C. at 62, 397 F.2d at 623. See also Blair
4882	Having viewed the photographs ourselves, we are left with the strong suspicion that they could not. The pictures reveal nothing more than the fact that Mr. Fernandez suffered multiple bullet wounds before he died. More important, we observe, as well, that plaintiffs possessed independent, conclusive evidence that Mr. Fernandez was shot in the back, rather than the chest. For example, plaintiffs introduced at trial a copy of the autopsy report concerning Mr. Fernandez’s death. The report describes the location of the entry wounds on Mr. Fernandez’s back in scrupulous detail. Thus, even were we to find error in the court’s relevancy determination, which we do not, we would be bound to hold it harmless on this record. See Pinkham v. Maine Cent. R.R. Co., 874 F.2d 875, 881 (1st Cir.1989) (“[exclusion of evidence in a jury case constitutes harmless error if the evidence ... though properly admissible is of a fact already established by other unre-butted evidence and may therefore be regarded as cumulative.”); see generally, Fed.R.Civ.P. 61 (error in either admission or exclusion of evidence is grounds for disturbing a judgment only where refusal to do so is inconsistent with substantial justice); Fed.R.Evid. 103(a) (same). 2. Murphy’s Memory On the heels of the court’s suppression ruling, plaintiffs attempted to use the photographs while cross-examining defendant Murphy. Murphy had testified that he fired his gun at Mr. Fernandez’s chest. Plaintiffs sought to impeach this testimony by eliciting from Murphy the fact that all but one of defendants’ bullets had struck
734	borrowers. However, the agreement also states “Trustbank expressly reserves ... any and all claims it has against Bildman” and “nothing contained herein shall affect in any way whatsoever Bildman’s obligations to Trustbank under the Guaranty.” Defs.Ex. J, at 2-3. II. ANALYSIS The Bildmans have raised several defenses to this action for breach of the Guaranty Agreement, but their arguments all stem from their assertion that the Settlement Agreement between the Trustbank and the borrowers constituted an accord and satisfaction which discharged their obligation as guarantors. Even assuming that the Settlement Agreement represents an accord and satisfaction of the underlying loan, the Bildmans are precluded from raising the defense of accord and satisfaction by the terms of the guaranty agreement. See United States v. Krochmal, 318 F.Supp. 148, 151 (D.Md.1970) (“[T]he language of the ‘Guaranty’ amounted to a consent by the guarantors that the release of the principal debtor did not discharge the guarantors.”). As part of that agreement, the defendants agreed to remain obligated as guarantors until the full amount of the loan had been repaid, “notwithstanding any act, omission or thing which might otherwise operate as a legal or equitable discharge of the Guarantor.” Generally an accord and satisfaction of the underlying contract will discharge a guarantor. Woods-Tucker Leasing Corp. v. Kellum, 641 F.2d 210, 213 (5th Cir.1981). Thus, this provision in the agreement specifically preserves the Bildmans’ guaranty obligation even in the event that the borrowers should execute an accord and satisfaction with the lender. The Court also
4765	conviction is inadmissible absent adequate trial court findings that its noneu-mulative relevance is sufficiently compelling to survive the balancing test of Fed.R.Evid. 403. (“[Ejvidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice_”). Our conclusion on this issue is supported by a considerable number, though not all, of the other circuits. The Eleventh Circuit applies the same abuse of discretion standard that we adopt today. See United States v. O’Shea, 724 F.2d 1514, 1516-17 (11th Cir.1984). The D.C. Circuit also has held in a felon-in-possession case that “the Government’s right to introduce its proof is always subject to the trial court’s responsibility under Fed.R.Evid. 403 to limit unduly prejudicial or cumulative evidence.” See United States v. Dockery, 955 F.2d 50, 54 (D.C.Cir.1992). And the Fifth and Tenth Circuits similarly have recognized the district court’s authority to decide on the admissibility of prior crimes evidence. See United States v. Brinklow, 560 F.2d 1003, 1006 (10th Cir. 1977) (case involving interstate transportation of explosives by a convicted felon); United States v. Spletzer, 535 F.2d 950, 955-56 (5th Cir.1976) (case involving escape). The Second and Fourth Circuits affirmatively reject admission of evidence concerning the nature of the prior crime, see United States v. Gilliam, 994 F.2d 97, 103 (2d Cir.1993); United States v. Poore, 594 F.2d 39, 41-43 (4th Cir.1979), while panels in both the Ninth and Seventh Circuits have signalled that it is within a court’s discretion to accept a defense stipulation to the fact
4010	§ 271(b). Plaintiffs’ Renewed Motion for Summary Judgment on the issue of induced infringement is therefore granted. 5. Contributory Infringement Under § 271(c) Contributory infringement liability arises when one “sells within the United States ... a[n] apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use____” 35 U.S.C. § 271(c). To succeed on a claim of contributory infringement, Plaintiffs must show Defendant “knew that the combination for which its components were especially made was both patented and infring ing.” Golden Blount, Inc. v. Robert H. Peterson Co., 365 F.3d 1054, 1061 (Fed.Cir.2004) (citation omitted). Plaintiffs must also “show that [Defendant’s] components have no substantial noninfringing uses.” Id. (citing Alloc, Inc. v. ITC, 342 F.3d 1361, 1374 (Fed.Cir.2003)). Plaintiffs have shown that Defendant knew of the '833 patent at least since the notice letters were sent in January 1998, and such letters are enough to satisfy the intent requirement of § 271(c). See Trell v. Marlee Electronics Corp., 912 F.2d 1443, 1447 (1990) (explaining that “the knowledge requirement of section 271(c) limited an alleged contributory infringer’s liability to sales made after it received a letter from the patent holder informing it of the existence of the patent.” (quoting Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488, 84 S.Ct. 1526, 12
17	the arbitration clause meaningless .... [The service of suit] clause does not provide an independent means by which to resolve disputes covered by the arbitration clause.” (citation omitted)). Third, Monda Marine contends that it has tendered, pursuant to Federal Rule of Civil Procedure 14(c), the third-party defendants to the Excess P & I Underwriters. “This is a concept unique to admiralty practice which makes a third-party defendant directly liable to the plaintiff! ] and is distinguishable from the third party practice under Fed.R.Civ.P. 14(a), which does not automatically establish a direct link between the plaintiff and the third-party defendant.” See Karim v. Finch Shipping Co., No. 96-1175, 1997 WL 436257, at *2 (E.D.La. July 31, 1997) (citing Seal Offshore, Inc. v. Am. Standard, Inc., 777 F.2d 1042, 1045 (5th Cir.1985)). Because the third-party defendants may now be liable to the Excess P & I Underwriters, Monda Marine submits that arbitration is inappropriate. The Fifth Circuit has specifically held, albeit in a FAA context, that “the policy of liberal joinder in maritime cases embodied in Rule 14(c) does not supercede the statutory right to enforce contractual arbitration.” Texaco Exploration & Prod. Co. v. AmClyde Engineered Prods. Co., 243 F.3d 906, 908 (5th Cir.2001). The Fifth Circuit reasoned that “to carve out a Rule 14(c) exception ... could severely undermine maritime arbitration clauses, inspiring abuse and opportunistic behavior, as third parties are allowed or encouraged to do what the parties to a contract themselves are not: to put aside a mandatory arbitration
3662	Commerce concluded it could not rely on transfer prices which were [ ], it adjusted the prices in order to comply with the statute and the Court’s remand order. It is not for this Court to direct Commerce to choose one methodology over another where both methodologies are reasonable. While plaintiffs articulate another possible methodology, they fail to demonstrate to the Court how the methodology used by Commerce is unreasonable, not based on substantial evidence or not in accordance with law The Court need not address the merits of plaintiffs’ suggested methodology because the Court holds Commerce’s methodology is supported by substantial evidence on the record and is otherwise in accordance with law. See PPG Indus., Inc. v. United States, 14 CIT 522, 532, 746 F. Supp. 119, 129 (1990) (“[T]he chosen methodology need not be the most reasonable though it must reasonably and accurately reflect factual information in the administrative record.”) (quotations and citations omitted). B. Errors in Toyo’s Database: Plaintiffs do not challenge Commerce’s correction of errors in Toyo’s database, but rather present new bases of error. The Court, however, refuses to permit another remand in this already lengthy proceeding. Based on Commerce’s regulations, plaintiffs’ request is untimely. The applicable regulation provides in relevant part: § 353.28 Procedures for the correction of ministerial errors. * * * * * * * (b) Time limits. Comments must be filed within five business days after the date of disclosure unless the Secretary extends the time limit based upon a written
4644	petition for Writ of Coram Nobis under the All Writs Act may provide relief for persons who have grounds to challenge the validity of their conviction but are not eligible for habeas corpus relief under 28 U.S.C. § 2255 because they are not in custody. United States v. Crowell, 374 F.3d 790, 794-95 (9th Cir.2004), cert. denied, 543 U.S. 1070, 125 S.Ct. 911, 160 L.Ed.2d 806 (2005). The Writ of Audita Querela “ ‘provides relief from the consequences of a conviction when a defense or discharge arises subsequent to entry of the final judgment. The defense or discharge must be a legal defect in the conviction, or in the sentence which taints the conviction.’ ” Crowell, 374 F.3d at 794 (quoting Doe v. INS, 120 F.3d 200, 203 (9th Cir.1997)) (footnote omitted). The Ninth Circuit has explained “that the difference between coram nobis and audita querela is largely ‘one of timing, not substance.’ ” Crowell, 374 F.3d at 795 n. 4 (quoting Doe v. INS, 120 F.3d at 203 n. 4). “Whereas coram nobis could attach to a judgment that was infirm at the time it was rendered (for reasons that later came to light), audita querela attached to a judgment that was correct when rendered, but was later rendered infirm by events that occurred after the judgment.” Id. The Writ is unavailable to those who seek it on purely equitable grounds. Id. at 204. After Petitioner’s conviction became final, the Supreme Court broadened the law concerning conscientious objector status.
3778	ordinances are content-based regulations of expressive conduct and that intermediate scrutiny should apply to 3-129(9), the intentional touching provision. Alternatively, Plaintiff argues that intermediate scrutiny should apply to all of the criminal provisions. The County, on the other hand, argues that sections 3-129(3), (6), and (9) should be subjected to rational basis review because the ordinances regulate non-expressive conduct. In the alternative, the County submits that intermediate scrutiny should control the analysis. The parties agree to the correct standard in each of their alternative propositions — intermediate scrutiny is the proper standard of review as to all three provisions. Nude dancing is protected as “expressive conduct within the outer perimeters of the First Amendment, though ... only marginally so.” Barnes v. Glen Theatre. Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); see also City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). Sections 3-129(3) and (6) of the AEC regulate a dancer’s movements and restrict the manner in which a dancer crafts an erotic dance for the audience. Section 3-129(9) may apply to a dancer’s performance (for example, as during a lap or straddle dance), but the intentional touching provision also regulates the conduct of workers who are not engaged in constitutionally protected conduct. If this Court were asked only to consider the constitutionality of section 3-129(9) as it applies to pure conduct in isolation from a dancer’s protected expression, then the County may have correctly cited the
1686	Act (“RICO”) (Count I), that all of the defendants breached their fiduciary duty to Rozsa (Count II), that May Davis and Cowen breached their contract with Rozsa (Count III), and that all of the defendants unlawfully converted Rozsa’s five million dollars (Count IV). SG Cowen filed this motion to dismiss on May 11, 2001, in lieu of filing an answer. Rozsa filed a brief in opposition on May 24, 2001, and the motion was deemed fully submitted after oral argument on June 6, 2001. Discussion I. Legal Standard for Failure to State a Claim In reviewing a motion to dismiss under Rule 12(b)(6), review must be limited to the complaint and documents attached or incorporated by reference thereto. See Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). Courts must “accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993) (citing IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993)). Dismissal is warranted only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). See also Bass v. Jackson, 790 F.2d 260, 262 (2d Cir.1986). “For purposes of a motion to dismiss, [the Second Circuit has] deemed a complaint to include any written instrument
989	752, 754 (1st Cir.1996). Under the law of this circuit, a court (and I conclude this rule applies to a bankruptcy court as well as a district court, when deciding a motion for summary judgment) may use a two-phase process in deciding a motion for summary judgment. Under that process, the movant first has to make a preliminary showing that no issue of material fact remains, and then the nonmovant must “demonstrate, through specific facts, that a trial-worthy issue remains.” Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997). After a preliminary showing by the moving party, the burden shifts to. the nonmovant to “produce evidence which would be admissible at trial to make the requisite issue of material fact.” Fragoso v. Lopez, 991 F.2d 878, 887 (1st Cir.1993). If the nonmovant is unable to proffer such evidence to the court, judgment as a matter of law may be ordered because the nonmovant has failed to show that a genuine dispute exists as to any material fact. In reviewing the bankruptcy court’s decision in which the bankruptcy court may have acted under the authority of the Hayes and Fragoso decisions, the district court reviews nondeferentially (de novo) as explained in Wyner in relation to issues of law, and for abuse of discretion in relation to whether the bankruptcy court abused discretion with respect to procedural issues such as notice and opportunity for a party opposing summary judgment to present admissible evidence to meet its burden. In other words, the
3199	467 U.S. 340, 350-51, 104 S.Ct. 2450, 2456-57, 81 L.Ed.2d 270 (1984) (presumption only overcome when “the congressional intent to preclude judicial review is ‘fairly discernible in the statutory scheme’ ”); Ruff v. Hodel, 770 F.2d 839, 840 (9th Cir.1985) (“[t]he bar to judicial review ... requires a ‘persuasive reason to believe’ that Congress intended to preclude judicial review”) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967)); Moapa Band of Paiute Indians v. Department of Interior, 747 F.2d 563, 565 (9th Cir.1984) (“[pjreclusion of judicial review is not lightly inferred, and usually will not be found absent a clear command of the statute”). Moreover, we construe prohibitions against judicial review narrowly. Cf. Wallace v. Christensen, 802 F.2d 1539 (9th Cir.1986) (en banc); Moapa Band, 747 F.2d at 565. In light of these considerations, we find plaintiffs’ interpretation the most plausible, and hold that the district court had jurisdiction to review the EPA’s suspension order. II. Subsection (c)(4) provides that an emergency suspension order shall be reviewable by the district court “solely to determine whether the order of suspension was arbitrary, capricious or an abuse of discretion, or whether the order was issued in accordance with procedures established by law.” We review the district court’s legal determinations de novo and its factual findings for clear error. United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). On the
4579	"Counts One, Three, and Five. i. Count,One Count One claims violations of 42 U.S.C. § 14141 and the Fourteenth Amendment based on MCSO’s law enforcement practices, including traffic stops, workplace raids, home raids, and jail operations. Section 14141 provides: “It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers ... that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 42 U.S.C. § 14141. A “pattern or practice” is “more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 n. 16, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). See also Obrey v. Johnson, 400 F.3d 691, 694 (9th Cir.2005). In order to show a “pattern or practice,” one must prove, the conduct “was the [defendant’s] standard operating procedure the regular rather than the unusual practice.” ""Teamsters, 431 U.S. at 336, 97 S.Ct. 1843. There' is no dispute that Arpaio is a “governmental authority” under the statute, and the Melendres court found Arpaio and MCSO violated the Constitution, specifically the Equal Protection Clause of the Fourteenth Amendment. See Melendres v. Arpaio, 989 F.Supp.2d 822 (D.Ariz. 2013). Furthermore, the findings of Me-lendres amount to a “pattern or practice” under the statute.. The.Melendres court found Arpaio and MCSO at one time promulgated official policies"
3139	S.Ct. 963, 99 L.Ed.2d 169, (1988), the U.S. Supreme Court ruled that “[w]hatever equitable powers remain in the bankruptcy courts must and can be exercised within the confines of the Bankruptcy Code” and that under Section 105 “a court may exercise its equitable power only as a means to fulfill some specific Code provision.” In Official Unsecured Creditors’ Comm. v. Stern (In re SPM Mfg. Corp.), 984 F.2d 1305, 1311 (1st Cir.1993), the Court of Appeals for the First Circuit (“First Circuit”) ruled that “Section 105(a) [does not] authorize courts to create substantive rights that are otherwise unavailable under the Code, or to expand the contractual obligations of parties.” The First Circuit also warned in Jamo v. Katahdin Fed. Credit Union (In re Jamo), 283 F.3d 392, 403 (1st Cir.2002), that the bankruptcy court’s equitable powers pursuant to Section 105 must be exercised cautiously: [S]ection 105(a) does not provide bankruptcy courts with a roving writ, much less a free hand. The authority bestowed thereunder may be invoked only if, and to the extent that, the equitable remedy dispensed by the court is necessary to preserve an identifiable right conferred elsewhere in the Bankruptcy Code. Id. at 403. Also see Hann v. Educ. Credit Mgmt. Corp. (In re Hann), 476 B.R. 344, 359 (1st Cir. BAP 2012) (“Section 105(a) provides the bankruptcy court broad authority to exercise its equitable powers — where necessary or appropriate — to facilitate the implementation of other Bankruptcy Code provisions.”) (D) Critical Vendor Orders in the
4761	which in turn ultimately relied upon United States v. Brickey, 426 F.2d 680, 685-86 (8th Cir.1970). The question in Brickey was whether, in proving the crime giving rise to the instant prosecution, the government may be forced to accept a stipulation (“a naked admission”) in lieu of presenting a full picture of the events and mind sets in question. The defendant in Brickey had been indicted for mail fraud and sought to stipulate to the fact that he had diverted funds so as to exclude evidence about his personal use of the money. The Brickey panel found no abuse of discretion in the trial court’s refusal to require the government to accept the stipulation, and quoted the following passage from Parr v. United States, 255 F.2d 86, 88 (5th Cir.1958): “It is a general rule that ‘A party is not required to accept a judicial admission of his adversary, but may insist on proving the fact.’ 31 C.J.S. Evidence § 299, p. 1068. The reason for the rule is to permit a party ‘to present to the jury a picture of the events relied upon. To substitute for such picture a naked admission might have the effect to rob the evidence of much of its fair and legitimate weight.’” 426 F.2d at 686. Brickey, the sole underpinning of the cases on which we relied in Collamore, is critically different from the ease before us. While the stipulation there concerned facts directly relevant to the instant crime, the case before us
2230	benefits the debt- or. See, S.Rep. No. 95-989, 95th Cong., 2d Sess. 49 — 51 (1978). A Chapter 7 trustee has the option to avoid a lien which is created in violation of the automatic stay. Sections 541 through 549 outline the specific powers of the trustee to avoid liens and to retrieve property of the estate. 11 U.S.C. §§ 541-549. The wording of § 549, which specifically addresses post-petition transfers, indicates that a transfer made in violation of the stay may be voidable at the trustee’s discretion. “[T]he trustee may avoid a transfer of property of the estate — (1) that occurs after the commencement of the case; ...” 11 U.S.C. § 549 (emphasis added). In re Fuel Oil Supply and Terminaling, Inc., 30 B.R. 360, 362 (Bankr.N.D.Tex.1983), states that since the stay benefits the debtor, a trustee’s avoidance powers should be viewed as discretionary. See, In re Stivers, 31 B.R. 735 (Bankr.N.D.Cal.1983). This suggests that a post-petition transfer in violation of the stay is not absolutely void once committed, but rather voidable. Subsections (b) and (c) of § 549 describe specific instances when the trustee may not avoid certain actions. Section 549 would have no purpose if post-petition transactions were treated as absolutely void. Moreover, even if the trustee of Wiley Brooks had no knowledge of the recorded deed, his personal knowledge is not relevant. See, In re Gurs, 27 B.R. 163 (9th Cir. BAP 1983). In Gurs the court stated that the Code does not create any
1302	the Batiste Complaint and Zahara Complaint allege different fraudulent schemes; (B) the district court improperly concluded that the FCA’s first-to-file bar does not require a first-filed complaint to meet the pleading standards for fraud; and (C) the district court improperly dismissed Batiste’s complaint with prejudice. We agree with the district court that the complaints allege the same material elements of the same fraud and that the FCA’s first-to-file bar does not require a first-filed complaint to meet heightened pleading standards, and we determine Batiste waived his argument regarding the district court’s dismissal with prejudice. A. Same Material Elements of Fraud Appellate courts review de novo the dismissal of a complaint for lack of jurisdiction. United States ex rel. Findley v. FPC-Boron Emps. ’ Club, 105 F.3d 675, 681 (D.C.Cir.1997). Applying that standard in this case, we reason as follows: The FCA’s first-to-file rule provides that “[w]hen a person brings an action under this subsection, no person other than the Government may intervene or bring a related action based on the facts underlying the pending action.” 31 U.S.C. § 3730(b)(5). This furthers the statute’s “twin goals of rejecting suits which the government is capable of pursuing itself, while promoting those.which the government is not equipped to bring on its own.” United States ex rel. Hampton v. Columbia/HCA Healthcare Corp., 318 F.3d 214, 217 (D.C.Cir.2003) (quoting United States ex rel. Springfield Terminal Ry. v. Quinn, 14 F.3d 645, 651 (D.C.Cir.1994)). Therefore, the rule “bar[s] ‘actions alleging the same material elements of fraud’
4528	injunction; and (4) the Melendres injunction is years away from full implementation, . Mootness doctrine prevents courts from ruling “when the issues presented are no longer live and therefor the parties lack á cognizable interest for which the-courts can grant a remedy.” Alaska Ctr. For Envt v. U.S. Forest Serv., 189 F.3d 851, 854 (9th Cir.1999). “The party asserting mootness bears the burden of establishing that there is no effective relief that the court can provide.” Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir.2006). And “[t]hat burden is ‘heavy’; a case is not moot where any effective relief may be granted.” Id. “Partial .relief in another proceeding cannot moot an action that legitimately seeks additional relief.” Flagstaff Med. Ctr., Inc. v. Sullivan, 962 F.2d 879, 885 (9th Cir. 1992). As a general principle, “the government is- not bound by private litigation when the government’s action seeks to enforce a federal statute that implicates both public and private interests.’’ ' California v. IntelliGender, LLC, 771 F.3d 1169, 1177 (9th Cir.2014) (internal quotation marks and citation omitted). See also Hathom v. Lovom, 457 U.S. 255, 268 n. 23, 102 S.Ct. 2421, 72 L.Ed.2d 824 (1982); City of Richmond v. United States, 422 U.S. 358, 373 n. 6, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975). For example,. in E.E.O.C. v.- Goodyear Aerospace Corp., the Ninth Circuit held the.Equal Employment Opportunity Commission’s (“EEOC”) “interests in determining the legality of specific conduct and in ’deterring future violations are distinct from the employee’s interest
1017	objective of equal representation by employer and employee trustees on the board of welfare and pension funds “is thwarted when the employer trustees represent two rival associations.” 559 F.2d at 223. We held that the equal representation clause was violated when trustees, representing a rival association not a party to the original trust agreement, were added to the board without the consent of the original employer association. The amendments in that case were found to create the potential for abuse and combination of alliances placing the union in a dominant position — four were union trustees, two were original employer trustees, and two were employer rival trustees. This Court, through Judge Rosenn, reviewed the law of equal representation. Relying on Arroyo v. United States, 359 U.S. 419, 425-26, 79 S.Ct. 864, 868, 3 L.Ed.2d 915 (1959), we noted that Section 302 was enacted to prevent “the possible abuse by union officials of the power which they might achieve if welfare funds were left to their sole control.” 559 F.2d at 226. Thus, the requirement of equal employer-employee representation in the joint administration of trust funds was central to the congressional scheme set forth in Section 302. The Court stated: The starting point for analysis must be the candid recognition that the relationship between employer and employee trustees of an employee benefit trust fund is quasi-adversarial in nature. Naturally, the trustees of such a trust fund function are fiduciaries for the funds’ beneficiaries but they also serve as repre sentatives of
470	in some way observed and yielded to.” Mr. Justice Curtis in Murray v. Hoboken Land Co., 59 U. S. (18 How.) 272, 15 L. Ed. 372. The nation from which we inherited the phrase “due process of law” has never relied upon courts of justice for the collection of her public revenues. “Taxes have not, as a general rule, in this country since its independence, „nor in England before that time, been collected by regular judicial proceedings. The necessities of government, the nature of the duty to be performed, and the customary usages of the people, have established a different procedure, which, in regard to that matter, is, and always has been, due process of law.” Kelly v. Pittsburgh, 104 U. S. 78, 80 (26 L. Ed. 658). In the ease at bar the element of public policy arising out of the necessity of the government to have its revenues promptly and without delay is 'wholly lacking. The government does not depend upon nor look to moneys collected as fines or penalties for violation of criminal statutes for revenue with which to perform its governmental functions or to cany on its public activities. Neither do the settled usages or methods of proceeding existing in the common or statute law of England, prior to the emigration of our ancestors, lend any support to the establishment of summary administrative procedure for the infliction of punishment for the violation of penal laws. Whoever heard of penalties imposed as punishment for crime being collected
1778	fact and the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Any doubt as to the existence of a genuine issue of material fact must be resolved against the party seeking summary judgment. In addition, the inferences drawn from the facts presented must be construed in the light most favorable to the nonmoving party. Board of Education v. Pico, 457 U.S. 853, 863, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982). Nonetheless, a party opposing a motion for summary judgment may not simply allege that there are disputed issues of fact; rather, the party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e) (emphasis added). See also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[TJhere is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). The undisputed facts establish that the '326 patent was issued on November 27, 2001 based on the January 21, 2000 application of inventors Lee W. Davis, D.W. Hearn, Jr., David Thomas Springer, James J. Coffey, and Jon David Currier. Exhibit 1(A) to Defendant’s Motion at 1. The patent contains four independent claims and sixteen dependent claims. Each of the independent claims limits the invention
2332	Smith v. Snow, 294 U.S. 1, 14, 55 S.Ct. 279, 79 L.Ed. 721. It is also to be remembered that the doctrine of equivalents is applied to other than primary or generic patents and that, while the range of equivalents depends upon the extent and nature of the invention, even a nongeneric or specific patent is entitled to some range of equivalents. “Any patent, however, has some range of equivalents, unless form is made the indispensable thing. And the rule is especially applicable where the infringer takes the whole gist of the invention, as in this case.” Frick Co. v. Lindsay, 4 Cir., 27 F.2d 59, 62. See, also, McDonough v. Johnson-Wentworth Co., 8 Cir., 30 F.2d 375, 384; Freeman v. Altvater, 8 Cir., 66 F.2d 506, 510, 511. It is argued, however, that the prior art limited, and in fact destroyed, Claim 4 of the Packwood patent. We think a detailed discussion of all of the prior art patents contained in the record is not necessary. The patent to Lewin, cited as a reference by the Patent Office, shows a liquid-soap dispenser using a dispensing element not unlike the dispensing element of Packwood. Lewin’s dispenser consists of a cup attached to the lower end of a rod which extends upwardly through the discharge opening of the container and is of less diameter than such opening. The rod is kept in place and its downward movement is limited by a pin at its upper end, which pin rests upon the
4975	as a whole, the prosecution history does not constitute the “clear and unmistakable ... definitive statements” required to effect a disavowal of scope. Elbex, 508 F.3d at 1373; see also Phillips, 415 F.3d at 1317 (“because the prosecution history represents an ongoing negotiation between the PTO and the applicant, rather than the final product of that negotiation, it often lacks the clarity of the specification and thus is less useful for claim construction purposes”). Furthermore, although the prosecuting attorney made statements that indicate that the management layer is below the storage layer in the invention, those statements are contrary to the claim language and the intrinsic evidence, as discussed above. Elbex, 508 F.3d at 1373. See also Intervet America, Inc. v. Kee-Vet Labs., Inc., 887 F.2d 1050, 1054 (Fed.Cir.1989) (“When it comes to the question of which should control, an erroneous remark by an attorney in the course of prosecution of an application or the claims of the patent as finally worded and issued by the Patent and Trademark Office as an official grant, we think the law allows for no choice. The claims themselves control.”). NetApp proposes that the term “storage layer underlying the block and file level servers” be construed as “the block and file level servers use operations provided by the storage layer.” The Court agrees that one of ordinary skill in the art would understand the word “underlying” in the context of one software layer underlying another to mean that the first provides functionality for the
4748	based on the statute itself. The conduct prohibited by Section 471— failing to continue to provide services to RTC transferees — directly benefits RTC transferees. Similarly, a violation of Section 471 would directly injure an RTC transferee. Thus, an RTC transferee appears from the language of the statute itself to be “one of the class for whose especial benefit the statute was enacted.” Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975). However, “the fact that an enactment is designed to benefit a particular class does not end the inquiry; instead, it must also be asked whether the language of the statute indicates that Congress intended that it be enforced through private litigation.” Universities Research Ass’n v. Coutu, 450 U.S. 754, 771, 101 S.Ct. 1451, 1462, 67 L.Ed.2d 662 (1981); see also Touche Ross & Co., 442 U.S. at 576, 99 S.Ct. at 2489 (“Certainly, the mere fact that § 17(a) was designed to provide protection for brokers’ customers does not require the implication of a private damages action in their behalf.”). The language of the statute does not appear to create any remedy for the RTC transferee beyond an action for breach of contract, which is made possible by the obligation created by Section 471. B. Surrounding Statutory Scheme Having considered the language of Section 471 itself, the statutory scheme surrounding the statute is another important factor to consider in determining whether Congress intended a private right of action. See Merrill Lynch, Pierce,
2037	On remand, in evaluating the evidence for purposes of readjudication in accordance with this opinion, the Board must explain carefully its conclusions as to the applicability of the benefit-of-the-doubt rule as to each material issue in the case, including the questions whether, according to medical evidence, the corroborated, frequent rocket-and-mortar-attack stressor was a contributing basis for the veteran’s current PTSD symptoms; and, if not, whether the veteran served in combat; whether the asserted landing stressor is corroborated by any further ESG report or other evidence; and whether, according to the medical evidence, the landing stressor if found to have occurred was a contributory basis for the veteran’s current PTSD symptoms. See Williams, supra; Sheets v. Derwinski, 2 Vet.App. 512, 516 (1992); O’Hare v. Derwinski 1 Vet.App. 365, 367 (1991); see also Fletcher v. Derwinski 1 Vet.App. 394, 397 (1991) (“[a] remand is meant to entail a critical examination of the justification of the decision” and is not “merely for the purposes of rewriting the opinion so it will superficially comply with the ‘reasons or bases’ requirement of 38 U.S.C. § 7104(d)(1)”). Also, because the Court holds that the undisputed diagnosis of PTSD by the three mental-health professionals established on the facts of this case, as a matter of law, a current PTSD disability, which necessarily includes the sufficiency of the alleged stressors (although not necessarily their occurrence), the changes brought about in the PTSD diagnostic criteria by VA’s adoption, in 38 C.F.R. §§ 4.125 and 4.130 (Nov 96 amnds), of
3410	Cir.1990). Federal Rule of Evidence 404(b) provides Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). “To be admissible, 404(b) evidence must (1) be relevant to one of the enumerated issues and not to the defendant’s character; (2) the prior act must be proved sufficiently to permit a jury determination that the defendant committed the act; and (3) the evidence’s probative value cannot be substantially outweighed by its undue prejudice, and the evidence must satisfy Rule 403.” United States v. Chavez, 204 F.3d 1305, 1317 (11th Cir.2000); see also United States v. Matthews, 411 F.3d 1210 (11th Cir.2005). Here, Terrell’s burglary conviction was relevant to the issue of whether Terrell knew he possessed the firearm, which Terrell placed in issue by pleading not guilty to the firearm offense. United States v. Jernigan, 341 F.3d 1273, 1282 n. 7 (11th Cir.2003). The only issue is whether the prejudice of this evidence outweighed its probative value. Here, the district court properly admitted the extrinsic evidence of the related burglary conviction, as its prejudicial effect did not outweigh the probative value. The judge issued limiting instructions to the jury reminding them that the burglary conviction could not be used alone to determine Terrell’s guilt for the firearm offense. See Jernigan,
1890	support its position, it made several claims: (1) consumers would not suffer from offset because they would pay only the “just and reasonable” ceiling rate, (2) Gillring was a small producer in need of capital, (3) Gill-ring would have extra funds for exploration and development to stop its declining sales, and (4) Gillring at all times collected rates below the new national minimum rate established in Opinion No. 749, review pending sub nom. Tenneco Oil Co. v. FERC (5th Cir. No. 76-2960). The Commission did not abuse its discretion in rejecting Gillring’s request. A primary responsibility of the Commission is to “afford consumers a complete, permanent, and effective bond of protection from excessive rates and charges.” Atlantic Refining Co. v. Public Service Commission (CATCO), 360 U.S. 378, 388, 79 S.Ct. 1246, 1253, 3 L.Ed.2d 1312 (1959). Gillring’s suggestion that consumers would not suffer from the refund offset defies plain arithmetic, ignores the ceiling rate concept, and flaunts the filed rate doctrine. Also, while the Commission has excused refunds for some small producers, see Small Producer Regulations, Op. No. 742-A (July 27, 1976), the Commission is not required to favor small producers in every instance. Unlike the prices in Opinion No. 742-A, the rates here were not collected during a period of severe curtailment when consumers received a special benefit from the gas supplied. Furthermore, Gillring’s need for exploration and development funds has not been shown to be any different from that of other producers with declining sales. One difficulty with
4673	including a claim under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, as well as state law claims sounding in fraud. Following a magistrate judge’s report and recommendation, the district court dismissed the federal claims for failure to state a claim, concluded that the Maitlands failed to allege diversity jurisdiction, and declined to exercise supplemental jurisdiction over their state law claims. This appeal follows. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review de novo the dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences in the plaintiffs favor. Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015). The complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although a court must accept as true all the factual allegations in the complaint, that requirement is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. As an initial matter, the Maitlands have waived appellate review of their RICO claim against the Fishbeins by failing to object to the portion of the magistrate judge’s February 28, 2017 report and recommendation addressing that claim despite being notified
4188	were so clearly excessive to defeat the claim for qualified immunity. Therefore, the Court determines that the evidence does not support the Defendants’ qualified immunity claim for Officers Zotz and Ross. B. State Law Tort Claims The Defendants also moved for summary judgment on the Plaintiffs’ state lav? tort claims for assault, battery, and excessive force against Officers Zotz and Ross and against the City under the doctrine of respondeat superior. Under Indiana law, a police officer may use only the force that is reasonable and necessary for effecting an arrest. Ind. Code § 35-41-3—3(b). Indiana’s excessive force standard effectively parallels the federal standard outlined above. See O’Bannon v. City of Anderson, 733 N.E.2d 1, 3 (Ind. App. 2000); Fidler v. City of Indianapolis, 428 F.Supp.2d 857, 866 (S.D. Ind. 2006). “Any claim that excessive force was used by a police officer when making an arrest is analyzed under the reasonableness standard of the Fourth Amendment to the United States Constitution.” Brooks v. Anderson Police Dep’t, 975 N.E.2d 395, 399 (Ind. Ct. App. 2012). The Defendants assert that they are entitled to summary judgement on the Plaintiffs’ state law claims for assault, battery, and excessive force because they did not intend to severely injure the Plaintiffs when they fired shots into the backseat of the vehicle. The Plaintiffs argue that there are genuine issues of material fact regarding Officers Zotz’s and Ross’ use of excessive force against the Plaintiffs. Based on the earlier analysis of the Plaintiffs’ Fourth Amendment claims
462	be attacked). To the extent that Sanchez’s action challenges prior parole suitability decisions or would otherwise necessarily demonstrate the invalidity of the duration of his confinement, it is barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). See Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir.1997) (Heck bars prisoner’s § 1983 action alleging that “defendants violated his due process rights by considering false information in his prison file to find him ineligible for parole”). We do not consider matters not specifically and distinctly raised and argued in the opening brief, or documents presented for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir.2009) (per curiam); United States v. Elias, 921 F.2d 870, 874 (9th Cir.1990) (“Documents or facts not presented to the district court are not part of the record on appeal.”). We reject Sanchez’s contentions concerning discovery because the record shows that the district court ordered Baker to respond to Sanchez’s discovery before it granted summary judgment and the record does not show that the responses were inadequate. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
1500	A. To my knowledge, he was not. Q. And he never used any drugs in your presence? A. No, sir. * * * * * Q. Ever been in [the witness’] bed? A. No. Q. Ever been in any bed in that house? A. No. . Counsel’s specific proffer was: The testimony will show, Your Honor, that there were several occasions, at least two that have been related to me, in which [the officer] was in the home of [the witness], his living room, and they had an unnatural sex relation, these two men, and that this happened again, Your Honor, on one other occasion that I have been told about, at [the witness’] house, at his apartment. . See Salgado v. United States, 278 F.2d 830, 831 (1st Cir. 1950) (“It is true that such character evidence is not relevant to the question of the witness’s veracity, and is therefore not admissible to discredit him in that regard. Nor could defendant introduce the evidence merely as contradiction of the witness’s own denial that he was ‘an immoral pervert.’ ” [citations omitted]); United States v. Xuccio, 2 Cir., 373 F.2d 168, 171, cert. denied 387 U.S. 906, 87 S.Ct. 1688, 18 D.Ed.2d 623 (1967) (“ * * * it would indeed have been wrong to permit cross-examination on the score of homosexuality merely to discredit [a witness’] character * * *.”) . Wynn v. United States, 130 U.S.App.D.C. 60, 62-63, 397 F.2d 621, 623, 624 (1967); Villaroman v. United States,
3501	supplier’s failure to warn about dangers associated with the product’s use. While the test enunciated by the Boyle Court was specifically tailored for use in design defect cases, the Fifth Circuit has held that it could also be applied in failure to warn eases. Garner v. Santoro, 865 F.2d 629, 635 (5th Cir.1989); Bynum v. FMC Corp., 770 F.2d 556, 574 n. 24 (5th Cir.1985). In doing so, however, the court recognized the difficulty a defendant will have under Boyle in “establishing an identifiable federal interest or policy in the existence or method of warning and a significant conflict between that federal interest or policy and the operation of state law.” Gamer, 865 F.2d at 635-36; see also In re Hawaii Fed. Asbestos Cases, 960 F.2d 806, 813 (9th Cir.1992) (“Boyle displaces state law only when the Government, making a discretionary, safety-related military procurement decision contrary to the requirements of state law, incorporates this decision into a military contractor’s contractual obligations, thereby limiting the contractor’s ability to accommodate safety in a different fashion.”); Dorse v. Eagle-Picher Indus. Inc., 898 F.2d 1487, 1489 (11th Cir.1990) (holding that the government contractor defense could only arise in situations where the government prohibits a specific warning which prevents the contractor from complying “with both its contractual obligations and the state-prescribed duty of care”). For purposes of satisfying its burden under § 1442(a)(1), Armco does not have to establish a meritorious federal defense, only a colorable claim. The Court finds that this burden has been
4730	applied “[t]he de minimis .rule,” and thus have held that the motor carrier exemption did not apply, “where the employee’s connection with anything affecting interstate motor carrier operations was so indirect and casual as to be trivial.” Crooker v. Sexton Motors, Inc., 469 F.2d 206, 210 (1st Cir.1972) (italics omitted) (citing Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 708, 67 S.Ct. 954, 91 L.Ed. 1184 (1947)). However, “[i]n determining whether an employee’s activities ... are de minimis, it is important to focus on ‘the character of the activities rather'than the proportion of either the employee’s time or of his activities.’ ” Masson v. Ecolab, Inc., No. 04-CV-4488, 2005 WL 2000133, at *7 (S.D.N.Y. Aug. 17, 2005) (quoting Levinson v. Spector Motor Serv., 330 U.S. 649, 674-75, 67 S.Ct. 931, 91 L.Ed. 1158 (1947)). Because courts focus on the character of the activities, instead of the proportion of time involved in interstate activity, in determining whether an employee’s interstate activities are de minimis, courts are hesitant to apply the de minimis exception to drivers who occasionally drive interstate. See Williams, 2015 WL 305362, at *12 (holding that the “activities of one who drives in interstate commerce, however frequently or infrequently, are not trivial,” noting that “[o]ther cases have followed this reasoning when it comes to suits brought by drivers,” and collecting cases (internal quotation marks omitted)); see also Roberts v. Cowan Distribution Servs., LLC, 58 F.Supp.3d 593, 600 (E.D.Va.2014) (“An isolated delivery in interstate commerce may be de minimis
2400	Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). The Court “must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). The complaint “is construed liberally in [plaintiffs] favor, and [the Court should] grant [plaintiff] the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). However, the Court need not accept inferences that are not supported by the facts alleged and legal conclusions drawn by plaintiff. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). Under the ADEA it is .“unlawful for an employer ... to fail or refuse to hire ... any individual ... with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). A successful claim under the ADEA requires a plaintiff to demonstrate that he “(1) ... is a member of the protected class (i.e., over 40 years of age); (2) ... was qualified for the position for ’which [he] applied; (3)
1705	v. Ogden Associates, 88 A.D.2d 472, 454 N.Y.S.2d 721, 726 (N.Y.App.Div.1982). The complaint alleges only that SG Cowen accepted a transfer of funds with a note that the funds were “for the benefit of Mr. Thoedore Rozsa” (Compl.f 14), not that SG Cowen was authorized to “use” the funds. A bailment of money is created under New York law when a special or specific bank account is created, title to the funds remains with the account holder, and the funds are separated from other deposits. See Peoples Westchester Savings Bank v. Federal Deposit Ins. Corp., 961 F.2d 327, 330 (2d Cir.1992). “Whether an account is general or specific depends upon the mutual intent of the parties.” Swan Brewery Co. v. United States Trust Co., 832 F.Supp. 714, 718 (S.D.N.Y.1993). Absent evidence of intent, New York law presumes that deposits are general rather than specific. Id. at 718-19. As the court recognized in Hossain v. Rauscher Pierce Refsnes, Inc., 46 F.Supp.2d 1164 (D.Kan. 1999), an investor does not seek to have the exact same funds returned after depositing them with a clearing broker: When plaintiff [investor] deposited his money with the defendant [clearing agent], he did not intend for the defendant to return the identical money back to him. To the contrary, plaintiff deposited the money with hopes of increasing the amount of his deposit. Because the deposit cannot be classified as a special deposit, no bailment relationship existed between plaintiff and defendant. 46 F.Supp.2d at 1171 (construing Kansas law, which
600	officer is empowered to permit cross-examination under such circumstances. . “(b) Although any hearing shall be informal and legislative in type, this part is intended to provide more than the bare essentials of informal rule making under 5 U.S.C. 553. The additional requirements are the following: “(1) The presiding officer shall be a hearing examiner appointed under 5 U.S. C. 3105. “ (2) The presiding officer shall provide an opportunity for cross-examination on crucial issues. “(3) The hearing shall be reported verbatim, and a transcript shall be available to any interested person on such terms as the presiding officer may provide.” . See Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); City of Chicago v. FPC, 147 U.S.App.D.C. 312, 458 F.2d 731, 744 (1971), cert. denied, 405 U.S. 1074, 92 S.Ct. 1495, 31 L.Ed.2d 808 (1972); Automotive Parts & Accessories Ass’n v. Boyd, 132 U.S.App.D.C. 200, 407 F.2d 330, 334-338 (1968); Wirtz v. Baldor Electric Co., 119 U.S.App.D.C. 122, 337 F.2d 518, 525-528 (1963). . This combination is made even more confusing by a statement in the report that seems to indicate that the Conference Committee thought the substantial evidence standard was less exacting than the standard of rationality ordinarily applicable to the results of informal rulemaking. H.Rep.No. 91-1765 (1970), p. 36. For a more detailed discussion of these legislative events, see Associated Industries, 470 supra, where the Second Circuit said that the Congressional intention was clear “to adopt the substantial evidence test for review
4133	goes to the [trier of fact] unless only one possible conclusion may be drawn from the undisputed facts.” Tuthill v. U.S., 270 F.Supp.2d 395, 399 (S.D.N.Y. 2003) (citing Pelman v. McDonald’s Corp., 237 F.Supp.2d 512, 541 (S.D.N.Y.2003)). In New York, “it is well settled that a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances. The nature and scope of that duty and the persons to whom it is owed require consideration of the likelihood of injury to another from a dangerous condition on the property, the seriousness of the potential injury, the burden of avoiding the risk and the foreseeability of a potential plaintiffs presence on the property.” Furey v. U.S., 458 F.Supp.2d 48, 53 (N.D.N.Y.2006) (emphasis in original). In addition, under New York law, Generally, a party who, in possession of premises, throws them open to the public for the purpose of gain, impliedly warrants the premises to be reasonably safe for the purpose intended, and is under a legal duty to exercise due care, commensurate with the circumstances, to put and maintain the premises, instrumentalities, and all parts thereof to which persons lawfully present may go, in a safe condition for the uses for which they are intended and designed. 85 N.Y. Jur.2d Premises Liability § 36 (West 2009) (emphasis added). Here, the court finds that the unprotected wall constituted an unsafe condition. The court finds that the defendant opened the LZ Owl premises for
4382	have considered this very question. In Montel Aetnastak, Inc. v. Miessen, 998 F.Supp.2d 694 (N.D.Ill.2014), Judge Castillo, sitting in the Northern District, rejected the bright-line rule from Fifield, and held that fifteen months of employment constituted adequate consideration for a restrictive covenant. Id. at 715-18. Just last week, in Bankers Life and Casualty Co. v. Miller, 14-cv-3165, 2015 WL 515965 (N.D.Ill. Feb. 6, 2015), Judge Shah, also of the Northern District, predicted that “[t]he Illinois Supreme Court would ... reject a rigid approach to determining whether a restrictive covenant was supported by adequate consideration” and “not adopt a bright-line rule requiring continued employment for at least two years in all cases.” Id. at *4. However, in Instant Technology, LLC v. DeFazio, 12 C 491, 40 F.Supp.3d 989, 2014 WL 1759184 (N.D.Ill. May 2, 2014), Judge Holderman, also of the Northern District, predicted that the Illinois Supreme Court would apply the bright-line rule announced in Fifield. Id. at *14. As discussed below, the Court does not believe that the Illinois Supreme Court would adopt the bright-line test announced in Fifield. Such a rule is overprotective of employees, and risks making post-employment restrictive covenants illusory for employers subject completely to the whimsy of the employee as to the length of his employment. A case-by-case, fact-specific determination, on the other hand, can ensure that employees and employers alike are protected from the risks inherent in basing consideration on something as potentially fleeting as at-will employment A. The Fifield Approach In Fifield, an insurance
2195	the trial made no mention of travel time. Presuming that it was included, I allocated one hour of each of these entries for travel as well. In keeping with the approved First Circuit standard, the Court applied rates for non-core hours at two-thirds the approved billing rates it assigned for core legal work. See Brewster, 3 F.3d at 492; McLaughlin, 976 F.Supp. at 62. 2. Hourly Rates for Each Attorney In order to determine the appropriate hourly rates for core work performed by Attorney Hernandez, Attorney Paniagua, and Attorney Flax, the Court looked to the rates “ ‘prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.’ ” Grendel’s Den, 749 F.2d at 955 (quoting Blum v. Stenson, 465 U.S. 886, 895 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)); see also, e.g., Lipsett, 975 F.2d at 937 (applying the “ ‘prevailing rates in the community for comparably qualified attorneys’ ” (quoting Metropolitan Dist. Comm’n, 847 F.2d at 19)). The relevant community for purposes of this determination is Boston, “[t]he community in which the court sits,” National Wildlife Fed’n v. Hanson, 859 F.2d 313, 317 (4th Cir.1988); see also, e.g., Guckenberger, 8 F.Supp.2d at 103 (noting the “presumption that local Boston rates apply” to a case heard in federal district court in Boston (citing cases)). a. Attorney Hernandez This Court recently found that $250 per hour is the typical rate for senior private civil rights trial attorneys in Boston. See id. at 105.
458	have jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.2004). We affirm. The district court properly granted summary judgment because Sanchez failed to raise a genuine dispute of material fact as to whether Baker knew of and disregarded an excessive risk to Sanchez’s safety. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (a prison official is deliberately indifferent only if he or she “knows of and disregards an excessive risk to inmate ... safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference”); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir.1986) (summary judgment was proper where plaintiff had not provided evidence demonstrating that defendants “had any reason to believe” that plaintiff would be attacked). To the extent that Sanchez’s action challenges prior parole suitability decisions or would otherwise necessarily demonstrate the invalidity of the duration of his confinement, it is barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). See Butterfield v. Bail, 120 F.3d 1023, 1024-25 (9th Cir.1997) (Heck bars prisoner’s § 1983 action alleging that “defendants violated his due process rights by considering false information in his prison file to find him ineligible for parole”). We do not consider matters not specifically and distinctly raised and argued in the opening brief, or documents
2734	members of the 1997 admissions committee, including Professor Dela-gu, Professor Cluchey, Professor Ward, and Assistant Dean Barbara Gauditz (“Admissions Committee”). Before the Court is Defendants’ Motion for Summary Judgment on Counts II and VI of Plaintiffs Fourth Amended Complaint. For the reasons discussed below, Defendants’ Motion for Summary Judgment as to Count II is GRANTED and Count VI is DISMISSED. I. SUMMARY JUDGMENT Summary judgment is appropriate in the absence of a genuine issue as to any material fact and when the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue is genuine for these purposes if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that has “the potential to affect the outcome of the suit under the applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993). Facts may be drawn from “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits.” Fed.R.Civ.P. 56(c). For the purposes of summary judgment the Court views the record in the light most favorable to the nonmoving party. See McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995). I. BACKGROUND In March of 1997, Plaintiff, who was 65 years of age at the time, submitted an application for admission to the class of 2000 of the University of Maine School of
3556	Mission Ministries, 655 F.Supp.2d 1150, 1159 (D.Idaho 2009), as amended, 2010 WL 1913379 (D.Idaho 2010). However, we need not decide whether the FHA applies to the shelter as currently operated, because even if it does, that application was not clearly established in 2005. We had not determined whether homeless shelters in general met the definition of a “dwelling,” and we did not decide the issue in the previous appeal. Cmty. House I, 490 F.3d at 1048 n. 2. Other courts had considered the issue, but there was no consensus on the FHA’s applicability to such shelters. Compare Woods v. Foster, 884 F.Supp. 1169, 1173-74 (N.D.Ill.1995) (shelter was a dwelling because the homeless have no other place to which to return), with Johnson v. Dixon, 786 F.Supp. 1, 4 (D.D.C.1991) (shelter was likely not a dwelling but a “place of overnight repose and safety”). As far as Chatterton and Birdsall knew, the BRM was most likely to use the facility only as a short-term, emergency homeless shelter. The BRM’s initial proposal to the City — which was declined in 2003— proposed retaining the longer-term transitional apartments and SROs. However, by the time the BRM responded to the City’s RFI/RFP process, its proposal did not state that Community House would be used in such a manner. The proposal focused instead on the BRM’s “basic” emergency shelter programs. Chatterton requested that the BRM clarify how its men-only policy and religious services affected the “emergency shelter services” to be offered by the BRM. Ordinances
710	1020, 1021, 85 L.Ed. 1477 (1941)). Accordingly, the Court will apply Pennsylvania’s choice of law rules. In Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964), the Pennsylvania Supreme Court abandoned the traditional lex loci delicti doctrine which dictated application of the law of the place of injury in tort cases. Instead, the court opted for “a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.” Id. 203 A.2d at 805. This method of analysis involves a hybrid approach that “combines the approaches of both Restatement II (contacts establishing significant relationships) and ‘interest analysis’ (qualitative appraisal of the relevant States’ policies with respect to the controversy).” Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir.1991) (quoting Melville v. American Home Assurance Co., 584 F.2d 1306, 1311 (3d Cir.1978)). “Although the Griffith case involved a tort action, subsequent cases have extended the same rationale and approach to contract cases involving a choice of law question.” Gould, Inc. v. Continental Casualty Co., 822 F.Supp. 1172, 1175 (E.D.Pa.1993) (Yohn, J.) (citations omitted); see also United Servs. Auto. Ass’n v. Evangelista, 698 F.Supp. 85, 87 (E.D.Pa.1988) (Giles, J.) (citing Melville, 584 F.2d at 1313, and applying the Griffith analysis “generally to contract actions and specifically to insurance contracts”), aff'd, 872 F.2d 414 (3d Cir.1989). In this case, the two-pronged contacts and interests analysis compels application of Pennsylvania law. With respect to the contacts prong of the Griffith analysis, the
3156	“ambiguous,” “meaningless,” or “without definition.” Particular attack is made on the words “round trip sightseeing or pleasure tour” and “special or charter operations.” This last phrase is found in the proviso of section 207(a) of the Interstate Commerce Act, 49 U.S.C.A. § 307(a), and has been frequently used by the Commission. The difference between “special operations” and “charter operations” has often been passed upon by the courts. See, particularly, Fordham Bus Corporation v. United States, D. C., 41 F.Supp. 712, 717. Said Mr. Justice Frankfurter in United States v. Maher, 307 U.S. 148, 155, 59 S.Ct. 768, 771, 83 L.Ed. 1162: “The recognized practices of an industry give life to the dead words of a statute dealing with it.” And, in Sproles v. Binford, 286 U.S. 374, 393, 52 S.Ct. 581, 587, 76 L.Ed. 1167, Chief Justice Hughes remarked: “The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.” If by chance White House should indulge in operations not fairly within the ambit of the certificate, adequate remedy is available. Section 204(c), 49 U.S.C.A. § 304(c), of the Interstate Commerce Act clearly provides: “Upon complaint in writing to the Commission by any person, State board, organization, or body politic, or upon its own initiative without complaint, the Commission may investigate whether any motor carrier or broker has failed to comply with any provision of this part, or with any requirement established pursuant thereto. If the
1113	arbitration clause encompasses ’any and all disputes arising out of or related to Plaintiffs employment’ - such as Federal statutory claims.” Id. at 14-15. The Federal Arbitration Act, 9 U.S.C. §§ 1-13, establishes “a uniform federal law over contracts which fall within its scope.” Goodwin v. Elkins & Co., 730 F.2d 99, 108 (3d Cir.1984). Because neither party contests the validity of the arbitration clause, the Court confines its inquiry to assessing whether the dispute at issue falls within the scope of that clause. Further, because neither party questions the propriety of this Court determining whether the dispute is arbitrable, the Court “assume[s], without further analysis, that the [a]greement leaves the question of arbitrability to judicial determination.” See CardioNet, Inc. v. Cigna Health Corp., 751 F.3d 165, 172 (3d Cir.2014) (citing Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010)). The United States Court of Appeals for the Third Circuit recently summarized the standards governing a court’s interpretation of the scope of an arbitration clause: [The court] must resolve “any doubts concerning the scope of arbitrable issues ... in favor of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); see also Medtronic AVE, Inc. v. Advanced Cardiovascular Sys., Inc., 247 F.3d 44, 55 (3d Cir.2001) (noting that “federal policy favors arbitration”). However, the Supreme Court has repeatedly warned against “over-read[ing its] precedent []” concerning the presumption of arbitrability.
1153	other tickets that he had issued before and after the incident, and he had pulled Thompson over for traffic violations twice, following the incident. The district court revoked Thompson’s supervised release, after finding that he had possessed crack cocaine and a firearm. On appeal, Thompson argues that the government failed to prove by a preponderance of the evidence that he violated the conditions of his supervised release because: (1) there was evidence that other people had opportunities to leave the contraband in his car without his knowledge; and (2) there was no evidence presented showing that he had actual or constructive possession of the contraband. “A district court’s revocation of supervised release is reviewed under an abuse of discretion standard.” United States v. Frazier, 26 F.3d 110, 112 (11th Cir.1994). The revocation of supervised release is authorized when a court finds that a defendant violated a term of his supervised release by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3); see also Johnson v. United States, 529 U.S. 694, 700, 120 S.Ct. 1795, 1800, 146 L.Ed.2d 727 (2000). Possession can be either actual or constructive. United States v. Faust, 456 F.3d 1342, 1345-46 (11th Cir.2006) (controlled substance), cert. denied, — U.S. -, 127 S.Ct. 615, 166 L.Ed.2d 456 (2006); United States v. Gunn, 369 F.3d 1229, 1235 (11th Cir.) (firearm possession), cert. denied, Cantillo v. U.S., 543 U.S. 937, 125 S.Ct. 324, 160 L.Ed.2d 244 (2004). Constructive possession need not be exclusive and “can be established by showing ownership
4681	both physical presence there and intent to stay.” Universal Reinsurance Co. v. St. Paul Fire & Marine Ins. Co., 224 F.3d 139, 141 (2d Cir. 2000). The magistrate judge properly concluded, in a report and recommendation adopted in its entirety by the district court, that the Maitlands failed to adequately plead diversity jurisdiction. The complaint alleged only that the Maitlands resided in Florida, the Fishbeins resided in New York, and Chase’s main office was in New Yoi’k. .This was insufficient to show that the Maitlands were domiciled in, and thus citizens of (within the meaning of 28 § U.S.C. 1332), Florida, especially considering that their lawsuit involved a property they owned in New York. See, e.g., Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc., 87 F.3d 44, 47 (2d Cir. 1996) (“It is ... clear that a statement of the parties’ residence is insufficient to establish their citizenship.”). However, “[a] failure,to allege facts establishing jurisdiction need not prove fatal to a complaint.” Canedy v. Liberty Mut. Ins. Co., 126 F.3d 100, 103 (2d Cir. 1997). Federal law provides that “[djefective allegations .of jurisdiction may be amended, upon terms, in the trial or appellate courts.” 28 U.S.C. § 1653. As such, when the record supports a factual basis for diversity, leave to correct a technical defect is freely given. See Canedy, 126 F.3d at 103. “Unless the record clearly indicates that the complaint could not be saved by any truthful amendment, we generally afford an opportunity for amendment.” Id. (citation omitted).
1496	respect to Prince is arbitrary and capricious. Until the Supreme Court’s decision in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the established standard for reviewing disability determinations under a benefit plan was whether the decision was arbitrary and capricious. In the Firestone decision, the Supreme Court applied traditional principles of trust law and held that “a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Id. at 115, 109 S.Ct. at 956 (emphasis added). See also Reinking v. Philadelphia American Life Ins. Co., 910 F.2d 1210 (4th Cir.1990) (appropriate standard for reviewing benefit eligibility determinations is de novo unless the policy delegates discretionary authority to one of the parties). The question thus becomes whether Hartford is a fiduciary under the Benefit Plan at issue and if so whether Hartford, in its fiduciary capacity, has discretionary authority to determine eligibility for benefits or to construe the terms of the Benefit Plan. Under the governing section of the Code of Federal Regulations, it is clear that Hartford acts as a fiduciary under the Benefit Plan. 29 C.F.R. § 2560.508-1 states: “Review Procedure. (1) Every plan shall establish and maintain a procedure by which a claimant ... has a reasonable opportunity to appeal a denied claim to an appropriate named fiduciary ...
395	of federal courts to the consideration of “Cases” or “Controversies.” U.S. Const, art. III, § 2. The “case or controversy” requirement imposes justiciability limitations on federal courts, and these limitations include mootness. See Soliman v. United States ex rel. INS, 296 F.3d 1237, 1242 (11th Cir.2002). The doctrine of mootness is derived from Article Ill’s “case or controversy” requirement because “an action that is moot cannot be characterized as an active case or controversy.” Adler v. Duval County Sch. Bd., 112 F.3d 1475, 1477 (11th Cir.1997). The question of mootness is a threshold inquiry in every ease; as the Supreme Court has noted, “the question of mootness is ... one which a federal court must resolve before it assumes jurisdiction.” North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404, 30 L.Ed.2d 413 (1971). If the district court is presented with a moot case, the case must be dismissed because any decision on the merits would constitute an impermissible advisory opinion. Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir.2001); Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1217 (11th Cir.2000). A district court lacks the power, on mootness grounds, to decide a case if its decision cannot affect the rights of the litigants in the case. Rice, 404 U.S. at 246, 92 S.Ct. at 404; see also Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969) (“[A] case is moot when
4331	recovery is limited. Under Track B, there is a higher burden of proof but the recovery is unlimited. The claims facilitator, the Poorman-Douglas Corporation, has 20 days after the filing of a claims package within which to determine whether the claimant is a member of the class and, if he is, to forward the materials to counsel for the USDA and to the appropriate Track A or Track B decision-maker. Id. at 115(f) Under Track A, a claimant must submit “substantial evidence” demonstrating that he or she was the victim of race discrimination. See Consent Decree at HH 9(a)(i), 9(b)(i). Substantial evidence means something more than a “mere scintilla” of evidence but less than a preponderance. See Burns v. Office of Workers’ Compensation Programs, 41 F.3d 1555, 1562 n. 10 (D.C.Cir. 1994). Put another way, substantial evidence is such “relevant evidence as a reasonable mind might accept to support [the] conclusion,” even when “a plausible alternative interpretation of the evidence would support a contrary view.” Secretary of Labor v. Federal Mine Safety and Health Review Comm’n, 111 F.3d 913, 918 (D.C.Cir.1997). A claimant asserting discrimination in a credit transaction can satisfy this burden by presenting evidence of four specific things: (1) that he owned or leased, or attempted to own or lease, farm land; (2) that he applied for a specific credit transaction at a USDA county office between January 1, 1981 and December 31, 1996; (3) that the loan was denied, provided late, approved for a lesser amount than
716	As the Third Circuit explained, “harm to children in sexual molestation cases is inherent in the very act of sexual assault committed on a child, regardless of the motivation for or the nature of such assault, and that the resulting injuries are, as a matter of law, intentional represents an enlightened and perceptive view of the evolving law.” Id. at 464. In making this determination, the Third Circuit reviewed case law from several jurisdictions where the courts “have supported their adoption of the inferred intent rule by noting that the state’s proscription of sexual contact between an adult and a minor is a clear indication that such contact is inherently injurious to the victim.” Id. (citing State Farm Fire & Casualty Co. v. Smith, 907 F.2d 900, 902 (9th Cir.1990) (predicting inferred intent rule in case involving eleven year-old victim where Nevada law prohibited lewd acts with children under fourteen years of age); J.C. Penney Casualty Ins. Co. v. M.K, 278 Cal.Rptr. 64, 65, 278 Cal.Rptr. 64, 65, 804 P.2d 689, 690 (inferring intent to harm in case involving five year-old victim where California law prohibited lewd acts with children under fourteen years of age), cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 232 (1991); Allstate Ins. Co. v. Troelstrup, 789 P.2d 415, 416, 419 (Co.1990) (inferring intent to harm in case involving twelve year-old victim where Colorado law prohibited sexual exploitation of children); Landis v. Allstate Ins. Co., 546 So.2d 1051, 1053 (Fla.1989) (inferring intent to harm
2997	takings claim challenging the application of land-use regulations is not ripe unless “the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” Id., at 186. A final decision by the responsible state agency informs the constitutional determination whether a regulation has deprived a landowner of “all economically beneficial use” of the property, see Lucas, supra, at 1015, or defeated the reasonable investment-backed expectations of the landowner to the extent that a taking has occurred, see Penn Central, supra, at 124. These matters cannot be resolved , in definitive terms until a court knows “the extent of permitted development” on the land in question. MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340, 351 (1986). Drawing on these principles, the Rhode Island Supreme Court held that petitioner had not taken the necessary steps to ripen his takings claim. The central question in resolving the ripeness issue, under Williamson County and other relevant decisions, is whether petitioner obtained a final decision from the Council determining the permitted use for the land. As we have noted, SGI’s early applications to fill had been granted at one point, though that assent was later revoked. Petitioner then submitted two proposals: the 1988 proposal to fill the entire parcel, and the 1985 proposal to fill 11 of the property’s 18 wetland acres for construction of the beach club. The court reasoned that, notwithstanding the Council’s denials of the applications, doubt
966	some type of inequitable conduct; (2) the misconduct resulted in some type of injury to competing claimants or unfair advantage to the claimant; and (3) subordination is not inconsistent with bankruptcy law. In re Universal Farming Indus., 873 F.2d 1334, 1337 (9th Cir.1989); In re Pacific Express, Inc., 69 B.R. 112, 116 (9th Cir. BAP 1986). The burden of establishing all the elements of subordination by a preponderance of the evidence is on the objecting party. Pacific Express, 69 B.R. at 116. Where, as here, the claimant is not an insider, the objecting party “must prove that the claimant is guilty of gross misconduct tantamount to ‘fraud, overreaching or spoliation to the detriment of others.’ ” Id. (quoting Mat ter of Teltronics Services, Inc., 29 B.R. 139, 169 (Bankr.E.D.N.Y.1983) (citations omitted)). There is no indication in the record here of any acts on the part of appellees which would rise to the level of gross misconduct and dictate that their claim be subordinated. The trial court found that appellees violated no fiduciary duty, or any other duty, owed Friedman, nor did appellees acquire and perfect the deed of trust by virtue of any practices unfair or inequitable to other creditors. These findings must be accepted unless clearly erroneous. Torrez, 63 B.R. at 753. The record supports the findings on which the trial court’s conclusion was based, and the court properly applied the correct standard in concluding that subordination was not warranted. D. Miscellaneous Issues. 1. Use of excluded transcript. Appellees’
4780	that the court’s words, though correct in the context of the case before us, may be taken by some as a command that will prompt the district courts to miero-manage trials and thereby dispense justice of a superficial variety (which is to say, dispense injustice). In the last analysis, a trial is not an exercise in computer science, but, rather, a recreation of flesh-and-blood events for the edification of the factfinder. The law is not so fastidious as to demand that all taste be squeezed from a piece of evidence before a jury can chew on it. To the contrary, although “[a] controlled environment for the reception of proof is essential, ... an artificially sterile environment is neither necessary nor desirable.” Wagenmann v. Adams, 829 F.2d 196, 217 (1st Cir.1987). In sum, while I agree that this is the rare situation in which evidence, though relevant, is unfairly prejudicial and must be excluded, and while I share many of Judge Coffin’s sentiments, I think the district courts would be well advised to avoid any attempt to extrapolate a general rule from the court’s case-specific holding.
4733	not trivial,” noting that “[o]ther cases have followed this reasoning when it comes to suits brought by drivers,” and collecting cases (internal quotation marks omitted)); see also Roberts v. Cowan Distribution Servs., LLC, 58 F.Supp.3d 593, 600 (E.D.Va.2014) (“An isolated delivery in interstate commerce may be de minimis such that the employee still does not qualify as a driver; however, courts have hesitated to apply the de minimis principles in this context, because driving in interstate commerce significantly affects the safety of motor vehicle operations.” (italics omitted)); Sinclair v. Beacon Gasoline Co., 447 F.Supp. 5, 11 (W.D.La.1976) (“[T]he de minimis rule should seldom, if ever, be applied to one who drives a motor vehicle carrying property of a private carrier in interstate commerce.”), aff'd, 571 F.2d 978 (5th Cir.1978). “Although the de minimis rule has limited applicability to drivers ... no court has adopted [the) blanket proposition” that the de minimis rule does not. apply to drivers. Masson, 2005 WL 2000133, at *8; see also id. (“To extend the motor carrier exemption to any driving activity, no matter how infrequent or trivial, would be to encourage employers to send their employees on a minimal number of interstate trips simply to avoid the overtime compensation provisions of FLSA.”). Furthermore, while some courts, including courts within the Second Circuit, have suggested that “an employer’s mere showing that an employee engages in more than de minimis interstate activity would be sufficient to invoke the motor carrier exemption,” the “ ‘more than de minimis
4142	determined by the trier of fact, whichever is less.”) Accordingly, the parties are instructed to discount the award for future pain and suffering by 2% over the period of ten years, and reflect the sum on the order of judgment to be submitted to the court. 2. Loss of Consortium / Lisa Dockery Lisa Dockery is seeking an award for $500,000.00 for loss of consortium due to her husband’s accident and subsequent disability. Various New York courts have addressed the common-law claim of loss of consortium. “It is well settled under New York law that a claim for loss of consortium “is a derivative action and, as such, its viability is dependent on the viability of a primary cause of action....”” Jones v. U.S., 408 F.Supp.2d 107, 126 (E.D.N.Y.2006); Panczykoski v. Laborers International Union of N.A., 2000 WL 387602 (W.D.N.Y.2000) (quoting Stander v. Orentreich, 165 Misc.2d 530, 627 N.Y.S.2d 879, 884 (N.Y.Sup.1995)). Here, because the court has found for Dockery on the primary claims, Lisa Dockery’s derivative claim has survived. “The cause of action for loss of consortium is designed to ‘compensate for the injury to th[e marital] relationship’ and to ‘the interest of the injured party’s spouse in the continuance of a healthy and happy marital life ... An award for loss of consortium may include components for both the past and the future.” Rangolan v. County of Nassau, 370 F.3d 239, 248 (2d Cir.2004) (internal citations omitted). “Consortium represents the marital partner’s interest in the continuance of the
1410	at 29. Even if the Board had explained the relevance of these alleged factual differences, we cannot address this argument because it did not appear in the Board’s orders below. We “may consider only the Board’s own reasons, not the rationalizations of counsel.” Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074, 1080 (D.C. Cir. 1996) (citing SEC v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 87 L.Ed. 626 (1943)). The Board’s order denying reconsideration relies solely on the absence of a claim of unlawful surveillance in distinguishing Coamo, not on any factual differences between the cases. Accordingly, we “reject[ ] the temptation to supply reasons to support the Board’s decision that the Board itself has not offered.” Detroit Newspaper Agency v. NLRB, 435 F.3d 302, 311 (D.C. Cir. 2006). We note, however, that nothing precludes the Board from making such a distinction on remand if supported by the record. See Lone Mountain, 709 F.3d at 1164. G/M and the Carpenters Union also assert that the Board’s decision was not based on substantial evidence and the Board’s remedy was improper. Because we hold that the Board did not adequately distinguish Coamo and grant the petitions for review on that ground, we need not reach the remaining arguments. Ill We grant the petitions for review, deny the Board’s cross-application for enforcement, vacate the Board’s orders, and remand.
4597	States lacks standing to bring a retaliation claim because the alleged conduct represents a past wrong with no real or immediate threat of future retaliation. The United States argues standing does not require the immediate threat of unlawful conduct, but rather .injury, and that the harm caused by Arpaio’s past retaliation persists. It also claims the “voluntary cessation” exception to mootness doctrine applies, maintaining this claim’s justiciability. In order for a case to be justicia-ble, “[t]he plaintiff must show that, he ‘has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged official conduct and the injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’” City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (citations omitted). “It - is well settled that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.’ ” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citation omitted). A case only becomes moot in the context ,of a voluntary cessation, “if subsequent events [make] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Id. (citing United States v. Concentrated Phosphate Export Ass’n., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)) (emphasis added). “[A] voluntary governmental cessation of
3060	rational factfinder to resolve the issue in favor of either party.”) (citations omitted). By like token, “material” means that the fact is one that might affect the outcome of the suit under the governing law. Morris v. Government Development Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.1994). “A fact is material if it tends to resolve any of the issues that have been properly raised by the parties.” Wright, Miller & Kane, supra, § 2725 at p. 419. “Not every genuine factual conflict necessitates a trial. It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared.” Martinez v. Colón, 54 F.3d 980, 983-984 (1st Cir.1995). In addition, when determining whether to grant summary judgment, the Court may not weigh the evidence. Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668 (1st Cir.1994). Summary judgment “admits of no room for credibility determinations, [and] no room for the measured weighing of conflicting evidence such as the trial process entails.” Id. (citing Greenburg v. Puerto Rico Maritime Shipping Authority, 835 F.2d 932, 936 (1st Cir.1987)). Accordingly, if the facts permit more than one reasonable inference, the court on summary judgment may not adopt the inference least favorable to the non-moving party. Casas Office Machines, 42 F.3d at 684. While the moving party has the burden of initially establishing that there is “an absence of evidence
777	its conclusion that it could not “assume that Congress intended to require the Commonwealth of Kentucky to defend its action in a distant State and to preclude resolution of the dispute by a federal judge familiar with the laws and practices of Kentucky.” See id. at 499, 93 S.Ct. at 1132. Wadsworth seeks support from this interpretation of § 2241(a) and the Court’s reliance on venue principles for his contention that the Southern District had jurisdiction. The case now before us bears important distinctions from Braden. First, despite the broad language construing § 2241(a), Braden presented the Supreme Court with a situation that none of the more specific subsections of § 2241 addressed, ie., interstate detainer. See United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1130 n. 11 (2d Cir.1974) (“In Braden — since the case involved the problem of interstate detain-er- — there was no applicable venue statute”). In stark contrast, the case at bar falls directly within § 2241(d). Wads-worth is a prisoner pursuant to a state court judgment and sentence. He is currently confined within that state, which has more than one federal judicial district. He challenges a disciplinary hearing occurring while in the custody of the state which entered the judgment against him. Second, because Braden concerned a situation which did not fall under § 2241(d), it is not only factually distinct, but the Court’s decision also understandably offers little discussion of that subsection. The Court touched upon § 2241(d) only as a part
2333	or anything closely approaching it. There is no evidence that any of the combinations of the prior art successfully dispensed soap, which, after all, is the main purpose of a soap dispenser. The evidence indicates that Packwood’s dispenser successfully dispenses, and continues to dispense, soap. While his contribution to the art was not that of a pioneer, the fact that all of the elements of his combination were old and that each had been used separately before in some device does not show lack of invention nor limit him so strictly to his peculiar structure as to destroy the worth of his patent. Rudimentary experiments with isolated elements of a combination do not anticipate or discredit invention. Smith & Griggs Mfg. Co. v. Sprague, 123 U.S. 249, 255, 8 S.Ct. 122, 31 L.Ed. 141; Smith v. Snow, 294 U.S. 1, 17, 55 S. Ct. 279, 79 L.Ed. 721. “It may be safely said that if those skilled in the mechanical arts are working in a given field, and have failed, after repeated efforts, to discover a certain new and useful improvement, that he who first makes the discovery has done more than make the obvious improvement which would suggest itself to a mechanic skilled in the art, and is entitled to protection as an inventor.” Expanded Metal Co. v. Bradford, 214 U.S. 366, 381, 29 S.Ct. 652, 656, 53 L.Ed. 1034. Claim 4 of the patent in suit is not for new elements, but is for combining old mechanical elements
4	S.Ct. 2505, 91 L.Ed.2d 202 (1986); Cain v. Lane, 857 F.2d 1139, 1142 (7th Cir.1988). If the moving party meets its burden, the non-moving party then has the burden of presenting specific facts to show that there is a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Federal Rule of Civil Procedure 56(e) requires the non-moving party to go beyond the pleadings and produce evidence of a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Nevertheless, this Court must “view the record and all inferences drawn from it in the light most favorable to the [non-moving party].” Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir.1989). Summary judgment will be denied where a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir.1995). Houlihan has moved for summary judgment based on the argument that it was not a fiduciary to the ESOP plan. A fiduciary is one who owes duties to the plan participants and beneficiaries; a fiduciary must exercise care, skill, prudence, and diligence in fulfilling those duties. 29 U.S.C. § 1104(a). Under ERISA, an individual or entity can become a fiduciary in three ways: (1) being named as a fiduciary in the written plan instrument, 29
308	Land Co., LLC, 551 F.Supp.2d 1359, 1362 (S.D.Fla.2008) (recognizing that § 1702(b) exempts developments with fewer than 100 units from the Act’s property report requirement). Sanibel maintains that the 108-unit Project consists of fewer than 100 lots which are not exempt from the ILSF-DA, because at least 9 units are exempt for purposes of § 1702(b)(1). Given the statute’s remedial objective, “when faced with an ambiguity regarding the scope of an exemption [in the ILSFDA], the court must interpret the exemption narrowly, in order to further the statute’s purpose of consumer protection.” Taylor v. Holiday Isle, LLC, 561 F.Supp.2d 1269, 1271 n. 5 (S.D.Ala.2008) (citing Meridian Ventures, LLC v. One North Ocean, LLC, 538 F.Supp.2d 1359 (S.D.Fla.2007)); see also Markowitz v. Northeast Land Co., 906 F.2d 100, 105 (3rd Cir.1990) (“exemptions from remedial statutes such as the Act are to be narrowly construed”); Harvey, 568 F.Supp.2d at 1362, 2008 WL 1843909, at *6 (“Under federal law, exemptions under the ILSF-DA must be narrowly and strictly construed.”). The obvious corollary to this principle is that the terms of the ILSFDA must “be applied liberally in favor of broad coverage.” N & C Properties v. Windham, 582 So.2d 1044, 1048 (Ala.1991); see also Olsen v. Lake Country, Inc., 955 F.2d 203, 205 (4th Cir.1991) (“The language of the Act is meant to be read broadly to effectuate” purposes of prohibiting fraud and protecting purchasers of land). B. Plaintiffs ’ Right of Rescission. The question of whether Sanibel was or was not obligated
2566	“in excess above and beyond the already improper sentence.” (Complaint at p. 3). He also alleges that Deputy Prosecutor Meteiver prepared the plea agreement and knew he was improperly sentenced. Finally, he asserts that Sheriff Brooks “is aware of [his] situation and circumstances ... [and] ... is guilty of unlawful incarceration.” (Complaint at p. 4). To the extent Mr. Hansborough asks the court to order his release from custody, he states no claim upon which relief can be granted under § 1983. “Habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983.” Heck v. Humphrey, 512 U.S. 477, 481, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), citing Preiser v. Rodriguez, 411 U.S. 475, 488-490, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Mr. Hansborough seeks to sue Judge Rieckhoff for damages, but judges are not liable for damages in civil actions for their judicial acts unless they have acted in the clear absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). A judge will not be deprived of immunity because the action he took was in error, was done maliciously or was in excess of his authority. Stump v. Sparkman, 435 U.S. at 356-357, 98 S.Ct. 1099. A judge is absolutely immune for his judicial acts even if his exercise of authority is
4806	366 F.2d 923 (9th Cir. 1966); Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966). No Miranda warning was necessary before the officers questioned defendants on April 24, 1970, as to their identity and places of residence. Disclosure of name and address is an essentially neutral act. It identifies but does not by itself implicate anyone in criminal conduct. California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 1540, 1541, 29 L.Ed.2d 9 (1971). But if we are mistaken in deciding that the stopping and interrogating on April 24, 1970, was not unlawful, we in any event conclude that the connection between that conduct and the discovery of the challenged evidence “became so attenuated as to dissipate the taint.” See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939), quoted in Wong Sun v. United States, 371 U.S. 471, 487, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963). The interrogation took place four days prior to the crime with which we are concerned. No information was gained during the interrogation which provided substantive evidence in the bank robbery prosecution or which, as in Wong Sun, purported to reveal where incriminating evidence could be found. The information gained — names, addresses descriptions — would have been wholly innocuous were it not for the subsequent eyewitness accounts of the bank robbery. The information gained on April 24, made it possible for the officers to make a prompt investigation at Hall’s Motel. But it would be
3496	Before determining whether jurisdiction may be invoked under the federal officer removal statute, the Court must first decide whether a defendant qualifies as a “person” as that term is applied in § 1442(a)(1). In Peterson v. Blue Cross/Blue Shield of Texas, the Fifth Circuit, by allowing corporate defendants to remove a suit under § 1442(a)(1), adopted, at least implicitly, a definition of the term “person” that includes, in addition to natural persons, purely legal persons, such as corporations. 508 F.2d 55, 57-58 (5th Cir.) cert. denied, 422 U.S. 1043, 95 S.Ct. 2657, 45 L.Ed.2d 694 (1975); see also Winters, 901 F.Supp. at 1198 (holding that corporate defendants were considered “persons” under § 1442(a)(1) based on decision in Peterson); Akin v. Big Three Indus., Inc., 851 F.Supp. 819, 822 (E.D.Tex.1994) (same). In approving removal, the court stated that “[i]t is indisputable that each of the defendants was either an ‘officer of the United States or an agency thereof, or persons acting under him.’ ” Peterson, 508 F.2d at 57. Taking into consideration the purpose of § 1442(a)(1), this Court believes an expansive reading of “person” is more consistent with the Act’s underlying objectives. It is foreseeable that a corporate entity could be assigned or delegated responsibility to carry out directives of the federal government. In this instance, state court actions against such a corporation could possibly interfere with federal policy, undermining the effect of § 1442(a)(1). See Ryan, 781 F.Supp. at 946. The Court therefore concludes that Armeo is entitled to
4590	immunity applies to cases under § 1983. 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). But the Fifth Circuit refused to extend prosecutorial immunity to decisions to bring complaints before state ethics commissions, even where a state law also provides absolute privilege for those complaints. Lampton v. Diaz, 639 F.3d 223, 229 (5th Cir.2011) (“Lampton likely enjoys immunity from the state law claims under Mississippi law.... [Hjowever, federal law does not provide immunity to complainants before state ethics committees .... In the absence of congressional action, we should not create that immunity merely because it may be desirable for some policy reason.”). Arpaio cites Donahoe v. Arpaio in support of his position. 869 F.Supp.2d 1020 (D.Ariz.2012) aff'd sub nom. Stapley v. Pestalozzi, 733 F.3d 804 (9th Cir.2013). In Donahoe, Arpaio had filed suit against various Maricopa County officials — including members of the Board of Supervisors and judges — under the federal Racketeer Influenced and Corrupt Organization Act (“RICO”). He claimed the officials were improperly using their power, to obstruct a criminal investigation. Arpaio’s allegations spanned a variety of conduct and included his adversaries’ filing of bar complaints against the County Attorney. Id. The officials sued Arpaio for retaliation for the exercise of their First Amendment rights. Id. The district court held Arpaio’s alleged injuries were not actionable under RICO, nor was the conduct on which the claim was based, including bar complaints. Id. at 1053. Donahoe is an anomaly. The ease law cited above strongly indicates state
4559	"express finding on the record ... of a failure to comply] has been made and, shall be limited in its effect to the particular- program, or part thereof, in which such noncompliance has been so found.” 42 U.S.C. § 2000d-l. No court has directly confronted the question of whether “policymaker” liability applies under Title VI. But case law on Title IX, which parallels Title VI, is instructive. Like Title VI, Title IX does not explicitly provide liability for causing others to violate the statute, nor for classic respondeat süperior liability. In Geb-ser v. Lago Vista Independent School District, the Supreme Court held “Congress did not intend to allow recovery [under Title ""IX] where liability rests solely on principles of vicarious liability or constructive notice.” 524 U.S. 274, 288, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). See also Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 640, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) (“[A] recipient of federal funds may be liable in damages -under Title IX only for its own misconduct.”). Instead, a princi pal can be held liable for “employees’ independent actions” Only if, after actual notice to an “appropriate person,” the principal fails to adequately respond to the employees’ violations, thus demonstrating “deliberate indifference” to the alleged violation. Gebser, 524 U.S. at 289-291, 118 S.Ct. 1989 (“It would be unsound, we think, for a statute’s'’eatress system of enforcement to require notice to the recipient and an opportunity to come into voluntary compliance"
4662	his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights”). In the paradigm example of interrogating a suspect at a police station, the answer is obvious, in the absence of unusual facts: that was the situation in Miranda and the warnings are the required antidote to the stationhouse pressures observed there. Miranda is to be “enforced strictly ... in those types of situations in which the concerns that powered the decision are implicated.” Id. at 437, 104 S.Ct. 3138. But in dealing with a case outside the Miranda paradigm, it is essential to recall that “the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody.” Maryland v. Shatzer, — U.S. -, 130 S.Ct. 1213, 1224, 175 L.Ed.2d 1045 (2010). That is, custody under Miranda means a suspect is not free to go away, but a suspect’s lack of freedom to go away does not necessarily mean that questioning is custodial interrogation for purposes of Miranda. Never is this distinction more important than when the subject of interrogation is independently incarcerated. Even when he is given the option to end the interrogation as he chooses, he is not in the position of a suspect who is free to walk away and roam around where he pleases, see, e.g., Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Still, the restrictions on his freedom do not necessarily equate his condition during any interrogation with
1622	merchandise and goods on credit; and the said scheme and artifice to defraud as aforesaid was to be further effected by ordering merchandise and goods from the persons, firms, and companies, as aforesaid, and from other persons, firms, and companies to the grand jurors unknown, haring no intention then and there to pay for such merchandise and goods so ordered as aforesaid, but to convert the said goods and merchandise to the use of each and of each other.” And the court, in reference to this specific statement of the scheme, said: “We think this states with sufficient clearness the first requisite of an indictment, under section 5480, of a scheme or artifice to defraud.” In the previous case of U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516, the indictment was under Rev. St. § 5480, and described the offense in the general language of the statute quite as fully as it is described in the indictment under consideration, the letter having been set forth in full in that case as in this. It was held by the court that the description of the offense must be accompanied by a statement of all the particulars essential to constitute the crime and acquaint the accused with what he must meet on the trial. “The averment here,” said Mr. Justice Field, “is that the defendant, ‘having devised a scheme to defraud divers other persons to the jurors unknown,’ intended to effect the same by
4118	of the information.” 31 U.S.C. § 3729(b)(l)(A)(i)-(iii). Moreover, no “proof of specific intent to defraud” is “require[d].” Id. § (b)(1)(B). The term “claim” is broadly defined, encompassing “any request or demand, whether under a contract or otherwise, for money or property” that is presented to the Government; “claim” does not, however, encompass compensation for federal employment. 31 U.S.C. § 3729(b)(2)(A), (B). A successful FCA claim often hinges on whether the false claim was “material.” The statute defines “material” as “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” Id. § (b)(4). As the Supreme Court noted recently, “[t]he materiality standard is demanding.” Universal Health Servs., Inc. v. U.S. ex rel. Escobar, — U.S. -, 136 S.Ct. 1989, 2003, 195 L.Ed.2d 348 (2016). That the Government has conditioned payment on a provision in the contract may be “relevant” to determining whether the provision is material, but it is not “dispositive.” Id. Likewise, noted the Court, “if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material.” Id. B. The basis of the relators’ claim is that the installation subcontracts were “null” under Louisiana law, and that the Contractors, who paid the subcontractors for their installation work, filed a claim with the federal government based on these alleged null subcontracts, and thus violated the FCA. It is undisputed that the subcontractors did not possess
4481	and it now seeks recovery. DISCUSSION I. Federal Claims Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action when a plaintiff has failed to state a claim upon which relief can be granted. In reviewing a motion to dismiss, the court must read the complaint generously, and draw all inferences in favor of the pleader. See Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989). Therefore, “the court should not dismiss the complaint for failure to state a claim ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2d Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). Defendants, charged with securities fraud under § 10(b) and Rule 10b-5, seek dismissal of the complaint for failure to plead scienter adequately. To state a cause of action under Rule 10b-5, a plaintiff must plead that, “ ‘in connection with the purchase or sale of securities,’ the defendants], acting with scienter, made a false material representation or omitted to disclose material information and that plaintiffs reliance on defendant’s action caused [plaintiff] injury.” In re Time Warner Inc. Sec. Lit., 9 F.3d 259, 264 (2d Cir.1993), cert. denied,—U.S.-, 114 S.Ct. 1397, 128 L.Ed.2d 70 (1994) (citation omitted); see also Basic Inc. v. Levinson, 485 U.S. 224, 230-31, 108 S.Ct. 978, 982-83, 99 L.Ed.2d 194 (1988).
2404	to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). A successful claim under the ADEA requires a plaintiff to demonstrate that he “(1) ... is a member of the protected class (i.e., over 40 years of age); (2) ... was qualified for the position for ’which [he] applied; (3) ... was not hired; and (4) ’... was disadvantaged in favor of a younger person.” Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1155 (D.C.Cir.2004) (citations omitted). “[P]laintiff is not required to plead every fact necessary to establish^ a prima facie case to survive a motion to dismiss,” however. Jones v. Air Line Pilots Ass’n, Int'l, 642 F.3d 1100, 1104 (D.C.Cir.2011) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). Nevertheless, he must allege sufficient facts to put the defendant on notice of the claim against it, see Kangethe v. District of Columbia, 953 F.Supp.2d 194, 199 (D.D.C.2013), which in this case means allegations that plaintiff suffered an adverse employment action because of his age, see Montgomery v. Omnisec Int’l Sec. Servs., Inc., 961 F.Supp.2d 178, 183 (D.D.C.2013) (citing Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008)). A 'pro se plaintiff is héld to “less stringent [pleading] standards”' than lawyers are, Erickson, 551 U.S. at 94, 127 S.Ct. 2197, but still must plead facts permitting an inference of “more than the mere possibility of misconduct,” Atherton v. District of Columbia Office of the Mayor, 567
4693	"the Court “‘must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,’ ” Morrison, 547 F.3d at 170 (quoting Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir.2006) (citation and internal quotation marks omitted)), but “ ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it,’” id. (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003)). In deciding the motion, the court “may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits.” J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir.2004); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (“In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ... may refer to evidence outside the pleadings.”). b. Afialysis Addressing first the issue of "" subject matter jurisdiction, 28 U.S.C. § 1331 provides that “[t]he district courts .... have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Plaintiff asserts that, because he brings claims under the FLSA, the Court has federal question jurisdiction over his federal claims and has supplemental jurisdiction over his state law claims. (See PL’s Mem. 5.), Defendants, conversely, argue that the motor carrier exemption to the"
4484	v. Levinson, 485 U.S. 224, 230-31, 108 S.Ct. 978, 982-83, 99 L.Ed.2d 194 (1988). Defendants’ only contention in this motion is that plaintiff failed to plead scienter with sufficient particularity to satisfy Rule 9(b) of the Federal Rules of Civil Procedure (“Rule 9(b)”). Rule 9(b) requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity;” but “malice, intent, knowledge, and other condition of mind of a person may be averred generally.” To satisfy the particularity requirement of Rule 9(b), an allegation of fraud “should state the contents of the communications, who was involved, where and when they took place, and [explain] why they were fraudulent.” Bay State Milling Co. v. Terranova Bakers Supplies Corp., 871 F.Supp. 703, 707 (S.D.N.Y.1995) (Leisure, J.) (quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175-76 (2d Cir.1993)). Although under Rule 9(b) a plaintiff need only aver intent generally, it is settled law in the Second Circuit that securities fraud plaintiffs are required to plead facts that raise a “strong inference” of fraudulent intent. See, e.g., In re Time Warner, 9 F.3d at 268; O’Brien v. National Property Analysts Partners, 936 F.2d 674, 676 (2d Cir.1991); Beck v. Manufacturers Hanover Trust Co., 820 F.2d 46, 50 (2d Cir.1987), cert. denied 484 U.S. 1005, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988), overruled on other grounds by United States v. Indelicato, 865 F.2d 1370 (2d Cir.), cert. denied, 491 U.S. 907, 109 S.Ct. 3192, 105 L.Ed.2d 700
4610	"United States’ Motion for Partial Summary Judgment, (Doc. 332), is GRANTED. N.on-mutual, offensive issue preclusion bars relitigation of issues previously decided in Melendres v. Arpaio. As a result, summary judgment is granted regarding the discriminatory traffic stop claims.in Counts One, Three, and Five. . The statement of interest was made pursuant to 28 U.S.C. § 517, which permits the Attorney General to send officers of the Department of Justice to “any State or district in the United States to attend to the .interests of the United States in a suit pending in a court-of the United States, or in a court of a State, or to attend to any other interest of the United States.” . 28 U.S.C. § 517. See M.R. v. Dreyfus, 697 F.3d 706, 735 (9th Cir.2012) (comparing ""statement of interest” under 28 U.S.C. § 517 to an amicus brief). . On May 15, 2015, Maricopa County'filed a Petition for Rehearing on its substitution as a party in Melendres. ."" The reference to “all law enforcement decisions” was referring to decisions made regarding vehicle stops outside of the context of ' official saturatiori'patrols. - . In the ""Introduction” of the complaint, the United States summarizes the basis of the lawsuit as “discriminatory police conduct directed at Latinos.” (Doc. 1 at 1). This conduct includes: 1) stopping, detaining, and arresting Latinos -on the basis of race; 2) denying Latino prisoners with limited English language skills constitutional protections; and 3) illegally retaliating against perceived critics through baseless criminal actions,"
1223	removability and did not start the thirty-day removal period). As Defendants point out, the reasonably ascertainable rule protects defendants from losing their right to remove when the jurisdictional details are omitted or misstated in a pleading. See Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 694 (9th Cir.2005) (“[O]nly where an initial pleading reveals a ground for removal will the defendant be bound to file a notice of removal within 30 days. Where, however, such details are obscured or omitted, or indeed misstated, that circumstance makes the case stated by the initial pleading not removable, and the defendant will have 30 days from the revelation of grounds for removal .... to file its notice of removal.” (quoting Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir.1997)) (emphasis and quotation marks omitted)); In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., 399 F.Supp.2d 356, 364 (S.D.N.Y.2005) (“When a case is removable, but the grounds in the initial complaint are obscured, omitted, or misstated, a defendant has thirty days from the revelation of grounds for removal to file a notice of removal.” (internal quotation marks, footnote and citation omitted)). In other words, Defendants are not required to guess at the potential basis for removability. See Casale v. Metro. Transp. Auth., No. 05-CV-4232, 2005 WL 3466405, at *4 (S.D.N.Y. Dec. 19, 2005) (noting that “defendants need not embark on an investigation to discover jurisdictional facts outside the four corners of the pleading”); In re MTBE, 399 F.Supp.2d at
2363	a prevailing party may recover prejudgment interest except where equitable considerations make the award unconscionable. Inland Tugs Co. v. Ohio River Co., 709 F.2d 1065, 1074-75 (6th Cir.1983). Furthermore, “[p]re-judgment interest in Pennsylvania contract cases is a matter of right and is calculated from the time the money becomes due or payable.” Am. Enka Co. v. Wicaco Mach. Corp., 686 F.2d 1050, 1056 (3d Cir.1982) (citing Penneys v. Pa. R.R. Co., 408 Pa. 276, 183 A.2d 544 (1962)). As to the rate of interest, “the party to whom the sum is owed may as a matter of right recover prejudgment interest at the legal rate of six percent [per annum] running from the date the sum is due.” Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379, 395 (3d Cir.2000) (citing Am. Enka Co., 686 F.2d at 1056-57); see also 41 Pa. Cons.Stat. Ann. § 202 (setting legal rate of interest at six percent per annum). Plaintiff seeks interest on the $4,654.50 judgment, accruing from the date of salvage (February 9, 2004) to the date of judgment (February 10, 2005), or approximately one year: $4,654.50 * 6% = $279.27. As the prevailing party, plaintiff is entitled to this amount, and no equitable considerations counsel against awarding it to plaintiff. Indeed, Defendant Allstate does not object to an award of pre-judgment interest to plaintiff. Accordingly, the judgment of $4,654.50 in favor of plaintiff and against Defendant Allstate will be modified to include an award of $279.27 in interest. B. Costs The
2611	968, 98 S.Ct. 1605, 56 L.Ed.2d 58 (1978), quoting Practicing Law Institute, Current Problems in Federal Civil Practice 491 (1975), common questions of damages predominate. See Blackie v. Barrack, supra, 524 F.2d at 905. iv. Statute of Limitations Defenses The only defense which defendants argue makes individual questions predominate over common ones is a statute of limitations defense. This suit was filed August 23, 1976. Defendants contend that a significant number of CIS clients knew or should have known before August 23, 1973, that CIS had defrauded them and that the claims of those clients are barred by the apparently applicable three-year statute of limitations, Cal.Code Civ.Proc. § 338(4). Sackett v. Beaman, 399 F.2d 884, 890 (9 Cir. 1968); Smith v. Guaranty Service Corp., 51 F.R.D. 289, 294-295 (N.D.Cal.1970). “[T]he time from which the statute of limitations begins to run is not the time at which a plaintiff becomes aware of all of the various aspects of the alleged fraud, but rather the statute runs from the time at which plaintiff should have discovered the general fraudulent scheme.” Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 410 (2 Cir. 1975). As the Court of Appeals said in Cameron v. E. M. Adams & Co., supra, 547 F.2d at 478, quoting Williams v. Sinclair, 529 F.2d 1383, 1388 (9 Cir. 1975): “ ‘The existence of a statute of limitations issue does not compel a finding that individual issues predominate over common ones. Given a sufficient nucleus of common questions,
4544	be performed- by the County Office of Management and Budget. (Docs. 349-2, 349-3). In fact, Maricopa County’s own initial response to DOJ’s investigation stated the County could deny MCSO reimbursement for funds expended in an effort to resist the investigation, as such resistance was “putside the scope of the employment of any elected or appointed official.” (Doc. 333-3 at 10). This evidence and the Arizona Attorney General’s interpretation of the relevant statutes, show Maricopa County has the ability to afford at least partial redress for violations committed by Arpaio, MCSO, and Maricopa County. In addition, another district court recently upheld taxpayers’ standing to sue Maricopa County'in challenging the expenditure of municipal funds for MCSO’s enforcement of an allegedly discriminatory statute. Puente Arizona v. Arpaio, 76 F.Supp.3d 833, 853 (D.Ariz.2015) (“[A] favorable decision would .., prevent[] further expenditures for enforcement of the identity theft laws.”) (citing Hinrichs v. Bosma, 440 F.3d 393, 397-98 (7th Cir.2006) (“Such an injury is redressed not by giving the tax money back ,.. but by ending the unconstitutional spending practice.”)). See also We Are Am/Somos Am., Coal. of Arizona v. Maricopa Cnty. Bd. of Supervisors, 809 F.Supp.2d 1084, 1104 (D.Ariz. 2011) (finding plaintiffs had alleged injury sufficient to confer standing to sue county/Board of Supervisors, the sheriff, and others in action seeking suspension of the use of municipal funds for MCSO enforcement of discriminatory policy). In Puente, as here, Maricopa County argued its inability to control the County’s criminal law enforcement meant that allowing Maricopa County
3543	fail to do so risks continuing confusion in the district court, a possible new amended complaint, and a trial on issues not properly in the case. Thus, we take counsel for CHI at his word and address the question of qualified immunity as it applies to the Establishment Clause and FHA claims against Chatterton and Birdsall in their individual capacities. A qualified immunity analysis consists of two prongs: (1) whether, “[t]aken in the light most favorable to the party asserting the injury, ... the facts alleged show the [official’s] conduct violated a constitutional right”; and (2) whether that right was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), modified by Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Addressing the two prongs of the test in this order is often beneficial, but it is not mandatory. Courts may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 129 S.Ct. at 818. To determine whether a right was clearly established, a court turns to Supreme Court and Ninth Circuit law existing at the time of the alleged act. See Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir.1996). In the absence of binding precedent, courts should look to available decisions of other circuits and district courts to ascertain whether the law is clearly established. Id.
2283	from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived. United States v. Lawless, 709 F.2d 485, 487 (7th Cir.1983) (citing 8 Wigmore § 2292). The burden falls on the party seeking to invoke the privilege to establish all the essential elements. Id. The claim of privilege cannot be a blanket claim; it “must be made and sustained on a question-by-question or document-by-document basis.” Id. Finally, the scope of the privilege is narrow, because it is in “derogation of the search for truth.” In re Walsh, 623 F.2d 489, 493 (7th Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980). Any findings of fact will not be overturned unless clearly erroneous. United States v. Nelson, 851 F.2d 976, 978 (7th Cir.1988). In Lawless, we held that “[wjhen information is transmitted to an attorney with the intent that the information will be transmitted to a third party ... such information is not confidential.” Lawless, 709 F.2d at 487. There, the defendant had provided information to be used in the preparation of an estate tax return. Apparently, some of the information transmitted to the attorney for this purpose never made it onto the return. We concluded, “[i]f the client transmitted the information so that it might be used on the
2299	court. In a bankruptcy appeal, a district court may alter or amend its judgment pursuant to Fed.R.Civ.P. 59(e), but may not conduct a hearing to take additional'testimony or other evidence. Branding Iron Motel, Inc. v. Sandlian Equity, Inc. (In re Branding Iron Motel, Inc.), 798 F.2d 396, 399 (10th Cir.1986). The district court may affirm, reverse or modify the bankruptcy court’s rulings or remand the case with instructions for further proceedings. Fed.R.Bankr.P. 8013. Conclusions of law are reviewed de novo. United States v. Richman (In re Talbot), 124 F.3d 1201, 1206 (10th Cir.1997). However, this court is bound by the factual findings of the bankruptcy court unless such findings are clearly erroneous. Securities Investor Protection Corp. v. Stellatos (In re Blinder, Robinson & Co.), 124 F.3d 1238, 1241 (10th Cir.1997); Richman, 124 F.3d at 1206. “A finding is clearly erroneous if it is unsupported by any facts of record or if the appellate court after reviewing all the evidence is left with the definite and firm belief that a mistake was made.” In re Smith, 195 B.R. 468, 470 n. 1 (D.Kan.1996). Thus, if there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous. In re Stanton, 136 B.R. 562, 563 (D.Kan.1992). In addition, “due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses.” Wittman v. Toll (In re Cordry), 149 B.R. 970, 974 (D.Kan.1993). II. Factual Background The debtor, dot, previously operated a
4586	bar cannot function as grounds for a claim for First Amendment violations. The United States contends the Arizona statute providing privilege for bar complaints cannot block a suit based on federal law and, by implication, can form the basis of such a suit. Arizona courts have established “an absolute privilege extended to anyone who files a complaint with the State Bar alleging unethical conduct by an attorney.” Drummond v. Stahl, 127 Ariz. 122, 126, 618 P.2d 616 (Ariz.Ct.App.1980) (“[PJublic policy demands the free reporting of unethical conduct”). However, the Supreme Court and the Ninth Circuit have held that “state law cannot provide immunity from suit for federal civil rights violations.” Wallis v. Spencer, 202 F.3d 1126, 1144 (9th Cir.2000); Martinez v. State of Cal., 444 U.S. 277, 285, n. 8, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980) (“A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced”). For example, in Imbler v. Pachtman, the Court held common law prosecutorial immunity applies to cases under § 1983. 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). But the Fifth Circuit refused to extend prosecutorial immunity to decisions to bring complaints before state ethics commissions, even where a state law also provides absolute privilege for those complaints. Lampton v. Diaz, 639 F.3d 223, 229 (5th Cir.2011) (“Lampton likely enjoys immunity from
4432	conduct which is highly unreasonable and which represents an extreme departure from the standards of ordinary care ... to the extent that the danger was either known to the defendant or so obvious that the defendant must have been aware of it.” Chill v. Gen. Elec. Co., 101 F.3d 263, 269 (2d Cir.1996) (alteration in original and internal quotation marks omitted). The facts must support a strong inference with regard to each defendant. See Plumbers and Pipefitters Local Union No. 630 Pension-Annuity Trust Fund v. Arbitron Inc., 741 F.Supp.2d 474, 488 (S.D.N.Y.2010). Further, “in determining whether the pleaded facts give rise to a ‘strong’ inference of scienter, the court must take into account plausible opposing inferences.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). A complaint sufficiently alleges scienter when “a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.” Id. at 324, 127 S.Ct. 2499; ATSI, 493 F.3d 87, 99 (2d Cir.2007). Because the plaintiffs allege fraudulent omissions, rather than false statements, “it is especially important to rigorously apply the standard for pleading intent.” In re GeoPharma, Inc. Sec. Litig., 411 F.Supp.2d 434, 437 (S.D.N.Y.2006). The Second Amended Complaint does not sufficiently allege that the defendants acted with reckless disregard for a known or obvious duty. Several factors, including third party disclosure of relevant information, BoA’s own disclosures, and BoA’s apparent compliance
4893	MacQuarrie v. Howard Johnson Co., 877 F.2d 126, 131 (1st Cir.1989). To the extent that plaintiffs’ motions were predicated upon allegations of error in the various evidentiary and misconduct-related rulings at trial, our discussion at Parts II A-C of this opinion compels the conclusion that they were properly denied. We likewise are satisfied that the district court properly rejected plaintiffs’ attack on the verdict for the Town of Brookline. As this court repeatedly has stated, we will reverse a court’s decision not to grant a new trial “ ‘only if the verdict is so seriously mistaken, so clearly against the law or the evidence, as to constitute a miscarriage of justice.’ ” MacQuarrie, 877 F.2d at 131 (quoting Levesque v. Anchor Motor Freight, Inc., 832 F.2d 702, 703 (1st Cir.1987)). Plaintiffs sought to establish § 1983 liability against Brookline on the theory that Mr. Fernandez’s death resulted from its “failure to provide hostage training to the members of its police force.” The town defended itself on the ground that plaintiffs had failed to prove, among other things, “a direct causal link,” City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989), between the alleged failure to train and any constitutional deprivation suffered as a result of Mr. Fernandez’s death. See id. at 1205 (“a municipality can be liable under § 1983 only where its policies are the ‘moving force [behind] the constitutional violation.’ ”) (quoting Polk County v. Dodson, 454 U.S. 312, 326,
4479	additional business in the food industry, and (3) failing to disclose the possibility that Sloan’s would be divested of some of its supermarkets or be restricted from acquiring Red Apple supermarkets. Plaintiff alleges that these representations were material, false, knowing and made with an intent to deceive. Plaintiff further contends that it relied on these purportedly false representations to its detriment, and it now seeks recovery. DISCUSSION I. Federal Claims Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action when a plaintiff has failed to state a claim upon which relief can be granted. In reviewing a motion to dismiss, the court must read the complaint generously, and draw all inferences in favor of the pleader. See Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989). Therefore, “the court should not dismiss the complaint for failure to state a claim ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 123 (2d Cir.1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). Defendants, charged with securities fraud under § 10(b) and Rule 10b-5, seek dismissal of the complaint for failure to plead scienter adequately. To state a cause of action under Rule 10b-5, a plaintiff must plead that, “ ‘in connection with the purchase or sale of securities,’ the defendants], acting with scienter, made a
4705	he was paid nothing for hours worked in excess of 40 hours a week, he was not paid minimum wage under the FLSA. (PL’s Mem. 3-4, 24-25.) However, this argument fails. While Plaintiff may state a claim for a failure to pay overtime for the hours worked in excess of 40 hours a week, he does not necessarily state a claim for failure to pay minimum wage for those hours, because “[a]n employee cannot state a claim for a minimum wage violation ‘unless [his] average hourly wage falls below the federal minimum wage.’” Johnson v. Equinox Holdings, Inc., No. 13-CV-6313, 2014 WL 3058438, at *3 (S.D.N.Y. July 2, 2014) (alteration in original) (emphasis added) (quoting Lundy v. Catholic Health Sys. of Long Is. Inc., 711 F.3d 106, 115 (2d Cir.2013)). An employee’s average hourly wage is calculated “by dividing his total remuneration for employment ... in any workweek by the total number of hours actually worked by him in that workweek for which such compensation was paid.” 29 C.F.R. § 778.109. “For minimum-wage recovery under the FLSA, the pertinent question is whether ‘the amount of compensation received by an employee results in a straight-time hourly rate that is less than the applicable federal minimum wage.’” Chuchuca v. Creative Customs Cabinets Inc., No. 13-CV-2506, 2014 WL 6674583, at *9 n. 10 (E.D.N.Y. Nov. 25, 2014) (quoting Gordon v. Kaleida Health, 847 F.Supp.2d 479, 490 (W.D.N.Y.2012)). Here, Plaintiff alleges that when he was first employed, he was paid $20.00 an hour, and
2820	65 S.Ct. 315, 89 L.Ed. 430 (1945); Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966). It is certainly questionable that the Mayor, or any single official, might determine, for the City, based on his subjective opinion alone, whether one private organization or another may enjoy public facilities, even if purported statutory authority were in effect for this purpose. Wolin v. Port of New York Authority, 392 F.2d 83, 93 (1968). This would involve the necessity of affording all groups in comparable situations equal protection of the laws — Bynum v. Schiro, supra. In summary, the Court finds that the law and authority is to the effect, as stated in the U. S. Supreme Court case of Meriwether v. Garrett, 102 U.S. 472, 26 L.Ed. 197 (1880): “In its * * * courthouses, and other public buildings, the (municipal) corporation has no proprietary rights distinct from the trust for the public. It holds them for public use, and to no other use can they be appropriated without special legislative sanction. It would be a perversion of the trust to apply them to other uses.” (words in parentheses and emphasis added) The Court finds, moreover, no special legislative sanction for the permission given by the Mayor of the City of Memphis for office space in City Hall by “Memphians for Patriotism”. Neither is there such sanction for use by plaintiff organizations at the present time. This is the status of the matter despite the Court’s recognition that
2350	determination was never made. A determination by the Secretary that an individual is not disabled is conclusive if supported by substantial evidence. 42 U.S.C. § 405(g) (1982); Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984). “Substantial evidence” has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). In reviewing district court decisions in disability cases, we undertake our own plenary review of the administrative record to determine whether substantial evidence supports the Secretary’s denial of benefits. See Valente v. Secretary ofHHS, 733 F.2d 1037,1041 (2d Cir.1984). Accordingly, “our focus is not so much on the district court’s ruling as it is on the administrative ruling.” Id. Some time ago, we adopted the so-called “treating physician” rule whereby the medical opinion of the doctor who treated the claimant is given greater weight relative to other medical evidence before the Secretary. According to this rule, a treating physician’s opinion on the subject of medical disability, i.e., diagnosis and nature and degree of impairment, is: (i) binding on the fact-finder unless contradicted by substantial evidence; and (ii) entitled to some extra weight because the treating physician is usually more familiar with a claimant’s medical condition than are other physicians, although resolution of genuine conflicts between the opinion of the treating
3659	years after Commerce issued the Final Results as plaintiffs sought to do in this case. Furthermore, Nissan supports the methodology that Commerce used to adjust Nissan’s related-supplier transfer prices. Nissan claims Commerce’s methodology is supported by substantial evidence and is otherwise in accordance with law. Standard of Review The appropriate standard for the Court’s review of Commerce’s Remand Results is whether the agency’s determination is supported by substantial evidence on the record and is otherwise in accordance with law. 19 U.S.C. § 1516a(b)(l)(B) (1988). “Substantial evidence is something more than a ‘mere scintilla,’ and must be enough reasonably to support a conclusion.” Ceramica Regiomontana S.A. v. United States, 10 CIT 399, 405, 636 F. Supp. 961, 966 (1986), aff'd, 5 Fed. Cir. (T) 77, 810 F.2d 1137 (1987) (citations omitted). “When applying the substantial evidence standard, the court may not substitute its judgment for that of the agency when the choice is between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Budd Co. v. United States, 14 CIT 595, 600, 746 F. Supp. 1093, 1097 (1990) (quotations and citations omitted). Furthermore, as long as the methodology and procedures used by Commerce are “reasonable means of effectuating the statutory purpose, and there is substantial evidence in the record supporting the agency’s conclusions, the court will not impose its own views as to the sufficiency of the agency’s investigation or question the agency’s methodology.” National Knitwear &
2055	whether federal or state law controls. Moses H. Cone, 460 U.S. at 23-26, 103 S.Ct. at 941-42. The mere fact that a case is governed by state law does not warrant abstention. Gonzalez, 926 F.2d at 5. A federal court’s surrender of jurisdiction is proper when the case presents a complex question of state law. Villa Marina II, 947 F.2d at 534. However, a federal law issue should strongly influence a federal court to maintain jurisdiction. Moses H. Cone, 460 U.S. at 26, 103 S.Ct. at 942; Colorado River, 424 U.S. at 815 n. 21, 96 S.Ct. at 1245 n. 21 (“Indeed, the presence of a federal basis for jurisdiction may raise the level of justification needed for abstention.”); Martinez v. Newport Beach City, 125 F.3d 777, 785 (9th Cir.1997); Irizarry Pérez, 758 F.Supp. at 102. “[T]he presence of federal law issues must always be a major consideration weighing against surrender” of federal jurisdiction. Moses H. Cone, 460 U.S. at 26, 103 S.Ct. at 942. In the present case, K-Mart failed to mention this factor in its brief. This omission is understandable, given the fact that this factor overwhelmingly tilts towards a denial of the request to abstain. In her federal court claim, Marcano raises a claim only under ADEA, a federal law. It is unclear whether she is also making an ADEA claim in her Superior Court case. Thus, because the federal court case contains a federal question claim, this factor greatly favors retention of jurisdiction. The sixth factor
2513	court to conclude that market decline was a factor favoring Keystone. Because the district court determined the likelihood of infringement based on an incorrect claim construction, we must remand for a determination whether Bell & Howell has shown that it will likely succeed in proving infringement. If so, in the absence of a challenge to invalidity, Bell & Howell would be entitled to a presumption of irreparable harm. Polymer Techs., 103 F.3d at 973, 41 USPQ2d at 1188. We therefore vacate the district court’s denial of the preliminary injunction and remand for a reconsideration of the motion for preliminary injunction in light of the proper construction of the expression “integrally bonded ... free of adhesive,” see, e.g., Payless Shoesource, Inc. v. Reebok Int’l Ltd., 998 F.2d 985, 991, 27 USPQ2d 1516, 1521 (Fed.Cir.1993) (noting that the court’s erroneous conclusion that plaintiff could not establish a likelihood of success warrants a remand for reconsideration of preliminary injunction factors), and without weighing the fact that the microfiche market is declining as a factor against the issuance of a preliminary injunction. CONCLUSION The district court erred as a matter of law in its construction of the claims of both patents and in concluding that the decline in the market for the patented product is a factor favoring the denial of a preliminary injunction. Both errors constitute an abuse of discretion. Therefore, the decision of the district court is VACATED and REMANDED. . The '401 and '666 patents are continuations of the same application
2129	face, in applying section 7477(a)(2), arises under section 7429, where district courts have the authority to review jeopardy assessments in order to determine whether the assessment is “reasonable under the circumstances.” See sec. 7429(b)(2)(A). Three district courts have had occasion to analyze what is required of them in making their determination and all three have borrowed, as the majority opinion herein does, from the lore of judicial review under the Administrative Procedures Act and have defined the standard to be applied as “something more than ‘not arbitrary or capricious’ and something less than ‘supported by substantial evidence.’ ” McAvoy v. United States, 475 P. Supp. 297 (W.D. Mich. 1979); Santini v. United States, — F. Supp. — (N.D. Cal. 1979); Loretto v. United States, 440 F. Supp. 1168, 1172 (E.D. Pa. 1977). Here, too, an ultimate test is not articulated. It may be that the differing nuances in the decided cases represent no more than the linguistic difficulties inherent in expressing both the ultimate test and the quantum of evidence needed in determining how to apply that test. See Loretto v. United States, 440 F. Supp. at 1172 n. 9. Compare Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971), wherein the Supreme Court suggested that the reviewing court should decide whether the administrative agency made a “clear error of judgment,” a test which admittedly has its own insufficiency in terms of a standard of measurement. Under these circumstances, one can only hope that seeming distinctions, which
3953	II. SUMMARY JUDGMENT-STANDARD OF REVIEW Under Fed. R. Civ. P. 56(c), summary judgment shall be granted if the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Black v. Henry Pratt Co., 778 F.2d 1278, 1281 (7th Cir.1985). The moving party has the burden of providing proper documentary evidence to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Unquestionably, in determining whether a genuine issue of material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials of the pleadings, which demonstrates that there is a genuine issue for trial. Howland v. Kilquist, 833 F.2d 639 (7th Cir.1987). III. DISCUSSION As noted, Kariotis’ complaint alleges that Navistar’s conduct violated the ADA, the ADEA, the ERISA, the COBRA, the FMLA, and the Illinois Health Insurance Claim Filing Act.
4501	can conclude it is appropriate to exercise personal jurisdiction over the DNN defendants. Plaintiffs argue for the presence of both general and limited jurisdiction. The Due Process clause permits a Court to exercise both general and limited jurisdiction. However, “[i]n analyzing the due process limits of personal jurisdiction, a distinction is made between ‘general’ jurisdiction and ‘specific’ jurisdiction.” Conti v. Pneumatic Prod. Corp., 977 F.2d 978, 981 (6th Cir.1992) (citing Third Nat’l Bank in Nashville v. WEDGE Group, Inc., 882 F.2d 1087, 1089 (6th Cir.1989)). “General jurisdiction exists when a defendant has ‘continuous and systematic contacts with the forum state sufficient to justify the state’s exercise of judicial power with respect to any and all claims.’ ” Aristech Chem. Int’l, Ltd. v. Acrylic Fabricators, 138 F.3d 624, 627 (6th Cir.1998) (quoting Kerry, 106 F.3d at 149). By contrast, “[s]pecific jurisdiction ... subjects the defendant to suit in the forum state only on claims that ‘arise out of or relate to’ a defendant’s contacts with the forum” Id. (quoting Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 & n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). In Michigan, general personal jurisdiction over a corporate defendant is governed by Mich.Comp.Laws § 600.711 which provides: The existence of any of the following relationships between a corporation and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise general personal jurisdiction over the corporation and to enable such courts to render
4210	any action or proceeding to enforce a provision of seetion[ ] ... 1983.” 42 U.S.C.A. § 1988(b). “[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement.” Farrar, 506 U.S. at 111, 113 S.Ct. at 573 (citation omitted); accord S-1 and S-2 v. State Bd. of Ed., 21 F.3d 49, 51 (4th Cir.1994) (en banc). Moreover, the fee request must be “reasonable.” This Court has articulated twelve factors which the district court should consider when determining the reasonableness of an attorney’s fee request. See Barber v. Kimbrell’s Inc., 577 F.2d 216 (4th Cir.1978). Second, § 803(d) of the PLRA requires the plaintiff to prove that “the fee was directly and reasonably incurred in proving an actual violation of the plaintiffs rights ... and ... is proportionately related to the court ordered relief ... or ... was directly and reasonably incurred in enforcing the relief ordered” before fees can be awarded. § 803(d) (codified at 42 U.S.C.A § 1997e(d)(l)). And finally, § 803(d) of the PLRA imposes a cap on the hourly rate available to a plaintiffs counsel of 150 percent of the hourly rate available to court-appointed counsel. See § 803(d) (codified at 42 U.S.C.A § 1997e(d)(3)). Therefore, the district court must compute the maximum hourly rate allowable and determine whether a plaintiffs counsel
1972	virtually all documents of four different businesses, is sustainable under the good faith exception” of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See Memorandum of Richard I. Johnson, Sr., filed June 25, 1993, at 38; see also United States v. Roberts, 852 F.2d 671 (2d Cir.), cert. denied, 488 U.S. 993, 109 S.Ct. 556, 102 L.Ed.2d 583 (1988). The Government contends that the seizure authorization was not overbroad because the businesses searched were “permeated with fraud.” It is argued that, under such circumstances, the seizure of all business records of the companies controlled by the Defendants is authorized. See National City Trading Corp. v. United States, 635 F.2d 1020, 1026 (2d Cir.1980) (citing United States v. Brien, 617 F.2d 299, 309 (1st Cir.), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980)). The Fourth Amendment requires that warrants “particularly describ[e] ... the person or things to be seized.” The particularity requirement renders “general searches ... impossible and prevents the seizure of one thing under a warrant describing another.” Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). In reviewing a warrant against a claimed lack of particularity, “the language of a warrant is to be construed in light of an illustrative list of seizable items.” United States v. Riley, 906 F.2d 841, 844 (2d Cir.1990); see also United States v. Young, 745 F.2d 733, 759-60 (2d Cir.1984), cert. denied, 470 U.S. 1084, 105
3777	satisfy the standing requirement. Id. at 1011 (analyzing standing regarding a facial over-breadth claim). “[A] business ... may properly assert its employees’ or customers’ First Amendment rights where the violation of those rights adversely affects the financial interests or patronage of the business.” Hang On, Inc., 65 F.3d at 1252 (classifying this principle as falling under both the close relationship exception and the “unlikely to defend” exception); White’s Place, 222 F.3d at 1330 (classifying this rule as a form of associational standing). Plaintiff has a strong financial interest in the activities that take place within its establishment and, if the ordinances are unconstitutional, there is “a ‘credible risk the [ordinance could cause self-censorship and chilling of expression.’ ” Score LLC v. City of Shoreline, 319 F.Supp.2d 1224, 1231 (W.D.Wash.2004) (quoting Clark, 259 F.3d at 1010). The ordinances regulate the purpose of the business—adult entertainment. See White’s Place, 222 F.3d at 1330. The dancers are unlikely to defend their First Amendment rights in a court of law. Additionally, Plaintiff has standing because it may be criminally liable and may have its license suspended or revoked if a worker violates the provisions. See Score, 319 F.Supp.2d at 1231 (upholding plaintiffs standing to challenge simulated sexual conduct ordinance because plaintiff had “been cited for violations in the past”). Thus, Plaintiff has a strong interest in challenging the substantive provisions, which it believes criminalizes protected expressive conduct. VII. Standard of Review Over the AEC’s Criminal Prohibitions The parties argue for different standards of review
2008	are individualized (geared to the specific individual’s actual experience and response). Hence, under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of a predisposition toward development of that condition. For example, VA does not deny a service-connection award to a veteran whose lack of good balance causes him to fall and be injured during service even though a service person with better balance would not have been injured at all. This is analogous to the well-established principle of tort law that a tortfeasor “takes the plaintiff as he finds him.” Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 907-08 (2d Cir.1993) (quoting Maurer v. United States, 668 F.2d 98, 100 (2d Cir.1981) (per curiam), and citing Restatement (Second) of Torts § 435, at 454 (1965) and W. Page Keeton et al, Prosser and Keeton on the Law of Torts § 43, at 292 (5th ed.1984)); see Maurer, 668 F.2d at 99-100 (“It is a settled principle of tort law that when a defendant’s wrongful act causes injury, he is fully liable for the resulting damage even though the injured plaintiff had a preexisting condition that made the consequences of the wrongful act more severe than they would have been for a normal victim.”); see also Stevens v. Bangor and Aroostook R.R., 97 F.3d 594, 602 n. 8 (1st Cir.1996) (noting that Federal Employers’ Liability Act and other federal statutes incorporate the “eggshell
4243	of the public. Private gain is secondary. Pennock v. Dialogue, 2 Pet. 1, 19, 7 L.Ed. 327 (1829); Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 510-511, 37 S.Ct. 416, 61 L.Ed. 871 (1917); Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 665, 64 S.Ct. 268, 88 L.Ed. 376 (1944); Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 98 L.Ed. 630 (1954); Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 330-331, 65 S.Ct. 1143, 89 L.Ed. 1644 (1945); Dumbauld, The Constitution of the United States (1964) 153-154. A valid patent must add to, not detract from, the state of the prior art. As stated in Great A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 (1950): “The function of a patent is to add to the sum of human knowledge. Patents cannot be sustained when, on the contrary, their effect is to subtract from former resources freely available to skilled artisans.” Hence it is a public service to strike down an invalid patent, which is in truth a trespass upon the public domain, as Justice Douglas observed in Automatic Radio Mfg. Co. v. Hazeltine Research, 339 U.S. 827, 840, 70 S.Ct. 894, 94 L.Ed. 1312 (1950). The very power of Congress'to grant a patent is limited and delineated by the purpose proclaimed in the constitutional grant itself. The power is one “To promote the Progress of Science and useful Arts”;
2726	also show that there has been a change in country conditions. That is, Chen must show that the Shou Yung Guo documents are not only real, but also constitute evidence of a new policy in Changle City. And the BIA, in denying Chen’s untimely motion to reopen, con- cluded simply that “[although [Chen] al- motion to reopen, concluded simply that “[although [Chen] al leges that conditions in China have changed, [he] point [sic] to the ‘continued’ implementation of policies rather than a material change in policies.” The basis for the BIA’s holding is unclear from this language. On the one hand, in concluding that Chen “failed to show materially changed conditions in China,” the BIA cited, among other cases, Jian Xing Huang v. INS, 421 F.3d 125, 128 (2d Cir.2005), which suggests the BIA meant that the evidence provided by Chen, including the Shou Yung Guo documents, did not demonstrate the existence of an official policy of forced sterilization for those Chinese couples having children abroad and that such evidence did not, therefore, show a change in country conditions. That is, it seems the BIA concluded that the evidence presented did not. demonstrate a change from a policy of opposing forced sterilization to one of requiring it in Chen’s circumstances. This understanding of the BIA’s holding is supported by the BIA’s continued, even recent, reliance on State Department reports which claim that the Chinese government opposes forced sterilization. See, e.g., In re C-C-, 23 I. & N. Dec. 899, 903
4709	worked in excess of 40 hours a week, but the Court finds that under the reasoning in Lundy, Plaintiffs FLSA minimum wage claim should be dismissed. B. Rule 56 Motion 1. Standard of Review Summary judgment shall be granted where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgmént as a matter of law.” Fed. R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir.2014) (same). “In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (internal quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cnty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314 (S.D.N.Y.2014) (same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004); see also Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at *2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would’ fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the
1858	Huggins was, however, unable to find any indication of a leak test failure notation on the route sheets themselves, the documents the government inspectors would have seen. . None of the evidence at all suggested involvement by Mr. Pacetti. As Plant Manager, Production Manager, Quality Assurance Manager, and Supervisors, Huggins, Griggs, Henchcliffe, Staffer, Caldwell, and Tabor sufficiently implicated company management. . During post-trial argument, plaintiff contended that imprecision as to the amount spent on installation of the foam pad precludes any recovery of damages by defendant. Plaintiff points to the line of authority in this circuit that jury verdict assessments of damages are disfavored. See, e.g., Dawco Const. Inc. v. United States, 930 F.2d 872, 881 n. 3 (Fed.Cir.1991); W.R.B. Corp. v. United States, 183 Ct.Cl. 409, 425, 1968 WL 9146 (1968). As the Dawco court points out, however, the real concern is that “unrealistic assumptions will be adopted and extrapolated, greatly multiplying an award beyond reason, and rewarding preparers of imprecise claims based on undocumented costs with unjustified windfalls.” 930 F.2d at 882. Here, the total magnitude of the repair costs is not seriously in dispute. There is no danger of speculation in that regard. Richard Ray testified that every machine had to be opened for repairs. Whatever labor was involved beyond the gluing of the foam pad therefore would have occurred in any event. Under the circumstances, the reduction by the court penalizes the government, not the plaintiff. See, Brand Inv. Co. v. United States, 58 F.Supp. 749,
287	the products exclusion, interpreted narrowly, is not applicable. We disagree with W3i because its argument fails to account for our duty to interpret “involving” within the context of its use. “Because a word has more than one meaning does not mean it is ambiguous. The sense of a word depends on how it is being used; only if more than one meaning applies within that context does ambiguity arise.” Bd. of Regents of the Univ. of Minn. v. Royal Ins. Co. of Am., 517 N.W.2d 888, 892 (Minn.1994). In the Westchester products exclusion, “in any way” modifies “involving.” As we have recently determined, “[t]he word ‘any’ when ‘[r]ead naturally ... has an expansive meaning.’” Leonard v. Exec. Risk Indem. (In re SRC Holding Corp), 545 F.3d 661, 668 (8th Cir.2008) (quoting United States v. Gonzales, 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997)). We find the “in any way” language incorporates all reasonable definitions of the word “involving,” including those not requiring a causal connection, such as “to have within or as part of itself.” Webster’s Third New International Dictionary 1191 (1993). Relying on cases such as Waseca Mut. Ins. Co. v. Noska, 331 N.W.2d 917 (Minn.1983), W3i suggests that Minnesota’s “independent cause doctrine” compels coverage because “when two concurrent causes contribute to a loss, one covered by insurance and one not, an insurer may not deny coverage due to the presence of the non-covered loss.” We doubt application of this doctrine is appropriate here, but need
3693	Francisco, 484 F.3d 1142, 1155 (9th Cir.2007) (“[T]he police may legitimately respond to citizen complaints and stop excessive amplified sound, especially if unpermitted.”). And the County’s stated environmental concerns are sufficient to justify its distinction between the outdoor storage of non-operative vehicles and other permitted vehicle storage. The County also had a rational basis for concluding that the Jensens did not have a protected grandfathered use of their property pursuant to Hansen Brothers Enterprises, Inc. v. Board of Supervisors, 12 Cal.4th 533, 48 Cal.Rptr.2d 778, 907 P.2d 1324 (1996). The County could only have committed a substantive due process violation in denying the Jensens’ grandfathered use if it “could have had no legitimate reason for its decision.” Richardson v. City and Cnty. of Honolulu, 124 F.3d 1150, 1162 (9th Cir.1997) (quoting Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234 (9th Cir.1994)). The County concluded that the Jensens’ use of the property for extensive car storage did not predate the 1975 ordinance based on an aerial pho to showing that the property was not being used in that way in 1980. The County’s reliance on the 1980 photograph provided a legitimate basis for its decision. The Jensens’ Fourth Amendment claim, which is based on the order from the County directing them to schedule an inspection confirming abatement, fails because no search or seizure occurred. Cf. Conner v. City of Santa Ana, 897 F.2d 1487, 1490-92 (9th Cir.1990) (finding a Fourth Amendment violation where police, without a warrant, removed automobiles
2070	physical contact, even de minimis, between a police officer and a citizen, constitutes an arrest requir ing probable cause. See [U.S. v. ]Zapata, 18 F.3d [971] at 977 [ (1994) ] (indicating that police touching of an individual does not necessarily elevate a seizure to an arrest.) Parsing whether any given seizure constitutes an arrest or a lesser seizure, however, proves a difficult task. See id. at 975 (explaining that no scientific formula exists to distinguish between investigative stops and arrests.) Police conduct will rise to the level of an arrest when “ ‘ a reasonable man in the suspect’s position would have understood his position’ in the circumstances then obtaining, to be tantamount to being under arrest.” See id. (quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984)). Young, 105 F.3d at 7. The Court in Young identified several factors that could transform a non-arrest seizure to a de facto arrest requiring probable cause. These included: 1) extending an investigative stop beyond the time necessary to confirm or dispel reasonable suspicion, and 2) physically blocking the suspect’s exit such that a reasonable person would not feel free to leave. Id. at 7-8. Above all else, the First Circuit stressed the fact specific nature of the inquiry. In Kimball, 25 F.3d at 6, the First Circuit explained that “whether police activity is reasonable in any particular context depends on the facts which are unique to that incident.” Upon review of the totality of
4499	CompuServe, Inc., 89 F.3d at 1262). Therefore, in order to decide this motion, the Court must ascertain only whether plaintiffs have established a prima facie case of personal jurisdiction. The Court will review the pleadings, including the deposition testimony offered by plaintiffs, in a light most favorable to plaintiffs, to determine whether plaintiffs have adduced sufficient facts on which the Court can conclude it is appropriate to exercise personal jurisdiction over the DNN defendants. Plaintiffs argue for the presence of both general and limited jurisdiction. The Due Process clause permits a Court to exercise both general and limited jurisdiction. However, “[i]n analyzing the due process limits of personal jurisdiction, a distinction is made between ‘general’ jurisdiction and ‘specific’ jurisdiction.” Conti v. Pneumatic Prod. Corp., 977 F.2d 978, 981 (6th Cir.1992) (citing Third Nat’l Bank in Nashville v. WEDGE Group, Inc., 882 F.2d 1087, 1089 (6th Cir.1989)). “General jurisdiction exists when a defendant has ‘continuous and systematic contacts with the forum state sufficient to justify the state’s exercise of judicial power with respect to any and all claims.’ ” Aristech Chem. Int’l, Ltd. v. Acrylic Fabricators, 138 F.3d 624, 627 (6th Cir.1998) (quoting Kerry, 106 F.3d at 149). By contrast, “[s]pecific jurisdiction ... subjects the defendant to suit in the forum state only on claims that ‘arise out of or relate to’ a defendant’s contacts with the forum” Id. (quoting Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 414 & n. 8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)). In
2713	on all other parties to the action no later than 10 days after the service of the last pleading “directed to such issue”; such demand may be indorsed on a pleading. Fed.R.Civ.P. 38(b). A party who fails to serve a jury demand in the manner specified by Rule 38 is deemed to have waived its right to a trial by jury on the issues framed by the pleadings at that juncture. Fed.R.Civ.P. 38(d); See Richardson Greenshields Securities v. Mui-Hin Lau, 693 F.Supp. 1445, 1458 (S.D.N.Y. 1988). Once the ten-day period has passed, the “parties may then rely on the Rule’s explicit terms in presuming that the fact-finder will not thereafter change for the claims raised in the complaint.” Berisford Capital Corp. v. Syncom Corp., 650 F.Supp. 999, 1001 (S.D.N.Y.1987). Despite the waiver of the trial by jury, the court in its discretion “upon motion” may order a trial by jury. Fed.R.Civ.P. 39. However, the district court’s discretion has been sharply limited “to determining whether the moving party’s showing beyond mere inadvertence is sufficient to justify relief.” Richardson Greenshields Securities v. Mui-Hin Lau, No. 84 Civ. 6134 (KMW); 1991 WL 125241, *6 (S.D.N.Y.1992), quoting, Noonan v. Cunard Steamship Co., 375 F.2d 69, 70 (2d Cir.1967). In this Circuit, amendments to the pleadings revive the right to a jury trial only if the amendments involve new issues or change the original issues. Berisford, 650 F.Supp. at 1001, citing, Lanza v. Drexel & Co., 479 F.2d 1277, 1310. The presentation of a “new
3091	Courts are not obliged to dismiss pendent state law claims, in the usual case in which all federal law claims are dismissed before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness and comity-will point toward declining to exercise jurisdiction over the remaining state law claims. In such a case, state-law claims should be dismissed. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 5, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); citing Gibbs, 383 U.S. at 726-27, 86 S.Ct. 1130; see also Mercado-Garcia v. Ponce Federal Bank, 979 F.2d 890, 896 (1st Cir.1992); Rivera v. Murphy, 979 F.2d 259, 264 (1st Cir.1992); Figueroa Ruiz v. Alegria, 896 F.2d 645 (1st Cir.1990); cf. Vega v. Kodak Caribbean, 3 F.3d 476, 478 (1st Cir.1993) (holding that “when the district court disposed of the ADEA claims, the pendent claims became subject to dismissal for want of subject matter jurisdiction”); Feinstein v. Resolution Trust Corp., 942 F.2d 34, 47 (1st Cir.1991) (stating that “since federal question jurisdiction hinged on that [dismissed] count, and there was no complete diversity of citizenship or other cognizable basis for the assertion of subject matter jurisdiction in the district court, the pendent state law claims were properly dismissed under the rule of United Mine Workers v. Gibbs ”). Supplemental jurisdiction should be declined in this case in view that the state law claims substantially predominate over the federal claims. The Supreme Court has held that judicial economy, convenience, fairness and comity
3192	EPA. FI-FRA §§ 3(a), 12(a)(1)(A), 7 U.S.C.A. §§ 136a(a), 136j(a)(1)(A). In order to register a pesticide, an applicant, who may be a manufacturer or user of the product, must demonstrate with sufficient scientific evidence that, “when used in accordance with widespread and commonly recognized practice^ the pesticide] will not generally cause unreasonable adverse effects on the environment.” FIFRA § 3(c)(5)(D), 7 U.S. C.A. § 136a(c)(5)(D). After a pesticide has been registered, the EPA Administrator must issue a notice of his intent to cancel its registration or change its classification “ ‘whenever there is a substantial question about the safety of a registered pesticide.’ ” Environmental Defense Fund, Inc. v. EPA, 510 F.2d 1292, 1296 n. 4 (D.C.Cir.1975) (quoting Environmental Defense Fund, Inc. v. Ruckelshaus, 439 F.2d 584, 594 (D.C.Cir.1971)); see FIFRA § 6(b), 7 U.S.C.A. § 136d(b). Because cancellation or reclassification proceedings may take one or two years to complete, FIFRA authorizes the Administrator to suspend a pesticide’s registration pending the outcome of the proceedings if he determines that suspension “is necessary to prevent an imminent hazard.” FIFRA § 6(c)(1), 7 U.S.C.A. § 136d(c)(1). Absent an emergency, the Administrator may not issue a suspension order until he has done two things: (1) notified registrants of the pesticide that he intends to cancel the registration and that he will issue a suspension order based upon “findings pertaining to the question of ‘imminent hazard,’ ” which he must include in the notice; and (2) given registrants an opportunity for an “expedited hearing”
3727	Shell Chemical Co., 845 F.2d 802, 812 (9th Cir.1988). The Federal Circuit and the Supreme Court have found patent misuse based on evidence from a particular contract where the misuse is a type recognized in the case law. Princo, 616 F.3d at 1328 (collecting cases). For example, a patentee who conditions the license on a patent licensee’s purchase of an unpatented material for use in the invention may, under certain conditions, be impermissibly extending the scope of the subject matter encompassed by the patent grant. Monsanto Co. v. McFarling, 363 F.3d 1336, 1341-42 (Fed.Cir.2004) (internal citations omitted). Similarly, a patentee may not require a licensee to pay licensing fees after a patent has expired. Princo, 616 F.3d at 1327 (citing Brulotte v. Thys Co., 379 U.S. 29, 85 S.Ct. 176, 13 L.Ed.2d 99 (1964)). In these cases the Federal Circuit has found that “when the patentee has used restrictive conditions on licenses or sales to broaden the scope of the patent grant, [] an accused infringer may invoke the doctrine of patent misuse to defeat the patentee’s claim.” Id. at 1328. However, in cases like this one, where a plaintiff does not allege an activity that is patent misuse per se, a “rule of reason” analysis applies. Monsanto Co., 363 F.3d at 1341 (Fed.Cir.2004). In such cases, “a factual determination must reveal that the overall effect of the license tends to restrain competition unlawfully in an appropriately defined relevant market.” Windsurfing Int’l Inc. v. AMF, Inc., 782 F.2d 995, 1001-02
724	"contract was made no longer controls determination of which jurisdiction's law should apply. See Gould, 822 F.Supp. at 1175 (applying Griffith analysis to insurance contract action); Evangelista, 698 F.Supp. at 87 (applying Griffith analysis to insurance contract action). . The Third Circuit has distinguished an insurer’s duty to defend an insured from an insurer’s duty to indemnify. ""Under Pennsylvania law, when an insured tenders multiple claims to an insurer for defense, the insurer is obligated to undertake defense of the entire suit as long as at least one claim is potentially covered by the policy. As to indemnification, however, the insurer is obligated to its insured only for those damages which are actually within the policy coverage.” Caplan v. Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828, 831 n. 1 (3d Cir.1995) (citations omitted). . The Wiley court did not reach the issue of the insurer’s duty to defend, noting that “[t]he issue of initial coverage [was] not raised by the parties to this appeal ... and we therefore do not address it.” Wiley, 995 F.2d at 458 n. 1. . The terms are also used interchangeably and largely without a definitional context in many of the cases decided in other jurisdictions. See cases collected in Whitt v. DeLeu, 707 F.Supp. 1011, 1014 n. 4 (cited in Wiley, 995 F.2d at 461 n. 5): American States Ins. Co. v. Borbor, 826 F.2d 888 (9th Cir.1987) (undressing, touching and photographing nursery school children in various sexual poses); Allstate Ins. Co. v."
1458	only one was shown by the medical evidence of record. Such a result was considered to be beyond the legislative purpose of 38 U.S.C. [§] 1159. Larry K Gifford, BVA 92-17683, at 5 (July 24, 1992). The BVA did not reach the issue of an increased disability rating based on “clear and unmistakable error.” II. ANALYSIS A. Clear and Unmistakable Error Appellant specifically claimed that the VA committed “clear and unmistakable error” by failing to rate the through-and-through gunshot wound to his leg 30% disabling. That being so, the Board was obligated to determine whether or not the VARO committed “clear and unmistakable error” in the December 1970 rating decision. Russell v. Principi, 3 Vet.App. 310, 319 (1992) (en banc); of. Mingo v. Derwinski, 2 Vet.App. 51, 54 (1992) (The BVA “must review all issues which are reasonably raised from a liberal reading of the appellant’s substantive appeal.”); see also Azurin v. Derwinski, 2 Vet.App. 489, 492 (1992); Myers v. Derwinski, 1 Vet.App. 127, 129 (1991). Both parties request that the Court remand this claim to the BVA for adjudication. The Court will remand appellant’s appeal with respect to this claim. B. 38 U.S.C. § 1159 Appellant contends that the Board severed service connection for residuals of a gunshot wound to his right thigh when it corrected the December 1970 rating decision to reflect the actual situs of his injury. Pursuant to 38 U.S.C. § 1159, service connection, once established and in effect for more than ten years, can be
2811	vessel is not within any district, and no suit has been commenced in any district, then the complaint may be filed in any district. For the convenience of the parties and witnesses, in the interest of justice, the court may transfer the action to any district; if the venue is wrongly laid the court shall dismiss or, if it be in the interest of justice, transfer the action to any district in which it could have been brought. Fed. R. Civ. P. Supp. R. F(9). “The factors to be considered by th[e] court in determining whether a transfer is appropriate under Supplemental Rule F(9) are the same as those developed by the federal transfer statute, 28 U.S.C. § 1404(a).” In re Norfolk Dredging Co., 240 F.Supp.2d 532, 534 (E.D. Va. 2002) (citing Petition of Alamo Chem. Transp. Co., 323 F.Supp. 789, 791 (S.D. Tex. 1970)). These factors include: “(1) the convenience of the parties; (2) the convenience of material witnesses; (3) the availability of process to compel the presence of witnesses; (4) the cost of obtaining the presence of witnesses; (5) the relative ease of access to sources of proof; (6) calendar congestion; (7) where the events in issue took place; and (8) the interests of justice in general.” Id. at 535 (citations omitted). The party seeking transfer bears the burden of clearly establishing that transfer is appropriate, and must “specify what evidence and witnesses it intends to rely on and show that the balance of, convenience weighs heavily in
3107	III. DISCUSSION Defendants move to dismiss this action on the bases that (1) the court lacks subject-matter jurisdiction over this dispute due to the RLA and (2) plaintiffs action is time-barred under the terms of the contract. A. JURISDICTION 1. THE RLA AND “MINOR DISPUTES” Defendants argue that the RLA, which governs labor relations involving airline employees, vests mandatory, exclusive jurisdiction for the adjudication of this dispute in a “system board of adjustment.” Section 204 of the RLA “requires that an air carrier and its employees establish a system board of adjustment with jurisdiction over disputes ‘growing out of grievances, or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.’ ” Kozy v. Wings West Airlines, Inc., 89 F.3d 635, 638 (9th Cir.1996), quoting 45 U.S.C. § 184. Under section 204, disputes between employees and employers are classified into two categories. “Major disputes concern statutory rights, such as the right to form collective bargaining agreements or to seek to secure new rights and incorporate them into future agreements. Federal courts have jurisdiction to decide major disputes. Minor disputes, on the other hand, concern the interpretation or application of collective bargaining agreements, and are resolved through binding arbitration before the System Board of Adjustment. Federal courts do not have jurisdiction to resolve minor disputes.” Ass’n of Flight Attendants, AFL-CIO v. Horizon Air Industries, Inc., 280 F.3d 901, 904 (9th Cir.2002) (citations omitted). Defendants contend that plaintiffs claim entails a “minor dispute,” and thus the
1487	asking us to remand her case for consideration of her pending appeal from the revocation an 1-130 form filed by her son on her behalf. We review the denial of a motion to reopen for abuse of discretion. Zhao Quan Chen v. Gonzales, 492 F.3d 153, 154 (2d Cir.2007) (per curiam). Under 8 U.S.C. § 1255, the Attorney General may, in his discretion, adjust the status of an alien to an alien lawfully admitted for permanent residence if (1) the alien applies for such adjustment; (2) the alien is ineligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available at the time the alien files the application. Mariuta v. Gonzales, 411 F.3d 361, 365 (2d Cir.2005). Here, IJ found, and the BIA affirmed, that Samsundar was deportable “because she entered into a marriage, which she did not intend to be bona fide, for the purpose of securing an immigration benefit.” Because Samsundar was found inadmissible and deportable because she had entered into a fraudulent marriage, she was not eligible for permanent residence in the United States. 8 U.S.C. § 1182(a)(6)(C)(i). Samsundar has not demonstrated abuse of discretion in this holding, nor in the denial of reconsideration thereof. For substantially the same reason, we need not remand this case for consideration of Samsundar’s appeal of the revocation of the 1-130 form upon which she seeks to adjust her status. Even if that appeal is successful, it will
2761	of that alleged procedural flaw. We disagree. “We expressly distinguish between departures from the guidelines and variances from the guidelines.” United States v. Brown, 578 F.3d 221, 225 (3d Cir. 2009) (citing United States v. Vampire Nation, 451 F.3d 189, 195 n.2 (3d Cir. 2006)). Departures are changes to the guidelines calculation that require a motion by the requesting party and are “based on a specific Guidelines departure provision.” Id. (quoting Vampire Nation, 451 F.3d at 195 n.2). Variances are discretionary changes to the sentencing guidelines range based on a review of the § 3553(a) factors. Id. at 226. In that regard, “[district courts have greater leeway in deciding what to consider in determining whether to vary from the Guidelines.” United States v. Lofink, 564 F.3d 232, 240 (3d Cir. 2009). “[We] review[ ] a variance for reasonableness ... by evaluating the district court’s analysis of the § 3553(a) factors, whereas [we] review[] a departure [by] consulting] the relevant guidelines provision in order to determine whether the departure was appropriate.” Brown, 578 F.3d at 226. Duong construes the Court’s use of the phrase “not generally relevant” as the standard for departures, but we do not think the District Court was confused. The request was plainly for a variance—Duong made no motion for a departure and did not cite to any departure provision. The record shows that the Court understood her request as one for a variance and that it applied the correct standard. First, the Court noted that it had
4842	to be governed by the laws of the state of incorporation. But more importantly it is the only rule compatible with the constitutional prohibition against inconsistent regulation. Tennessee is one of at least twenty states with which Holly Farms has significant contacts. To allow Tennessee to regulate Tyson’s tender offer for Holly Farms’ stock is to guarantee inconsistent regula tion. See Campean Corp. v. Federated Dept. Stores, 679 F.Supp. 735, 739 (S.D. Ohio 1988) (Application of Ohio takeover statute to foreign corporations “gives rise to an impermissible risk that many states could seek to regulate the acquisition of control of a national company ... which has substantial assets and principle places of business in states other than Ohio.”); TLX Acquisition Corp. v. Telex Corp., 679 F.Supp. 1022, 1030 (W.D.Okla.1987) (“It follows [from CTS] that when a state attempts to regulate voting rights in corporations other than those it has created, such corporations will be subject to the law of more than one state, which imposes an impermissible risk of inconsistent regulations by different states that may adversely affect interstate commerce.”). 3. Excessive Burden on Interstate Commerce A state statute violates the Commerce Clause when it imposes a burden on interstate commerce excessive in relation to local interests served by the statute. MITE, 457 U.S. at 644-46, 102 S.Ct. at 2641-43; Pike v. Bruce Church, Inc., 397 U.S. at 142, 90 S.Ct. at 847. The ACPA is such a statute. Protecting shareholders of resident corporations is a legitimate state interest. See
4417	information. The plaintiffs thus fail to allege actionable omissions under Rule 10b-5. B. The defendants argue correctly that the alleged omissions did not mislead investors because information about BoA’s exposure to MBS litigation generally, and AIG’s claim in particular, was in the public domain. “Although the underlying philosophy of federal securities regulation is that of full disclosure, there is no duty to disclose information to one who reasonably should be aware of it.” Seibert v. Sperry Rand Corp., 586 F.2d 949, 952 (2d Cir.1978) (internal citations and quotation marks omitted). ‘Where allegedly undisclosed material information is in fact readily accessible in the public domain, ... a defendant may not be held liable for failing to disclose this information.” In re KeySpan Corp. Sec. Litig., 383 F.Supp.2d 358, 377 (E.D.N.Y.2003); see also In re Merrill Lynch & Co., Inc. Research Reports Sec. Litig., 272 F.Supp.2d 243, 249-250 (S.D.N.Y.2003) (“[T]he Defendants cannot be held liable for failing to disclose ... publicly available information.”). In this case, the plaintiffs allege only that AIG was “considering” a suit, “planned” to sue, or would probably sue. (SAC ¶¶ 58, 63, 108.) These probabilities were plainly within the public domain because, as the plaintiffs acknowledge, The New York Times disclosed on April 27, 2010 that AIG was preparing lawsuits against BoA and several other banks that allegedly made misstatements in creating MBS. (Plaintiffs’ Opposition at 24.) Similar information was also republished, nationally and internationally, in publications like the Houston Chronicle, Wall Street Journal, and Dow Jones
3710	a factual attack, the. challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction. “If the challenge to jurisdiction is a facial attack, i.e., the defendant contends that the allegations of jurisdiction contained in the. complaint are insufficient on their face to demonstrate the existence of jurisdiction, the plaintiff is entitled to safeguards similar to those applicable when a Rule 12(b)(6) motion is made.” Cervantez v. Sullivan, 719 F.Supp. 899, 903 (E.D.Cal.1989), rev’d on other grounds, 963 F.2d 229 (9th Cir.1992). “The factual, allegations of the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Id.; see also Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1052 n. 2 (9th Cir.2009), rev’d on other grounds en banc, 616 F.3d 1019 (9th Cir.2010) (applying Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), to a facial motion to dismiss for lack of subject matter jurisdiction). V. ANALYSIS A. Whether Plaintiff Has Standing to Bring Its Inventorship Claim Plaintiffs tenth cause of action seeks a declaratory judgment stating that Lininger is a co-inventor of patents numbers 6,604,-053 (“'053 Patent”), 6,722,208 (“'208 Patent”), 6,799,474 (“'474 Patent”), and 6,990,-924 (“'924 Patent”). FAC ¶ 170. Plaintiff also seeks to establish that Brown is a co-inventor of the 053 patent, and that Borc-hert and Yiesca are not co-inventors of any of the four patents. Id. at ¶¶ 175-18. These patents are
2334	to destroy the worth of his patent. Rudimentary experiments with isolated elements of a combination do not anticipate or discredit invention. Smith & Griggs Mfg. Co. v. Sprague, 123 U.S. 249, 255, 8 S.Ct. 122, 31 L.Ed. 141; Smith v. Snow, 294 U.S. 1, 17, 55 S. Ct. 279, 79 L.Ed. 721. “It may be safely said that if those skilled in the mechanical arts are working in a given field, and have failed, after repeated efforts, to discover a certain new and useful improvement, that he who first makes the discovery has done more than make the obvious improvement which would suggest itself to a mechanic skilled in the art, and is entitled to protection as an inventor.” Expanded Metal Co. v. Bradford, 214 U.S. 366, 381, 29 S.Ct. 652, 656, 53 L.Ed. 1034. Claim 4 of the patent in suit is not for new elements, but is for combining old mechanical elements in a new way. A new combination of old elements, whereby a new and useful result is produced or an old result is obtained in a more facile, economical and efficient way, may be protected by patent as securely as a new machine or composition of matter. National Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co., 8 Cir., 106 F. 693, 706, 707, and cases cited; McDonough v. Johnson-Wentworth Co., 8 Cir., 30 F.2d 375, 380. The simplicity of the Packwood combination does not militate against its patentability. New York Scaffolding Co. v. Whitney, 8 Cir., 224
2199	435, 103 S.Ct. 1933); see also Coutin, 124 F.3d at 339 (outlining an approach that first weeds out unsuccessful, unrelated claims as not compensable and then proceeds to analyze the degree of success on the interrelated claims). B. Relief Actually Achieved The second meaning of “results obtained” focuses on the damages awarded to the plaintiff. See id. at 340. The trial court has the “discretion to reduce a fee award in response to limited relief even in the presence of complete claims-based success.” Id. (citing Cartwright v. Stamper, 7 F.3d 106, 109-10 (7th Cir.1993)). However, a plaintiff “should receive significant fees when he has won a partial victory on a civil rights claim while receiving substantially the relief he there sought_” Aubin v. Fudala, 782 F.2d 287, 291 (1st Cir.1986); cf. Hensley, 461 U.S. at 440, 103 S.Ct. 1933 (“Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised.”); Coutin, 124 F.3d at 339 (“[A] plaintiff who has limited success from a claim-by-claim standpoint, but who nevertheless obtains substantial compensation or other important relief, usually will fare much better in the fee wars, even though some of her claims failed.” (citing Hensley, 461 U.S. at 440, 103 S.Ct. 1933)). In addition, the size of any discrepancy between “the damages requested in the complaint and the damages awarded,” though relevant, does not “amount to more than one element in
3510	conduct of his not justified by his federal duty.” Mesa, 489 U.S. at 132, 109 S.Ct. at 966. Because the claims asserted by the Estate in this case are predicated on negligence and limited to a failure to warn theory of liability, Armeo must show that the government authority it operated under directly interfered with its ability to fulfill its state law obligation to warn its employees of safety hazards. See Ryan, 781 F.Supp. at 950 (holding removal improper under § 1442(a)(1) because defendants were sued for producing a product comprised of components developed without government control and although defendants were required under war contract to supply government with product requisite connection between defendants’ conduct and state law action was missing); Brenner v. Kelly, 201 F.Supp. 871 (D.Minn.1962) (“[U]n-less an officer of the United States can justify that which he did by reason of some official connection' between the acts complained of and his official duties, the proceeding is not removable.”); cf. Texas v. National Bank of Commerce, 290 F.2d 229, 234 (5th Cir.), cert. denied, 368 U.S. 832, 82 S.Ct. 55, 7 L.Ed.2d 35 (1961) (removal proper where the banking power of private banks serving United States military installations and operating under exclusive and direct control of the government was directly challenged in suit by the state of Texas). The Court finds that although Armeo has proven that DPC supervised and extensively monitored the construction of the Mill, Arm-eo has failed to demonstrate that DPC exercised this same degree
2639	due process and of the equal protection of the laws.” The burden of proof is on the-person attacking selection procedure to show “the existence of purposeful discrimination” by the exclusion of Negroes on account of race from jury participation. Whitus v. State of Georgia, supra; Fay v. People of State of New York, 332 U.S. 261, 285, 67 S.Ct. 1613, 1626, 91 L.Ed. 2043 (1947). Purposeful discrimination may not be assumed or merely asserted, it must be proven. Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). “When Negro representation on venire lists is not extremely disproportionate to the Negro population in the parish [county], the burden may be a heavy one.” Labat v. Bennett, 5 Cir., 1966, 365 F.2d 698, 712. However, juries must be drawn from a fair cross section of the community. Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ; Thiel v. Southern Pac. Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); Scott v. Walker, 5 Cir., 1966, 358 F.2d 561, 564. The jury must, therefore, be “drawn from a pool of persons broadly representative of the community”, Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34, 45, for “It is part of the established tradition in the use of juries' as instruments of public justice that the jury be a body truly representative of
2517	not recall receiving the Notice or the New Agreement and, therefore, defendants cannot establish that a valid arbitration agreement exists. In response, defendants proffer the affidavits of Ms. Koehler and argue that under the “mailbox rule” plaintiffs are presumed to have received the Notice and New Agreement, and therefore by making purchases after February 14, 2000, they entered into the New Agreement and are subject to its arbitration provision. “Proof that a letter properly directed was placed in a U.S. post office mail receptacle creates a presumption that it reached its destination in the usual time and was actually received by the person to whom it was addressed.” Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir.1989); see also U.S. v. Wilson, 322 F.3d 353, 362-63 (5th Cir.2003). Defendants need not prove actual receipt of the Notice or New Agreement; rather, proof of receipt “may be accomplished by presenting circumstantial evidence, including evidence of customary mailing practices used in the sender’s business.” Marsh v. First USA Bank, N.A., 103 F.Supp.2d 909, 918 (N.D.Tex.2000) (citing Wells Fargo Bus. Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir.1983)); Myer v. Callahan, 974 F.Supp. 578, 584 n. 7 (E.D.Tex.1997). In addition, the affiant in support of the mailing need not have personal knowledge of the letter’s mailing, but “at a minimum the affiant must have personal knowledge of the procedures in place at the time of mailing.” Burton v. Banta Global Turnkey Ltd., 170 Fed.Appx. 918, 924 (5th Cir.
294	burden shifts to the nonmovant to show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof,’ the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote omitted). “In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir.1992) (internal citations and quotations omitted). “Summary judgment is justified only for those cases devoid of any need for factual determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir.1987) (citation omitted). “The applicable Rule 56 standard is not affected by the filing of cross-motions for summary judgment.” Godard v. Alabama Pilot, Inc., 485 F.Supp.2d 1284, 1291 (S.D.Ala.2007); see also May v. A Parcel of Land, 458 F.Supp.2d 1324, 1333 (S.D.Ala.2006) (same). Indeed, the Eleventh Circuit has explained that “[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” United States v.
2842	the Newport address was discovered at about 8:30 or 9:00 a.m. that morning from information provided by the telephone' company as to the name and address of the subscriber listed for the intercepted calls. The law governing this situation has been long established. Nearly half a century ago, in Tynan v. United States, 297 F. 177, 179 (9th Cir.), cert. denied, 266 U.S. 604, 45 S.Ct. 91, 69 L.Ed. 463 (1924), the court stated: “No doubt a general search warrant for an entire building . . . occupied by different families or different tenants, is ordinarily null and void.” See also, United States v. Mitchell, 274 F. 128 (N.D.Cal. 1921); Hogrefe v. United States, 30 F.2d 640 (9th Cir.1929). In United States v. Barkouskas, 38 F.2d 837 (M.D.Pa. 1930), the search warrant in question authorized the search of the premises “located at 1919 Jackson St., Scranton, Pa.” The warrant did not include the name of the defendant or the occupants of the premises nor any designation of any part of the premises. The facts were that the owner of the building and his family occupied the second floor while the defendant leased the first floor. The court held that, “under these facts, there were two places included in the description, and the description was a general and not a ‘particular’ description.” Id. at 838. The search was ruled illegal and the evidence obtained thereby ordered suppressed. In United States v. Diange, 32 F. Supp. 994 (W.D.Pa.1940), the search warrant being
1509	* * ” . United States v. Nuccio, supra note 7, 373 F.2d at 171. See also Blair v. United States, supra note 10, 130 U.S.App.D.C. at 325, 401 F.2d at 390. . We note that on cross-examination the officer denied that he had ever shared a bed with the witness. See note 5, supra. Presumably the witness, if permitted to testify, would have contradicted that statement, but this circumstance did not qualify the disputed testimony for admission. As we have had occasion to state, “generally the inquiring party is concluded by the witness’ answer when cross-examination relates to a matter collateral to the issues, and he may not later rebut it for purposes of impeachment.” Ewing v. United States, 77 U.S.App.D.C. 14, 21, 135 F.2d 633, 640, cert. denied 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145 (1941). See also Lee v. United States, 125 U.S.App.D.C. 126, 129, 368 F.2d 834, 837 (1966); 3 J. Wigmore, Evidence §§ 1000-1003 (3d ed. 1940). And the term “collateral,” we said, “can mean no more than the matter inquired about is not logically relevant, independently of ‘pure’ impeachment, to the issues or cause on trial or is so only in so remote and indirect a manner that the authoritative tribunal thinks it should not be inquired into in a case of contradiction by extrinsic testimony or, in one of self-contradiction, further than to make inquiry of the witness.” Ewing v. United States, supra, 77 U.S.App.D.C. at 21, 135 F.2d at 640.
1914	and standard remedy,” 5 McCarthy on Trademarks § 30.1 — is appropriate when there is a likelihood of confusion; such a likelihood exists, as a matter of law, “when a junior user has affixed a senior user’s mark to ‘substantially identical products directed at the same market and sold through the same outlets.’ ” Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 966 (2d Cir.1981) (quoting Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44, 47-48 (2d Cir.1978)). To recover damages, by contrast, a plaintiff must show either “actual consumer confusion or deception resulting from the violation,” or “or that the defendant’s actions were intentionally deceptive thus giving rise to a rebuttable presumption of consumer confusion.” George Basch Co. v. Blue Coral, Inc., 968 F.2d 1532, 1537 (2d Cir.1992). As noted, whether Vaad engaged in intentionally deceptive conduct presents a question of fact. Therefore, the Court cannot say, as a matter of law, that Merkos is limited to only injunctive relief. IV The PTO’s decision approving Merkos’s application for registration of the Kehot logo as a trademark is affirmed. Accordingly, Vaad’s motion for summary judgment is denied in that respect, while Merkos’s cross-motion is granted. With regard to Merkos’s counterclaims, Vaad and Chanin’s motion for summary judgment is denied. SO ORDERED. . A conclusion that the Kehot logo was a certification mark would entail some bizarre consequences. The owner of a certification mark cannot ”engag[e] in the production or marketing of any goods or services to which the certification
3814	allows the County to manipulate the process and “stack a suspension or revocation” proceeding against the license holder. (First Am. Compl. ¶ 32; Doc. 95 at 17.) The lack of a time limit in which the County, in conjunction with the tax collector, must suspend a license based on certain convictions or violations of the law does not render the provision an unconstitutional prior restraint. “The lack of time limits on revocation [or suspension] in [the ordinance] is not of substantial concern in a prior restraint analysis because no speech is chilled prior to the time that the permit is actually revoked.” United Youth Careers, Inc. v. City of Ames, 412 F.Supp.2d 994, 1006 (S.D.Iowa 2006) (citing Jake’s Ltd., Inc. v. City of Coates, 284 F.3d 884, 890 (8th Cir.2002)). The law “makes a firm distinction between prior restraints and subsequent punishments.” Id. (citing Alexander v. United States, 509 U.S. 544, 553-54, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993)). “Thus, if it takes two days before revocation or two years, no speech has been unduly impinged by the lack of time restraints on revoking a permit issued under the ordinance.” Id. The ordinance allows notice to the license holder, timely challenge in front of a hearing officer, and timely appeal and judicial review. See id.; AEC § 3-37. During such time, the suspension is abated and the license holder can continue operating. The provision is not facially infirm. D. Section 3-36(c), Revocation Based on an Operator’s Convictions or Violations Plaintiff
3764	judicata requires a court to “compare the substance of the actions, not their form.” Koziara, 239 F.Supp.2d at 1257 (quoting I.A. Durbin, Inc. v. Jefferson Nat’l Bank, 793 F.2d 1541, 1549 (11th Cir.1986)). “If the instant claims arise ‘out of the same nucleus of operative fact/ or are ‘based on the same factual predicate’ as the claims in [prior] court suits, then the causes of action are the same for res judicata purposes.” Id. (quoting Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1269-70 (11th Cir.2002)). If the claims are not absolutely identical, a court may “ask whether the plaintiff could, or rather should, have brought the second claim with the first lawsuit.” Trustmark, 299 F.3d at 1270 (citing Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1239 (11th Cir.1999)). The County identifies two sets of proceedings that it contends qualify as previously adjudicated matters between the parties that preclude at least some of Plaintiffs current claims. The first is a state criminal proceeding against Ms. Charmant, a Cleo’s dancer, whose challenge to the constitutionality of section 3-129(3) in a motion to dismiss her criminal charges was rejected. See State v. Charmant, No. 48-2004-MM-12459-O (Fla. 9th Cir.Ct. May 10, 2005); Def.’s Mem. at 7. The denial of Ms. Charmant’s motion to dismiss amended information, however, involved neither a final judgment on the merits nor identity of parties; it has no res judicata effect on the claims presented here. The County also identifies Plaintiffs suits arising from the County’s 2002 attempt
3411	or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). “To be admissible, 404(b) evidence must (1) be relevant to one of the enumerated issues and not to the defendant’s character; (2) the prior act must be proved sufficiently to permit a jury determination that the defendant committed the act; and (3) the evidence’s probative value cannot be substantially outweighed by its undue prejudice, and the evidence must satisfy Rule 403.” United States v. Chavez, 204 F.3d 1305, 1317 (11th Cir.2000); see also United States v. Matthews, 411 F.3d 1210 (11th Cir.2005). Here, Terrell’s burglary conviction was relevant to the issue of whether Terrell knew he possessed the firearm, which Terrell placed in issue by pleading not guilty to the firearm offense. United States v. Jernigan, 341 F.3d 1273, 1282 n. 7 (11th Cir.2003). The only issue is whether the prejudice of this evidence outweighed its probative value. Here, the district court properly admitted the extrinsic evidence of the related burglary conviction, as its prejudicial effect did not outweigh the probative value. The judge issued limiting instructions to the jury reminding them that the burglary conviction could not be used alone to determine Terrell’s guilt for the firearm offense. See Jernigan, 341 F.3d at 1282 (holding that “any unfair prejudice that may have
2786	injunction; (c) whether plaintiffs’ potential injury outweighs any damage to defendants; and (d) whether the injunction would be adverse to the public interest. Potawatomi Indian Tribe v. Enterprise Management Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir.1989); Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980). If plaintiffs are able to show that they will suffer irreparable injury and that “the balance of hardships tips decidedly in [their] favor,” the requirement of showing a substantial probability of success on the merits is satisfied by raising “questions going to the merits so serious, substantial, difficult and doubtful as to make them a fair ground for litigation and thus for more deliberate inquiry.” Lundgrin, 619 F.2d at 63 (quoting Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780, 781-82 (10th Cir.1964)). Irreparable Injury 2. Mere threatened, speculative harm, without more, does not amount to irreparable injury for purposes of justifying preliminary injunctive relief such as that sought by plaintiffs. E.g., Mullis v. United States Bankruptcy Court, 828 F.2d 1385 (9th Cir.1987), appeal dismissed, cert. denied, 486 U.S. 1040, 108 S.Ct. 2031, 100 L.Ed.2d 616 (1988); Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985) (movant must show that irreparable injury is “both certain and great; it must be actual and not theoretical”). Unlike most cases alleging violations of NEPA, plaintiffs in this case do not assert the sort of environmental harm due to construction which is usually seen as irreparable. TOCDEF is already fully constructed, so all of Plaintiffs’ asserted
713	the policies and interests underlying the particular issue before the court.” Id. 203 A.2d at 805. This method of analysis involves a hybrid approach that “combines the approaches of both Restatement II (contacts establishing significant relationships) and ‘interest analysis’ (qualitative appraisal of the relevant States’ policies with respect to the controversy).” Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir.1991) (quoting Melville v. American Home Assurance Co., 584 F.2d 1306, 1311 (3d Cir.1978)). “Although the Griffith case involved a tort action, subsequent cases have extended the same rationale and approach to contract cases involving a choice of law question.” Gould, Inc. v. Continental Casualty Co., 822 F.Supp. 1172, 1175 (E.D.Pa.1993) (Yohn, J.) (citations omitted); see also United Servs. Auto. Ass’n v. Evangelista, 698 F.Supp. 85, 87 (E.D.Pa.1988) (Giles, J.) (citing Melville, 584 F.2d at 1313, and applying the Griffith analysis “generally to contract actions and specifically to insurance contracts”), aff'd, 872 F.2d 414 (3d Cir.1989). In this case, the two-pronged contacts and interests analysis compels application of Pennsylvania law. With respect to the contacts prong of the Griffith analysis, the actions of Teti and the minor, the underlying civil litigation, and the criminal prosecution of Teti occurred in Pennsylvania. Moreover, the minor resides in Pennsylvania. By contrast, the only contact with New Jersey is the plaintiffs’ residence. As to the governmental interests at stake, the interests of Pennsylvania and those of New Jersey in protecting minors from sexual activity with adults are substantially similar. Pennsylvania’s policy is to
419	in § 1129(a)(6), “suggests that the commission retains significant authority to govern rates throughout the bankruptcy.... [A] regulatory commission retains its traditional control over rates prior to the finalization of a plan.”) (footnote omitted). Finally, a bankruptcy trustee must “manage and operate the property according to the valid laws of the State in which such property is situated,” see 28 U.S.C. § 959(b), and we agree with our sister circuits that “the import” of this section is that “‘the general bankruptcy policy of fostering the rehabilitation of debtors [will not] serve to preempt otherwise applicable state laws dealing with public safety and welfare.’ ” Robinson v. Michigan Consol. Gas Co., 918 F.2d 579, 589 (6th Cir.1990) (quoting Saravia v. 1786 18th St., N.W., Ltd., 844 F.2d 823, 827 (D.C.Cir.1988)). The bankruptcy court and the trustee have both recognized throughout Cajun’s bankruptcy proceeding that Cajun is a regulated utility and that the LPSC has an obligation under state law to protect the public interest. The bankruptcy court ruled in 1996 that “the laws of the state of Louisiana with respect to the conduct of the rate docket during the chapter 11 proceeding are neither expressly nor implicitly preempted by the Bankruptcy Code,” and that “the LPSC is clearly authorized to act during the Chapter Eleven Proceedings insofar as the rate docket is concerned.” In fact, the trustee lodged no objection in the bankruptcy court when, as part of the same rate order we now consider, the LPSC reduced Cajun’s rates by
3756	County intends to suspend its license. First, attorneys for the MBI have indicated that no decision has been made as to whether the MBI will refer the Cleo’s matter to the County. (Id. ¶¶ 15-17, 21.) Second, a “case progress sheet” reveals that a Cleo’s dancer was offered a plea and a possible probation reduction if she serves as a witness in the “CLEO case” or if her statement about the “management activities” of Cleo’s is helpful. (Id. ¶¶ 19-20.) Ripeness determinations present two relevant inquiries: “1) whether the issues are fit for judicial decision and 2) the hardship to the parties of withholding court consideration.” Konikov v. Orange County, 410 F.3d 1317, 1322 (11th Cir.2005) (citing Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir.1997)). Under this standard, Plaintiffs challenges to the substantive criminal provisions of the AEC and its facial challenges to the suspension provisions are ripe. “[Prospective enforcement of an ordinance has been found sufficient to generate a live case.” D.H.L. Assocs. v. O’Gorman, 199 F.3d 50, 54 (1st Cir.1999). This is particularly so when constitutional claims are at issue. Id.; Sable Commc’ns of Cal., Inc. v. Pac. Tel. & Tel. Co., 890 F.2d 184, 187 (9th Cir.1989) (“A threat that emanates from a regulation, compulsory in nature, to which the plaintiff is currently subject, is real and immediate if the possibility of enforcement is more than hypothetical.”). The criminal provisions challenged here regulate the very movements an erotic dancer can make during
131	the courts from second-guessing “legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort.” Id. at 145 (quoting Campbell v. United States, 167 F.Supp.2d 440, 447-48 (D.Mass.2001)). The Supreme Court has described a discretionary function as one “in which there exists an ‘element of judgment or choice,’ ” Coyne, 233 F.Supp.2d at 145 (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)), and the court must dismiss any claim “covered by the discretionary function exception ... for lack of subject matter jurisdiction,” Kelly, 924 F.2d at 360. See 28 U.S.C. § 1346(b); see also Muniz-Rivera v. United States, 326 F.3d 8, 17 (1st Cir.2003); Irving v. United States, 909 F.2d 598, 600 (1st Cir.1990). There is a two-prong test to determine whether particular conduct falls with in the discretionary function exception: (1) “whether the challenged action was a matter of choice for the acting official”; and (2) “whether the official’s discretion was based on considerations of public policy.” Coyne, 233 F.Supp.2d at 145 (citing United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)); see Kelly, 924 F.2d at 360. With regard to the first prong, the court must focus on “the nature of the conduct, rather than the status of the actor,” Kelly, 924 F.2d at 360 (quoting Varig Airlines, 467 U.S. at 813, 104 S.Ct. 2755), and determine “whether the action is a matter of choice for
3689	of the entire ordinance, a reasonable person can discern that the storage of non-operative vehicles, the operation of a junkyard, or a truck or equipment terminal or depot are not permitted uses for such land. See, e.g., Turning Point, Inc. v. City of Caldwell, 74 F.3d 941, 944 (9th Cir.1996). We also affirm the district court’s ruling that the County did not violate the Jensens’ substantive due process rights. Because the Jensens do not assert that they belong in a protected class, they must establish that: 1) they are a member of an identifiable class; 2) that they were intentionally treated differently from others similarly situated; and 3) that there is no rational basis for the difference in treatment. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). The County’s actions comport with equal protection if there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.” See Seariver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir.2002) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). Even assuming the Jensens could satisfy the other requirements under the test, they failed to establish that the County lacked a rational basis for having complaint-driven enforcement of an ordinance or for prohibiting the outdoor storage of non-operative vehicles while allowing the indoor storage of such vehicles, the outdoor storage of operative vehicles, and the outdoor storage of historic
845	advertisements and videos produced by the Plaintiff.” PL Opp. Br. at 20. Although it has been said that “imitation is the sincerest form of flattery,” it is equally true, especially in the context of trademark litigation, that “flattery will often get you nowhere.” Bausch & Lomb Inc. v. Nevitt Sales Corp., 810 F.Supp. 466, 468 (W.D.N.Y.1993)(citing to Charles C. Cotton, 1 Lacon, No. 183 (1820-22), quoted in Bartlett’s Familiar Quotations at 393:5 (Justin Kaplan ed., 16th ed.1992)). In the context of trademark litigation, “grounds for 'irreparable harm include loss of control of reputation, loss of trade, and loss of goodwill,” regardless of whether the infringer is putting the mark to a good or favorable use. S & R Corp. v. Jiffy Lube Int'l, Inc., 968 F.2d 371, 378 (3d Cir.1992)(citing to Opticians Ass’n of America, 920 F.2d at 195). Liquid Glass’s unauthorized use of the Porsche marks inhibits Porsche’s ability to control which products its reputation and good will are being used to promote or endorse. This lack of control and potential damage to Porsche’s reputation constitutes irreparable injury because monetary damages cannot adequately compensate for harm to good will or reputation. Opticians Ass’n of America, 920 F.2d at 196 (“a plaintiffs mark is his authentic seal; by it he vouches for the goods which bear it;' it carries his name for good or ill. If another uses it, he borrows the owner’s reputation, whose quality no longer lies within his own control. This is an injury, even though the
1394	other cases, e.g., Jones v. Western, 669 F.2d 280 (5th Cir. 1982) (court notes that prima facie case of discrimination in discharge may exist even where plaintiff is replaced by minority, since replacement by another minority may be a pretextual device designed to disguise the act of discrimination.) The vital inquiry in the determination of a prima case is whether there is an inference of discrimination. The factors set out in Marks, like those set out in McDonnell, were established by the courts and are important because they raise an inference of discrimination, and thus a prima facie case, because “we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco Construction Co. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). In effect, the prima facie case is a presumption created by law that the employer discriminated, which may be rebutted by the employer. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). Even where the facts of a case fail to meet the rigid four-prong test, a prima facie case may be established where plaintiff has introduced evidence that he was discharged from the position for which he was qualified “under circumstances which given rise to an inference of unlawful discrimination.” Id. at 253, 101 S.Ct. at 1093. See Jones v. Western Geophysical Co., 669 F.2d 280, 284 (5th Cir. 1982). In the present
1123	extent that this provision prohibits the arbitrator from awarding attorney’s fees and costs to the prevailing party, it runs counter to statutory provisions under Title VII permitting such an award. See Spinetti, 324 F.3d at 216. Accordingly, the Court severs the cost-splitting clause to the extent that it contradicts Title VU’s provision for awards of attorney’s fees. Apart from the question of awards of attorney’s fees, Monfared contends that the cost-splitting clause is unconscionable because she is unable to afford half the costs of arbitration. Pl.’s Mem. Opp’n 18-23. A party seeking to “invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive ... bears the burden of showing the likelihood of incurring such costs.” Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). The Third Circuit has “consistently held that to meet this burden, a plaintiff must (1) come forward with some evidence to show the projected fees that would apply to their specific arbitrations, and (2) show the party’s inability to pay those costs.” Hall v. Treasure Bay V.I. Corp., 371 Fed.Appx. 311, 313 (3d Cir.2010). “Thus, a party seeking to declare a provision awarding arbitration costs unenforceable must proffer some credible and substantiated evidence of that party’s financial situation as well as the specific costs of arbitration,” Id. Monfared has failed to meet this burden. First, although she has provided a certification stating that she is “financially unable to pay for half the costs of the
1561	remedy for voting rights violations should not “intrude upon state policy any more than necessary.” White v. Weiser, 412 U.S. 783, 795, 93 S.Ct. 2348, 2355, 37 L.Ed.2d 335 (1973) (reapportionment plan). Federal courts should follow policies expressed in state statutory and constitutional provisions whenever adherence to state policy would not detract from federal constitutional requirements. Id. This same rule of deference applies in Section 2 cases. McGhee v. Granville County, N.C., 860 F.2d 110 (4th Cir.1988). As was noted by Judge Barbour in considering the Mississippi judicial election system, a federal court in fashioning a remedy in a judicial election case should conform to state policies as set forth in “existing state election and political laws” as much as possible. Martin v. Mabus, 700 F.Supp. 327, 330 (S.D.Miss.1988). All of the parties to this Louisiana litigation appear to agree that the basic goal of judicial deference to state policies is applicable. Not surprisingly, however, the parties disagree on what constitutes a state policy and which policy should be furthered over others. There are essentially three policies expressed in the Louisiana Constitution of 1974 which have been identified by the parties. Plaintiffs contend that Article 5, Section 22(A), which provides that “all judges shall be elected” with certain minor exceptions, should be paramount. The state defendants point to Article 5, Sections 9 and 14 as setting forth a policy against subdistricting judicial districts. Those sections provide: Section 9: Each circuit shall be divided into at least three districts, and at
1455	It would indeed be an anomolous situation if a shipper who had completely enclosed a tractor were limited to damages of $500 whereas another shipper could recover on a weight or size basis merely because he had allowed some indestructible part to protrude from the package.” In other words packaging for protection, whether complete or partial, should be considered as constituting a package within § 4(5) of COGSA. The Court of Appeals has recognized that packaging may serve a dual purpose so that the existence of another purpose “does not necessarily negate the possibility that it is also packaging preparation made to facilitate handling in transportation.” Nichimen Company v. M.V. Farland, supra, 462 F.2d 319, 334; but see General Motors Corporation v. S.S. Mormacoak, 327 F.Supp. 666 (S.D.N.Y.), aff’d on other grounds, General Motors Corporation v. Moore-McCormack Lines, 451 F.2d 24 (2d Cir. 1971). The Court, therefore, concludes that each of the five allegedly damaged circuit breakers constituted a package within the terms of § 4(5) of COGSA. Liability, if any, is accordingly limited to $500 per circuit breaker. Having determined that the circuit breakers are packages, the Court need not determine what constituted a customary freight unit in this transaction. The motion to strike defendant Lloyd Brasileiro’s defense based upon § 4(5) of COGSA, 46 U.S.C. § 1304(5) is accordingly denied. Plaintiff has also moved to strike defendant Lloyd Brasileiro’s defense of peril of the sea which exonerates the carrier from liability, § 4(2) (c) of COGSA, 46 U.S.C.
2175	the fee award departs substantially from the contours shaped by the application,” id. I. Calculating the Lodestar The lodestar approach “contemplates judicial ascertainment of ‘the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate’ as the starting point in constructing a fee award.” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Though the prevailing party is under an obligation to submit a request for fees that includes its calculations of hours expended multiplied by a requested hourly rate, the Court “has a right — indeed, a duty — ‘to see whether counsel substantially exceeded the bounds of reasonable effort.’ ” Metropolitan Dist. Comm’n, 847 F.2d at 17 (quoting Pilkington v. Bevilacqua, 632 F.2d 922, 925 (1st Cir.1980)). “[T]he [attorney’s] bill need not be swallowed whole by the client’s litigation adversary just because it is the [attorney’s] bill.” Id. The. Court, then, must engage in a thoughtful analysis of the number of hours expended and the hourly rates charged to ensure that both are reasonable. In this way, the trial court, “though adhering to the time-and-rate-based method of fee calculation, may fashion a lodestar which differs substantially from the fee requested by the prevailing party.” Coutin, 124 F.3d at 337. Here, the Court sets out the standard it applied to Attorney Hernandez’s billing records in arriving at reasonable hours figures. Then, after explaining the standard applied for hourly rates, the Court applies both standards to Attorney Hernandez and
4173	judgment because the underlying state law claims fail as a matter of law. A. Excessive Force and Unreasonable Seizure under the Fourth Amendment The Defendants assert that Officers Zotz and Ross are entitled to qualified immunity against the Fourth Amendment claims alleged by the Plaintiffs. “[G]overn ment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments and protects all but the plainly incompetent or those who knowingly violate the law.” Messerschmidt v. Millender, 565 U.S. 535, 132 S.Ct. 1235, 1244, 182 L.Ed.2d 47 (2012) (citation and quotation marks omitted). The parties acknowledge that there are disputed facts. The Defendants’ version is that Officers Zotz and Ross saw Morris with a gun, that Officer Zotz struggled with Morris over a gun before he and Officer Ross collectively fired eleven rounds into the backseat of the vehicle. The Plaintiffs testified that they never saw Morris with a gun, that Morris was attempting to open the car door when he was shot, and the officers did not grab Morris’ arm or wrestle over a gun. To determine whether qualified immunity applies, the Court must determine whether “[tjaken in the light most favorable to the party asserting the injury, do the facts alleged
3868	1983 complaint. Bonneville argues that the defendants were deliberately indifferent to his medical needs and that he should be paid for the work he performs in prison. The district court dismissed Bonneville’s complaint as frivolous and for failure to state a claim on which relief could be granted. See 42 U.S.C. § 1997e(c)(1); 28 U.S.C. §§ 1915(e)(2), 1915A. Accordingly, we review the decision de novo. Samford v. Dretke, 562 F.3d 674, 678 (5th Cir.2009). A claim may be dismissed for failure to state a claim upon which relief can be granted if, assuming all well-pleaded facts are true, ■ the plaintiff has not stated “enough facts to state a claim to relief that is plausible on its face.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007) (internal quotation marks and citation omitted). Bonneville asserts the following claims concerning Dr. Basse. The doctor ordered Bonneville to perform back exercises and reduced the dosage of ibuprofen that Bonneville had been taking for his back pain. Dr. Basse never examined Bonneville’s back and relied on an x-ray from 2007 to evaluate his condition. The prescribed exercises worsened the back pain. Additionally, Dr. Basse decided to treat Bonneville’s knee pain with 600 milligrams of ibuprofen rather than a knee brace or a walking aid. After falling down, Bonneville was denied immediate medical treat ment. Bonneville must walk a long distance to reach the pill window and must wait in line for a long time to obtain his medication. The record
2362	(proceeding pro se) be set aside, and if not, what is the appropriate measure of damages against Vernell Nelson? 3. Should the Court enter a default judgment in favor of Allstate and against Nelson on Allstate’s cross-claim against Nelson? These issues will be addressed in turn. I. Plaintiff v. Allstate — Interest, Costs and Attorneys’ Fees A. Interest The general rule in admiralty is that a prevailing party may recover prejudgment interest except where equitable considerations make the award unconscionable. Inland Tugs Co. v. Ohio River Co., 709 F.2d 1065, 1074-75 (6th Cir.1983). Furthermore, “[p]re-judgment interest in Pennsylvania contract cases is a matter of right and is calculated from the time the money becomes due or payable.” Am. Enka Co. v. Wicaco Mach. Corp., 686 F.2d 1050, 1056 (3d Cir.1982) (citing Penneys v. Pa. R.R. Co., 408 Pa. 276, 183 A.2d 544 (1962)). As to the rate of interest, “the party to whom the sum is owed may as a matter of right recover prejudgment interest at the legal rate of six percent [per annum] running from the date the sum is due.” Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379, 395 (3d Cir.2000) (citing Am. Enka Co., 686 F.2d at 1056-57); see also 41 Pa. Cons.Stat. Ann. § 202 (setting legal rate of interest at six percent per annum). Plaintiff seeks interest on the $4,654.50 judgment, accruing from the date of salvage (February 9, 2004) to the date of judgment (February 10, 2005), or approximately one year: $4,654.50
4138	U.S., 295 Fed.Appx. at 386. The defendant argues against an award for pain and suffering because Dockery treats his pain with over the counter painkillers and is not currently under a doctor’s care for pain, nor does he participate in any type of physical therapy for his pain. In addition, defendant also points out that Dockery has not undergone surgery to correct the problems with his back. Doc. No. 44 at page 17. The court finds that “[p]ain is subjective. Given the level of pain that the patient is suffering, the patient’s own pain threshold, the risks and possible benefits of an operation, and the pain of surgery, there is nothing odd about someone waiting years before undergoing elective orthopedic surgery.” Hathaway v. Coughlin, 37 F.3d 63, 69 (2d Cir.1994) (Jacobs, J, dissenting). Accordingly, the court must determine an amount to compensate Dockery both for his past and future pain and his “frustration and anguish caused by the inability to participate in activities that once brought pleasure” as articulated in Furey, supra. For that, the court must “compare[ ] the award to other New York cases in which evidence of similar injuries was presented.” Presley, 317 F.3d at 173. In a slip-and-fall accident in the Western District of New York, the plaintiff suffered back injuries, and as in the case at bar, was able to return to work absent heavy lifting. That plaintiff was advised by treating physicians that while plaintiff would need spinal surgery in the next five to
4695	the motor carrier exemption to the FLSA exempts Defendants from having to follow the FLSA with respect to Plaintiff, thus depriving the Court of subject matter jurisdiction.- (See Mem. of Law in Supp. of Defs.’ Mot. To. Dismiss for Lack of Subject Matter Jurisdiction and/or for Summ. J. (“Defs.’ Mem.”) 8-18, 20 (Dkt. No. 32).) The Supreme Court has held' that “[i]f the Legislature clearly states that a threshold limitation on a' statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue,” “[b]ut when Congress does -not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as norijurisdictional in character.” Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (footnote' omitted). The jurisdictional grant of the FLSA provides: “An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). This provision clearly does not indicate that Congress intended for the statutory limitation at issue here — the motor earner exemption — to be jurisdictional. See Jackson v. Maui Sands Resort, Inc., No. 08-CV-2972, 2009 WL 7732251, at *2 (N.D.Ohio Sept. 8, 2009) (“[T]he [c]ourt is unable to ascertain ... how
1960	by a valid EPA regulation, and whether such wastes are hazardous under RCRA are facts which the Government will have the burden of establishing at trial. Therefore, Counts I, II and III of the Indictment are facially sufficient, and any challenge to the sufficiency of the Government’s evidence that the wastes handled by Defendants were in fact hazardous is more appropriately addressed to the trial court after the close of the Government’s proof. 7. Dismissal Motion based on Duplicitousness. Turning to the arguments of Defendant Rosinski, a review of the Indictment indicates that Count I alleges a single conspiracy and is, therefore, not duplicitous. “An indictment is duplicitous if it joins two or more distinct crimes in a single count.” United States v. Aracri, 968 F.2d 1512, 1518 (2d Cir.1992) (citing United States v. Murray, 618 F.2d 892, 896 (2d Cir.1980)). However, “[a] single count is not duplicitous merely because it contains several allegations that could have been stated as separate offenses.” United States v. Sugar, 606 F.Supp. 1134, 1146 (S.D.N.Y.1985). The issue is whether the “policy considerations underlying the doctrine” are offended. See Sugar, supra. Those considerations include avoiding the uncertainty of whether a general verdict of guilty conceals a finding of guilty as to one crime and a finding of not guilty as to another, avoiding the risk that the jurors may not have been unanimous as to any of the crimes charged, assuring the defendant adequate notice, providing the basis for appropriate sentencing, and protecting against double
192	tried, should it proceed to trial, either the plaintiff or the defendants will be inconvenienced by having to travel a substantial distance. In deciding § 1404 transfer motions, “substantial weight” is given to plaintiffs choice of forum. S-G Securities v. Fuqua Inv. Co., 466 F.Supp. 1114 (D.Mass. 1978), citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). In Gulf Oil, 330 U.S. 501, 508, 67 S.Ct. 839, 843, the Supreme Court held that “unless the balance is strongly in favor of the defendants, the plaintiffs choice should rarely be disturbed.” Thus, “a plaintiffs choice of forum should not be disturbed unless the reasons for transfer are clear and cogent.” Horwitz v. Southwest Forest Industries, Inc., 612 F.Supp. 179, 182 (D.Nev.1985) citing Williams v. Green Bay & W.R. Co., 326 U.S. 549, 554-555, n. 4, 66 S.Ct. 284, 287, at n. 4, 90 L.Ed. 311 (1946) and Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843. Where the forum chosen by plaintiff is not his place of residence, Horwitz, 612 F.Supp. at 182, or bears no obvious connection to the case, Foster v. Litton Industries, Inc., 431 F.Supp. 86 (D.C.N.Y.1977), the defendants’ residence gains importance in determining the relative convenience of the parties. This, however, is not the case here. Puerto Rico is both where plaintiffs reside and where a substantial portion of the operative facts giving rise to this claim arose. Furthermore, “If the foreign location of defendants were viewed
51	PER CURIAM: Antonio Duran-Olvera appeals the within-guidelines, 46-month sentence imposed for his guilty plea conviction of illegal reentry. He contends that his sentence is substantively unreasonable because it is greater than necessary to satisfy the 18 U.S.C. § 3558(a) factors. We review the substantive reasonableness of a sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable.” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.2008). “The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir.2009). Duran-Olvera’s arguments that his sentence is substantively unreasonable because U.S.S.G. § 2L1.2 lacks an empirical basis, double-counted his prior conviction in the calculation of the offense level and criminal history score, and overstates the seriousness of illegal reentry
4206	802 applicable to pending eases and the absence of the same from § 803. Cf. id. at 259-61, 114 S.Ct. at 1494 (rejecting argument that “because Congress provided specifically for prospectivity in two places ... we should infer that it intended the opposite for the remainder of the statute”). Absent an express directive from Congress, we must apply a newly enacted statute to pending cases unless doing so would give the statute “retroactive effect.” Id. at 277, 114 S.Ct. at 1503 (“ ‘[A] court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.’” (quoting Bradley v. School Bd. of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974))). If application of the new statute would have retroactive effect, then “our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result.” Id. at 1505, 114 S.Ct. at 1487. However, “[a] statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment, or upsets expectations based in prior law.” Id. at 269, 114 S.Ct. at 1499 (citation omitted); see also id. at 267, 114 S.Ct. at 1498 (“[T]he potential unfairness of retroactive civil legislation is not a sufficient reason for a court to fail to give a statute its intended scope.”). Rather, the Supreme Court has instructed us that
3784	based on its content. See United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). While the ordinances at issue may be content-based if considered without regard to the legislative purpose behind them, the evolution of nude-dancing jurisprudence has made clear that when an ordinance’s aim is to reduce or eliminate the deleterious secondary effects associated with adult entertainment establishments, the ordinance is, legally, content-neutral. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301, 1306 (11th Cir.2003) (titling this category as “content-based regulations treated as content-neutral”) (capitalization omitted); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1364 (11th Cir.1999); see also Clark, 259 F.3d at 1004 (“Restrictions upon nude dancing are considered content-neutral because they are aimed at the so-called secondary effects of nude dancing and not at expressive conduct.”) (citing Pap’s A.M., 529 U.S. at 289-92, 120 S.Ct. 1382). That is, when the claimed intent of the law is not to suppress expressive conduct based on its message but to combat the societal ills which arguably naturally flow from that conduct, then the law is content-neutral and strict scrutiny is not justified. See Pap’s, 529 U.S. at 294, 120 S.Ct. 1382 (“If States are to be able to regulate secondary effects, then de minimis intrusions on expression ... cannot be sufficient to render the ordinance content based.”). Two
1901	Tropicana Prods., Inc., 846 F.2d 848, 853 (2d Cir.1988) (“The record made in the Patent and Trademark Office is admitted in evidence, but the factfinding of that office is not conclusive, nor is the court’s consideration limited to that record.” (internal quotation marks and citation omitted)). The PTO’s conclusions of law aré reviewed de novo. See In re Thrifty, Inc., 274 F.3d 1349, 1351 (Fed.Cir.2001). Its findings of fact, by contrast, are reviewed under the “substantial evidence” standard, under which a court must accept the findings if a “ ‘reasonable mind might accept’ a particulár evidentiary record as ‘adequate to support a cohclusion.’ ” Dickinson v. Zurko, 527 U.S. 150, 162, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Matters not raised in the administrative proceeding do' not, of course, receive any deference. Vaad offers, two reasons why.the.PTO’s registration of the Kehot logo should be canceled. . Those reasons frame the follow: ing questions, .which the Court answers in turn. A. Who owns the Kehot logo? In its opposition to registration, Vaad contended that the owner of the Kehot logo was the Rebbe, and not Merkos. The TTAB. rejected the argument, finding that “Merkos is the owner of the KEHOT logo and is the proper applicant for this trademark.” Vaad, 2010 WL 3597243, at *7. Vaad argues that this finding was not supported by substantial evidence. The principal evidence of ownership is the transfer
1402	benefits provided by the Carpenters Union, as well as the wages the painters and tapers would receive if they joined. They also explained how to pay dues. Their presentation took about an hour, including time for questions and' answers. Finally, they told the painters and tapers that there would be a sign-up in the back of the conference room. At that point, the painters and tapers went to the back of the room where agents from the health insurance company gave them information on the benefits packages available through the Carpenters Union, and Carpenters Union representatives urged the employees to sign union authorization cards to signal that they wanted to “designate the [Carpenters] [UJnion as their collective-bargaining representative.” Pa. State Educ. Ass’n-NEA v. NLRB, 79 F.3d 139, 143 (D.C. Cir. 1996). During this entire time, the G/M owners and superintendent stayed at the front of the room. They did not join their employees in the back of the room with the representatives of the Carpenters Union and the insurance company. From about 60 or 70 feet away, the owners said that they could see the employees’ movements in the back of the room, but they could not hear their conversations or see whether they were signing authorization cards. After the painters and tapers had spent several minutes with them in the back of the room, the representatives of the Carpenters Union walked to the front of the room and gave Morrison and fellow owner Travis Garner signed union authorization cards
607	a new area of regulation is deficient, the agency necessarily enjoys broad discretion to attempt to formulate a solution to the best of its ability on the basis of available information. Permian Basin Area Rate Cases, 390 U.S. 747, 811, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). . See Automotive Parts & Accessories Ass’n v. Boyd, 132 U.S.App.D.C. 200, 407 F.2d 330, 336 (1968); Body & Tank Corp. v. NLRB, 339 F.2d 76, 78-79 (2d Cir. 1964). . After noting the twin dangers that the courts may do both too much and too little in this elusive area, Judge Friendly observes that there is much to be said “for the wisdom of Mr. Justice Brandéis in Pacific States Box & Basket Co. v. White, 296 U.S. 176, 186, 56 S.Ct. 159, 163, 80 L.Ed. 138 (1935), that ‘where the regulation is within the scope of authority legally delegated, the presumption of the existence of facts justifying its specific exercise attaches alike to statutes, to municipal ordinances, and to orders of administrative bodies.’ ” 487 F.2d at 354. . Compare 29 TJ.S.C. § 669(a) (3) : [NIOSH] shall develop criteria dealing with toxic materials and harmful physical agents and substances which will describe exposure levels that are safe for various periods of employment, including but not limited to the exposure levels at which no employee will suffer impaired health or functional capacities or diminished life expectancy as a result of his work experience. with 29 U.S.C. § 655(b) (5) : The
2758	(3d Cir. 2014) (en banc) (“We now hold that .,. when a party wishes to take an appeal based on a procedural error at sentencing ... that party must object to the procedural error complained of after sentence is imposed in order to avoid plain error review on appeal.”). For there to be plain error, “[tjhere must be an ‘error’ that is ‘plain’ and that ‘affect[s] substantial rights.’ ” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (second alteration in Olano) (quoting Fed. R. Crim. P. 52). Moreover, we do not correct such an error unless it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id, (alteration in original) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). Duong contends that the District Court plainly erred by considering her personal circumstances under a restrictive standard applicable to departures rather than variances. She then argues that the sentence was substantively unreasonable because of that alleged procedural flaw. We disagree. “We expressly distinguish between departures from the guidelines and variances from the guidelines.” United States v. Brown, 578 F.3d 221, 225 (3d Cir. 2009) (citing United States v. Vampire Nation, 451 F.3d 189, 195 n.2 (3d Cir. 2006)). Departures are changes to the guidelines calculation that require a motion by the requesting party and are “based on a specific Guidelines departure provision.” Id. (quoting Vampire Nation, 451 F.3d at 195 n.2). Variances are discretionary changes
770	in this case that the petty offense exception was inapplicable to Rivas-Banos. Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir.1996). As the petty offense exception was not applicable to Rivas-Banos, he was ineligible for cancellation of removal. See 8 U.S.C. §§ 1101(f)(3), 1229b(b)(l)(B), 1182(a)(2)(A)(i)(I). It is therefore not relevant whether Rivas-Banos met the other statutory requirements for cancellation of removal. Rivas-Banos’s argument regarding voluntary departure is not cognizable because he did not exhaust that claim by raising it before the BIA. See Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.2004). Moreover, Rivas-Banos’s due process claim lacks merit because he does not have a right to due process regarding “the failure to receive relief that is purely discretionary in nature.” Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir.2004). Accordingly, Rivas-Banos’s petition for review is DENIED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
2807	not within the saving to suitors clause). Maci-ura’s complaint makes clear that he brings maritime claims against Trawler and Rose, in personam, as well as against the F/V SUSAN ROSE, in rem. (Compl., DE # 24-2, ¶ 4.) Because an in rem proceeding against a vessel may only be brought on the admiralty side of the federal district court, Maciura cannot invoke the saving to suitors clause for his in rem claims against the F/V SUSAN ROSE. As to his in personam claims, the saving to suitors clause affords Maciura the option of asserting these claims at law in a federal district court provided there is an independent basis for federal jurisdiction. See Lockheed, 503 F.3d at 356; see also Luera v. M/V Alberta, 635 F.3d 181, 195 n.8 (5th Cir. 2011) (holding that even though the saving to suitors clause was not triggered for plaintiffs in rem claims, “the clause [was] triggered for [plaintiffs] in personam claims, and she exercised the clause by bringing her claims in diversity rather than in admiralty”). In his complaint, Maciura states that he seeks to proceed in admiralty on his in personam maritime claims, at law on his Jones Act claim, and to have a trial by jury on all of his claims pursuant to Fitzgerald, 374 U.S. 16, 83 S.Ct. 1646. (Compl., DE #24-2, ¶¶ 33, 36.) The Jones Act provides a seaman a statutory right to “bring a civil action at law, with the right of a trial by jury, against
3822	therefore the requirement that the censor bear the burden of proof does not apply. FW/PBS, 493 U.S. at 227-28, 110 S.Ct. 596; Redner v. Dean, 29 F.3d 1495, 1500 (11th Cir.1994). The County relies on Ward v. County of Orange, 217 F.3d 1350 (11th Cir.2000), aff'g in part, 55 F.Supp.2d 1325 (M.D.Fla.1999), which applied the censorship/licensing distinction articulated in FW/PBS. In Ward, the Eleventh Circuit Court of Appeals affirmed the constitutionality of another affirmative defense in Orange County’s AEC even though it required the licensee to prove it did not operate an “adult performance establishment” upon the County’s suggestion that the business required an adult establishment license. 217 F.3d at 1354-55, 55 F.Supp.2d at 1334; see also Fla. Video Xpress, Inc. v. Orange County, 983 F.Supp. 1091, 1098 (M.D.Fla.1997) (upholding the same burden-shifting provision in the licensing context). “[A] city may require the license applicant to bear the burden of proving that it is engaging in protected activity.” Ward, 217 F.3d at 1355. Section 3-37(f)(8) of the AEC is constitutional. X. Conclusion For the foregoing reasons, Plaintiffs challenges to the licensing provisions of the AEC are denied. The intentional touching prohibition is a constitutional re striction on physical contact between performers and patrons. The fondling and simulated sexual activity proscriptions are unconstitutional restrictions on a dancer’s First Amendment expression. Accordingly, it is ORDERED that Defendant’s Request for Judicial Notice (Doc. 104) is GRANTED. Additionally, Defendant’s Dispositive Motion for Summary Judgment (Doc. 53) is GRANTED in part and DENIED in part.
3129	under 28 U.S.C. § 157(b)(2). Applicable Law and Analysis (A) Origins of Payments to Critical Vendors Chapter 11 debtors usually seek to have the issuance of critical vendor orders to convince creditors to continue to do business with them throughout the Chapter 11 reorganization. These orders, commonly known as “critical vendor orders”, authorize the payment of certain pre-petition liabilities because of the alleged “critical nature” of certain suppliers, goods and services in order to preserve the ongoing concern value of the debtor’s business. See Robert A. Morris, The Case Against Critical Vendor Motions, 22-Sep Am. Bankr.Inst. J. 30, 30 (2003). These orders have been widely criticized because they seem to contravene the central policy of the Bankruptcy Code as established in Begier v. IRS, 496 U.S. 53, 56, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990): “[e]quality of distribution among creditors”. See Alan N. Resnick, The Future of the Doctrine of Necessity and Critical-Vendor Payments in Chapter 11 Cases, 47 B.C.L.Rev. 183, 183 (2005). There is currently no statutory provision in the Bankruptcy Code that expressly authorizes the payment of pre-petition debts before the confirmation of a Chapter 11 plan of reorganization. Moreover, there is no statutory definition of a “critical vendor”. See Christopher D. Hunt, Not-So-Critical Vendors: Redefining Critical Vendor Orders, 93 KY. L.J. 915, 924 (2004/2005); Robert A. Morris, The Case Against “Critical Vendor” Motions, 22-Sep Am. Bankr.Inst. J. at 30. Critical vendor orders have become a generally accepted practice rationalized under the “doctrine of necessity”. Robert A. Morris,
1277	assume the truth of this fact, and also assume that the altercation was wholly the fault of White-man. We are thus presented with a single incident where Bennett and/or Allen’s treated a member of the protected class(es) differently from a non-member of the protected elass(es). The District Court found this evidence insufficient to create a jury question on the issue of discriminatory intent. We agree. While such evidence is arguably sufficient to allow Nichols to make out a prima facie case of discrimination, it is not enough, standing alone, to support an inference of discriminatory intent “at the pretext stage where the factual inquiry into the alleged discriminatory motives of the employer has risen to a new level of specificity.” Simpson v. Kay Jewelers, 142 F.3d 639, 646 (3d Cir.1998); cf. id. at 645 (“[T]he mere favorable treatment of one younger manager as compared to one older manager may not be sufficient to infer age discrimination.”). It is not “that evidence of the more favorable treatment of a single member of a non-protected group is never relevant, but rather that the evidence can not be viewed in a vacuum.” Id. at 646. A court considering summary judgment must consider the whole record with a view toward deciding “whether the [employment] decision was motivated by the affected employee’s [membership in a protected class].” Id. Considering the whole record in this case — including the facts that (a) Allen’s had previously requested the transfer of two other security guards, a white man
2630	the nearby municipality of the right to utilize a local water resource. Id.; see Permit Order ¶ 17. In the Commission’s view, “these types of consequences were not likely intended, or anticipated, by Congress in enacting FPA section 7(a)” in 1920. Rehearing Order ¶ 20. The statutory issue for the court, however, is not whether the Commission’s interpretation of Section 7(a)’s municipal preference is the better public policy. Before the Commission can invoke the doctrine of “absurd or mischievous consequences” to rewrite the statute, it must demonstrate that the plain meaning of the statutory text “ ‘defies rationality' by ‘rendering] a statute nonsensical [and] superfluous.’ ” United States v. Cook, 594 F.3d 883, 891 (D.C.Cir.2010) (quoting Landstar Express Am., Inc. v. Fed. Maritime Comm’n, 569 F.3d 493, 498-99 (D.C.Cir.2009)). The Commission has not met this high threshold. There is nothing patently unreasonable in favoring any and all municipalities over private applicants when “ ‘the chief purpose’ ” of the FPA was “to ‘provide conditions under which capital can be secured [to develop hydropower] while at the same time fully to protect the paramount interests of the public in its last great national resource.’ ” Clark-Cowlitz Joint Operating Agency v. FERC, 775 F.2d 366, 377 (D.C.Cir.1985), vacated and reh’g en banc granted, 787 F.2d 674 (D.C.Cir.1986) (quoting O.C. Merrill, Benefits Accruing to Municipalities Through the Federal Water Power Act, THE AMERICAN CITY, Yol. XXIII, No. 5 (Nov. 1920)). Even when Congress limited the municipal preference in 1986 to “original” as distinct
1159	multiple traffic stops. He contends that the district court made an erroneous credibility determination because: (1) its factual findings mirrored Lt. Wood’s testimony; and (2) it did not discuss whether Lt. Wood’s rendition of the events was to be believed. Lastly, he argues that the record does not reflect that the court considered the government’s lack of fingerprint evidence. A person accused of violating a condition of supervised release is entitled to, inter alia, an opportunity to appear, present evidence, and question any adverse witness, and to make a statement and present evidence in mitigation. Fed.R.Crim.P. 32.1(b)(2). “The credibility of a witness is in the province of the factfinder and [we] will not ordinarily review the factfinder’s determination of credibility.” United States v. Copeland, 20 F.3d 412, 413 (11th Cir.1994). Because the district court allowed Thompson to present his evidence and cross-examine adverse witnesses, indicated that it had taken Thompson’s arguments under advisement, and made factual findings that were largely corroborated by Thompson’s own testimony, we conclude that the district court afforded Thompson adequate due process, and its factual and credibility determinations were not clearly erroneous. Thompson next argues that his revocation sentence was unreasonable because the district court made no explicit statement indicating that it considered any of the factors set forth in 18 U.S.C. § 3553, and there was nothing in the record to imply that the district court considered them. Sentences imposed for a violation of supervised release under an advisory guidelines system are reviewed for “reasonableness.”
3674	previously unsuccessful collateral attacks ... would obliterate congressional attempts to promote finality in federal criminal cases.” Our decision in Dorsainvil created a narrow exception to the rule that a § 2255 petition must be used to challenge the validity of a federal sentence. Specifically, the exception in Dorsainvil is limited to a prisoner in an “unusual position ... who had no earlier opportunity to challenge his conviction for a crime that an intervening change in substantive law may negate....” Dorsainvil, 119 F.3d at 251. Black brought his § 2255 petition in the sentencing court over four years after the Supreme Court decision in Bailey. Thus, he does not fall within the ambit of Dorsainvil. Black also attempts to rely on United States v. Amen, 831 F.2d 373 (2d Cir.1987) to attack his sentence. In Amen, the Second Circuit held that “because section 848 applies only to a person in charge of a CCE, one cannot incur liability for aiding and abetting such a person.” Id. at 381. Black was convicted of engaging in a continuing criminal enterprise and not aiding and abetting a CCE. In any event, this is also a claim that Black had an opportunity to litigate in his previous § 2255 petition in the Fourth Circuit. Black may not use a § 2241 petition to make an end run around § 2255’s limitations on successive motions for relief. Accordingly, for the reasons given, we will grant appellee’s motion for summary action and affirm. See I.O.P. 10.6. Black’s
4522	verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A party seeking summary judgment bears the initial burden of establishing the absence of a genuine dispute of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The moving party can satisfy this burden in two ways: either (1) by presenting evidence that negates an essential element of the nonmoving party’s case; or (2) by demonstrating the nonmoving party failed to establish an essential element of the nonmoving party’s case on which the nonmoving party bears.the burden of proof at trial. Id. at 322-23, 106 S:Ct. 2548. “Disputes over irrelevant or unnecessary facts will not .preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987). Once the moving party establishes the absence of genuine disputes of material fact, 'the burden shifts to the nonmoving party to set forth facts showing a genuine dispute remains. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The nonmoving party cannot oppose a properly supported summary’ judgment motion by “resting] on mere allegations. or .denials of his pleadings.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. The party opposing summary judgment must also establish the admissibility of the evidence on which it relies. Orr v. Bank of America, NT & SA, 285 F.3d 285 F.3d 764, 773 (9th Cir.2002) (a court deciding summary judgment motion “can only consider admissible evidence”); see also Beyene v. Coleman Sec. Services, Inc., 854 F.2d
1689	Rule 12(b)(6), review must be limited to the complaint and documents attached or incorporated by reference thereto. See Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). Courts must “accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader.” Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993) (citing IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993)). Dismissal is warranted only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). See also Bass v. Jackson, 790 F.2d 260, 262 (2d Cir.1986). “For purposes of a motion to dismiss, [the Second Circuit has] deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference ..., as well as public disclosure documents required by law to be, and that have been, filed with the SEC, and documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.” Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir.2000) (citing Cos-mas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989); Kramer, 937 F.2d at 774; and Cor-tee Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991), cert, denied, 503 U.S. 960, 112 S.Ct.
4991	"the jurors would draw. But this is not to say that a district court would not be at liberty to admit evidence of standards existing in some place outside of this particular district, if it felt such evidence would assist the jurors in the resolution of the issues which they were to decide.” Id. 418 U.S. at 105-106, 94 S.Ct. at 2901-2902. Whether material, applying contemporary community standards by the average person “appeals to the prurient interest,” is determined, not by “whether or not the viewer is sexually excited by the challenged materials,” as asserted by the defendants in their reply brief, but by whether the intent of the material is to arouse the prurient interest of a viewer. In Pinkus v. United States, 436 U.S. 293, 302, 98 S.Ct. 1808, 1814, 56 L.Ed.2d 293 (1978), “Examination of some of the materials could lead to the reasonable conclusion that their prurient appeal would be more acute to persons of deviant persuasions, but it is equally clear that they were intended to arouse the prurient interest of any reader or observer____” At 303-304, 98 S.Ct. at 1814-1815 the court said: ""... [The instruction] permitted the jury to consider the touting descriptions along with the materials themselves to determine whether they were intended to appeal to the recipient’s prurient interest in sex____ [T]he evidence was sufficient to trigger the ... pandering instruction.” I am not persuaded that “prurient interest” must involve compulsiveness or shamefulness, as thought by defendants’ expert, Dr. Daniel Patrick"
2914	PER CURIAM: Elzie Roosevelt Roberts, Jr., appeals his conviction by a jury of two counts of possession of an unregistered firearm in violation of the National Firearms Act, specifieally 26 U.S.C. §§ 5845(a), 5861(d), and 5871. The district court sentenced Roberts to concurrent terms of 100 months of imprisonment and concurrent terms of three years of supervised release. Roberts argues that the evidence was insufficient to prove that he knew of the characteristics of the sawed-off shotgun that prohibit its possession under § 5861(d). Because Roberts failed to move for a judgment of acquittal, his sufficiency challenge is reviewed only for a manifest miscarriage of justice. United States v. Avants, 367 F.3d 433, 449 (5th Cir.2004). Such a miscarriage of justice occurs when the record is “devoid of evidence of guilt or the evidence [is] so tenuous that a conviction is shocking.” Id. The Government was required to prove that Roberts knew of the features of the weapon that made it a “firearm” under § 5845(a), specifically, that it was a shotgun having an overall length of less than 26 inches or a barrel of less than 18 inches in length. Staples v. United States, 511 U.S. 600, 619-20, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994); United States v. Reyna, 130 F.3d 104, 109-10 (5th Cir.1997); § 5845(a). The shotgun was admitted into evidence and could be inspected by the jury. Its barrel was 10-1/2 inches
1064	found by the Supreme Court in Stenberg existed throughout the time that Congress was considering the legislation, despite Congress’s findings to the contrary. III. CONCLUSIONS OF LAW A. The Court Only Reaches the Health-Exception Issue To decide this case, the Court need only reach the health-exception challenge. Although the parties have expended considerable time and effort arguing the other bases for which Plaintiffs allege the Act may be unconstitutional, the Court believes it prudent to refrain from making constitutional rulings that are unnecessary to the resolution of the case. “[There exists an] obligation of the Judicial Branch to avoid deciding constitutional issues needlessly.” Christopher v. Harbury, 536 U.S. 403, 417, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002); see also Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1932) (Brandéis, J., concurring) (“ ‘It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of a case.’ ”) (quoting Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905)). The Act as a whole cannot be sustained because it does not provide for an exception to protect the health of the mother; addressing the other alleged constitutional defects is unnecessary to the resolution of this case. Therefore, this opinion will not address the alternative arguments that Plaintiffs have raised. B. Level of Deference Owed to Congressional Findings As a threshold matter, the Court must determine the appropriate level of
3621	have significantly aided in their assessment of the evidence or how seeing the scene would have influenced the verdict. Eason points to no controverted issues at trial that the inclusion of the photographs would have helped resolve. Therefore, we cannot conclude that the district court abused its discretion in excluding the photographs. 3. Sufficiency of the Evidence Eason alleges that there was not enough evidence for the jury to find him guilty of being a felon in possession of ammunition as charged in Count 2. We review the sufficiency of the evidence to support a conviction de novo, viewing the .evidence in the light most favorable to the jury’s verdict and accepting all reasonable inferences in support of the verdict. United States v. Armstrong, 782 F.3d 1028, 1035 (8th Cir. 2015). “[W]e will reverse only if no reasonable jury could have found [Ea-son] guilty beyond a reasonable doubt.” Id. (first alteration in original) (quoting United States v. McCraney, 612 F.3d 1057, 1063 (8th Cir. 2010)). Eason argues the government failed to prove he knowingly possessed ammunition on April 9, 2013. He asserts that the main evidence on this issue was the testimony of Hiawatha Williams, who admitted he could not conclusively say Eason possessed the ammunition. Williams testified, “a shot was fired from I don’t know exactly if it came from Mr. Eason. My belief it was.” However, the evidence also included Williams’s testimony that he saw Eason leave Williams’s home with “something that looked like a gun,” and that
715	is being punished, not the victim that is being compensated.”). A closer question, however, is presented by the three negligence claims, to which the Court now turns. b. The negligence claims “[AJfter a thorough search of Pennsylvania case law,” the Pennsylvania Superior Court has recently concluded that no precedent exists for recovery in negligence for injuries suffered as a result of the commission by a tortfeasor of the intentional torts of assault and battery. To characterize as negligence the children’s physical and mental injuries alleged as a result of sexual, physical, and mental abuse would be to create a legal oxymoron as an extension of tort law we are not inclined to create. Roe, 650 A.2d at 103. See also Nationwide Ins. v. Zavalis, 52 F.3d 689, 694 (7th Cir.1995) (interpreting the law of Pennsylvania and finding that “either the insurer or the insured may attempt to pierce the allegations of the underlying complaint and prove that the insured’s conduct was not, for example, negligent as alleged, but deliberate — or vice versa.”); Nationwide Mut. Ins. Co. v. Yaeger, No. 93-3924, 1994 WL 447405 (E.D.Pa. Aug. 19, 1994) (Huyett, J.) (“A plaintiff may not dress up a complaint so as to avoid the insurance exclusion.”), aff'd, 60 F.3d 816 (3d Cir.1995). Intentional conduct cannot be converted into negligence by careful word-choice or artful pleading. Piercing the allegations of the underlying complaint, the Court finds that all the claims against Teti are predicated on his alleged sexual intercourse with a minor
515	"workshops. ""Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.,"" p. 3 (June 22, 2011) (""2011 DOJ Statement""), available at: http:// www.ada.gov/olmstead/q&a_olmstead.htm (last accessed May 17, 2012). The reference to ""Olmstead v. L.C."" is to a 1999 decision by the Supreme Court holding that under the ADA: States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 607, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999). In the 2011 DOJ Statement under Question 1, “What is the most integrated setting under the ADA and Olmstead,” the Department of Justice states: Integrated services are those that provide individuals with disabilities opportunities to Uve, work, and receive services in the greater community, like individuals without disabilities. Integrated settings are located in mainstream society; offer access to community activities and opportunities at times, frequencies and with persons of an individual’s choosing; afford individuals choice in their daily life activities; and provide individuals with disabilities the opportunity to interact with non-disabled persons to the fullest extent possible.... Segregated settings include, but are not limited to, ... settings that provide for daytime activities primarily with other"
2645	and any attempt to gain competent jurors that would result in a less representative cross section than one drawn from the statutorily qualified pool would destroy the right to serve on juries which Congress intended to confer (i. e., by its enactment of a uniform set of jury qualifications, 28 U.S.C. § 1861), and would destroy the broad-based cross section Congress has designated for federal juries. Rabinowitz v. United States, supra. We have held that “very de cided variations in proportions of Negroes and white on jury lists from racial proportions in the population, which variations are not explained and are long continued, furnish sufficient evidence of systematic exclusion of Negroes from jury service.” United States ex rel. Seals v. Wiman, 5 Cir., 1962, 304 F.2d 53, 67. However, the Constitution does not require an exact proportion between the percentage of Negroes in the population and those on the jury lists, nor does it require that any particular panel of jurors in a criminal trial include members of the race of the accused person. Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Akins v. State of Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945). There is, therefore, an affirmative duty imposed by the Constitution and laws of the United States upon the jury selection officials — jury commissioner and clerk of court — to know the availability of potentially qualified persons within significant elements of the community, including those which
1499	and canals. The question for consideration is whether the last-quoted section has been repealed. If it has not, the complainant’s mortgage was lawfully recorded. If it has, then there was no record of it of which the petitioner was obliged to take notice, and his lien is subsisting and must be enforced. The section is not repealed in express terms. If it is repealed at all, it is by implication, and the courts do not favor such repeals. Dwarris, in his treatise on Statutes, p. 174, .says: “The leaning of the courts is so strong against repealing the positive provisions of a former statute by construction as almost to establish the doctrine of‘No repeal by implication.’ ” The supreme court, in McCool v. Smith, 1 Black, 459, does not go quite so far, but holds that where statutes conflict no repeal of one by implication is allowable where it is possible to reconcile them. In Naylor v. Field, 29 N. J. Law, 287, the supreme court of New Jersey states the.law more in accordance with the ordinary language of the text-book when it holds that, in order to construe a statute so as to repeal a former statute by implication, tho implication must be a necessary one. The provisions of the new act must be of such a character that they cannot he carried out by allowing the former act to stand. A review of the legislation of the state for a few years past will render it quite manifest
2587	* * Rule 23(a)(2). If there were no common questions of law or fact, those questions obviously could not predominate over questions affecting individual members, as Rule 23(b)(3) requires, so the Court will treat the commonality requirement of Rule 23(a)(2) in connection with the predominance requirement of Rule 23(b)(3), which subsumes it. 7 C. Wright & A. Miller, Federal Practice and Procedure § 1763, at 610 & n. 7 (1972); 3B Moore’s Federal Practice ¶ 23.-06-1, at 23-301 (2d ed. 1977). e. Typicality Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class * * *.” The Court recently discussed the nature of the typicality requirement in Wofford v. Safeway Stores, Inc., 78 F.R.D. 460, 488-489 (N.D.Cal.1978): “the analysis [under Rule 23(a)(3)] must focus on a comparison of the representative plaintiffs’ claims and defenses with those of the class. [Citation omitted.] Factual variations are not fatal to a proposed class when the claims arise out of the same remedial and legal theory. [Citation omitted.] Such variations do, however, raise two issues of typicality. “First, * * * the common issues must occupy ‘essentially the same degree of centrality’ to the named plaintiffs’ claim as to that of other class members. * * * And if it is predictable that ‘a major focus of the litigation will be on an arguable defense unique to the named plaintiff or a small subclass, then the named plaintiff is not a proper
4059	"pro se litigant’s pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers, this court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants.” (internal quotations and alterations omitted)). . DSC Nat’l Properties, LLC v. Johnson (In re Johnson), 477 B.R. 156, 168 (10th Cir. BAP 2012) (internal quotations and alterations omitted). . Id. at 169. . Id. . Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1375 (10th Cir.1996). . Johnson v. Riebesell (In re Riebesell), 586 F.3d 782, 791 (10th Cir.2009). . Id. at 792. . In re Young, 91 F.3d at 1375; see also 6050 Grant, LLC v. Hanson (In re Hanson), 428 B.R. 475, 486 (Bankr.N.D.Ill.2010) (noting that false pretenses ""do not necessarily require overt misrepresentations” but can also include concealment or “failure to disclose pertinent information”). . In re Young, 91 F.3d at 1375 (totality of circumstances); see also, e.g., Crossingham Trust v. Baines (In re Baines), 337 B.R. 392, 400-01 (Bankr.D.N.M.2006) (false representation made through false invoices shows requisite intent to defraud under § 523(a)(2)(A)). . Mid-States Millwork, Inc. v. Gering (In re Gering), 69 B.R. 686, 693 (Bankr.D.Kan.1987) (relying on false invoices submitted by defendant was reasonable under the reliance standard of § 523(a)(2)(A)). . Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). . Panalis v. Moore (In re Moore), 357 F.3d 1125, 1129 (10th Cir.2004). . Id."
2073	First Circuit has recently expounded on the requirements for a warrantless arrest. In United States v. Meade 110 F.3d 190, 193 (1st Cir.1997) the Court noted: “A warrant-less arrest requires probable cause, the existence of which must be determined in light of the information that law enforcement officials possessed at the time of the arrest. See United States v. Diallo, 29 F.3d 23, 25 (1st Cir.1994) ‘Probable cause exists when police officers, relying on reasonably trustworthy facts and circumstances, have information upon which a reasonably prudent person would believe the suspect had committed or was committing a crime.’ Young, 105 F.3d at 6. To establish probable cause, the government ‘need not present the quantum of proof necessary to convict.’ (citing United States v. Uricoechea-Casallas, 946 F.2d 162, 165 (1st Cir.1991)).” As noted above, the agent was armed with his fellow officers’ collective knowledge regarding the identities of defendants Guerrero, Fernandez Santana and Rodriguez Colón. He also had rehable information regarding the location of the pick-up point for the seized cocaine shipment from the Eagle Caribe. He addressed each defendant individually and proceeded to arrest them once he confirmed his reasonable suspicion that the defendants were waiting for the seized cocaine. The defendants uttered a series of contradictory statements in response to the agent’s queries: defendants first claimed that they were going to the Hawaiian Hut, then that they were just talking, then that they were just going for a ride in their ear. With respect to Guerrero, Rodriguez Colón and
4774	"fact that two close eviden-tiary points were resolved against the defendant, resulting in admission of other prejudicial facts about his criminal disposition. Over defendant’s objection, the court allowed testimony from a witness who claimed to have seen defendant steal the car radio and testimony about defendant’s destructive behavior at the police station after his arrest. Whether or not this evidence was properly allowed, there is little doubt that the inadmissible testimony concerning Tavares’s pri- or felony added fuel to an already brewing fire and increased the risk that the jury drew upon defendant’s disposition in reaching its verdict. In these circumstances, we cannot say that “it is ‘ “highly probable” ’ that the error did not contribute to the verdict,” United States v. Figueroa, 976 F.2d 1446, 1455 (1st Cir.1992) (citations omitted). The judgment of conviction is therefore VACATED, and the case remanded to the district court for a new trial. Concurrence follows. . Although the predicate crime may not be a felony, the common reference which we adopt is a ''felon-in-possession"" offense. . We note that the court endeavored to minimize any prejudice. It received into evidence a certi-fled copy of Tavares’ 1988 conviction, but did not permit the government to read the document to the jury. The court also repeatedly instructed the jury that the evidence was relevant only as proof of the prior felony element of the charge. . Burkhart and Bruton actually cited United States v. Smith, 520 F.2d 544 (8th Cir.1975), which, in turn, relied"
3694	citizen complaints and stop excessive amplified sound, especially if unpermitted.”). And the County’s stated environmental concerns are sufficient to justify its distinction between the outdoor storage of non-operative vehicles and other permitted vehicle storage. The County also had a rational basis for concluding that the Jensens did not have a protected grandfathered use of their property pursuant to Hansen Brothers Enterprises, Inc. v. Board of Supervisors, 12 Cal.4th 533, 48 Cal.Rptr.2d 778, 907 P.2d 1324 (1996). The County could only have committed a substantive due process violation in denying the Jensens’ grandfathered use if it “could have had no legitimate reason for its decision.” Richardson v. City and Cnty. of Honolulu, 124 F.3d 1150, 1162 (9th Cir.1997) (quoting Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234 (9th Cir.1994)). The County concluded that the Jensens’ use of the property for extensive car storage did not predate the 1975 ordinance based on an aerial pho to showing that the property was not being used in that way in 1980. The County’s reliance on the 1980 photograph provided a legitimate basis for its decision. The Jensens’ Fourth Amendment claim, which is based on the order from the County directing them to schedule an inspection confirming abatement, fails because no search or seizure occurred. Cf. Conner v. City of Santa Ana, 897 F.2d 1487, 1490-92 (9th Cir.1990) (finding a Fourth Amendment violation where police, without a warrant, removed automobiles deemed a public nuisance from private property). Furthermore, given its finding that there
3702	for failure to state a- claim, the court generally accepts as true the allegations in the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in ^the pleader’s favor. Lazy Y. Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.2008). To survive a 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “The plausibility, standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility for entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements
4772	United States v. Spletzer, 535 F.2d 950, 955-56 (5th Cir.1976) (case involving escape). The Second and Fourth Circuits affirmatively reject admission of evidence concerning the nature of the prior crime, see United States v. Gilliam, 994 F.2d 97, 103 (2d Cir.1993); United States v. Poore, 594 F.2d 39, 41-43 (4th Cir.1979), while panels in both the Ninth and Seventh Circuits have signalled that it is within a court’s discretion to accept a defense stipulation to the fact of a prior felony conviction, see United States v. Barker, 1 F.3d 957, 959 n. 3 (9th Cir.1993) (underlying facts of prior conviction irrelevant); United States v. Pirovolos, 844 F.2d 415, 420 (7th Cir.1988) (defense’s proffered stipulation to prior felony sufficient). But see United States v. Breitkreutz, 8 F.3d 688, 692 (9th Cir.1993) (rejecting stipulation as an alternative form of proof and noting “the rule that the prosecution has a right to refuse a stipulation”). On the other side, as noted earlier, are the Sixth and Eighth Circuits. We want to be crystal clear about what we are not saying. First, we are not saying that the fact of the prior predicate felony can be kept from the jury. Second, the prosecution ordinarily cannot be forced to accept a stipulation if it prefers to introduce a judgment of conviction properly redacted. The trial court would retain the discretion, however, to exclude this document if the nature or number of redactions would invest it with prejudicial overtones. In some circumstances, where documentary evidence is
3931	know who it was that fired you? A: The same guy. Q: That Mr. Dean? A: Yes. This testimony clearly is contrary to plaintiff’s statements in his affidavit and reveals that plaintiff considered himself fired from the A & P warehouse job. Plaintiff stated that Mr. Dean fired him and he received a pink slip. He testified, “I was fired.” While the court must view all facts in the light most favorable to plaintiff in analyzing this motion for summary judgment, plaintiff “may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts [his] earlier deposition.” Reid v. Sears, Roebuck and Co., 790 F.2d 453, 460 (6th Cir.1986) (citing Biechele v. Cedar Point, Inc., 747 F.2d 209, 215 (6th Cir.1984)). While an inconsistent affidavit may preclude summary judgment if the affiant was confused during the deposition, the affidavit must clearly explain why the deponent was confused. Miller v. A.H. Robins Co., Inc., 766 F.2d 1102, 1104 (7th Cir.1985) (citing Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1364-65 (8th Cir.1988); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893-95 (5th Cir.1980)). In the instant matter, plaintiff’s affidavit contains nothing to explain its inconsistency with his deposition testimony. The court, therefore, must give credence to the deposition and conclude, based upon plaintiff's own admissions, that the A & P warehouse supervisor fired plaintiff. This establishes that plaintiff made an omission on his employment application when he stated he had not
722	requests to stop constituted substantial evidence to support [the teacher’s] dismissal on the basis of immorality.”), appeal denied, 514 Pa. 626, 522 A.2d 51 (1987); Wissahickon Sch. Dist. v. McKoum, 42 Pa.Cmwlth. 169, 174-75, 400 A.2d 899, 901-02 (1979) (upholding school board’s finding of immorality on basis of two separate incidents of sexual contact between high school teacher and female student); Penn-Delco Sch. Dist. v. Urso, 33 Pa.Cmwlth. 501, 502-06, 382 A.2d 162, 164-66 (1978) (upholding school board’s finding of immorality on basis of high school teacher’s offer to spank fifteen year-old and seventeen year-old female students). As the Third Circuit has noted, “a teacher’s sexual molestation of a student could not possibly be deemed an acceptable practice.” Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 727 (3d Cir.1989) (involving § 1983 claim against high school band director who engaged in sexual' acts with student from student’s sophomore through senior year), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 835 (1990). Based on its review of Pennsylvania’s positive law, including its constitution, statutes, and judicial decisions on the subject, and drawing sustenance from the stated purposes behind Pennsylvania’s rules and regulations, the Court concludes that there is “a positive, well-defined, universal public sentiment, deeply integrated in the customs and beliefs of the people and in their conviction of what is just and right and in the interests of the public weal,” Mamlin, 17 A.2d at 409, which repudiates the notion of indemnifying a public school teacher for
115	the FTCA “remedy [against the United States] is the exclusive remedy, and the FBI is not a proper defendant” on counts I, IV, V, and VI. Id. (dismissing the FTCA claims against the FBI for lack of subject matter jurisdiction). c. Claims against the United States— the discretionary function exception The United States may be sued only if it has consented to be sued. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 69 L.Ed.2d 548 (1981) (explaining that “the United States, as sovereign, ‘is immune from suit save as it consents to be sued ... and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit’” [citation omitted]); see United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); see also United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (emphasizing that the waiver of sovereign immunity must be “unequivocally expressed”); Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957) (noting that the Supreme Court “has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied”). The Federal Defendants agree that the FTCA is a limited consent to suit. The Federal Defendants argue that this court does not have subject matter
2778	work product, regardless of whether shared with the alleged infringer, through trial. Without regurgitating its analysis, the Court disagrees with such a broad waiver. Moreover, “[t]he willfulness of allegedly infringing activity is determined as of the date the activity began or the date on which the alleged infringer became aware of the patent, whichever is later.” Eli Lilly and Co. v. Zenith Goldline Pharmaceuticals, Inc., 149 F.Supp.2d 659, 662 (S.D.Ind.2001), citing Jurgens v. McKasy, 927 F.2d 1552, 1562 (Fed.Cir.1991), and Odetics, Inc. v. Storage Technology Corp., 185 F.3d 1259, 1276 (Fed.Cir.1999) (“The proper time to assess willfulness is at the time the in-fringer received notice ... making the relevance of later developments ... questionable at best.”)- See also Johns Hopkins University v. CellPro, Inc., 152 F.3d 1342, 1362 (Fed.Cir.1998). In this instance, the Court finds that Reilly has waived the attorney-client privilege and work product protections, to the extent disclosed to Reilly, post-lawsuit relating to the subject matter of the opinion of counsel. However, the Court does so not because the matter involves a continuing infringement, but rather, as explained above in detail, because Reilly has proffered a new and seemingly contradictory opinion during the lawsuit. III. Conclusion. The Court expects the parties to work in good faith to adhere to the boundaries of this order. To assist in this process, the Court summarizes its holdings as follows: 1)Reilly must disclose any and all communications between Reilly and its counsel regarding the subject matter of the April 30, 2001 opinion
1929	employer, National Blank Book Company, was the agent of the insurance company for the purpose of receiving from its employees requests for change of beneficiary and transmitting such requests to the home office of the company, it is manifest that insured in this case complied absolutely with the direction of the insurance company in giving notice of the desired change of beneficiary to his employer. Insured did all that was required of him to effect the change. “An assignment would be valid whether noted on the policy or not, when the clear intention of the decedent to so proceed appeared, for the action of the company in making such an indorsement is ministerial in character. * * * ” Kit v. Stecker, 3 Cir., 109 F.2d 281, 283. Beaver Trust Co. v. Kertis, 298 Pa. 322, 148 A. 471, 472; Cf. Skamoricus v. Konagiskie, 318 Pa. 128, 177 A. 809, 810. Courts are liberal in construing a reserve power to change a beneficiary and will look to the purpose of the parties in making a change of designation. Insurance Law and Practice, Appleman, Volume 2, § 901, pp. 292, 293. Where insured takes a positive action which evidences his obvious desire for a change of beneficiary, the courts will adopt such construction as will assist in carrying out such intention. Insurance Law and Practice, Appleman, Volume 2, § 963, p. 382. We find no reversible error in the record, and the judgment is affirmed.
4961	disclose a method for increasing the number of PCPIs for a volume. Catalina Mktg. Int’l v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed.Cir.2002) (“clear reliance on the preamble during prosecution to distinguish the claimed invention from the prior art transforms the preamble into a claim limitation because such reliance indicates use of the preamble to define, in part, the claimed invention”). b. Indefinite Sun next contends that the term “increasing a number of consistency point images” is indefinite under section 112, paragraph 2. A claim is indefinite under section 112, ¶ 2 when “its legal scope is not clear enough that a person of ordinary skill in the art could determine whether a particular [product] infringes or not.” Geneva Pharms., Inc. v. GlaxoSmithKline PLC, 349 F.3d 1373, 1384 (Fed.Cir.2003). “It is the applicants’ burden to precisely define the invention, not the PTO’s,” and section 112, ¶ 2 “puts the burden of precise claim drafting squarely on the applicant.” In re Morris, 127 F.3d 1048, 1056 (Fed. Cir.1997). Indefiniteness must be shown by clear and convincing evidence that the claim terms at issue are “not amenable to construction” or are “insolubly ambiguous.” Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1347-48 (Fed.Cir.2005). The inquiry “depends on whether those terms can be given any reasonable meaning.” Id. at 1347. Unless “reasonable efforts at claim construction prove futile[,]” the claim is not invalid for indefiniteness. Exxon Research & Eng’g Co. v. United States, 265 F.3d 1371, 1375 (Fed.Cir.2001). Sun contends that the
4721	(emphasis, alterations, and internal quotation marks omitted); see also Walden, 2015 WL 1433353, at *3 (same). “Only in the rarest of eases may summary judgment be granted against á plaintiff who has not been afforded the opportunity to conduct discovery.” Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir.2000). But if the nonmovant “give[s] the ... court no basis to conclude that further discovery would yield” information that would create a genuine dispute as to material facts, then summary judgment may be appropriate, even before discovery has been conducted. Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir.1995). 2. Analysis The FLSA applies generally to “employees, engaged in interstate commerce.” Dauphin v. Chestnut Ridge Transp., Inc., 544 F.Supp.2d 266, 271 (S.D.N.Y.2008). Among other things, the FLSA requires employers to pay overtime wages to certain, employees who work more than 40 hours per week. See 29 U.S.C. § 207. However, the FLSA has also' exempted classes 'of employees from its wage protections. “Because the FLSA is a remedial law, [courts] must narrowly construe its exemptions.” Reiseck v. Universal Commons of Miami, Inc., 591 F.3d 101, 104 (2d Cir.2010) (footnote omitted). Moreover, an employer bears the burden of establishing that an exemption applies. See Young v. Cooper Cameron Corp., 586 F.3d 201, 204 (2d Cir.2009) (“The employer has the burden, of proving that the employee clearly falls within the terms of the exemption.”); Clarke v. JPMorgan Chase Bank, N.A., No. 08-CV-2400, 2010 WL 1379778,
279	fairness for this court to exercise supplemental jurisdiction over plaintiffs remaining state law claims. Plaintiffs claim for malicious prosecution in this case is no different whether analyzed under Section 1983 or state law. See Broughton v. State, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 335 N.E.2d 310 (1975). Therefore, summary judgment is appropriate in favor of the defendants on plaintiffs state law claim for malicious prosecution. Defendants challenge plaintiffs state law claims for negligent hiring, training, supervision, and retention against the City. To state a claim for negligent hiring, retention, training or supervision, plaintiff must show that “the employer ‘knew or should have known of the employee’s propensity for the conduct which caused the injury’ prior to the injury’s occurrence.” Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir.2004) (quoting Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159, 654 N.Y.S.2d 791 (2d Dept. 1997)). Defendants argue that plaintiff has put forward no evidence that the City had knowledge that any of the defendants had the propensity to arrest plaintiff without probable cause or maliciously prosecute him. Plaintiff does not address this argument in his brief and the record contains no evidence in support of the claim. Therefore, summary judgment is granted in favor of the-City on plaintiffs state law claims for negligent hiring, training, supervision, and retention. Defendants also challenge plaintiffs claim of intentional infliction of emotional distress. “The tort of intentional infliction of emotional distress has four elements: (1) extreme and outrageous conduct; (2) intent
4691	U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). Additionally, the difference between a motion made under Rule 12(b)(1) and one made under Rule 12(h)(3) “is largely academic, and the same standards are applicable to both types of motions.” Greystone Bank v. Tavarez, No. 09-CV-5192, 2010 WL 3325203, at *1 (E.D.N.Y. Aug. 19, 2010). “The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005). In deciding a Rule 12 motion to dismiss, the Court “‘must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,’ ” Morrison, 547 F.3d at 170 (quoting Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir.2006) (citation and internal quotation marks omitted)), but “ ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it,’” id. (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003)). In deciding the motion, the court “may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits.” J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir.2004); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (“In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court
3200	found absent a clear command of the statute”). Moreover, we construe prohibitions against judicial review narrowly. Cf. Wallace v. Christensen, 802 F.2d 1539 (9th Cir.1986) (en banc); Moapa Band, 747 F.2d at 565. In light of these considerations, we find plaintiffs’ interpretation the most plausible, and hold that the district court had jurisdiction to review the EPA’s suspension order. II. Subsection (c)(4) provides that an emergency suspension order shall be reviewable by the district court “solely to determine whether the order of suspension was arbitrary, capricious or an abuse of discretion, or whether the order was issued in accordance with procedures established by law.” We review the district court’s legal determinations de novo and its factual findings for clear error. United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). On the question whether an injunction was properly issued, once the facts and law are established, we review for abuse of discretion. Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 849 (9th Cir.1985). A. As a preliminary matter, the EPA argues that the district court improperly considered evidence beyond the four corners of the administrative record. Generally, judicial review of agency action is limited to review of the record on which the administrative decision was based. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971). “[T]he focal point for judicial review should be
2071	one of them. Only after he had properly identified the identity of the defendants, assessed the contradictory statements proffered by them and observed the nervous demeanor and subsequent dispute between Rodriguez Colon and Fernandez Santana, he proceeded to arrest them. Accordingly, we find that agent Andaluz conducted an investigatory stop when he initially approached the defendants, and that there was no need for Miranda warnings prior to his brief questioning. Probable Cause for Arrest Defendants also argue that the agents also lacked probable cause to arrest each of them, since the responses given by the defendants did not constitute sufficient justification to arrest them. We disagree. The First Circuit has recently expounded on the requirements for a warrantless arrest. In United States v. Meade 110 F.3d 190, 193 (1st Cir.1997) the Court noted: “A warrant-less arrest requires probable cause, the existence of which must be determined in light of the information that law enforcement officials possessed at the time of the arrest. See United States v. Diallo, 29 F.3d 23, 25 (1st Cir.1994) ‘Probable cause exists when police officers, relying on reasonably trustworthy facts and circumstances, have information upon which a reasonably prudent person would believe the suspect had committed or was committing a crime.’ Young, 105 F.3d at 6. To establish probable cause, the government ‘need not present the quantum of proof necessary to convict.’ (citing United States v. Uricoechea-Casallas, 946 F.2d 162, 165 (1st Cir.1991)).” As noted above, the agent was armed with his fellow officers’ collective knowledge
4698	device for defendants to assert exemptions to the FLSA” and collecting cases); Fox v. Commonwealth Worldwide Chauffeured Transp. of N.Y., LLC, No. 08-CV-1686, 2009 WL 1813230, at *2 (E.D.N.Y. June 25, 2009) (holding that the question of whether the defendant is subject to the FLSA exemptions is a merits question only, and reasoning that this conclusion is “supported by ... Second Circuit case law and consistent with numerous other district courts in this circuit”); Saca, 600 F.Supp.2d at 485 (disagreeing with Caria-ni and noting that “numerous other courts have considered the issue and concluded that a defendant claiming to be exempt from the FLSA is challenging the merits of the FLSA claim rather than the court’s jurisdiction over the subject matter”); Velez v. Vassallo, 203 F.Supp.2d 312, 330 (S.D.N.Y.2002) (“To prevail on a claim under the FLSA, a plaintiff must, of course, demonstrate that the defendant is covered by the Act, such, as by. showing that 'the defendant constitutes an enterprise engaged in commerce. However, this required showing is simply an element of the cause of action. A plaintiffs failure, to make this showing constitutes a failure on the merits.” (citation omitted)). Moreover, while “[i]t is true that courts sometimes refer to the plaintiffs obligation to prove a defendant’s covered status as ‘jurisdictional,’” the term is “overused” and “one that is often used without explicit consideration of whether the court’s authority to adjudicate the type of controversy-involved in the action is really at stake.” Velez, 203 F.Supp.2d at 330 (some
2781	§ 1252. We review for substantial evidence the agency’s factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009). We deny the petition for review. Substantial evidence supports the agency’s conclusion that, even if credible, Ramos de Espinoza failed to demonstrate that the incidents she experienced in El Salvador rose to the level of persecution. See Gu v. Gonzales, 454 F.3d 1014, 1020-21 (9th Cir.2006); Wakkary, 558 F.3d at 1060 (petitioner failed to demonstrate harm to associates was part of “a pattern of persecution closely tied to” petitioner) (internal quotation and citation omitted). Substantial evidence also supports the agency’s determination that Ramos de Espinoza failed to establish a well-founded fear of future persecution on account of her political opinion. See Halim v. Holder, 590 F.3d 971, 977 (9th Cir.2009) (petitioner “failed to make a compelling showing of the requisite objective component of a well-founded fear of persecution.”). Thus, her asylum claim fails. Because Ramos de Espinoza failed to establish eligibility for asylum, her withholding of removal claim necessarily fails. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006). Finally, Ramos de Espinoza does not make any substantive arguments challenging the agency’s denial of her CAT claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir.1996) (“Issues raised in a brief that are not supported by argument are deemed abandoned.”). PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3,
943	seek to introduce any evidence of a pattern, habit, or routine pursuant to Rule 406. Gov’t General Opp’n ¶ 11. The Government indicates that it may seek to introduce evidence of Bowman’s dealings with other alleged co-conspirators as, among other things: (1) circumstantial evidence of the Defendant’s knowledge of and participation in the conspiracy, United States v. Martinez, 476 F.3d 961, 969 (D.C.Cir.2007); and (2) intrinsic evidence of the conspiracy, see United States v. Badru, 97 F.3d 1471, 1474-75 (D.C.Cir.1996). Moreover, “[d]rugs distributed by a co-conspirator in furtherance of a conspiracy are attributable to a member of the conspiracy so long as the distribution was ‘reasonably foreseeable’ to that member.” United States v. Wilson, 605 F.3d 985, 1036 (D.C.Cir.2010) (quoting United States v. Childress, 58 F.3d 693, 722 (D.C.Cir.1995)). Thus, to the extent the Government is able to show Defendant Williams was a member of the conspiracy, the evidence about which Williams complains will not be unduly prejudicial, misleading, confusing, or cumulative. Nor will it cause undue delay. Rather, it will be relevant evidence of acts that the Government may succeed in attributing to Williams as reasonably foreseeable aspects of the conspiracy. Accordingly, based on the current record, exclusion of this evidence is not appropriate under Federal Rule of Evidence 403. II. CONCLUSION In his first motion, the Defendant seeks additional information from the Government regarding factual proffers agreed to by co-conspirators in this case. This information may be helpful to the Defendant’s defense in several ways, therefore the Defendant’s
36	noted earlier, Rule 60(b)(4) relief is warranted if a district court’s actions are inconsistent with due process of law. See Carter, 136 F.3d at 1006; New York Life, 84 F.3d at 143. If a court has both subject matter and personal jurisdiction, however, the “only inquiry is whether the district court acted in a manner so inconsistent with due process as to render the judgment void.” New York Life, 84 F.3d at 143. Such circumstances are rare because due process in civil cases usually requires only proper notice and service of process and a court of competent jurisdiction. Id. “[Pjrocedural irregularities during the course of a civil case, even serious ones, will not subject the judgment to collateral attack.” Id. (quoting Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1027 (5th Cir.1982)). Here, Frontier—-and subsequently the Superintendent—were fully aware of the summary judgment proceedings and had a fully adequate opportunity to be heard: Frontier was afforded the opportunity to brief Callon’s summary judgment motion and to appear at oral argument; and the Superintendent had notice that the district court had entered judgment for over a year before he finally acted. Thus, although the Superintendent may argue that he had no opportunity to argue for a stay or dismissal based on the Order to Show Cause before the judgment was entered, he nevertheless had notice of the judgment and ample time to present in a more timely manner his arguments for Rule 60(b) relief; yet he failed to respond for some fourteen months.
1221	that, on its face, pled non-diverse parties. Id. at *1. The defendants removed the case to federal court, claiming fraudulent joinder of a non-diverse party. Id. The court applied the usual fraudulent joinder analysis to the summons with notice, stating that “[w]here ... a plaintiff challenges removal on the ground that the presence of non-diverse parties defeats federal jurisdiction, a defendant may show that the non-diverse parties have no real connection with the controversy and were ‘fraudulently joined’ for the sole purpose of destroying diversity.” Id. at *2. Indeed, the very purpose of the fraudulent joinder doctrine is to allow defendants to assert removal despite the presence of a non-diverse party on the face of the pleading. See Blakeman v. Conroy (In re Blakeman), 512 F.Supp. 325, 327 (E.D.N.Y.1981) (noting that “the presence of a non-diverse plaintiff may be ignored if it is not a real party in interest” (internal quotation marks omitted)). Here, just as in every case where fraudulent joinder is alleged, Defendants’ fraudulent joinder claim allows the Court to analyze whether the case involves a dispute between diverse parties and, therefore, whether removal was proper. Plaintiffs seek a different result, arguing that Defendants prematurely removed because they relied on facts beyond the Summons and Notice to ascertain the basis for removal. Indeed, as noted above, the removal statute expressly permits Defendants to delay removal until thirty days after a pleading first allows Defendants to ascertain the basis upon which a case may be removed. See 28 U.S.C.
2183	of three single days (December 20, 1998; December 21,1998; and January 12, 1999), because Attorney Hernandez was working on the case largely by himself and trial was approaching or had begun at the time. 2. Imprecision As First Circuit law permits me to do, I eliminated a significant number of hours for which Attorney Hernandez’s records are “not sufficiently precise” as to the tasks accomplished or the claim pursued to allow the Court to assess whether the time spent was reasonable. Deary v. City of Gloucester, 9 F.3d 191, 197-98 (1st Cir.1993) (instructing that, in the absence of “specific information about ... the nature of the work performed,” the requested fees “should be reduced or even denied altogether” (citing Calhoun v. Acme Cleveland Corp., 801 F.2d 558, 560 (1st Cir.1986), and Grendel’s Den, 749 F.2d at 952)); see also Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir.1994) (requiring “ ‘a full and specific accounting of the tasks performed’ ” and upholding a thirty-percent reduction in the fee award for over-general time sheets (quoting Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 527 (1st Cir.1991))); Lipsett, 975 F.2d at 938; Nadeau v. Helgemoe, 581 F.2d 275, 279 (1st Cir.1978) (suggesting that “counsel’s records ... [should] provide a proper basis for determining how much time was spent on particular claims”). The entries in question, totaling 115.4 hours in all, contain only vague descriptions such as “Drafting documents,” “Reviewing documents,” “Case planning,” or “Trial planning/Trial
1442	and must present a valid visa. See 8 C.F.R. § 214.1(a)(3), (c)(4). The charges lodged against Westover demonstrate that the INS does not consider Westover capable of meeting these requirements. See Halabi, 15 I. & N. Dec. at 107-08 (Roberts, Chairman, dissenting). We pause to note that the practice of charging aliens with overstaying when they remain in the United States to defend themselves in removal proceedings could cause us some concern on given facts. “[T]he Fifth Amendment entitles aliens to due process of law in deportation proceedings. At the core of these due process rights is ... a meaningful opportunity to be heard.” Choeum v. INS, 129 F.3d 29, 38 (1st Cir.1997) (internal quotation marks and citation omitted); see also Lozada v. INS, 857 F.2d 10, 13 (1st Cir.1988) (due process violated if alien is prevented from reasonably presenting her case). The BIA upheld the IJ’s findings regarding the original charges that Westover was excludable at entry and was present without a valid visa, and we affirm its order of removal on these grounds, without deciding the overstay issue. F. The BIA’s Decision to Uphold the IJ’s Finding of Deportability We review the BIA’s decision in this case under the substantial evidence standard. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Cordero-Trejo v. INS, 40 F.3d 482, 488 (1st Cir.1994). Under this standard, we will reverse the BIA’s decision only if the evidence presented would compel us to find for the petitioner.
4570	"99 S.Ct. 645,""58 L.Ed.2d 552 (1979). However, the offensive use of issue preclusion may have the opposite effect, encouraging plaintiffs to “wait and see” in a way which may “increase rather than decrease the total amount of litigation.” Id. at 330, 99 S.Ct. 645. Thus, special care must be taken when considering whether to apply non-mutual, offensive issue preclusion. Ordinary issue preclusion requires a party, show: “(1) the issue sought to be litigated is sufficiently similar to the issue presented in an earlier .proceeding and sufficiently material in both actions to justify invoking the doctrine, (2) the issue was actually litigated in the first case, and (3) the issue was necessarily decided in the first case.” Appling v. State Farm Mut. Auto. Ins. Co., 340 F.3d 769, 775 (9th Cir.2003). A plaintiff seéking non-mutual, offensive issue preclusion, however, must also show its application would not be unfair. See Parklane Hosiery Co., 439 U.S. 322, 330-331, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). A number of circumstances may render offensive issue preclusion unfair and therefore impermissible. For instance, where a defendant “may have little .incentive to defend vigorously, particularly if future suits are not foreseeable ...' [or] if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments ... [or] where the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different' result.” Id. at 330-331, 99 S.Ct. 645. Arpaio does not contest the"
539	only to the territorial United States. Smith, 507 U.S. at 204, 113 S.Ct. 1178; see Aramco, 499 U.S. at 248, 111 S.Ct. 1227 (stating that the presumption against extraterritoriality is not overcome unless there appears “the affirmative im tention of the Congress clearly expressed” (internal quotation marks omitted)). In searching for “clear evidence” of Congress’s intent, we are not, however, limited to the text of the statute itself. To the contrary, we are permitted to consider “all available evidence” about the meaning of the statute, including its text, structure, and legislative history. Sale, 509 U.S. at 177, 113 S.Ct. 2549; see Smith, 507 U.S. at 201-03, 113 S.Ct. 1178 (examining text, structure, and legislative history); see also Kollias v. D & G Marine Maintenance, 29 F.3d 67, 73 (2d Cir.1994) (“[T]he Supreme Court has made clear ... that reference to nontextual sources is permissible.”). B. By its terms, 18 U.S.C. § 2243(a) is limited in reach to the sexual abuse of a minor while “in the special maritime and territorial jurisdiction of the United States.” The “special maritime and territorial jurisdiction of the United States” is, in turn, defined in 18 U.S.C. § 7 to include, among other places: [1] Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or [2] any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of
3008	all fairness and justice, should be borne by the public as a whole.’ ” Penn Central, supra, at 123-124 (quoting Armstrong v. United States, 364 U. S. 40, 49 (1960)). The concepts of “fairness and justice” that underlie the Takings Clause, of course, are less than fully determinate. Accordingly, we have eschewed “any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” Penn Central, supra, at 124 (quoting Goldblatt v. Hempstead, 369 U. S. 590, 594 (1962)). The outcome instead “depends largely ‘upon the particular circumstances [in that] case.’ ” Penn Central, supra, at 124 (quoting United States v. Central Eureka Mining Co., 357 U. S. 155, 168 (1958)). We have “identified several factors that have particular significance” in these “essentially ad hoc, factual inquiries.” Penn Central, 438 U. S., at 124. Two such factors are “[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.” Ibid. Another is “the character of the governmental action.” Ibid. The purposes served, as well as the effects produced, by a particular regulation inform the takings analysis. Id., at 127 (“[A] use restriction on real property may constitute a ‘taking’ if not reasonably necessary to the effectuation of a substantial public purpose, [citations omitted], or perhaps if it has an unduly harsh impact upon the owner’s use of the property”);
79	We agree with both contentions. I. RETROACTIVE APPLICATION OF THE NEW FLORIDA SEVERANCE STATUTE The basic position taken by the Florida Supreme Court in this case was that petitioner had not met the requirements that would justify granting his motion and that the intermediate appellate court had erred when it “in effect, shifted the burden to the State to show that there was no abuse of discretion in denying the motion for new trial [based on the denial of the motion to sever].” Although in affirming the trial court’s action the Florida Supreme Court recognized “the fundamental nature of the right of one accused of a crime to call witnesses on his own behalf”, 243 So.2d at 597; see also Washington v. Texas, 1967, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019, the Florida court found that certain requirements must be met before a co-defendant can be made available for testimony by severance: “We hold that a severance shall be granted, in accordance with Rule 1.190 (j), F.Cr.P. 33 F.S.A. when one of several codefendants files a bona fide motion based on necessity rather than mere convenience, which motion shows: (1) the exculpatory nature of the testimony to be elicited from a co-defendant; (2) is accompanied by some assurance that the codefendant is willing to testify; (3) sets out the facts indicating that the codefendant would not be willing to testify at a joint trial; (4) clearly indicates that the testimony sought from the codefendant is relevant, material, competent
2361	Allstate (representing the contract price of salvaging the yacht) be amended to provide for interest, costs, and attorneys’ fees? 2. Should the judgment by default as to liability in favor of plaintiff and against Defendant Vernell Nelson (proceeding pro se) be set aside, and if not, what is the appropriate measure of damages against Vernell Nelson? 3. Should the Court enter a default judgment in favor of Allstate and against Nelson on Allstate’s cross-claim against Nelson? These issues will be addressed in turn. I. Plaintiff v. Allstate — Interest, Costs and Attorneys’ Fees A. Interest The general rule in admiralty is that a prevailing party may recover prejudgment interest except where equitable considerations make the award unconscionable. Inland Tugs Co. v. Ohio River Co., 709 F.2d 1065, 1074-75 (6th Cir.1983). Furthermore, “[p]re-judgment interest in Pennsylvania contract cases is a matter of right and is calculated from the time the money becomes due or payable.” Am. Enka Co. v. Wicaco Mach. Corp., 686 F.2d 1050, 1056 (3d Cir.1982) (citing Penneys v. Pa. R.R. Co., 408 Pa. 276, 183 A.2d 544 (1962)). As to the rate of interest, “the party to whom the sum is owed may as a matter of right recover prejudgment interest at the legal rate of six percent [per annum] running from the date the sum is due.” Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379, 395 (3d Cir.2000) (citing Am. Enka Co., 686 F.2d at 1056-57); see also 41 Pa. Cons.Stat. Ann. § 202 (setting legal
4143	as such, its viability is dependent on the viability of a primary cause of action....”” Jones v. U.S., 408 F.Supp.2d 107, 126 (E.D.N.Y.2006); Panczykoski v. Laborers International Union of N.A., 2000 WL 387602 (W.D.N.Y.2000) (quoting Stander v. Orentreich, 165 Misc.2d 530, 627 N.Y.S.2d 879, 884 (N.Y.Sup.1995)). Here, because the court has found for Dockery on the primary claims, Lisa Dockery’s derivative claim has survived. “The cause of action for loss of consortium is designed to ‘compensate for the injury to th[e marital] relationship’ and to ‘the interest of the injured party’s spouse in the continuance of a healthy and happy marital life ... An award for loss of consortium may include components for both the past and the future.” Rangolan v. County of Nassau, 370 F.3d 239, 248 (2d Cir.2004) (internal citations omitted). “Consortium represents the marital partner’s interest in the continuance of the marital relationship as it existed at its inception.” Buckley v. National Freight, Inc., 90 N.Y.2d 210, 213-214, 659 N.Y.S.2d 841, 681 N.E.2d 1287 (1997). “A loss of consortium claim embraces what the non-injured has lost; it covers the loss of support and services provided by the injured spouse as well as such elements as love, companionship, affection, society, sexual relations, and solace.” Zavaglia v. Sarah Neuman Center for Healthcare and Rehabilitation, 25 Misc.3d 590, 883 N.Y.S.2d 889, 893 (N.Y.Sup.2009) (internal citations omitted). “Although there is no [explicit] evidence that [the spouse] lost companionship or society due to the injuries allegedly sustained, that loss ‘can be reasonably
2990	State Supreme Court recited multiple grounds for rejecting petitioner’s suit. The court held, first, that petitioner’s takings claim was not ripe, id., at 712-715; second, that petitioner had no right to challenge regulations predating 1978, when he succeeded to legal ownership of the property from SGI, id., at 716; and third, that the claim of deprivation of all economically beneficial use was contradicted by undisputed evidence that he had $200,000 in development value remaining on an upland parcel of the property, id., at 715. In addition to holding petitioner could not assert a takings claim based on the denial of all economic use, the court concluded he could not recover under the more general test of Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978). On this claim, too, the date of acquisition of the parcel was found determinative, and the court held he could have had “no reasonable investment-backed expectations that were affected by this regulation” because it predated his ownership, 746 A. 2d, at 717; see also Penn Central, supra, at 124. We disagree with the Supreme Court of Rhode Island as to the first two of these conclusions; and,, we hold, the court was correct to conclude that the owner is not deprived of all economic use of his property because the value of upland portions is substantial. We remand for further consideration of the claim under the principles set forth in Penn Central. II The Takings Clause of the Fifth Amendment, applicable
4503	for services to be performed or for materials to be furnished in the state by the defendant. Mich.Comp.Laws § 600.715. Plaintiffs contend that the DNN defendants transact business within the state as evinced by the joint venture relationship between DNN and defendant National. Second, plaintiffs contend that in order to effectuate the joint venture, DNN engages in daily telephone, mail, and electronic contact with defendant National in Michigan. Therefore, plaintiffs argue that subsection one of Michigan’s long-arm statute is satisfied. “A federal district court sitting in diversity must apply the law of the forum state to determine whether it may exercise jurisdiction over the person of a non-resident defendant. However, constitutional concerns of due process limit application of this state law.” Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th Cir.1991) (citations omitted). In Michigan, “[a] personal jurisdiction analysis is a two-fold inquiry: (1) do the defendant’s acts fall within the applicable long-arm statute, and (2) does the exercise of jurisdiction over the defendant comport with due process?” Green v. Wilson, 455 Mich. 342, 347, 565 N.W.2d 813 (1997) (citing Starbrite Distributing, Inc. v. Excelda Mfg. Co., 454 Mich. 302, 562 N.W.2d 640 (1997)). Therefore, in this Court, the defendant must be subject to the Court’s jurisdiction under both Michigan’s long-arm statute and the Due Process Clause. See Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 149 (6th Cir.1997). The Michigan Supreme Court has construed Michigan’s long-arm statutes to bestow the broadest possible grant of personal jurisdiction consistent with
2067	his suspicion.” Id. at 6 (citing U.S. v. McCarthy, 77 F.3d 522, 529 (1st Cir.1996)). With regards to investigative stops, the Court must determine “not whether the police had probable cause to act, but instead whether the actions taken were reasonable under the circumstances.” Id. The Court must first conclude whether the officer’s action was justified at its inception. If the action is justified, the Court must then ask whether the action taken was reasonably related in scope to the circumstances which justified the interference. Id. To satisfy the first prong, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Young at 7 (citing U.S. v. Kimball, 25 F.3d 1, 6 (1st Cir.1994)). To fulfill the second prong, the Court must examine the totality of the circumstances. See United States v. Walker, 924 F.2d 1, 4 (1st Cir.1991). Based on the above mentioned case law, we conclude that agent Andaluz’s brief detention and subsequent questioning of defendants Miguel Rodriguez Colón, Mauricio Guerrero, Marta Berrocal and Luis Fernandez Santana constituted an investigatory stop, pursuant to Terry v. Ohio, which did not trigger the Miranda rights. As noted above, agent Andaluz had ample evidence to intervene with the defendants to dispel his suspicion regarding possible criminal activity. The agent had garnered information from Juanito Fiel and the people arrested at the San Juan Pier regarding the pickup point of the cocaine shipment. He also had
4890	By the same token, though, the evidence may be viewed as cumulative, and therefore not unfairly prejudicial. Conceivably, the evidence of the Fernandezes’ rather lukewarm cooperation with the FBI and of their relationship with one of the kidnappers, see supra note 11, would have damaged the family’s reputation, with or without- amplification by the prior convictions and the cache of weapons. Our review of a district court’s weighing of the probative value and prejudicial ef- feet of evidence is notoriously constrained. See Pinkham v. Burgess, 933 F.2d 1066, 1071 (1st Cir.1991) (“ ‘Only rarely — and in extraordinarily compelling circumstances— will we, from the vista of a cold appellate record, reverse a district court’s on the spot judgment....”’) (quoting Freeman v. Package Machinery Co., 865 F.2d 1331, 1340 (1st Cir.1988)). This is especially so where, as here, the record admits of more than one reasonable interpretation. Extending the district court’s decision the great deference it deserves, and finding no harm after reviewing the record as a whole, we must affirm. D. The Post-Judgment Motions Following a twelve-day trial, and roughly an hour of deliberation, the jury returned a verdict for the defendants. Plaintiffs subsequently moved for relief from the adverse judgment and for a new trial under Fed.R.Civ.P. 59 and 60(b)(3) and (6). The district court denied both motions. The Fernandezes contend that their motions should have been granted on the basis of the alleged errors addressed by us in Parts II A-C of this opinion, and because the jury
2520	“Proof that a letter properly directed was placed in a U.S. post office mail receptacle creates a presumption that it reached its destination in the usual time and was actually received by the person to whom it was addressed.” Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir.1989); see also U.S. v. Wilson, 322 F.3d 353, 362-63 (5th Cir.2003). Defendants need not prove actual receipt of the Notice or New Agreement; rather, proof of receipt “may be accomplished by presenting circumstantial evidence, including evidence of customary mailing practices used in the sender’s business.” Marsh v. First USA Bank, N.A., 103 F.Supp.2d 909, 918 (N.D.Tex.2000) (citing Wells Fargo Bus. Credit v. Ben Kozloff, Inc., 695 F.2d 940, 944 (5th Cir.1983)); Myer v. Callahan, 974 F.Supp. 578, 584 n. 7 (E.D.Tex.1997). In addition, the affiant in support of the mailing need not have personal knowledge of the letter’s mailing, but “at a minimum the affiant must have personal knowledge of the procedures in place at the time of mailing.” Burton v. Banta Global Turnkey Ltd., 170 Fed.Appx. 918, 924 (5th Cir. Mar.23, 2006) (citing Feb.R.Evid. 602). The court finds that the totality of the factual record does not establish that plaintiffs received the Notice or the New Agreement. Indeed, Ms. Koehler’s declaration is lacking certain key facts that other courts (including in some of the cases cited by defendants) have found significant in finding that a presumption of receipt had been established. For one thing, Ms. Koehler does not aver
3506	industry.” Id.; see also Fung, 816 F.Supp. at 572. The official must have direct and detailed control over the defendant. Fung, 816 F.Supp. at 572; Good v. Armstrong World Indus., Inc., 914 F.Supp. 1125, 1128 (E.D.Pa.1996). Direct and detailed control is established by showing strong government involvement and the possibility that a defendant could be sued in state court as a result of the federal control. Pack v. AC and S, Inc., 838 F.Supp. 1099, 1103 (D.Md.1993); Fung, 816 F.Supp. at 572. “The issue is not simply whether the defendants acted under [federal] officials but whether they are in danger of being sued in state court ‘based on action taken pursuant to federal direction.’ ” Ryan, 781 F.Supp. at 950 (quoting Gulati v. Zuckerman, 723 F.Supp. 353, 358 (E.D.Pa. 1989)); see also Brown & Williamson Tobacco Corp., 913 F.Supp. at 532-33 (holding that the suit to be removed must be based on activities performed under federal direction); Bakalis v. Crossland Sav. Bank, 781 F.Supp. 140, 144 — 45 (E.D.N.Y.1991) (holding the particular conduct being sued upon must be closely linked to detañed and specific regulations). Armco must also prove “a federal nexus between the actions for which [it is] being sued and the directives of federal officers.” Ryan, 781 F.Supp. at 945. The nexus requirement is established by showing that the state prosecution “has arisen out of the acts done by [the defendant] under color of federal authority and in enforcement of federal law.” Mesa, 489 U.S. at 131-32, 109
613	before her death, Miss Baum executed a document renouncing her retained right to the income in favor of the Heller children. As a result of that action, the petitioners say, Miss Baum had no interest in the trust property at the time of her death, and it should not be included in her taxable estate. Whether so or not depends upon whether she relinquished her life right to the income in contemplation of her death; for, if she did, the transfer in trust continued to be taxable. Obviously she could not render non-taxable a previous transfer which was clearly taxable by renouncing, in contemplation of death, the reserved interest which had made it taxable. It has been so held. Allen v. Trust Company, 1946, 326 U.S. 630, 633, 66 S.Ct. 389, 90 L.Ed. 367. See also In re Thurston’s Estate, 1950, 36 Cal.2d 207, 223 P.2d 12, 14, where it was said: “Even though a tax attaches to a transfer when the transferor has reserved a life estate in the property, however, it can be avoided by the subsequent relinquishment of the life estate before the death of the transferor, if such relinquishment is not made in contemplation of death.” (Emphasis supplied.) The Board of Tax Appeals found as a fact, upon ample evidence, that Miss Baum executed the document of renunciation in contemplation of death and said in its opinion: “There remains for consideration the effect of the document executed on January 28, 1949, * * * “A short
3547	It did not go on to determine the purely legal issue of whether the law was so clearly established that a reasonable official would have known his conduct violated that law — known as the “second prong” of the test. Therefore, goes CHI’s argument, our review cannot be separated from the merits of the case, and we have no jurisdiction to consider the issue. It is true that when reviewing a denial of qualified immunity, “our appellate jurisdiction is limited to questions of law.” Robinson, 566 F.3d at 821. However, we have power to consider qualified immunity even where facts are disputed, so long as we “assum[e] that the version of the material facts asserted by the non-moving party is correct.” Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir.2001) (per curiam). We have made such an assumption and thus have jurisdiction to consider the second prong of Saucier’s test. It would be quite incongruous if a public official’s right to an immediate appeal from a denial of qualified immunity were to evaporate simply because the district court failed or chose not to complete the required Saucier analysis. B. Forfeiture The individual defendants did not specifically raise in the district court the defense of qualified immunity with respect to the FHA claims. CHI thus urges that we find the issue forfeited and refuse to consider it. We do note, however, that the individual defendants including Chatterton and Birdsall did generally raise this issue in their amended memorandum in support of
2567	alleges that Deputy Prosecutor Meteiver prepared the plea agreement and knew he was improperly sentenced. Finally, he asserts that Sheriff Brooks “is aware of [his] situation and circumstances ... [and] ... is guilty of unlawful incarceration.” (Complaint at p. 4). To the extent Mr. Hansborough asks the court to order his release from custody, he states no claim upon which relief can be granted under § 1983. “Habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983.” Heck v. Humphrey, 512 U.S. 477, 481, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), citing Preiser v. Rodriguez, 411 U.S. 475, 488-490, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Mr. Hansborough seeks to sue Judge Rieckhoff for damages, but judges are not liable for damages in civil actions for their judicial acts unless they have acted in the clear absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). A judge will not be deprived of immunity because the action he took was in error, was done maliciously or was in excess of his authority. Stump v. Sparkman, 435 U.S. at 356-357, 98 S.Ct. 1099. A judge is absolutely immune for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors. Stump v. Sparkman, 435 U.S. at 359,
1931	MEMORANDUM Shawn Jackson appeals his conviction for receipt of child pornography in viola tion of 18 U.S.C. § 2252A(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the facts, we recite them only as necessary. The district court may have abused its discretion by overruling Jackson’s objection at trial to admitting into evidence the still photo images of child pornography found in his computers’ Temporary Internet Files and unallocated space. The government failed to present foundational evidence that Jackson “exercised dominion and control over the images.” United States v. Romm, 455 F.3d 990, 998 (9th Cir.2006); see United States v. Kuchinski, 469 F.3d 853, 863 (9th Cir.2006). However, in view of the properly admitted evidence that Jackson exercised dominion and control over thirteen videos of child pornography, any error was harmless. See United States v. Schales, 546 F.3d 965, 976 (9th Cir.2008) (holding that a district court’s erroneous ruling “will be reversed only if such error more likely than not affected the verdict”). Additionally, the district court did not abuse its discretion by questioning Agent Weg, and therefore, did not commit judicial misconduct. See Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir.1995) (holding that it “is perfectly appropriate for a judge to take part where necessary to clarify testimony and assist the jury in understanding the evidence”); United States v. Parker, 241 F.3d 1114, 1119 (9th
3858	offer. We think it a reasonable inference that during those thirteen years CIA was able to build up substantial good-will for its general insurance services under the Commerce mark. It not only sold general insurance continuously during this period but also expanded to larger offices. Moreover, we note that in the context of a reverse confusion case, the evidentiary burden upon a smaller, senior user to establish the existence of secondary meaning is placed somewhat lower. See Elizabeth Taylor Cosmetics Company, Inc. v. Annick Goutal, 673 F.Supp. 1238, 1248 (S.D.N.Y.1987)(“[A] minimal showing of secondary meaning is required in a reverse confusion case.”). Otherwise, “a larger company could with impunity infringe the senior mark of a smaller one.” Banff, Ltd. v. Federated Dep’t Stores, Inc., 841 F.2d 486, 491 (2d Cir.1988). For these reasons, we conclude that CIA’s proffered evidence is sufficient to support a finding of secondary meaning in the insurance industry. B. Turning now to the question of ownership, there is sufficient evidence in the record from which the District Court may reach the conclusion that CIA owns the Commerce mark within the insurance services industry of southern New Jersey. CIA began using the mark in that industry in 1983; CNIS did not commence its use until 1996. C. Finally, we turn to the issue of reverse confusion. This Court adopted the doctrine of reverse confusion in Fisons Horticulture, Inc. v. Vigoro Industries, Inc., 30 F.3d 466 (3d Cir.1994). In so doing, we explained that “[r]everse confusion occurs when
1784	1108 (2003) (collecting cases). Because the claims “do not stand alone”, however, they must be interpreted in light of the specification. As the Federal Circuit reiterated in Phillips, “the specification ‘is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.’ ” Phillips, 415 F.3d at 1315 (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996)). Moreover, where the same term appears in more than one claim, it is presumed that the terms have “the same meaning unless it is clear from the specification and prosecution history that the terms have different meanings at different portions of the claims.” Fin Control Sys. Pty, Ltd. v. OAM, Inc., 265 F.3d 1311, 1318 (Fed.Cir. 2001). Once the claims have been construed, the analysis requires that the claim in question “be compared to the accused device or process.” PC Connector Solutions LLC, 406 F.3d at 1362. It is at this second step that a determination of infringement is made; whether a device infringes literally or under the doctrine of equivalents is a question of fact. Lockheed Martin Cow■ v■ Space Sys./Loral, Inc., 324 F.3d 1308,1318 (Fed.Cir.2003). “To establish literal infringement, every limitation set forth in a claim must be found in an accused product, exactly.” Southwall Tech., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed.Cir.), cert, denied, 516 U.S. 987, 116 S.Ct. 515, 133 L.Ed.2d 424 (1995). If even a single limitation is not
3062	Wright, Miller & Kane, supra, § 2725 at p. 419. “Not every genuine factual conflict necessitates a trial. It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared.” Martinez v. Colón, 54 F.3d 980, 983-984 (1st Cir.1995). In addition, when determining whether to grant summary judgment, the Court may not weigh the evidence. Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668 (1st Cir.1994). Summary judgment “admits of no room for credibility determinations, [and] no room for the measured weighing of conflicting evidence such as the trial process entails.” Id. (citing Greenburg v. Puerto Rico Maritime Shipping Authority, 835 F.2d 932, 936 (1st Cir.1987)). Accordingly, if the facts permit more than one reasonable inference, the court on summary judgment may not adopt the inference least favorable to the non-moving party. Casas Office Machines, 42 F.3d at 684. While the moving party has the burden of initially establishing that there is “an absence of evidence to support the non-moving party’s case,” Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1984); the nonmovant has a “corresponding obligation to offer the court more than steamy rhetoric and bare conclusions.” Lawton v. State Mutual Life Assurance Company of America, 101 F.3d 218, 223 (1st Cir.1996). Furthermore, “the nonmovant must produce specific facts, in suitable evidentiary form sufficient to limn a trialworthy issue ... Failure to do so allows
2724	motion, found that Chen had failed to make such a showing, because (1) his alleged changed personal conditions did not meet the requirements for an untimely motion to reopen filed under 8 C.F.R. § 1003.2(e)(3)(ii); and (2) while Chen had submitted, in support of his motion, corroborative documents — including the 2003 decisions — and affidavits of three female relatives who claimed to have been sterilized in China for having violated the family planning policies, this evidence would, at most, only establish “the ‘continued’ implementation of policies rather than a material change in policies.” DISCUSSION Chen now petitions this court for review of the BIA’s order denying his untimely motion to reopen. We review such a denial for abuse of discretion. Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). Despite the agency’s discretion, we have made clear, however, that “IJs and the BIA have a duty to explicitly consider any country conditions evidence submitted by an applicant that materially bears on his claim” and that “a similar, if not greater, duty arises in the context of motions to reopen based on changed country conditions.” Shou Yung Guo, 463 F.3d at 115 (citations and internal quotation marks omitted). Following the BIA’s denial of Chen’s untimely motion to reopen, this court, in Shou Yung Guo, 463 F.3d at 114-15, recognized the existence of documents that, if genuine, may constitute evidence of “a new policy in Changle City” of forcible sterilization. Id. at 114 (emphasis added). Since then, the government has consented
988	a bankruptcy court, the district court reviews the bankruptcy court’s determination regarding summary judgment nondeferentially (commonly referred to as de novo review as distinguished from review for abuse of discretion). See Wyner v. North American Specialty Ins. Co., 78 F.3d 752, 754 (1st Cir.1996). Under the law of this circuit, a court (and I conclude this rule applies to a bankruptcy court as well as a district court, when deciding a motion for summary judgment) may use a two-phase process in deciding a motion for summary judgment. Under that process, the movant first has to make a preliminary showing that no issue of material fact remains, and then the nonmovant must “demonstrate, through specific facts, that a trial-worthy issue remains.” Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997). After a preliminary showing by the moving party, the burden shifts to. the nonmovant to “produce evidence which would be admissible at trial to make the requisite issue of material fact.” Fragoso v. Lopez, 991 F.2d 878, 887 (1st Cir.1993). If the nonmovant is unable to proffer such evidence to the court, judgment as a matter of law may be ordered because the nonmovant has failed to show that a genuine dispute exists as to any material fact. In reviewing the bankruptcy court’s decision in which the bankruptcy court may have acted under the authority of the Hayes and Fragoso decisions, the district court reviews nondeferentially (de novo) as explained in Wyner in relation to issues of law, and for
85	sought by the plaintiff and granted by the court has been considered to be an injunction for the purposes of § 1292(a)(1) if it is relief that ... could have been granted, in equity.” Id. ¶ 110.20[1], at 220. The district court’s order relating to the adequacy of the temporary LPR documentation is, therefore, properly before us. B. Standing The INS also advances a jurisdictional argument. It contends that the plaintiff class lacks standing to maintain this action. The central question regarding the standing doctrine is “whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962)) (emphasis added in Warth, 422 U.S. 490, 95 S.Ct. 2197). The Supreme Court has broadly defined the constitutional requirements that a litigant must satisfy to establish standing: Art. Ill requires the party who invokes the court’s authority to show [1] that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury [2] fairly can be traced to the challenged action and [3] is likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State,
4646	the crime charged against Petitioner rendering his conviction infirm. As such, Petitioner is entitled to a Writ of Audita Querela vacating and setting aside his conviction in the United States District Court for the District of Oregon in United States v. Erickson, Case No. 68-89. II. Expungement of Record of Conviction Vacating or setting aside a conviction under the remedies discussed above is not the equivalent of expungement. “When a court vacates a conviction, it sets aside or nullifies the conviction and its attendant legal disabilities; the court does not necessarily attempt to erase the fact of the conviction.” Crowell, 374 F.3d at 792 (citation omitted). Likewise, a pardon which acknowledges guilt, but forgives it, is distinct from expungement of records. Burdick v. U.S., 236 U.S. 79, 90, 35 S.Ct. 267, 59 L.Ed. 476 (1915). Expungement, by contrast, involves “the judicial editing of history.” Id. (citation omitted). Two sources of authority provide a federal court with the limited power to expunge records of federal criminal conviction: statutes and the court’s inherent authority. Id. There is no general federal expungement statute, and the statutes allowing expungement in particularized instances are not applicable here. Nevertheless, “federal courts have inherent authority to expunge criminal records in appropriate and extraordinary cases.” Id. at 793. District courts, however, do not “have the power ‘to expunge a record of a valid arrest and conviction solely for equitable considerations.’ ” Id. (quoting United States v. Sumner, 226 F.3d 1005, 1014 (9th Cir.2000)). If a person who has
1697	well have assumed a fiduciary relationship with Rozsa in connection with the agreed upon transaction. See Press v. Chemical Investment Services Corp., 166 F.3d 529, 536 (2d Cir.1999) (discussing split among New York courts about existence and scope of fiduciary duty ordinary broker owes to investor). In contrast, the complaint specifically alleges that SG Cowen was the “clearing broker” for May Davis. (Compl.M 5, 23.) Clearing brokers, unlike “introducing brokers,” generally have agreements with other broker-dealers, rather than individual investors, governing the mechanics of order entry, confirmation and the completion of trades. See id. Due to this contracting scheme, New York courts have held that clearing brokers generally have no fiduciary duty to individual investors. See Edwards & Hanly v. Wells Fargo Securities, Corp., 602 F.2d 478, 484 (2d Cir.1979) (“a clearing agent, is generally under no fiduciary duty to the owners of securities that pass through its hands”) (citation omitted), cert. denied 444 U.S. 1045, 100 S.Ct. 734, 62 L.Ed.2d 731 (1980); Connolly v. Havens, 763 F.Supp. 6, 10 (S.D.N.Y.1991) (same); Dillon v. Militano, 731 F.Supp. 634, 636 (S.D.N.Y.1990) (same); Stander v. Financial Clearing & Services Corp., 730 F.Supp. 1282, 1286 (S.D.N.Y.1990) (same). This holds true even where, as here, the clearing broker holds an investor’s funds for trading. Flickinger v. Harold C. Brown & Co., Inc., 947 F.2d 595, 597, 599 (2d Cir.1991) (finding that clearing broker that kept custody of investor’s funds and securities had no fiduciary duty to him). Clearing brokers may have a fiduciary duty
4213	(Wilkinson, C.J., dissenting) (“[A] voluntary change in conduct[,] formalized in a legally enforceable settlement agreement^ will] transform a plaintiff into a prevailing party for purposes of § 1988.”), adopted as majority opinion, 21 F.3d 49, 51 (4th Cir.1994) (en banc). b. The State also challenges the awards of attorney’s fees in the February 16, May 29, and August 30, orders, arguing that the district court abused its discretion when it failed to expressly consider all the factors articulated in Barber v. Kimbrell’s Inc., 577 F.2d 216 (4th Cir.1978). “It is well settled that district courts have considerable discretion in awarding attorneys’ fees, and we must not overturn an award by the district court unless it is clearly wrong.” Colonial Williamsburg Foundation v. Kittinger Co., 38 F.3d 133, 138 (4th Cir.1994) (citation omitted). We have enunciated twelve factors that the district court must consider when determining the reasonableness of an attorney fee request. See Barber, 577 F.2d at 226 n. 28. We have also held that any award of attorney’s fees must be accompanied by detañed findings of fact with regard to the factors. See id. at 226. With that having been said, we conclude that the State forfeited any error made by the district court in failing to expressly address the Barber factors in each of the appealed orders. In its February 16 order, the district court set forth its “Fee application procedures” for counsel. It instructed both parties as follows: The court wül not require plaintiffs to file affidavits
1110	AND EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO SEEK SUCH DAMAGES. All costs of mediation or arbitration shall be evenly divided between the parties, exclusive of each party’s legal fees, each of which shall be borne by the party that incurs them. Id. at 8. II. Legal Standard—Motion to compel arbitration The United States Court of Appeals for the Third Circuit recently “clar-if[ied] the standards to be applied to motions to compel arbitration, identifying the circumstances under which district courts should apply the standard for a motion to dismiss, as provided by Rule 12(b)(6) of the Federal Rules of Civil Procedure, and those under which they should apply the summary judgment standard found in Rule 56.” Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 767 (3d Cir.2013). As the Court of Appeals instructed, “when it is apparent, based on ‘the face of a complaint, and documents relied upon in the complaint,’ that certain of a party’s claims ‘are subject to an enforceable arbitration clause, a motion to compel arbitra tion should' be considered under a Rule 12(b)(6) standard without discovery’s delay.’ ” Id. at 776 (quoting Somerset Consulting, LLC v. United Capital Lenders, LLC, 832 F.Supp.2d 474, 482 (E.D.Pa.2011)). However, if the complaint and its supporting documents are unclear regarding the agreement to arbitrate, or if the plaintiff has responded to a motion to compel arbitration with additional facts sufficient to place the agreement to arbitrate in issue, then “the parties should be entitled to discovery on
3502	v. FMC Corp., 770 F.2d 556, 574 n. 24 (5th Cir.1985). In doing so, however, the court recognized the difficulty a defendant will have under Boyle in “establishing an identifiable federal interest or policy in the existence or method of warning and a significant conflict between that federal interest or policy and the operation of state law.” Gamer, 865 F.2d at 635-36; see also In re Hawaii Fed. Asbestos Cases, 960 F.2d 806, 813 (9th Cir.1992) (“Boyle displaces state law only when the Government, making a discretionary, safety-related military procurement decision contrary to the requirements of state law, incorporates this decision into a military contractor’s contractual obligations, thereby limiting the contractor’s ability to accommodate safety in a different fashion.”); Dorse v. Eagle-Picher Indus. Inc., 898 F.2d 1487, 1489 (11th Cir.1990) (holding that the government contractor defense could only arise in situations where the government prohibits a specific warning which prevents the contractor from complying “with both its contractual obligations and the state-prescribed duty of care”). For purposes of satisfying its burden under § 1442(a)(1), Armco does not have to establish a meritorious federal defense, only a colorable claim. The Court finds that this burden has been met. Having concluded that Armco has raised a colorable defense to the Estate’s claims, the Court must next determine whether Armco was acting under the authority of a federal officer and whether a causal connection or nexus exists between Armco’s conduct under federal direction and the Plaintiffs state action. Armco claims that at all
4361	preclusion is sought could not, as a matter of law, have obtained review of the judgment in the initial action. Restatement (Second) of Judgments § 28(1). Although this section of the Restatement clearly advises against applying issue preclusion to unappealable orders for remand, such as the remand order in Agostini, our Court of Appeals has not had occasion to rule on this specific question. In one fine of cases, it has determined that finality for purposes of issue preclusion “does not require the entry of a judgment final in the sense of being appealable.” Burlington N. R.R. v. Hyundai Merck Marine Co., 63 F.3d 1227, 1233 n. 8 (3d Cir.1995) (citing In re Brown, 951 F.2d 564, 569 (3d Cir.1991) and Dyndul v. Dyndul, 620 F.2d 409, 412 n. 8 (3d Cir.1980)). It has further stated that issue preclusion, instead applies “whenever an action is sufficiently firm to be accorded conclusive effect.” Id. In Dyndul, it noted that finality “may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.” 620 F.2d at 412 n. 8. None of these cases, as noted above, involved jurisdictional issues previously litigated in a motion to remand. In a more recent case, our Court of Appeals followed these earlier precedents in determining that a state jury’s damages verdict in a bifurcated trial had the requisite finality for issue preclusion where the case was
1429	dismissal under the doctrine of avoidance of duplicative litigation as espoused in Colorado River Water. ABSTENTION The last issue raised by the defendants is whether the Court should dismiss or stay the action under either the Pullman or Bur-ford theory of abstention. 1. The Pullman Doctrine In order to avoid deciding a federal constitutional question prematurely or unnecessarily, the Supreme Court in Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), developed a doctrine to allow a federal court to retain jurisdiction over an action, yet stay the action to allow the state court to rule on matters of state law that may be dispositive of the action. In Canton v. Spokane School Dist. No. 81, 498 F.2d 840, 845 (9th Cir. 1974), the Ninth Circuit set forth the well-established standards for applying this Pullman abstention: (1) The complaint “touches a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.” (2) “Such constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy.” (3) The possibly determinative issue of state law is doubtful. After applying these criteria to the present action, the conclusion that Pullman abstention is appropriate, is inescapable. This action involves issues of complex land use planning. The Ninth Circuit has already held that land use planning is today a sensitive area of social policy meeting the first Canton requirement.
2864	“130 W. 74th St., Basement Apt., New York, N. Y.” The defendant argued that this description was insufficient for- the reason that the premises were a multi-unit apartment house in which there were located more than one basement apartment. While the search warrant was upheld in both Ramos and Goméz, those cases 'are factually distinguishable from the situation presented here. As in Owens, supra, the external appearance of the building gave no clue that there was more than one basement apartment. Furthermore, as stated by the court in Ramos, 282 F. Supp. at 355, “[I]t would have been impossible to discover that there was more than one basement apartment until after the rooms in the basement had been searched.” In United States v. Santore, 290 F.2d 51 (2d Cir.1960), cert. denied, 365 U.S. 834, 81 S.Ct. 749, 5 L.Ed.2d (1961), the defendant also moved to have certain evidence suppressed on the grounds that the search warrant under which Federal agents had entered his apartment and seized the material was invalid for failure to particularly describe the place to be searched. The description contained in the warrant identified “the premises known as 164 Hill Street, Elmont, Long Island, New York, being a one family house.” The defendant contended that since the house was not a one-family house, but two-family, being occupied by two families, the warrant was fatally defective. While the warrant was held not to be invalid, and while the facts are, in general, quite similar to those presented here,
4849	expenses. Specifically, a bankruptcy court would be required to evaluate each documented, child-related expenditure not covered under the standardized deduction provisions, and make an individualized determination as to whether a given expense was “reasonably necessary.” The result would be an exceedingly complicated disposable income calculation. However, Congress amended the Bankruptcy Code in 2005 precisely in order to avoid such complex calculations. Prior to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of .2005 (“BAPCPA”), Pub.L. No. 109-8, 119 Stat. 23 (codified at 11 U.S.C. § 101 et seq.), debtors’ reasonable expenditures were calculated on a case-by-case basis, which “required judges to make significant value judgments, leading to a wide diversity of rulings on whether particular expenses were justifiable,” In re Slusher, 359 B.R. 290, 294 (Bankr.D.Nev.2007), and resulting in “varying and often inconsistent determinations.” Ransom, 562 U.S. at 65, 131 S.Ct. 716 (citing In re Slusher, 359 B.R. at 294). Following the BAPCPA’s adoption of the standardized means test for above-median debtors, “the determination of disposable income is now meant to be a simple and straightforward matter of arithmetic based on sections 707(b)(2)(A) and (B).” In re Farrar-Johnson, 853 B.R. 224, 232 (Bankr.N.D.Ill.2006). By utilizing the IRS National and Local Standards as a proxy for individualized calculations, the BAPCPA permits debtors to claim expenses “without any judicial consideration of whether those expenses are in fact ‘reasonably necessary.’ ” Id. The trustee’s proposal would turn this system on its head. While the trustee correctly notes that Congress amended
1292	shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues. By the plain language of this rule, this court has discretion to grant or deny a jury trial to a party failing to file a Rule 38(b) request. The Tenth Circuit has advised that a request for jury trial should be granted in the absence of “strong and compelling reasons to the contrary.” Green Const. Co. v. Kansas Power & Light Co., 1 F.3d 1005, 1011 (10th Cir.1993) (citing AMF Tuboscope, Inc. v. Cunningham, 352 F.2d 150, 155 (10th Cir.1965)). Liberally interpreting the arguments in the various briefs, Owen presents seven reasons why this court should deny plaintiffs request. First, Goff missed the deadline for requesting a jury trial as a matter of right under Rule- 38. This fact alone hardly provides a “strong and compelling” reason to deny a request brought under Rule 39. Presumably, every request for jury trial brought under Rule 39 is due to the failure to demand a jury trial under Rule 38. Owen next argues Goff was not required to file the second case or to amend her pleading in the first case, so she is not entitled to ask for a jury trial under Rule 38 either as part of the second case
2769	facts to its attorneys. Perhaps the opinion letter made factual assumptions that Eco Manufacturing knew or should have known were simply incorrect. Perhaps Eco Manufacturing officials who read the opinion knew enough applicable law to see a glaring omission in the legal analysis. Perhaps after Eco Manufacturing received an earlier draft opinion, it put some form of pressure on its attorneys to obtain a more favorable opinion. Id. at *6 (footnotes omitted). The same reasoning applies to the case at hand and, therefore, BASF cannot obtain counsel’s work product which was not communicated to Reilly. In making this determination, the Court is cognizant of the concerns noted by courts following the broader waiver point of view. See Mosel Vitelic Corp. v. Micron Technology, Inc., 162 F.Supp.2d 307, 312 (D.Del.2000) (narrow view has “effectively encouraged patent counsel to place only the most favorable version of the facts and the law in their opinion letters, even if these attorneys are aware of other information which is far less helpful to their client.”); Cordis Corp. v. SciMed Life Systems, Inc., 980 F.Supp. 1030, 1034 n. 1 (D.Minn.1997). While noting that the narrower view point “creates some risk‘that intentional infringement (of patent or trademark rights) could be obscured by reliance upon deliberately incompetent opinions,” the Eco court found that other factors outweighed those risks. Eco, 2003 WL 1888988 at *8 (broad approach “creates substantial risk of confusion and wasted time”; no “compelling reason for believing attorney’s private papers and thoughts would be probative of
4637	but that does not produce such a frustrating result here. Statutory and Constitutional Framework It is well-settled that a state may confer on its employees a degree of job security so great that the job becomes a form of “property” within the meaning of the Due Process Clause of the Fourteenth Amendment (Board of Regents v. Roth, 408 U.S. 564, 576-77, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Hohmeier v. Leyden Community High Schools Disk 212, 954 F.2d 461, 463-65 (7th Cir.1992)). When a job becomes “property” the state may not take it away without notice and a hearing — though “this procedure need not be elaborate and can be satisfied with less than a full evidentiary hearing” (Smith v. Town of Eaton, 910 F.2d 1469, 1472 (7th Cir.1990), citing Cleveland Board of Educ. v. Loudermill, 470 U.S. 532, 547, 105 S.Ct. 1487, 1496, 84 L.Ed.2d 494 (1985)). Failure to provide due process is actionable under Section 1983, the all-purpose statutory vehicle for compensating the victims of constitutional torts. Section 5-156 provides in relevant part: A disabled policeman who receives duty or ordinary disability benefit shall be examined at least once a year by one or more physicians appointed by the board. When the disability ceases, the board shall discontinue payment of the benefit, and the policeman shall be returned to active service. Buttitta claims that the final sentence of Section 5-156 confers a property interest in reinstatement upon any officer whom the Board finds no longer disabled. He
415	72 F.3d 1305 (7th Cir.1995), demonstrates that the escrow arrangement ordered by the LPSC is appropriate and that interest is not owed for the postpetition period. We need not and do not decide the difficult question whether the bankruptcy court had any authority under § 105(a) to enjoin the LPSC’s consideration of a rate decrease based on the suspension of Cajun’s debt service or to terminate the escrow established by the LPSC’s rate order. Assuming, without deciding, that the bankruptcy court did have such authority under § 105(a), we conclude that in these circumstances the court’s issuance of such an injunction and termination of the escrow amounted to an abuse of discretion. See Indian Motocycle Assocs. Ill Ltd. Partnership v. Mass. Hous. Fin. Agency, 66 F.3d 1246, 1249 (1st Cir.1995) (“A bankruptcy court’s decision granting or denying injunctive relief pursuant to Bankruptcy Code § 105(a) is reviewed only for abuse of discretion.”); Commonwealth Oil Refining Co. v. United States Environmental Protection Agency (Matter of Commonwealth Oil Refining Co.), 805 F.2d 1175, 1188 (5th Cir.1986) (reviewing bankruptcy court’s refusal to grant stay under § 105(a) for abuse of discretion); see also Cargill, Inc. v. United States, 173 F.3d 323, 341 (5th Cir.1999) (stating that a court abuses its discretion in granting injunctive relief when it “relies on erroneous conclusions of law, or ... misapplies its factual or legal conclusions”). A. Cajun as a Regulated Utility We begin our analysis of the bankruptcy court’s injunction preventing the LPSC from considering a rate
3112	rates of pay, rules, or working conditions.” 45 U.S.C. § 184. Nothing in ERISA’s legislative history supports such a sweeping change in the treatment of Railway Labor Act claims. To the contrary, Congress’s enactment of ERISA, which opened the federal courts to suits over the interpretation of pension plans, did not modify the exclusivity of this pattern of the Railway Labor Act. ERISA explicitly provides: “Nothing in this sub-chapter shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States (except as provided in sections 1031 and 1137(b) of this title) or any rule or regulation issued under any such law.” 29 U.S.C. § 1144(d). 994 F.2d at 695 (9th Cir.1993) (citations omitted). See also Hastings v. Wilson, 516 F.3d 1055, 1059 (8th Cir.2008) (rejecting argument that “Congress did not intend the RLA’s mandatory arbitration scheme to apply to ERISA claims”); Jenisio, 187 F.3d at 973 n. 5 (“ERISA, which was enacted after the RLA, does not affect our analysis of the RLA’s mandatory arbitration provision”); Coker v. Trans World Airlines, Inc., 165 F.3d 579 (7th Cir.1999) (finding RLA provision applied to ERISA claims, but particular claim not barred since it was a “major dispute”). This thus leaves Pearson’s primary argument that this action cannot be categorized as a “minor dispute” falling under the exclusive jurisdiction of the system board of adjustment. Opp’n at 2-3. If this is such a dispute, though, she claims it is a “major” one and not a “minor” one.
4011	liability arises when one “sells within the United States ... a[n] apparatus for use in practicing a patented process, constituting a material part of the invention, knowing the same to be especially made or especially adapted for use in an infringement of such patent, and not a staple article or commodity of commerce suitable for substantial noninfringing use____” 35 U.S.C. § 271(c). To succeed on a claim of contributory infringement, Plaintiffs must show Defendant “knew that the combination for which its components were especially made was both patented and infring ing.” Golden Blount, Inc. v. Robert H. Peterson Co., 365 F.3d 1054, 1061 (Fed.Cir.2004) (citation omitted). Plaintiffs must also “show that [Defendant’s] components have no substantial noninfringing uses.” Id. (citing Alloc, Inc. v. ITC, 342 F.3d 1361, 1374 (Fed.Cir.2003)). Plaintiffs have shown that Defendant knew of the '833 patent at least since the notice letters were sent in January 1998, and such letters are enough to satisfy the intent requirement of § 271(c). See Trell v. Marlee Electronics Corp., 912 F.2d 1443, 1447 (1990) (explaining that “the knowledge requirement of section 271(c) limited an alleged contributory infringer’s liability to sales made after it received a letter from the patent holder informing it of the existence of the patent.” (quoting Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488, 84 S.Ct. 1526, 12 L.Ed.2d 457 (1964))). Plaintiff also points to Rueckert’s statement that his Ultra was “designed to permit drive on docking for personal water crafts and small
4728	“did drive on King Street, which crosses into Connecticut for forty-five seconds to reach a portion of his route ... once per month,” but stating that he “did not collect any waste in Connecticut”); see also Cartalemi Deck ¶ 22; id. Ex. E (Google Maps screenshots showing Plain tiffs alleged routes).) Defendants argue that even-this minimal interstate activity is sufficient to. bring Plaintiff within the motor carrier exemption, while Plaintiff argues that such de minimis interstate activities are insufficient. Indeed, courts have applied “[t]he de minimis .rule,” and thus have held that the motor carrier exemption did not apply, “where the employee’s connection with anything affecting interstate motor carrier operations was so indirect and casual as to be trivial.” Crooker v. Sexton Motors, Inc., 469 F.2d 206, 210 (1st Cir.1972) (italics omitted) (citing Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695, 708, 67 S.Ct. 954, 91 L.Ed. 1184 (1947)). However, “[i]n determining whether an employee’s activities ... are de minimis, it is important to focus on ‘the character of the activities rather'than the proportion of either the employee’s time or of his activities.’ ” Masson v. Ecolab, Inc., No. 04-CV-4488, 2005 WL 2000133, at *7 (S.D.N.Y. Aug. 17, 2005) (quoting Levinson v. Spector Motor Serv., 330 U.S. 649, 674-75, 67 S.Ct. 931, 91 L.Ed. 1158 (1947)). Because courts focus on the character of the activities, instead of the proportion of time involved in interstate activity, in determining whether an employee’s interstate activities are de minimis, courts are hesitant to
275	in drug sales would allow a reasonable jury to find that his right to a fair trial had been violated is without merit. e. Qualified Immunity An officer is entitled to qualified immunity from a § 1983 suit if his conduct did not violate a plaintiffs clearly established constitutional rights. See, e.g., Mandell v. County of Suffolk, 316 F.3d 368, 385 (2d Cir.2003). Because of my ruling that the officers are entitled to summary judgment on plaintiffs false arrest, malicious prosecution, abuse of process, and fair trial claims, it is unnecessary to address the defense of qualified immunity. IV. Municipal Liability Defendant City of New York moves under Rule 12(c) for judgment on plaintiffs municipal liability claim under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization’s failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir.2006). Because I have determined above that plaintiff has not established any underlying constitutional violations, his Monell claims are dismissed. V. Supplemental Jurisdiction for State Law Claims Federal courts may exercise supplemental jurisdiction when the state and federal claims are part of “a common nucleus of operative fact.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
1244	"own criteria, irrespective of local law, for determining in what instances suits are to be removed....”); Williams v. Beemiller, Inc., No. 05-CV-836S, 2009 WL 1812819, at *4 (W.D.N.Y. June 25, 2009) (""The removal statute is construed according to federal law.”). Thus, to be an initial pleading for removal, the summons with notice must meet the federal requirement that the amount in controversy is intelligently ascertainable, not the New York state requirement that an amount of damages be specified in case of default. See Universal Motors, 674 F.Supp. at 1113 (“[T]o constitute an ‘initial pleading' under the federal statute, the summons with notice ... need only have allowed the defendants [to] intelligently [] ascertain removability.” (emphasis in original)); see also Flood v. Celin Jewelry, Inc., 775 F.Supp. 700, 701 (S.D.N.Y.1991) (summons with notice adequately alleged federal question jurisdiction and was removable despite not specifying damages amount in notice). As explained above, federal courts allow a defendant to remove when the amount in controversy in a complaint is not specified, so long as the defendant can show a reasonable probability that the damages exceed $75,000. See Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir.2000). If defendants can intelligently ascertain the amount in controversy from a complaint that does not specify the precise amount of damages, see Burr ex rel. Burr v. Toyota Motor Credit Co., 478 F.Supp.2d 432, 438 (S.D.N.Y.2006), there is no reason why Defendants here cannot intelligently ascertain the damages from a summons with notice that"
4414	Mgmt. LLC, 595 F.3d 86, 92-93 (2d Cir.2010) (citation and internal quotation marks and brackets omitted). “A[n] omission is actionable under federal securities laws only when the [defendant] is subject to a duty to disclose the omitted facts.” In re Time Warner Inc. Sec. Litig., 9 F.3d 259, 267 (2d Cir.1993). Even though Rule 10b-5 imposes no duty to disclose all material, nonpublic information, once a party chooses to speak, it has a “duty to be both accurate and complete.” Caiola v. Citibank, N.A, N.Y., 295 F.3d 312, 331 (2d Cir.2002). “[A]n entirely truthful statement may provide a basis for liability if material omissions related to the content of the statement make it ... materially misleading.” In re Bristol Myers Squibb Co. Sec. Litig., 586 F.Supp.2d 148, 160 (S.D.N.Y.2008). However, corporations are “not required to disclose a fact merely because a reasonable investor would very much like to know that fact.” In re Optionable Sec. Litig., 577 F.Supp.2d 681, 692 (S.D.N.Y.2008) (quoting In re Time Warner Inc. Sec. Litig., 9 F.3d 259, 267 (2d Cir.1993)); see also City of Roseville, 814 F.Supp.2d at 410. A. This case is about BoA’s disclosure obligations with respect to a potential lawsuit by AIG against BoA based on BoA’s sale of MBS to AIG. At the outset, the plaintiffs concede that the possibility of MBS litigation brought by AIG against BoA was publicly disclosed. (Pl.s’ Mem. in Opp. to Def.s’ Mot. to Dismiss (“Plaintiffs’ Opposition”) at 24.) The plaintiffs thus argue only that the
1736	"362 F.3d 168, 174 (2d Cir.2004). . Whitaker v. American Telecasting, Inc., 261 F.3d 196, 206 (2d Cir.2001) (holding that pleading which provided incomplete address information did not allow the defendant to ''intelligently ascertain” removability; the defendant was not required to research the missing address of another named defendant to discover removability) (quotation marks omitted). . Id. . Richstone v. Chubb Colonial Life Ins., 988 F.Supp. 401, 403 (S.D.N.Y. 1997) (“A defendant must be able to ascertain easily the necessary facts to support his removal petition. To allow a document with less information to satisfy the statute would require the movant to 'guess’ as to an actions’ removability, thus encouraging premature, and often unwarranted, removal requests.”) (citations omitted). . See Pullman Co. v. Jenkins, 305 U.S. 534, 537, 59 S.Ct. 347, 83 L.Ed. 334 (1939). See also Vera v. Saks & Co., 335 F.3d 109, 116 (2d Cir.2003) (""we generally evaluate a defendant’s right to remove a case to federal court at the time the removal notice is filed”). . Watkins v. Grover, 508 F.2d 920, 921 (9th Cir.1974) (finding that where a case was removed to federal court based on federal officer jurisdiction, the district court could retain jurisdiction to hear the state law claims against the remaining defendants even when the federal officers were dismissed). . Murphy v. Kodz, 351 F.2d 163, 167 (9th Cir.1965) (finding that in a case properly brought in federal court, the ""plaintiff's subsequent reduction of his claim to less than the jurisdictional amount"""
390	for failure to state a claim and asked the district court, in the alternative, to consider the motion as a motion for summary judgment. The Plaintiffs opposed the Defendants’ motion and filed a cross-motion for summary judgment. The district court denied the Defendants’ motion and granted the Plaintiffs’ motion. The district court concluded that 8 U.S.C. § 1252 did not preclude the court from exercising jurisdiction, and further concluded that it could exercise mandamus jurisdiction under 28 U.S.C. § 1361. Nyaga v. Ashcroft, 186 F.Supp.2d 1244, 1252-54 (N.D.Ga.2002). Mandamus is proper if (1) the Plaintiffs can show a clear right to the relief sought; (2) the Defendants have a clear, non-discretionary duty to act; and (3) no other remedy is available. Heckler v. Ringer, 466 U.S. 602, 617, 104 S.Ct. 2013, 2022, 80 L.Ed.2d 622 (1984). In reaching its conclusion, the court held that (1) Nyaga “has a right for the visa application to be processed and a final, thorough decision made”; (2) the INS “has a non-discretionary duty to make diligent efforts in furtherance of adjudicating diversity visa applications”; and (3) the Plaintiffs had no alternative remedy to mandamus. Nyaga, 186 F.Supp.2d at 1253-54. The court then examined the merits of the case and concluded that there were no genuine issues of material fact. Id. at 1254. Having already ruled that Nyaga had a right to adjudication of his application, the court devoted its attention to the “hotly contested” issue of whether the court could provide a meaningful remedy.
3735	motion for such relief is made within a reasonable time, and not more than one year after the judgment was entered. The referee did not specifically address the effect of Rule 60(b), but the trustee in bankruptcy does acknowledge the rule’s applicability to the present situation. He urges that on appeal we should recognize the latitude of discretion afforded to the referee, here the trial judge, in granting or withholding such relief. The language of the rule is indeed permissive, as it provides that the trial court “may” set aside the judgment complained of. “This means, of course, that the trial court is to exer cise a sound, legal discretion, that is, a discretion ‘guided by accepted legal principles.’ ” United States v. Gould, 301 F.2d 353 (5 Cir. 1962). In Gould, the Fifth Circuit cited various appellate decisions reversing the refusal of trial courts to set aside judgments coming within the provisions of Rule 60(b) and holding that such failure constitutes an abuse of discretion. The Fifth Circuit emphasized not only that the rule should be liberally construed for the purpose of doing substantial justice but that all pertinent factors should be considered. Gould quoted with approval the applicable criteria under Rule 60(b), as stated in Moore’s Federal Practice, at 356, as follows: “Where the district court has the power to act, pursuant to the provisions of Rule 60(b), relevant propositions and factors that it may consider in exercising its discretion are: the general desirability that a final judgment
3904	under any chapter of this title, if the trustee does not assume or reject an unexpired lease of nonresidential real property under which the debtor is a lessee within 60 days after the date of the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such lease is deemed rejected, and the trustee shall immediately surrender such nonresidential real property to the lessor. (Emphasis added). Pursuant to that language, insertion of the surrender date of December 15, 1990 in the November 15 order was inappropriate, as the Code’s unambiguous language states that “... the trustee shall immediately surrender such nonresidential real property to the lessor.” (Emphasis added). In In re Chris-Kay Foods East, Inc., 118 B.R. 70 (Bkrtey.E.D.Mich.1990) the Honorable Arthur J. Spector delineated the two lines of bankruptcy cases which have developed regarding the immediate surrender language of § 365(d)(4). Aligning himself with the majority view which holds that § 365(d)(4) prevails over contrary state law, Judge Spector reasoned that the lessor of nonresidential real property is entitled to immediate possession in the event of a deemed rejection of the lease. Judge Spector cites Cybernetics, however, as falling within the minority view which holds that § 365(d)(4) does not mandate immediate surrender. After due deliberation, I believe clarification of Cybernetics is warranted. While the debtor-in-possession must immediately surrender the non-residential real property to the lessor upon deemed rejection, the lessor must enlist the aid of the appropriate state court
4060	"DSC Nat’l Properties, LLC v. Johnson (In re Johnson), 477 B.R. 156, 168 (10th Cir. BAP 2012) (internal quotations and alterations omitted). . Id. at 169. . Id. . Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1375 (10th Cir.1996). . Johnson v. Riebesell (In re Riebesell), 586 F.3d 782, 791 (10th Cir.2009). . Id. at 792. . In re Young, 91 F.3d at 1375; see also 6050 Grant, LLC v. Hanson (In re Hanson), 428 B.R. 475, 486 (Bankr.N.D.Ill.2010) (noting that false pretenses ""do not necessarily require overt misrepresentations” but can also include concealment or “failure to disclose pertinent information”). . In re Young, 91 F.3d at 1375 (totality of circumstances); see also, e.g., Crossingham Trust v. Baines (In re Baines), 337 B.R. 392, 400-01 (Bankr.D.N.M.2006) (false representation made through false invoices shows requisite intent to defraud under § 523(a)(2)(A)). . Mid-States Millwork, Inc. v. Gering (In re Gering), 69 B.R. 686, 693 (Bankr.D.Kan.1987) (relying on false invoices submitted by defendant was reasonable under the reliance standard of § 523(a)(2)(A)). . Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). . Panalis v. Moore (In re Moore), 357 F.3d 1125, 1129 (10th Cir.2004). . Id. . Melquiades v. Hill (In re Hill), 390 B.R. 407, 411 (10th Cir. BAP 2008). . Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). . See, e.g., McIntyre v. Kavanaugh, 242 U.S. 138, 141, 37 S.Ct. 38, 61 L.Ed. 205 (1916)"
4566	is permitted because “the County cannot control the Sheriffs policies and practices relating to law enforcement or jailing.” (Doc. 334 at 18). This argument was addressed in Part 11(B), supra. Maricopa County has sufficient authority to provide some redress for violations committed--by Arpaio and MCSO. Therefore, the argument is without merit. Maricopa County further claims its contractual assurances under Title VI must be read in accordance’with Arizona law, including' statutory limitations on the Board of Supervisors’ authority regarding the Sheriff. To the extent Maricopa County entered into-a contract for which it lacked the authority'to agree, Maricopa County argues, the contract is void. (Doc. 351 at 13). The ' Unitéd States has the power to sue to enforce its contracts. See Cotton v. United States, 52 U.S. 229, 231, 11 How. 229, 13 L.Ed. 675 (1850); Rex Trailer Co. v. United States, 350 U.S. 148, 151, 76 S.Ct. 219, 100 L.Ed. 149 (1956). And “jjf]ederal law governs the interpretation of contracts entered pursuant to federal law where the federal government is a party.” Chickaloon-Moose Creek Native Ass’n., Inc. v. Norton, 360 F.3d 972, 980 (9th Cir.2004). . Neither party offered authority addressing how courts.treat the enforcement of an ultra vires contract between a county and the federal government. But the Court rejected the contention that Maricopa County lacked any authority to enforce the nondiscrimination mandate that at taches to federal funds under Title VI. See Part 11(B), supra; (Doc. 56). Even if “persons dealing with public officers are bound, at their
3066	23 F.3d 576, 581 (1st Cir.1984); the nonmovant has a “corresponding obligation to offer the court more than steamy rhetoric and bare conclusions.” Lawton v. State Mutual Life Assurance Company of America, 101 F.3d 218, 223 (1st Cir.1996). Furthermore, “the nonmovant must produce specific facts, in suitable evidentiary form sufficient to limn a trialworthy issue ... Failure to do so allows the summary judgment engine to operate at full throttle.” Id.; see also Kelly v. United States, 924 F.2d 355, 358 (1st Cir.1991) (warning that “the decision to sit idly by and allow the summary judgment proponent to configure the record is likely to prove fraught with conse quence.”); Medina Muñoz, 896 F.2d at 8, (quoting Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir.1989)) (“The evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve.”) Applicable Law/Analysis The Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.A. §§ 12101, et seq., prohibits discrimination against qualified individuals with disabilities. To set forth a prima facie case of discrimination under the ADA, the Plaintiff must show: (1) that she suffers from a “disability” within the meaning of the Act; (2) that she was able to perform the essential functions of the job, either with or without reasonable accommodation; and (3) that the employer discharged her in whole or in part because of the disability. See Lebron-Torres
4946	the meaning that the terms would have to a person of ordinary skill in the art in question at the time of the invention .... ” Phillips, 415 F.3d at 1313. A patentee is presumed to have intended the ordinary meaning of a claim term in the absence of an express intent to the contrary. York Products, Inc. v. Central Tractor Farm & Family Ctr., 99 F.3d 1568, 1572 (Fed.Cir.1996). Generally speaking, the words in a claim are to be interpreted “in light of the intrinsic evidence of record, including the written description, the drawings, and the prosecution history, if in evidence.” Teleflex, Inc. v. Ficosa North Am. Corp., 299 F.3d 1313, 1324-25 (Fed.Cir.2002) (citations omitted); see also Medrad, Inc. v. MRI Devices Corp., 401 F.3d 1313, 1319 (Fed.Cir.2005) (court looks at “the ordinary meaning in the context of the written description and the prosecution history”). “Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language.” Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed.Cir.1996). With regard to the intrinsic evidence, the court’s examination begins, first, with the claim language. See id. Specifically, “the context in which a term is used in the asserted claim can be highly instructive.” Phillips, 415 F.3d at 1314. As part of that context, the court may also consider the other patent claims, both asserted and unasserted. Id. For example, as claim terms are normally used consistently throughout a patent, the usage of a term in one
4021	which only allows for pool formation by “voluntary” associations. It can hardly be suggested that this legal question is not susceptible to judicial review. Moreover, even if the Coast Guard is entitled to prefer the Association over non-member pilots when there is limited demand, a court could still review the Director’s determination with respect to the adequacy of the service provided by the pool — i.e., whether the pool has the physical and economic ability to provide sufficient service. Center for Auto Safety v. Dole, 846 F.2d 1532, 1534 (D.C.Cir.1988) (per curiam) (noting that agency regulations may provide “law to apply”). We have often held that standards similar to that set forth in section 401.720(b) are reviewable. See, e.g., Dickson v. Sec’y of Defense, 68 F.3d 1396, 1401-03 (D.C.Cir. 1995) (reviewing decision of military review board where board “may excuse failure to file” if in the “interest of justice”); Marshall County Health Care Auth. v. Shalala, 988 F.2d 1221, 1223-25 (D.C.Cir. 1993) (allowing review of agency decision to provide exceptions “as the Secretary deems appropriate” because statutory scheme provided sufficient standards to guide review). To be sure, the Director might be entitled to a good deal of deference in determining whether the pool was physically or economically able to provide adequate service, but that does not mean the Director could make such decisions unreasonably. For example, it would be presumably arbitrary and capricious for the Coast Guard to ignore an obvious unfilled demand for pilotage service, or to change its