2667	of two or more highways, which join one another at, or approximately at, right angles * * *.” NEB.REV.STAT. § 39-602(37) (1978) (emphasis added). The definition of a highway is: “the entire width between the boundary limits of any street, road, avenue, boulevard, or way which is publicly-maintained when any part thereof is open to the use of the public for the purposes of vehicular traffic.” NEB. REV.STAT. § 39-602(32) (1978). Ben Gay, Inc. argued that County Road # 38 was not publicly maintained and is therefore not a highway. The testimony at trial was in conflict on this point and the issue was correctly submitted to the jury. See Arthur v. Arthur, 684 F.2d 558, 561 n. 3 (8th Cir.1982); McQueen v. Navajo Freight Lines, Inc., 293 F.2d 590, 594 (8th Cir.1961). The standard of review of jury determination of a factual question is narrow. An appellate court may not substitute its view of the facts for that of the trier of fact unless it is in a position to hold that reasonable minds, viewing the evidence in the light most favorable to the prevailing party, could only have found otherwise than the trier of fact. McIntyre v. Everest & Jennings, Inc., 575 F.2d 155, 158 (8th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed.2d 173 (1978). See also Mizell v. United States, 663 F.2d 772, 776 (8th Cir.1981). Since we believe reasonable minds could differ on
3748	the facts to which he testified, so far as relevant, were not in dispute. The experienced trial judge unquestionably ignored Margolin’s testimony that he- considered himself an employee ; for, as his status constituted an issue for the judge’s decision, Margolin’s opinion was of no moment. The exclusion of the statement concerning Twyeffort’s previous record was not error. While the question of general good faith in compliance with the Act is relevant where the violations have ceased before the Administrator begins an action, it has no bearing on the issuance of an injunction where the violations have continued up to the commencement of the suit, and where the employer still asserts that the Act does not apply. See 65 S.Ct. 1242, 89 L.Ed. 1705; cf. Walling v. Helmerich & Payne, 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29. Affirmed. See Walling v. American Needlecrafts, 6 Cir., 139 F.2d 60, 64. By order of the Industrial Commissioner, pursuant to New York Labor, Law, Consol.Laws, e. 31, Art. 13, §§ 350, 351. Lavery v. Pursell, 1888, 39 Ch.D. 508, 514. N. L. R. B. v. Hearst Publications, 322 U.S. 111, 127, 64 S.Ct. 851, 88 L.Ed. 1170.
1293	amended complaint in the first case. In other words, Goff knew it was not necessary to allege receipt of a right to sue letter, and the real reason for the second complaint and the amended complaint was to request trial by jury. Thus, it would be unjust to grant her separate motion for trial by jury. This is a third variation on the first theme. Goff has not and is not trying to pull a fast one on the court. She filed a separate motion for jury trial under Rule 39, admitting her inadvertent failure to demand a jury trial in the first case. Fourth, Owen claims Goff presents insufficient grounds to permit trial by jury, citing In Nissan, the defendant in a products liability action sought a writ of mandamus compelling the district court to grant its request for a jury trial. The request was submitted more than two years after the action was filed, and the defendant cited only inadvertence in explanation for the delay. Nissan denied the writ of mandamus, holding the district court did not abuse its discretion when it denied a Rule 39(b) demand for jury trial where the delay was justified only by inadvertence. 982 F.2d at 409. Nissan holds this court has discretion to either grant or deny Goffs demand for jury trial. It does not mean the request must be denied. This case is distinguishable from Nissan because Goff filed
2924	on October 2, 1978, they filed a timely claim for a refund reflecting such reduction. On June 15, 1979, the Alexanders filed suit in this court for a refund, the Commissioner having failed to act on their request within 6 months. II. The general rule is that, for gift tax purposes, a gift of property subject to a mortgage is valued at the excess of the fair market value of the property over the amount of the mortgage outstanding at the time of the gift. Janos v. Commissioner, 11 T.C.M. (CCH) 1211 (1952). See generally Powe v. Commissioner, 25 T.C.M. (CCH) 218, aff’d, 389 F.2d 46 (5th Cir. 1967), cert. denied, 393 U.S. 826, 89 S.Ct. 88, 21 L.Ed.2d 97 (1968);  acq. 1941-2 C.B. 7. The amount of the mortgage is deducted from the market value of the property even when the donor agrees to make the mortgage payments, because no consideration exists for the donor’s promise to do so, which therefore is not a legally binding obligation. Each mortgage payment is treated as a separate taxable gift when actually made. Rev.Rul. 78-362, 1978-2 C.B. 248. See generally Housman v. Commissioner, 105 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
670	elected to pursue a single remedy. This conscious choice militates against “equitably tolling” the statute of limitations on the basis of the Loveladies decision. Otherwise, claimants would be able to file in the Court of Federal Claims as an afterthought, once their challenge in the district court was resolved. Requiring that suits be filed contemporaneously, as in Loveladies, better insures the claimants’ good faith and rewards the diligent prosecution of grievances. It also encourages claimants to muster their evidence early, and to preserve it. In addition, it prevents claimants from surprising the Government with potentially stale claims based on events that transpired many years before. Not coincidentally, these are the very reasons that statutes of limitation themselves exist. See Order of R.R. Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-49, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). In addition, a federal district judge told the claimants as early as 1980 that the Court of Federal Claims was the proper forum in which to seek compensation. Creppel, 500 F.Supp. at 1120. This court will not invent a new reason to toll the statute of limitations and pretend that the claimants filed their takings claim contemporaneously with their 1976 challenge to the Wilson Order. The claimants’ temporary taking claim is therefore time-barred. IV. The claimants’ permanent taking claim presents different questions. As this court recently held, a claim under the Fifth Amendment accrues
696	ID Act. At this point, however, as we noted at the outset of this opinion, the INA now says that “[n]othing in subparagraph (B) or (C), or in any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.” REAL ID Act § 106(a)(l)(iii), amending 8 U.S.C. § 1252(a)(2). We therefore proceed directly to Ramos’s two constitutional arguments. Due Process. Ramos is correct insofar as he argues that the Fifth Amendment to the Constitution entitles aliens to removal proceedings that comport with due process. See Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir.2004). It is not enough, however, to show that the procedures used fell short in some constitutionally significant way. In order to prevail on a due process claim, the petitioner must establish that the violations that occurred were prejudicial to him. Capric, 355 F.3d at 1087. The due process violation must have been one likely to have an impact on the result of the proceeding. Id. at 1087-88. Whether or not Ramos is correct that the IJ’s procedures fell short of the constitutionally required standard, we conclude that he cannot show prejudice on this record. There is no ironclad rule that aliens subject to removal procedures have
3902	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 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 clearly communicating in an unequivocal manner its intention to either assume or reject to the [offeror].” 103 B.R. at 535. One Potato, Bon Ton Restaurant, and By-Rite are cited in support, of this ruling. This court is somewhat perplexed by the choice of citations since Carlisle Homes dealt with assumption of an executory option agreement. Accordingly, § 365(d)(4) is
4154	to those conclusions, Council plainly rejected them. Instead it concluded Paige’s complaints of severe pain were neither credible nor sup ported by medical evidence (R. 14). It found Paige’s pain and medical limitations would not prevent him from work at the “light” rather than “sedentary” level (R. 13). Council’s total failure to explain its rejection of the AU’s findings is an independent reason compelling a remand for further consideration. When Secretary has committed no error of law, this Court’s role is limited to seeing whether Secretary’s decision is supported by “substantial evidence” (Reynolds, 844 F.2d at 455-56). Even when Council makes Secretary’s final decision and in doing so rejects contrary findings by an AU, the reviewing standard does not change. As Our own Court of Appeals has focused more sharply on the treatment of conflicting AU and Council findings. Bauzo v. Bowen, 803 F.2d 917, 921 (7th Cir.1986) (citations omitted) concurs that in such situations: We find convincing the rationale of the Circuits which have held that judicial review should be limited to determining whether the Appeals Council’s decision is supported by substantial evidence on the record as a whole. But that final phrase — “on the record as a
4152	other evidence, including the assessment of a vocational expert (Regs. §§ 404.1566(e), 416.966(e)). Indeed, when a claimant suffers from nonexertional impairments exclusively or in addition to exertional impairments, the AU may not be able to rely solely on the Grid — resort to a vocational expert may be required (see Reg. Subpart P, Appendix 2, § 200.00(e); Warmoth v. Bowen, 798 F.2d 1109, 1110 (7th Cir.1986) (per curiam)). In all events, Secretary’s decision must be upheld unless (1) the findings are not supported by substantial evidence or (2) Secretary has applied incorrect legal standards (Reynolds v. Bowen, 844 F.2d 451, 455-56 (7th Cir.1988)). Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Facts Paige was born December 25, 1932 (R. 63), making him 53 years old at the time of the Hearing. He has a tenth-grade education. His work history reveals a series of jobs — factory machine operator, lift-truck operator and movie theatre cleaner— characterized by Paige as presenting at least “medium” (and in two instances “heavy”) exertional requirements. Paige’s last gainful employment was from May 1977 to December 1980 as a security officer for St. Mary’s Hospital (R. 65-67). He left that job when he had difficulty
4815	the prosecution than is fingerprinting. Defendant Jackson contends that the trial court erred in refusing to give his requested accessory-after-the-fact instruction. Jackson argues that the evidence would have supported a jury finding that Jackson knew the bank robbery had been committed and that he wilfully assisted the offenders in order to hinder their apprehension. But, Jackson urges, the jury, if properly instructed, could have found that he did not engage in the robbery. Jackson was not charged with a violation of 18 U.S.C. § 3, accessory after the fact, which is a separate and distinct crime from bank robbery with a gun, with which he was charged. See  later vacated on other grounds, 387 F.2d 348 (9th Cir. 1967). There was substantive evidence connecting Jackson with the actual robbery. The requested instruction was properly rejected. Defendant Willis contends that the failure of the Government to transcribe the grand jury proceedings was in violation of his Fifth Amendment rights to be indicted by a grand jury and to due process of law, and his Sixth Amendment right to confront the witnesses against him. It is established that no minutes of the grand jury proceedings were kept. Thus acceptance of this argument would require dismissal of the indictment. This court has consistently, and recently, held that the recording of grand jury proceedings, at least in the absence of a prior request therefor, is permissive and not mandatory. See United States v.
4449	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., 617 F.2d 396 (5th Cir.1980); The Maria, supra. Cases in which the appellate courts have held jurisdiction proper for the appeal although the facts differed from those of the original justification for the appeal include All Alaskan Seafoods, Inc. v. M/V Sea Producer, 882 F.2d 425 (9th Cir.1989); Dunham v. M/V Marine Chemist, 812 F.2d 212, 214 n. 2 (5th Cir.1987); Nichols v. Barwick, 792 F.2d 1520 (11th Cir.1986); O'Donnell v. Latham, 525 F.2d 650 (5th Cir.1976); Doyle v. Bethlehem Steel Corp., 504 F.2d 911 (5th Cir.1974); Bergeron v. Elliot, 466 F.2d 514, 516 n. 3 (5th Cir.1972); Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d 1198 (2d Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 452, 30 L.Ed.2d 369 (1971). As the careful eye
2391	Appeal from D. C. S. D. Ohio. Judgment vacated and cause remanded for further consideration in light of Sosna v. Iowa, 419 U. S. 393 (1975), and Mr. Justice Brennan, with whom Mr. Justice Marshall joins, dissenting. Nuisance proceedings were begun against appellants in Ohio courts on the theory that the some of the books sold in a bookstore on premises owned by one appellant and leased by the others were obscene, and that the bookstore was therefore a nuisance. The Ohio statutory scheme underlying these nuisance proceedings is outlined in Appellants filed suit in Federal District Court while the state proceedings were pending seeking injunctions against the state proceedings. The parties agreed not to go forward with the state-court proceedings until the Federal District Court litigation was completed. The federal court refused to enjoin the state proceedings, be-
2651	is not held now, it must be held later. The court’s decision on remand should be supported by appropriate findings of fact and conclusions of law. The stay of execution will remain until determination of the matter. Reversed as to the denial of the motions to dismiss the indictment and to challenge the array of the petit jury only, and remanded for further hearing in accordance with this opinion. . See Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34; Jackson v. United States, 5 Cir., 1966, 366 F.2d 34; Brooks v. Beto, 5 Cir., 1966, 366 F.2d 1; Labat v. Bennett, 5 Cir., 1966, 365 F.2d 698; Davis v. Davis, 5 Cir., 1966, 361 F.2d 770; d 13; and Scott v. Walker, 5 Cir., 1966, 358 F.2d 561. . The Rabinowitz case originated in the United States District Court for the Middle District of Georgia, as did the present case. The district court denied the motions to dismiss the indictment and to challenge the array of the petit jury in January 1966, followed by a written opinion on February 4, 1966 by the trial judge amplifying his reasons for denying the motions. Rabinowitz was not decided until later in the same year by the Fifth Circuit, i. e., on July 20, 1966. In the present case, also from the Middle District of Georgia, those in charge of jury selection were the Jury Commissioner, Mr. William P. Simmons, and the Clerk of
2311	Id. Nonetheless, beyond the second step, the ALJ must consider the entirety of the claimant’s limitations, regardless of whether they are individually disabling. See id.; Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir.1984). The ALJ found that Mr. Griffin suffered from the severe impairment of degenerative disc disease, which was all that the second step of the SSA’s disability analysis required. See Jamison, 814 F.2d at 588. The record also demonstrates that the ALJ considered Mr. Griffin’s tinnitus at subsequent steps. The ALJ considered Mr. Griffin’s tinnitus at the third step by finding that Mr. Griffin did not have an impairment, or combination thereof, that met or medically equaled one of the listed impairments. See Likewise, in determining Mr. Griffin’s residual functional capacity, the ALJ expressly acknowledged that Mr. Griffin’s statements regarding the limiting effects of his impairments were not credible. The record demonstrates that, even if the ALJ should have found that Mr. Griffin’s tinnitus was a severe impairment, the ALJ fulfilled his responsibility to consider Mr. Griffin’s tinnitus in the remaining steps of his disability analysis. See Jamison, 814 F.2d at 588; Heckler, 748 F.2d at 635; 20 C.F.R. § 404.1520(a)(4). Thus, any error that the ALJ made in failing to find that Mr. Griffin’s tinnitus was a severe impairment was harmless. See
2588	with those of class members to assure that they not only can but will press each such claim to a full and equal extent.” Id., at 475. There will doubtless be some differences in emphasis in the claims of each representative plaintiff and each class member who received Performance Chart No. 1. Some may, for example, find it more difficult to establish reliance, while others may be relatively vulnerable to statute of limitations defenses. However, each representative plaintiff has an interest in establishing each element of a claim under the Investment Advisers Act, and their interests are “sufficiently parallel to ensure a vigorous and full presentation of all potential claims for relief * * Id., at 489; see Though not identical, the representative plaintiffs’ claims are typical. The Court is satisfied that the claims of clients who saw Performance Chart No. 1 and had as their investment objective maximum capital growth are typical of the claims of clients who saw Performance Chart No. 1 and had other investment objectives even though the Chart purported to depict only growth-oriented accounts. The latter group might well have assumed that if CIS outperformed the market in one type of investment, it outperformed it in others, so fraudulent depiction of performance with one type of investment might well have affected investors with somewhat different investment goals in the same general way. Questions of materiality and reliance (see
649	"absence from north Idaho was only barely long enough to implicate § 55-1006, and the bankruptcy filing of June 25, with its assertion of a Priest River residence and claim of exemption, runs counter to that statute’s presumption. More importantly, the Jerome house was clearly a temporary residence. The Koopals had no ownership interest in it. They could stay there only so long as the job at the dairy lasted, and the job had a planned duration of only six months. It would be unreasonable to assume an actual intent to abandon their previous domicile in exchange for such a short-term situation. This Court has previously upheld homestead exemptions despite “temporary absences.” Millscup, 122 B.R. at 580-81, 91 I.B.C.R. at 7; On the whole of the record, and in light of the accepted principals of construction of the exemption statutes in favor of debtors, the Court finds that the Koopals have sufficiently rebutted the presumption of abandonment found in Idaho Code § 55-1006. The objection of USB and HSB to the homestead exemption is OVERRULED. Based thereupon, the Koopals’ motion to avoid the judgment lien of the Creditors under § 522(f)(1)(A) is GRANTED. Counsel for the Koppals shall submit an appropriate order, consistent with the requirements specificity found in Local Bankruptcy Rule 4003.2(a). . Unless otherwise indicated, all references to ""code,” “title,” “chapter” and “section” are to the Bankruptcy Code, 11 U.S.C. §§ 101 — 1330. .A"
1945	defendant to plead an acquittal or a conviction in bar of further prosecution for the same offense. See Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). An indictment need only track the language of the statute and, if necessary to apprise the defendant of the nature of the accusation against him, state the time and place of the alleged offense in approximate terms. See Bussell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962); United States v. Covino, 837 F.2d 65, 69 (2d Cir.1988); United States v. Bagaric, 706 F.2d 42, 61 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); Where the statute, as an element of the criminal offense, requires that a defendant’s conduct violate a regulation promulgated as part of the statute’s regulatory scheme, a district court may consider whether the regulation “on its face” is within the terms of the statute. See Adamo Wrecking Co. v. United States, 434 U.S. 275, 285, 98 S.Ct. 566, 573, 54 L.Ed.2d 538 (1978) (regulation held not to constitute an emission standard under the Clean Air Act — indictment dismissed). If the court determines that the regulation is not of a kind contemplated by Congress, the indictment alleging its violation as an element of the offense may be dismissed. Ada-mo, supra. From a review of the
1116	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 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 clearly and validly committing such issues' to an arbitrator) is legally enforceable and best construed to encompass the dispute.” Id. at
2262	re Armorflite Precision, Inc., 43 B.R. 14, affirmed 48 B.R. 994 (Bankr.D.Me. 1984); In re Tri-L Corp., 65 B.R. 774 (Bankr.D.Utah 1986) (Administrative expense payments are reserved to those who either help preserve and administer the estate to the benefit of all of the estate’s creditors). The determination of when a claim arises has proved to be a particularly vexing question where an environmental injury which gives rise to liability occurs pre-petition, but the remediation costs are expended post-petition. Generally, environmental compliance costs which arise from the debtor’s pre-petition conduct are treated as general unsecured claims. Dant and Russell, 853 F.2d at 709; In re Great Northern Forest Products, Inc., 135 B.R. 46, 60-61 (Bankr.W.D.Mich.1991); However, courts have found an exception to this general rule when the pre-petition environmental contamination also poses an identifiable and imminent harm in the post-petition period which requires the expenditure of funds to contain or remediate the problem. In re Conroy, 24 F.3d 568 (3d Cir.1994); In re Chateaugay Corp., 944 F.2d 997, 1010 (2d Cir.1991); In re Wall Tube & Metal Products Company, 831 F.2d 118, 123-24 (6th Cir.1987); In re Peerless Plating, 70 B.R. 943, 948-49 (Bankr.W.D.Mich.1987). A number of courts which have found that post-petition costs of remedi-ating a pre-petition environmental injury are properly classified as administrative expenses, rely on Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d
784	of personal bias and prejudice against plaintiff “or in favor of any adverse party.” I. TIMELINESS AND SUFFICIENCY OF AFFIDAVIT. We start with the proposition that it is the primary duty of the judge against whom an affidavit of bias or prejudice is filed to pass on the legal sufficiency of the facts alleged in the affidavit, and its timeliness. Action Realty Co. v. Well, 427 F.2d 843 (7th Cir.1970). To safeguard the judiciary from frivolous attacks on its dignity and integrity, affidavits of disqualification for bias are to be strictly construed for form, timeliness and sufficiency. Radamacher v. City of Phoenix, 442 F.Supp. 27 (D.C.Ariz.1977); Bumpus v. Uniroyal Tire Co., 385 F.Supp. 711 (D.C.Pa.1974); U.S. v. Moore, 405 F.Supp. 771 (D.C.W.Va.1976). A. TIMELINESS. The motion to recuse comes after judgment was entered and post trial motions were denied. The Opinion and Order dismissing the complaint was filed on July 10, 1984, and judgment was entered thereon on July 20, 1984. The motion for recusal was filed on August 28, 1984, subsequent to this Court’s order of August 22, 1984, scheduling a hearing on defendant’s application for attorneys’ fees. In order to disqualify a judge, a timely objection must be made, otherwise the objection is waived. U.S. v. Hall, 424 F.Supp. 508, affmd., 536 F.2d 313, cert. den., 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285; Andrews, Mosburg, Davis, Elam, Legg & Bixter, Inc. v. General
2053	460 U.S. at 21-22, 103 S.Ct. at 940; Grafico, 48 F.3d at 52; Irizarry Pérez, 758 F.Supp. at 101. Rather, a court should make its decision based on the relative progress of the two eases. Moses H. Cone, 460 U.S. at 21-22, 103 S.Ct. at 940. Abstention may be warranted where a considerable amount of time has elapsed, substantial discovery has already been conducted, or significant proceedings have been held in the state court case. See, e.g., Nakash v. Marciano, 882 F.2d 1411, 1413, 1415 (9th Cir.1989) (Abstention was warranted where state court case had been filed four years earlier and proceedings in state court case included 70 hearings, 100 depositions, and the production of 300,000 documents); Telesco v. Telesco Fuel and Masons’ Materials, Inc., 765 F.2d 356, 363 (2d Cir.1985) (There were sufficient grounds to abstain where state court case had been commenced five years earlier, substantial discovery had been conducted, and interlocutory decisions had been issued by the state court); see also Moses H. Cone, 460 U.S. at 22 n. 26, 103 S.Ct. at 940 n. 26 (District court’s abstention was not proper when no substantial proceedings had taken place in the state court case and the parties in the federal case had already submitted briefs, affidavits, and documentary evidence
2454	reached the company’s place of business, but went to its customers, and 25 per cent, was not bottled, but was placed in drums and shipped out in bulk. The Mohank Sales Company refused to make known to the Treasury Department the names of its customers or the channels of its trade. The appellees concluded that it was a “cover house” and established for the sole purpose of assisting permit holders who were engaged in diversion of denatured alcohol. Under these circumstances, the appellees were justified in the suspicion that the permittee was simply-selling to itself and using the Mohank Sales Company as a method of diversion for illegal purposes. Driscoll v. Campbell, 33 F.(2d) 281 (C. C. A. 2); C. A. 3). The testimony justified .the refusal to grant the 1930 permit. It is argued that section 4, title 2, of the National Prohibition Act (chapter 85, Act Oct. 28,1919, 41 Stat. 305, 309 [27 USCA § 13]), specifically exempts finished toilet preparations from its provisions, and that therefore there is no need for a permit to withdraw specially denatured alcohol. Campbell v. Long & Co., 281 U. S. 610, 50 S. Ct. 415, 74 L. Ed. 1070, and Campbell v. Galeno Chemical Co., 281 U. S. 599, 50 S. Ct. 412, 74 L. Ed. 1063, are cited, but do not support this claim. Specially denatured alcohol is not controlled by the provisions of title 2. It does, however, come under
2619	the value of the named plaintiff’s security. The interrelationship and overlap between the two Performance Charts does, however, give recipients of one Chart sufficient interest in establishing fraud with respect to the other Chart to enable him to represent recipients of either Chart. Cf. Wofford v. Safeway Stores, Inc., supra, at 482-483 (under the circumstances, employees-in one job classification can represent employees in other job classifications in Title VII suit) and 47 (under the circumstances, employees in one minority group can represent employees of other minority groups). Whether a named plaintiff with a claim based only on a Performance Chart could prosecute a class claim based on representations concerning suitability (see “4. Tailoring,” infra) presents different questions. See . The letter sent on October 18, 1972, to all or most CIS clients, which said that individual portfolios were reviewed every 20-21 working days or approximately once a month, would not create predominating individual questions concerning statute of limitations defenses because whether a client could reasonably have relied on the representations in the brochure about frequency of review after receiving this letter is a question common to all or most of the class. . The presumption that a registered representative is reasonably competent would be rebut-table, but the Court does not expect the broker defendants to try to rebut that presumption in any significant number of cases. . If, as allegedly happened with plaintiff Sullivan, a broker defendant distributed the
852	"bottle. PI. Opp. Br. at 5, 7, 8, 23. The allegedly infringing advertisements, however, which are what is at issue here, focus primarily on a Porsche, with only a small illustration of Liquid Glass products in the lower right-hand comer. See Verif. Countercl. at Exh. B. Analysis of consumer confusion may be based upon initial confusion, not necessarily whether, after closer examination, the consumer would - likely figure out that Liquid Glass is a separate company. See Ferrari S.p.A. Esercizio Fabriche Automobili E Corse v. Roberts, 944 F.2d 1235, 1245 (6th Cir.1991)(Lanham Act intended to do more than protect consumers at the point of sale), cert. denied, 505 U.S. 1219, 112 S.Ct. 3028, 120 L.Ed.2d 899 (1992); Clinique Laboratories, Inc. v. Dep Corp., 945 F.Supp. 547, 551 (S.D.N.Y.1996)(""a court may find infringement has occurred based on confusion that creates initial customer interest, even if no final sale is completed as a result”). Therefore, based on the prominence of the Porsche car in the advertisements, a consumer, casually flipping through magazines which carry them, may well be initially confused as to whether Porsche, or its subsidiaries, produces Liquid Glass polishes. Even if consumers would not be confused as to source, confusion as to sponsorship or endorsement is likely and, therefore, Porsche will likely prevail on its claims for infringement and false designation. See"
4932	"and conclude that Rule 23 certification is not ""inextricably intertwined"" with an FLSA collective action certification so as to permit us to exercise pendent appellate jurisdiction over the FLSA certification. In so holding, we are persuaded by our prior precedent and the Second Circuit's well-reasoned decision in Myers that Rule 23 class certification and FLSA collective action certification are fundamentally different creatures. Further, judicial efficiency notwithstanding, the myriad problems that could result from exercising jurisdiction in this context counsel against expanding the narrow doctrine of pendent appellate jurisdiction in the way Citizens proposes. To be sure, some of our sister Courts of Appeals have treated FLSA and Rule 23 certification as nearly one and the same. See, e.g., . [and] so we can, with no distortion of our analysis, treat [both Rule 23 and FLSA actions] as if [they] were a single class action.""); Thiessen v. Gen. Elec. Capital Corp. , 267 F.3d 1095, 1105 (10th Cir. 2001) (opining that there is ""little difference in the various approaches"" for evaluating Rule 23 and FLSA certifications). On the other hand, other courts have concluded that ""[t]here [are] fundamental, irreconcilable difference[s]"" between Rule 23 class actions and FLSA collective actions that preclude treating them as"
3171	for a procedural bar defense. C.A Prima Facie Case To establish a prima facie case of discrimination in the selection of a grand jury foreman, a petitioner must demonstrate: 1. That the group against whom discrimination is asserted is a distinct class, singled out for different treatment; 2. The degree of under representation, by comparing the proportion of the group in the total population to the proportion called to serve as foremen over a significant period of time; 3. That the selection procedure is susceptible to abuse or is not racially neutral. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Johnson v. Puckett, 929 F.2d 1067, 1071-72 (5th Cir.1991). No showing of resulting prejudice is necessary. The State concedes in its post-hearing memorandum (Doc. 43, pg.4) that Petitioner has established a prima facie case. The facts underlying the prima facie case are also relevant to the State’s rebuttal burden, so they will be discussed below despite the concession. D. Distinct Class Element one of the Castaneda test, distinct class, is satisfied. Louisiana and federal courts have recognized the black race as a class capable of being singled out for different treatment. State v. Thomas, 609 So.2d 1078, 1081 (La.App. 2d Cir.1992); Johnson, 929 F.2d at 1072. E. Under Representation The second Castaneda element is the degree of under representation of blacks in the foreman role. That is measured by “comparing the
3891	required to obtain a preliminary injunction. All of the following factors must be considered: 1. A likelihood that the parties seeking the stay will prevail on the merits of the appeal; 2. The movant will suffer irreparable injury unless the stay is granted; 3. Other parties will suffer no substantial harm if the stay is granted; 4. The public interest will not be harmed if the stay is granted. In re Baldwin United Corp., 45 B.R. 385, 386 (Bkrtcy.S.D.Ohio 1984); accord, In re White Motor Corp., 25 B.R. 293, 297 (N.D.Ohio 1982); In re Great Barrington Fair and Amusement, Inc., 53 B.R. 237, 239 (Bkrtcy.D.Mass.1985); Hunter v. S.K. Austin Co. (In re Beck), 26 B.R. 945, 946 (Bkrtcy.N.D.Ohio 1983); Cf. Unsecured Creditors’ Committee v. DeLorean (In re DeLorean Motor Co.), 755 F.2d 1223, 1228 (6th Cir.1985) (four factors regarding grant or denial of preliminary injunction); Hamlin Testing Laboratories, Inc. v. United States Atomic Energy Comm’n, 337 F.2d 221, 222 (6th Cir.1964) (factors to be considered respecting motion to stay administrative order pending judicial review). Based upon this Court’s decision on the merits of the appealed orders, including a reconsideration of the governing statutory provisions and applicable bankruptcy rules discussed in this and the court’s earlier bench opinion, it appears extremely' unlikely that the debtor will prevail on the merits of its appeal. Finally, the issue of the necessity of the debtor’s timely filing a motion to assume an unexpired nonresidential
1831	"majority lists this fact as evidence substantiating the officers' concern for their safety. Does this mean that large, physically fit men can be searched at will, in the name of officer safety? I hope not. Yet the government cites Richmond's appearance as one of ""at least five articulable facts [that] support[ed] their suspicion."" It does not. And even if this thin set of facts were enough to justify a working assumption that Richmond had a gun, so what? Generally speaking, to justify an investigatory stop, the police must have ""a particularized and objective basis for suspecting the particular person stopped of criminal activity."" Navarette v. California , 572 U.S. 393, 396, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), citing Mere possession of a firearm in a high-crime area-assuming for a moment that the police had an adequate basis for even this conclusion-is not good enough. See United States v. Watson , 900 F.3d 892, 896-97 (7th Cir. 2018). As we pointed out in Watson , ""[p]eople who live in rough neighborhoods may want and, in many situations, may carry guns for protection. They should not be subject to more intrusive police practices than are those from wealthy neighborhoods."" Id. at 897. The police did not have the necessary reasonable suspicion to frisk Richmond, had they accosted him before he reached his front door, and they made no effort to do so. Even if they"
3294	more than 1,000 kilograms of marijuana, in violation of 21 U.S.C. § § 846 and 841(b)(1)(A), and the district court sentenced him to the statutory minimum of 120 months in prison. On appeal, his counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Alarcon seeks appointment of new counsel and has filed a pro se supplemental brief. Counsel argues in the Anders brief that the sentence imposed is unreasonable. We disagree. See United States v. Vaughn, 519 F.3d 802, 804-05 (8th Cir. 2008) (reviewing sentence for procedural error and substantive reasonableness), cert. denied, — U.S. —, 129 S.Ct. 998, 173 L.Ed.2d 297 (2009); see also Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), has no impact on case involving sentence imposed as result of statutory minimum). Alarcon’s pro se argument that his guilty plea was not knowing or voluntary is not cognizable in this appeal, see United States v. Villareal-Amarillas, 454 F.3d 925, 932 (8th Cir.2006) (claim that guilty plea was not knowing and intelligent was not cognizable on direct appeal where defendant did not attempt to withdraw guilty plea in district court); United States v. Murphy, 899 F.2d 714, 716 (8th Cir.1990) (claim that guilty plea was involuntary must first be presented to district court and is not cognizable on direct appeal);
4487	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);  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 (1989). In order to satisfy the “strong inference” test without direct knowledge of the defendant’s state of mind, the Second Circuit has indicated two approaches by which scienter may be adequately pled. “The first approach is to allege facts establishing a motive to commit fraud and an opportunity to do so.” In re Time Warner, 9 F.3d at 269. “The second approach is to allege facts constituting circumstantial evidence of either reckless or conscious behavior” from which an intent or scienter may be
2407	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 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,
1828	"its position, but nothing in that case is in tension with the later decisions in Jardines and Collins . The only common element is the fact that a person's front porch featured in the facts. Otherwise, everything that is missing here was present there. First, the district court found, and the Supreme Court confirmed, that the police had ""strong probable cause"" that defendant Santana had just participated in an illegal sale of narcotics. Id. at 41-42, 96 S.Ct. 2406. Second, it found that Santana herself was in a public place as she stood on the threshold of her dwelling, and so, given the existence of probable cause, the police were entitled to arrest her there under the authority of Finally, even though she briefly retreated into the house, the Court held that the police were entitled to follow her, because the requirements for ""hot pursuit"" were satisfied. Santana, 427 U.S. at 42-43, 96 S.Ct. 2406. In Richmond's case, there was neither probable cause nor hot pursuit-the two crucial features supporting the result in Santana . I conclude, therefore, that a straightforward application of Jardines and Collins requires us here to find that the police violated the Fourth Amendment when they opened the screen door, thereby entering and searching the curtilage of Richmond's home in a manner that exceeded the boundaries of any express or implied license. That violation continued when they seized the gun. Because"
951	Whether appellees were “insiders” within the meaning of § 101(30), for purposes of application of the one-year preference period under § 547(b)(4)(B); 2. Whether equitable considerations dictate that appellees’ mortgage lien be subordinated to the interests of other creditors; 3. Whether the trial court abused its discretion: (a) in allowing appellees’ counsel to use a previously excluded transcript as a cross examination aid; (b) in denying Friedman’s motion to re-open the case; (c) in refusing to allow appellant costs after the trial was continued for three months because of illness to appellees’ former counsel. III. STANDARD OF REVIEW The determination of insider status is a question of fact. Matter of Missionary Baptist Found., 712 F.2d 206, 210 (5th Cir.1983); In re Taylor, 29 B.R. 5, 7 (Bankr.W.D.Ky.1983); 2 Collier on Bankruptcy 11101.30, at 101-72 (15th ed. 1990). We review the bankruptcy court’s findings of fact for clear error. In re Torrez, 63 B.R. 751, 753 (9th Cir.BAP 1986), affd 827 F.2d 1299 (9th Cir.1987). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be clearly erroneous. Anderson v. City of Bessemer, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Friedman contends that, because the facts herein are “largely undisputed,” we must review the trial court’s finding that appellees were not insiders de novo. In support of this argument, Friedman cites In re Schuman, 81 B.R. 583 (9th Cir. BAP 1987),
2578	afforded two evidentiary hearings which determined his lack of requisite' disability. ' He would have been entitled to the disallowed benefits if he was found to be under the requisite disability during the period. On balance it must be concluded that the defendant’s interest is paramount and that a prior evidentiary hearing is not required by due process in this case. Additionally, regardless of the constitutional argument the reinstatement of the disability benefits from March, 1969 through February 1, 1972 would be preposterous since even if a pretermination evidentiary hearing had been held, the plaintiff, having been found not to satisfy the requisite disability, would not be entitled to retain the benefits. Several recent cases have also rejected similar claims. In  the court under substantially similar facts rejected the plaintiff’s claim, .finding that it would be ludicrous to require the Social Security Administration to reinstate plaintiff’s disability benefits. The courts in Perez v. Secretary of H. E. W., 354 F.Supp. 1342 (D.P.R.1972), and Lindsay v. Richardson, 357 F.Supp. 203 (W.D.N.C.1973), also agreed that a later evidentiary hearing renders moot the claim of denial of due process from the failure to have an evidentiary hearing prior to the termination of the disability benefits. Regarding the second issue, disability is defined in the Social Security Act as the inability to engage in substantial activity. 42 U.S.C. §§ 416(i), 423. The Act gives the Secretary broad authority to promulgate regulations augmenting these basic definitions. 42 U.S.C.
3090	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); 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
560	"was needed ""simply [to] restore[ ] to the Federal Government the jurisdiction it was recognized as having until the Dravo decision was handed down.” H.R. Rep. No 76-1623, at 1; accord S. Rep. No. 76-1708, at 1. . See, e.g., Talbott v. United States ex rel. Toth, 215 F.2d 22, 27-28 (D.C.Cir.1954), rev’d on other grounds sub nom. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955); In re Varney, 141 F.Supp. 190, 200 (S.D.Cal.1956); United States v. Kinsella, 137 F.Supp. 806, 811 (S.D.W.Va.1956), rev'd on other grounds sub nom. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); In re Di Bartolo, 50 F.Supp. 929, 933 (S.D.N.Y.1943); United States v. Robertson, 19 C.M.R. 102, 110-11 n. 2, 1955 WL 3407 (C.M.A.1955); United States v. Rubenstein, 19 C.M.R. 709, 785-88, 1955 WL 3505 (U.S.A.F. Bd. of Review 1955), aff'd, 22 C.M.R. 313, 1957 WL 4632 (C.M.A.1957); see also Note, Criminal Jurisdiction over American Armed Forces Abroad, 70 Harv. L.Rev. 1043, 1057 (1957) (noting that if the Supreme Court were to rule that civilians accompanying the military overseas could not be tried in courts martial, host countries would have exclusive jurisdiction over crimes committed by any such civilians). . See also Singleton, 361 U.S. at 246, 80 S.Ct. 297 (""[Pjrosecution in the United States for the more serious offenses when authorized by the Congress, might well be the answer to"
3737	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. d 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 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
1816	"if the officer has a reasonable and articulable suspicion that the subject whose suspicious behavior he is investigating at close range may be able to gain access to a weapon to harm the officers or others nearby. 2. Reasonable suspicion is required to conduct a search. Like all Terry searches, Milone's search must be supported by reasonable suspicion. To assess whether reasonable suspicion existed here, we look again to the totality of circumstances known to Boyack and Milone at the time the search occurred. United Pace , 898 F.2d at 1229 (upholding Terry stop on curtilage). Terry contemplates searches to screen persons who may be ""armed and presently dangerous."" Terry , 392 U.S. at 30, 88 S.Ct. 1868. In so determining, ""[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger."" Id . at 27, 88 S.Ct. 1868 ; Cady , 467 F.3d at 1061-62 (holding same). Here, the circumstances prompting the officers' suspicions that Richmond was engaged in criminal activity also roused their suspicions he might be armed and"
1109	that it overrules one of its own decisions, but leaves other courts to determine whether it does or not, as best they may, —held, as we do here, that what is meant by a “false, forged, and counterfeited” bank-note is “a forged paper in the similitude of a bank-note, or which on its face appears to be such a note,” to use the language of Mr. Justice Milleb. This implication for supplying that which is left out, and which the best pleading, I have no doubt, ought not to leave to implication, is all the stronger under these general laws and the sections of the Revised Statutes which have been already fully cited, than they were in that case of and on its authority the objection made here seems not to be well taken, plausible as it is, and was thought to be in that case. But it may be added, by way of caution, that the words which this objection suggests as those which ought not to have been omitted—that the forged note was “in the likeness and similitude” of the genuine note—are not in this statute, and perhaps were intentionally left out for a better reason than that the reader might be left to “mentally supply the ellipsis,” as the court says we may properly do as above indicated. And this reason may be suggested as an intention on the part of congress to widen the description of the offense,
2013	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 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
3098	granted the Government’s motion for summary judgment for the fraud penalties due under 26 U.S.C. § 6653(b) (1976) for 1968 on the ground of collateral estoppel. Fontneau, however, did prevail at trial on the issue of his liability for fraud penalties for the other four years. On appeal, Fontneau contends that the doctrine of collateral estoppel should not be applied to the civil tax proceeding if, in the criminal tax proceeding, the district court may have erred in accepting his guilty plea. We disagree, and hold that collateral estoppel bars the relitigation of issues determined in a criminal proceeding in which the party against whom the earlier decision is asserted has had a “full and fair opportunity” to litigate that issue. 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
1692	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  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 duty to him because it was a stockbroker with whom he deposited funds (Comply 11). A fiduciary relationship exists under
2269	a state statute or regulation that is reasonably designed to protect the public health or safety from identified harms.” Midlantic, 474 U.S. at 502, 106 S.Ct. at 760. Importantly, the court also stated, This exception to the abandonment power vested in the trustee by § 554 is a narrow one. It does not encompass a speculative or indeterminate future violation of such laws that may stem from abandonment. The abandonment power is not to be fettered by laws or regulations not reasonably calculated to protect the public health or safety from imminent and identifiable harm. Id. at 507 n. 9,106 S.Ct. at 762 n. 9. Prior to the Midlantic decision, the Third Circuit appeared to interpret the Supreme Court’s decision in Southern Ry. Co. v. Johnson, 758 F.2d 137, 141 (3rd Cir.1985). However, the court’s subsequent decision in Commonwealth of Pennsylvania Department of Environmental Resources v. Conroy, (In re Conroy) 24 F.3d 568 (3d Cir.1994) makes it doubtful that such an interpretation is appropriate. In Conroy, the court relied upon Midlantic to grant the Pennsylvania Department of Environmental Resources (“DER”) an administrative claim for its costs to remove environmental contamination. In Conroy, the DER ordered Conroy to arrange for the proper disposal of drums and canisters containing hazardous wastes. Con-roy did not comply with
3470	See Pl.’s Resp. to Defs.' Mot. for Summ. J. at 4. . See, e.g., Perez v. State of Florida, 648 So.2d 715, 719 (Fla. 1995). . 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). . See id. at 199, 93 S.Ct. 375. . See id. at 199-200, 93 S.Ct. 375. . See Butler Dep. at 45. . See Balch Dep. I at 27-28. . Butler-Dep. at 45. . Balch Dep. II at 111. . See Butler Dep. at 92. . See, e.g., Neil, 409 U.S. at 200, 93 S.Ct. 375; Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir. 1987); Jones v. Smith, 772 F.2d 668, 671 (11th Cir.1985); Meyer v. Estelle, 621 F.2d 769, 774 (5th Cir.1980); . Butler Dep. at 45. . Pl.'s Dep. at 61 (filed March 24, 1999). . Rankin, 133 F.3d at 1436 (citations omitted). . Id. (citation omitted). . See Marx, 905 F.2d at 1507.
4641	in the program, which would have required him to pay an estimated $160.12 each month. Because he did not consider or pursue this repayment option, the bankruptcy court found that Hooker did not demonstrate good faith in his repayment efforts and that, therefore, could not discharge his student loan debt. II. Student loan debt is excepted from discharge unless excepting it would “impose an undue hardship on the debtor.” 11 U.S.C. § 523(a)(8). The Fourth Circuit has adopted the Second Circuit’s three-prong test outlined in Brunner v. N.Y. State Higher Educ. Servs. Corp., 831 F.2d 395, 396 (2d Cir.1987), for determining whether a debtor has demonstrated an “undue hardship” to discharge the debtor’s student loans. To prove an undue hardship under that test a debtor must show: (1) he cannot maintain a minimal standard of living and repay the loans; (2) additional circumstances exist that illustrate he will not be able to repay the loans for a substantial part of the repayment period; and (3) he attempted to repay the loans in good faith. Id. at 400. The bankruptcy court found it unnecessary to decide whether Hooker satisfied Brunner’s first two prongs because it concluded that he had failed to satisfy the third. The court, relying on In re Frushour, concluded that Hooker did not prove he attempted to repay his loans in good faith since Hooker failed to look into or participate in an
889	N.Y.S.2d 367, 369 (1969). The New York Court of Appeals affirmed without opinion, 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587 (1971). . Similarly, Jenohs was decided under the Supreme Court’s rule-making powers for the administration of justice in the federal courts rather than as a matter of federal constitutional law. See Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). . Cf. People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 236, 299 N.Y.S.2d 617, 619, 247 N.E.2d 492, 493 (1969). . United States ex rel. Sadowy v. Fay, 284 F.2d 426, 427 (2d Cir. 1960), cert. denied, 365 U.S. 850, 81 S.Ct. 814, 5 L.Ed.2d 814 (1961) ; United States ex rel. Birch v. Fay, 190 F.Supp. 105, 107 (S.D.N.Y.1961) ; see Buchalter v. New York, 319 U.S. 427, 429-430, 63 S.Ct. 1129, 87 L.Ed. 1492 (1943). . Cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). . United States v. Keogh, 391 F.2d 138, 146-147 (2d Cir. 1968). . In an affidavit to the Appellate Division the Assistant District Attorney who prosecuted the case swore he was on vacation when the wiretapping occurred and that when he was told by a subordinate there was nothing of evidentiary value on the tapes he did not waste time listening to them. Brief for Respondent
2264	to be a particularly vexing question where an environmental injury which gives rise to liability occurs pre-petition, but the remediation costs are expended post-petition. Generally, environmental compliance costs which arise from the debtor’s pre-petition conduct are treated as general unsecured claims. Dant and Russell, 853 F.2d at 709; In re Great Northern Forest Products, Inc., 135 B.R. 46, 60-61 (Bankr.W.D.Mich.1991); In re Kent Holland Die Casting & Plating, Inc., 125 B.R. 493, 503 (Bankr.W.D.Mich.1991). However, courts have found an exception to this general rule when the pre-petition environmental contamination also poses an identifiable and imminent harm in the post-petition period which requires the expenditure of funds to contain or remediate the problem. In re Conroy, 24 F.3d 568 (3d Cir.1994); In re Wall Tube & Metal Products Company, 831 F.2d 118, 123-24 (6th Cir.1987); In re Peerless Plating, 70 B.R. 943, 948-49 (Bankr.W.D.Mich.1987). A number of courts which have found that post-petition costs of remedi-ating a pre-petition environmental injury are properly classified as administrative expenses, rely on Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986). See, In re Wall Tube & Metal Products Company, 831 F.2d at 123-24; In re Conroy, 24 F.3d at 570. PLC argues that the holdings in Midlantic and Conroy definitively establish that the Bankruptcy Code does not provide a safe haven for polluters, and consequently, costs expended to remediate environmental pollution should be
1557	the minority group. In the absence of sufficient votes to effectively compete, clearly it is not the existence of the multimember district that deprives the minority group of the opportunity to elect its preferred candidates. In this case the defendants’ expert, Dr. Weber, had accurate voter registration data available. In drawing subdistricts he attempted to form black voter registration majorities. Although it may not be appropriate to use registration figures in every vote dilution case, it strikes this court that, when such information is available, it provides valuable assistance in determining whether there is a violation of Section 2 in a judicial district, as well as in fashioning a remedy which will actually work. Relying upon  plaintiffs, in both the liability trial and the remedy phase, have frequently ignored “one-man, one-vote” principles. As' the Fifth Circuit pointed out in Chisom v. Edwards, 839 F.2d 1056, 1060 (5th Cir.1988), such equal representation principles do not apply per se to judicial elections, but Wells clearly has no application to claims of racial discrimination in judicial elections. This court certainly accepts the notion that there is no federal requirement that judicial districts must contain approximately equal numbers of people. Indeed, judicial districts are jurisdiction specific, not population oriented. Many times the limits of a judicial district are historical and tied directly to a unit of local government. However, where one is drawing subdistricts within existing
922	the lien against his salary and bank account had been released. We disagree. Section 6511(a) provides in pertinent part: Claim for credit or refund of an overpayment of any tax imposed by this title ... shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later— 26 U.S.C. § 6511(a). Thus, the plain language of § 6511(a) states that the two-year limitations period, on which the taxpayer bases his claim, begins at the time the tax is “paid.” A remittance or amount collected is recognized as a “payment” to the IRS when it discharges a definite obligation. See Cf. Rosenman v. United States, 323 U.S. 658, 662, 65 S.Ct. 536, 538, 89 L.Ed. 535 (1945) (sums paid to IRS by a taxpayer under protest before any tax assessment was made, and deposited by the IRS into a “suspense account,” do not constitute “payments” of taxes until such time as the tax liability has been determined and the funds are applied to discharge it); Schmidt v. Commissioner of Internal Revenue, 272 F.2d 423, 429 (9th Cir.1959) (remittances of estimated taxes do not trigger the statute of limitations; the period begins to run only with the filing of the return, through which the final tax liability is ascertainable).
997	PER CURIAM: Appealing the Judgment in a Criminal Case, Luis Tamayo-Zaragoza raises arguments that are foreclosed by AlmendarezTorres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense.  cert. denied, — U.S.-, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008). The appellant’s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED. 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.
2202	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.  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 their requested relief supports a reduction of the lodestar by fifteen percent. Plaintiffs prevailed against two key defendants (Hyde and Bossi) on one of the two § 1983 civil rights claims (excessive force) that constituted the factual and legal heart of their case. Given that the injuries they alleged were primarily psychological in nature, their success on the claim for punitive damages is significant. The City incorrectly argues
3319	in counts 1 and 4. Furthermore, the separate lists of overt acts attached to each count reinforce the independence of the conspiracies. Thus, when viewed as a whole, the court’s instructions made clear that to return a guilty verdict on count 4 the jury had to find that Nelson or Shamy committed an overt act in furtherance of a conspiracy to obstruct justice, and that to return a guilty verdict on count 1 it was required to find that Nelson or Gassaro committed an overt act in furtherance of a conspiracy to deprive the public of honest government through mail fraud. Inasmuch as the appellants have failed to demonstrate that the evidence was too complex for the jury to compartmentalize,  cert. denied, 460 U.S. 1092, 103 S.Ct. 1792, 76 L.Ed.2d 359, and 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983), and likewise have not overcome the presumption that the jury properly followed the court’s instructions, United States v. Restaino, 405 F.2d 628, 630 (3d Cir.1968), cert. denied, 394 U.S. 904, 89 S.Ct. 1012, 22 L.Ed.2d 216 (1969), we find no grounds for a new trial on count 4 in appellants’ selective reading of the jury charge. C. For the third prong of their attack on the conspiracy convictions, the appellants argue that they were denied a fair trial due to the prejudicial spillover of irrelevant matters from the mail fraud (count 1) and Hobbs Act extortion counts (counts
4556	§ 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. 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 poli-cymaking authority with respect to County law enforcement and jails, and [based on that,] the County can be held responsible for constitutional violations resulting from these policies.” United States v. Maricopa Cnty., Ariz., 915 F.Supp.2d 1073, 1082-84 (D.Ariz.2012); (Doc.56). Title VI does not explicitly provide liability for entities which cause others to violate the statute. Title VI provides: “No person
4281	at any other time prior to 1959, liquidate “the whole or any part of its capital stock.” Thus Park Lake filed Form 966 because the course of action it was to pursue was, in the words of section 148(d), an “adoption by [Park Lake] of a resolution or plan for [its] dissolution.” The only reasonable construction of the 1946 resolution is that it was a plan of complete liquidation which was to be, in its own words, “effected as soon as possible, contingent upon the disposition of what remains of its property.” A plan of liquidation may extend over a number of years and may be carried out notwithstanding that the liquidating corporation is meanwhile engaging in some business activities. Cf. . 5), reversing 40 B.T.A. 336; R. D. Merrill Co., 4 T.C. 955, 969-970; Rollestone Corporation, 38 B.T.A. 1093, 1105; T. T. Word Supply Co., 41 B.T.A. 965, 980-981. The action taken subsequent to the 1946 resolution is consistent with a plan of complete liquidation. Between 1946 and 1958 properties were sold and distributions to shareholders were made; after the resolution of November 6, 1946, and prior to 1958, Park Lake sold property in the amount of $53,050 and made distributions in the amount of $57,000. No new property was acquired. All of the distributions were designated “liquidating” or “partial liquidating” dividends. These sales and distributions resulted in a marked contraction of corporate activity and a substantial reduction in corporate assets. There
4959	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 any, relevance. Cf. NetApp also argues that the crux of the applicants’ arguments consisted of explaining why Cabrera had not disclosed the patentably significant structures of the vol-info block and PCPI fsinfo blocks, and that the applicants never stated that the '720 patent claims were limited by the preamble. In support of this argument, NetApp cites this passage of the prosecution history: The Examiner states that Cabrera discloses PCPI fsinfo blocks because Cabrera teaches that the VSSC [Volume Snapshot Service Coordinator] is used to coordinate
2621	2778, 81 L.Ed.2d 694 (1984). Under step one, the court must determine “whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. If so, then the court and the agency must “give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. If the court determines that “the statute is silent or ambiguous with respect to the specific issue,” then under step two, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. In addressing a question of statutory interpretation, the court begins with the text. See, e.g., Section 7(a) of the FPA provides: In issuing preliminary permits hereunder or original licenses where no preliminary permit has been issued, the Commission shall give preference to applications therefor by States and municipalities, provided the plans for the same are deemed by the Commission equally well adapted, or shall within a reasonable time to be fixed by the Commission be made equally well adapted, to conserve and utilize in the public interest the water resources of the region. 16 U.S.C. § 800(a) (emphasis added). As Western Minnesota points out, “[njothing in this language qualifies or restricts which ‘states’ or which ‘municipalities’ are to be favored.” Pet’rs’ Br. 12-13. Congress determined that these entities shall be
2881	implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. “ ‘The substance of all the definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’ McCarthy v. DeArmit, 99 Pa.St. 63, 69, quoted with approval in the Carroll opinion [Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543], 267 U.S. at 161 [45 S.Ct. at 288]. And this ‘means less than evidence which would justify condemnation’ or conviction, as Marshall, C. J., said for the Court more than a century ago in 48 [3 L.Ed. 364]. Since Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162 [45 S.Ct. 280, 69 L.Ed. 543]. “These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing
1530	"a [collective bargaining agreement] may freely determine the extent of the employer’s obligation to contribute to a fund, including the exact date of withdrawal."" Malden Mills Industries, Inc., v. ILGWU National Retirement Fund, 766 F.Supp. 1202, 1209 (D.Mass.1991). . Section 1392(c) has not been discussed frequently, but where it has been addressed, it has typically been construed narrowly. See Pension Trust Fund of Philadelphia and Vicinity v. Fed. Exp. Corp., No. 80-304, 1995 WL 791371 at *8 n. 3 (D.Del. Dec. 27, 1995). . Courts addressing the application of § 1392(c) have done so most often where a conveyance of assets to or other dealings with subsidiaries are suggestive of bad faith. See e.g., Santa Fe Pacific Corp. v. Central States, Southeast and Southwest Areas Pension Fund, 22 F.3d 725, 729 (7th Cir.1994)(finding employer's sale of subsidiary's stock instead of assets suggested intent to avoid or evade liability); Flying Tiger Line v. Teamsters Pension Trust Fund of Philadelphia, 830 F.2d 1241 (3d Cir.1987)(focusing on whether sale of subsidiary’s stock was sham transaction); Dorn’s Transportation, Inc. v. Teamsters Pension Trust Fund of Philadelphia, 787 F.2d 897 (3d Cir.l986)(finding that sale of motor freight business did not violate § 1392(c) where, regardless of seller’s motive, buyer continued to make payments to fund; characterizing § 1392 as embodying ""good faith” requirement). . Congress underscored the"
563	of the offense level for acceptance of responsibility pursuant to Guidelines § 3E1.1 based on these same facts. The court stated that Larsen had not clearly demonstrated his acceptance of responsibility but instead engaged in “business as usual,” by attempting to obtain assets illegally and to place them in the hands of another person for his own use. To an offense level of fourteen the court added a criminal history category of I, which lead to a sentencing range of between fifteen and twenty-one months imprisonment. The court sentenced Larsen to the maximum term of twenty-one months imprisonment. Whether Larsen accepted responsibility within the meaning of Guidelines § 3E1.1 is a question of fact for the district court to resolve. United States v. Jordan, 890 F.2d 968, 972 (7th Cir.1989). This court will uphold a district court’s factual findings in determining a sentence unless they are clearly erroneous. 18 U.S.C. § 3742(e); Franklin, 505-06; Jordan, 890 F.2d at 972. Application Note 5 of Guidelines § 3E1.1 provides that “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.” Guidelines § 3El.l(a) provides that “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for the offense of conviction, reduce the offense level by 2 levels.” This
3208	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; 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 the correctness or wisdom of the agency’s decision. Id. at 1160-61. The statutory scheme here strongly suggests that this is an appropriate ease for consideration of matters outside of the administrative record. Subsection (c)(4) carefully apportions jurisdiction to review the EPA’s suspension order between the courts of appeals and the district courts: “final order[s] on the question of suspension following a hearing shall be reviewable in accordance with section 136n
237	the stockholder controlling 1209 shares was not a bar to the plaintiff’s maintaining the later action in this court, since the corporation and the individual were different parties and, therefore, the doctrine of res judicata did not apply. Hornstein v. Kramer Bros. Freight Lines, 133 F.2d 143 (3rd Cir.1943). Also, it has been determined in this Circuit that the acquittal of the driver of a vehicle alleged to have been driven in violation of the revenue laws of the United States is no bar to a forfeiture action brought under the same statute which is applicable in the present action against the owner of the vehicle, who was the wife of the defendant acquitted in the criminal action. Therefore, under the applicable law, the defendant in the criminal action (Abe Markowitz) and the corporation asserting a claim here (David Realty Corporation) not being identical, the principle of res judicata would not apply and, hence, the amendment should not be permitted since it would avail the moving party nothing. It is also noted that Judge Grim’s opinion denying respondents’ motion to dismiss has really covered the principal contentions of respondents. If there had been “identity of interest” between Markowitz and the David Realty Corporation, that decision would not have been worded as it was. As the libellant would be prejudiced at this stage of the proceedings if the amendment were allowed, and since the amendment would avail the moving
2051	analysis. The third factor is the desirability of avoiding piecemeal litigation. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1247. The analysis with regard to this factor should focus not on the mere possibility of duplica-tive litigation, but on the implication and practical effect of litigating lawsuits arising out of the same incident in separate courts. Grafico, 48 F.3d at 51-52; González, 926 F.2d at 4. Abstention would not be warranted merely because related or identical issues would be decided by different courts. Villa Marina I, 915 F.2d at 16. The mere inefficiency that results from parallel proceedings is not sufficient to warrant abstention; there must be an exceptional basis that requires the case' to proceed solely in state court. Irizarry Pérez, 758 F.Supp. at 102. In order for a court to justify abstention, there must be a potential for unfairness or harm caused by there being parallel proceedings. González, 926 F.2d at 4. Here, there are similar cases that are considering almost identical issues. K-Mart argues that there will be duplicative litigation between this case and the Superior Court case and that therefore the Court should abstain from hearing this case. The Court agrees that there may be duplicative litigation between the federal and Superior Court proceedings. However, the fact that there may be duplication is not, by itself, sufficient to justify abstention. If this Court is to abstain, there must be an exceptional basis or some potential harm
3651	dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Cromley v. Board of Educ. of Lockport, 699 F.Supp. 1283, 1285 (N.D.Ill.1988). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See Fed.R.Civ.P. 12(b)(6); Gomez v. Illinois State Board of Educ., 811 F.2d 1030, 1039 (7th Cir.1987). However, the court may dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. B. Analysis of Wage Payment and Collection Act In Count VI of his first amended complaint, Glass seeks recovery of unpaid wages pursuant to the Illinois Wage Payment and Collection Act (‘Wage Act”), 820 ILCS 115/1-115/16. Specifically, Glass seeks in excess of $700,000 for lost salary, lost bonus opportunities, severance pay, and damages associated with the closing costs of his Atlanta home. The Wage Act provides a means for employees to collect wages due them. See generally 815 ILCS 115/4-115/6. It applies “to all employers and employees in this State, including employees of units of local governments and school districts, but excepting employees of the State or Federal governments.” 815 ILCS 115/1. Defendants base
1004	PLA. The Goldwassers respond that the concepts are not as unrelated as TiVo asserts; infringement damages are frequently calculated based on an estimated reasonable royalty that the infringer would have paid under a licensing agreement. See Vermont Microsystems, Inc. v. Autodesk, Inc., 138 F.3d 449, 450 (2d Cir.1998). In fact, the question before us is not whether these are separate legal concepts — the arbitration panel does not say otherwise — but whether the arbitration panel provided at least a “barely colorable” justification for concluding that the Goldwassers’ right to royalties, as that term is used in the PLA, includes a right to a portion of a settlement for past infringement. In urging error, TiVo cites  in which the district court held that a lump sum payment to the licensor to cover past infringement did not amount to a royalty payment triggering the most favored licensee clause in the parties’ agreement. See id. at 171 (stating that “[m]onies received as a settlement for past tortious use of patents are not the equivalent of royalties”). This conclusion, however, was premised in part on “the language of the contract,” which is, of course, unique to every case, and the fact that “[t]he word royalty commonly imports payment for permissive or lawful use and not damages for pirated or illegal appropriation.” Id. (internal quotations marks and ellipsis omitted). But, in a contract, the word “royalty” need not always be read so
961	status is a question of fact. UVAS Farming Corp., 89 B.R. at 892. The case law that has developed also indicates that not every creditor-debtor relationship attended by a degree of personal interaction between the parties rises to the level of an insider relationship. See In re Huizar, 71 B.R. 826 (Bankr.W.D.Tex.1987) (Despite defendant bank’s president having been a close personal friend of debtor, having solicited debtor’s business, having become debtor’s primary lender, and having taken at least one vacation with debtor, bank was not an insider given lack of evidence indicating that the transactions between the parties were anything other than properly negotiated loan transactions, nor that the bank held any form of actual or unreasonable control over the debtor); and In re Technology For Energy Corp., 56 B.R. 307 (Bankr.E.D.Tenn.1985) (court rejected contention that secured creditor-bank was insider of debtor, notwithstanding that bank had voting control over debt- or pursuant to a stock pledge). A common basis for these rulings was the perception that, while a creditor may be in a strong bargaining position in dealing with the debtor, so long as the parties transact their business at arm’s length, such circumstances do not necessarily give rise to insider status even though there was some degree of personal relationship with the debtor. It is unlikely that
2438	"participate in the PJM capacity auction, but guarantees CPV a rate distinct from the clearing price for its interstate sales of capacity to PJM. By adjusting an interstate wholesale rate, Maryland's program invades FERC's regulatory turf. See EPSA, 577 U.S., at ----, 136 S.Ct., at 780 (""The FPA leaves no room either for direct state regulation of the prices of interstate wholesales or for regulation that would indirectly achieve the same result."" (internal quotation marks omitted)). That Maryland was attempting to encourage construction of new in-state generation does not save its program. States, of course, may regulate within the domain Congress assigned to them even when their laws incidentally affect areas within FERC's domain. See But States may not seek to achieve ends, however legitimate, through regulatory means that intrude on FERC's authority over interstate wholesale rates, as Maryland has done here. See ibid. (distinguishing between ""measures aimed directly at interstate purchasers and wholesalers for resale, and those aimed at subjects left to the States to regulate"" (internal quotation marks omitted)). The problem we have identified with Maryland's program mirrors the problems we identified in Mississippi Power & Light and Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953, 106 S.Ct. 2349, 90 L.Ed.2d 943 (1986). In each of those"
3912	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 a one-time act. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (describing a continuing violation as a number of related incidents). Nor does Silvas identify facts that would suggest her FHA claim should be equitably tolled. See Thus, the district court did not abuse its discretion in denying a preliminary injunction based on Silvas’s FHA 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
346	because of a clause in the reorganization plan which provided that the costs of reorganization should be paid out of certain funds in his hands. The parties concerned were agreed that this clause required the receiver to pay the tax, and procured an order from the Circuit Court of Baltimore' City directing him to do so. For cases bearing upon the right of a voluntary payor to recover a tax illegally exacted, see: Wourdack v. Becker, 8 Cir., 55 F.2d 840, certiorari denied, 286 U.S. 548, 52 S.Ct. 501, 76 L.Ed. 1285; Clift & Goodrich Inc. v. United States, 2 Cir., 56 F.2d 751; Central Aguirre Sugar Co. v. United States, Ct. Cl., 2 F.Supp. 538; certiorari denied 294 U.S. 712, 55 S.Ct. 508, 79 L.Ed. 1246; White v. Hopkins, 5 Cir., 51 F.2d 159; Aaron v. Hopkins, 5 Cir., 63 F.2d 804. The judgment of the District Court will therefore be affirmed but without prejudice to the Government to assess and collect the tax if funds are available after the claims of the bank’s depositors have been satisfied, and if it be found that the certificates are within the purview of section 901 of title 26 U.S.C.A. “§ 901. Corporate securities “On all bonds, debentures, or certificates of indebtedness issued by any corporation, and all instruments, however termed, issued by any corporation with interest coupons or in registered form, known generally as corporate securities on each $100 of
2980	the plate glass window of a jewelry store. While the case is indeed a close one, 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); 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
898	even if Defendants acted improperly by failing to timely provide Plaintiff with information she requested, including the decision on her appeal, Plaintiff may not recover because she was not a beneficiary to the Plan and was not entitled to the Plan benefits. IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment (Doc. 86) is GRANTED. IT IS FURTHER ORDERED that Plaintiffs Motion for Summary Judgment (Doc. 99) is DENIED. IT IS SO ORDERED. . Doc. 54-1 at 4-5. .Id. at 5. . Doc. 79 at 20-28. . Id. at 20-21. . Fed.R.Civ.P. 56(a). . City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir.2010). . Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.2004) (citing . Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). . Adler, 144 F.3d at 670 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir.2010). . Anderson, 477 U.S. at 256, 106
882	. 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). . 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). . Jencks v. United United States v. Sopher, 362 F.2d 523, 525-526 (7th Cir.), cert. denied. 385 U.S. 928, 87 S.Ct. 286, 17 L.Ed.2d 210 (1966) ; cf. United States v. Birnbaum, 337 F.2d 490, 497-498 (2d Cir. 1964). . People v. Butler, 33 A.D.2d 675-676, 305 N.Y.S.2d 367, 369 (1969). The New York Court of Appeals affirmed without opinion, 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587 (1971). . Similarly, Jenohs was decided under the Supreme Court’s rule-making powers for the administration of justice in the federal courts rather than as a matter of federal constitutional law. See Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). . Cf. People ex rel.
2306	that substantial evidence supported the ALJ’s credibility determination because Mr. Griffin sought only “sporadic treatment,” and because of his statements about his ability to work after the accident. Finally, the District Court rejected the argument that the 2001 ALJ decision, which found Mr. Griffin could not do past relevant work and which the ALJ in the 2010 decision did not even mention, should have res judicata effect. Those are the same three issues presented to this Court. II. STANDARD OF REVIEW The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). This Court may not reweigh evidence and decide facts anew, and must defer to the ALJ’s decision if it is supported by substantial evidence. Substantial evidence must do more than create a suspicion of the existence of a fact; it is evidence that a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.1995). If the Commissioner’s decision is supported by substantial evidence it should be affirmed, even if this Court would have reached a contrary result. Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir.2004). III. SEVERE IMPAIRMENT Mr. Griffin first contends that substantial evidence does not support the ALJ’s failure to find that his tinnitus constituted a severe impairment. In order to determine whether a claimant is disabled, the Social Security Administration (SSA) applies a five-step sequential analysis. 20 C.F.R. §
908	see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir.2010). . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Spaulding, 279 F.3d at 904. . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). . Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir.2000) (quoting Adler, 144 F.3d at 670-71); see Kannady, 590 F.3d at 1169. . City of Herriman, 590 F.3d at 1181. . Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006). . Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). . . Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). . Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). . Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991). . Calia v. Werholtz, 426 F.Supp.2d 1210, 1214 (D.Kan.2006) (citing Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir.1992)). . 29 U.S.C. § 1132(a)(1)(B). . Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). . Kimber v. Thiokol Corp., 196 F.3d 1092, 1097 (10th Cir.1999). . Doc. 86 at 8. . 29 U.S.C. § 1132(a)(1). . 29 U.S.C. § 1002(8). . Doc. 54-1 at 4-5. . See
697	opinion, the INA now says that “[n]othing in subparagraph (B) or (C), or in any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.” REAL ID Act § 106(a)(l)(iii), amending 8 U.S.C. § 1252(a)(2). We therefore proceed directly to Ramos’s two constitutional arguments. Due Process. Ramos is correct insofar as he argues that the Fifth Amendment to the Constitution entitles aliens to removal proceedings that comport with due process. See Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); It is not enough, however, to show that the procedures used fell short in some constitutionally significant way. In order to prevail on a due process claim, the petitioner must establish that the violations that occurred were prejudicial to him. Capric, 355 F.3d at 1087. The due process violation must have been one likely to have an impact on the result of the proceeding. Id. at 1087-88. Whether or not Ramos is correct that the IJ’s procedures fell short of the constitutionally required standard, we conclude that he cannot show prejudice on this record. There is no ironclad rule that aliens subject to removal procedures have a right personally to be present for every stage of the proceeding, unless extraordinary
2395	5-8- (page numbers designated by ECF). It .argues that plaintiff effected service of process 232 days after having filed- his complaint in the United States District Court for the District of Maryland, and 226 days after transfer.of the case to this district, well beyond the 120-day period set forth in Federal Rule of Civil Procedure 4(m). Id. at 7. Because plaintiff is proceeding pro se and in forma pauperis, court officers “issue and serve all process” on his behalf. 28 U.S.C. § 1915(d); see Fed. R. Civ. P. 4(c)(3). Under these circumstances, the Court declines to penalize plaintiff by dismissing the complaint 'for insufficient service of process based on exceeding the time limits of Rule 4(m). See, e.g., 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.
3148	receive sixty days credit towards their sentences. Okla.Stat.Ann. tit. 57, §§ 572-573. Because Appellant is a subsequent offender incarcerated for a violent offense, he is ineligible for these emergency time credits. The district court correctly determined that Appellant failed to make a viable argument that excluding inmates from emergency time credits because of their status as violent or repeat offenders violates the Equal Protection Clause, the Due Process Clause, or the Eighth Amendment. First, the magistrate’s recommendation properly concluded that violent or repeat offenders are not a suspect class; that the Act must therefore bear only a rational relationship to a legitimate state interest to withstand equal protection review; and that the Act is indeed rationally related to legitimate penological concerns. Second, the magistrate’s recommendation also properly determined that Appellant, whose ineligibility under the Act was never in dispute, has no constitutionally protected liberty interest in shortening his sentence through emergency time credits. Cf. Shirley v. Chestnut, 603 F.2d 805, 807 (10th Cir.1979) (finding no protected liberty interest when state statute creates possibility of parole). Thus, Appellant has no viable claim to any specific due process procedures. Lastly, the magistrate judge correctly rejected Appellant’s assertion that remaining in overcrowded prison conditions without the benefit of emergency time credits constitutes cruel and unusual punishment. Absent allegations of “deliberate indifference” by prison officials and of a “specific deprivation” of a “human need,” an Eighth Amendment claim based on prison conditions must fail. Wilson v.
621	". Id. (quoting Wilson v. Broadband Wireless Int’l Corp. (In re Broadband Wireless Int’l Corp.), 295 B.R. 140, 145 (10th Cir. BAP 2003)). . See Debtors' Objection. . See Bank’s Response. . Richter, 478 B.R. at 40; see also In re Lenz, 110 B.R. 523, 525 (D.Colo.1990). . Id. at 40-41 (internal citations omitted). . See Security Service Federal Credit Union v. First American Mortg. Funding, LLC, 861 F.Supp.2d 1256, 1264 (D.Colo.2012)(""[A] court need not choose which body of law to apply unless there is an outcome determinative conflict between the potentially applicable bodies of law.”). . Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); . Haggard v. Spine, 2009 WL 1655030, at *3 (D. Colo. June 12, 2009) (not reported in F.Supp.2d); see also Wood Bros. Homes, Inc. v. Walker Adjustment Bureau, 198 Colo. 444, 601 P.2d 1369 (1979). In full, Restatement (Second) of Conflict of Laws § 187 states: (1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue. (2) The law of the state chosen by the parties to govern their contractual rights and duties will be applied, even if the particular issue is one which the"
2420	available, we conclude that to put petitioner to the expense and uncertainty of such a course of action would constitute irreparable harm, both intrinsically and as a deterrent to seeking medical care in the civilian world when needed. Harm to Other Parties and the Public Interest From the record thus far made in this case, it seems clear that little harm to either the Army or the general public interest will result from petitioner’s retention in service. In fact, it would be extremely difficult for the Army to argue that petitioner is unable to perform his duties, since the very basis of this suit is the Army’s contention that he is fit to serve. Respondents, however, rely on  where the Court of Appeals, in vacating a district court order restraining the Air Force from forcibly retiring the petitioning officers, stated: The detriment to the Air Force in retaining officers it desires to retire is at least as great as that of the officers retired. Services of officers chosen for retirement will likely be of little benefit to the Air Force and will hamper the promotion of officers the Air Force-desires to promote and may well impair the efficiency of the Air Force. While that conclusion may have been justifiable under the facts of Pauls, we cannot reach a similar conclusion in this case. Contrary to respondent’s suggestion, there is no indication that petitioner’s retention would disrupt Army
3223	89 v. Midwest Emery Freight System, Inc., 48 B.R. 566, 568 (Bankr.N.D.Ill.1985). 11 U.S.C. § 502(b)(1) provides: (b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount except to the extent that— (1) such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or un-matured; ... As noted in See, e.g., Woods-Tucker Leasing Corp. v. Hutcheson-In-gram Development Co., 642 F.2d 744, 748 n. 8 (5th Cir.1981); Vanston Bondholders Protective Comm. v. Green, 329 U.S. 156, 161, 67 S.Ct. 237, 239, 91 L.Ed. 162 (1946). See also Mazirow v. Grigsby, {In re White Motor Corp.), 44 B.R. 563 (ND.Ohio 1984). 3 Collier on Bankruptcy ¶ 502.02 at 502-27 to 29 (15th ed. 1987); Bordewieck & Countryman, The Rejection of Collective Bargaining Agreements by Chapter 11 Debtors, 57 Am.Bankr.L.J. 293, 330-31 (1983). Note, The Bankruptcy Law’s Effect on Collective Bargaining Agreements,
1407	“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.” 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 charges stemmed in part from a meeting of the union and the company’s employees. The Board found that the day before the meeting, the company’s vice president urged his employees to join the union. At the meeting, the vice president introduced the union representative, then left, but another member of management stayed. After a union representative
2772	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; 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 424; Chiron, 179 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
754	no doubt, the mortgagee has the right, upon condition broken, to foreclose his mortgage and have the. mortgaged property sold at public auction to the highest bidder, and the proceeds of the sale applied in satisfaction of the mortgage debt; and in order to obtain a satisfaction of his mortgage he cannot be compelled to bid in either the mortgaged property, or the mortgaged property and other property, at a price fixed by the court. Dane v. Daniel, 23 Wash. 379, 387, 63 Pac. 268; Bailey v. Hendrickson, 25 N. D. 500, 143 N. W. 134, Ann. Cas. 1915C, 739; Bronson v. Kinzie, 1 How. 311, 11 L. Ed. 143. But this rule is not absolute, or without qualification. Thus in d a like lien on the remainder. The decree of foreclosure directed a sale of the entire tract as one parcel, authorized the auditor of the court to ascertain the relative values of the two parcels, and provided that the proceeds of the sale should be applied on the debts secured by the different deeds of trust in accordance with the values thus ascertained. This decree was affirmed by the Supreme Court. Mr. Justice Miller dissented, saying: “I dissent from so much of the .iudgment of the court in this case as requires the
3575	actual damages before an award of punitive damages may be made is satisfied if it is established that the plaintiff received injuries entitling him to compensation, even though no finding or award of actual or compensatory damages is made. 22 Am.Jur.2d Damages § 743 (1988) (footnotes deleted). Virginia appears to be among the jurisdictions that require a finding and award of compensatory damages while Michigan evidently has not decided the issue. At the outset, the defendant’s argument invokes an interesting conflict of laws question. It assumes without argument that Virginia law controls even though the court has heretofore applied pertinent Michigan law. Under Virginia law, the parties may stipulate that the law of another jurisdiction will govern. In this instance, the Fourth Circuit upheld the parties’ stipulation of Michigan law and applied that 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
2715	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, The presentation of a “new issue” means more than the presentation of a new legal theory of recovery. Rosen v. Dick, 639 F.2d 82 (2d Cir.1980); Bulk Oil (USA) Inc. v. Sun Oil Trading Co., 584 F.Supp. 36, 43 (S.D.N.Y. 1983). New issues sufficient to revive the right to a jury trial are not raised if the amended pleadings concern the same “general area of dispute” as was raised in the original pleadings. Lanza v. Drexel, 479 F.2d at 1310. Here, plaintiff alleges that it is only since discovery has commenced that he has learned of MCA’s plan to expand its use of the trademark “UPTOWN” and that it is this expanded use of the mark that is Sunenblick’s basis for a
1593	*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 Steel, Inc., 812 F.2d 1518, 1526 (10th Cir.1987). If the court decides that the dispute is “primarily representational” even if framed as a breach of contract, the court defers to the NLRB’s exclusive jurisdiction. See, e.g., Although we have not decided the parameters of a claim that is “primarily representational” as opposed to “primarily contractual,” several of our sister circuits have done so. The Sixth Circuit has “identified two scenarios in which a dispute will be treated as ‘primarily representational.’ ” DiPonio Constr. Co., Inc. v. Int’l Union of Bricklayers & Allied Craftworkers, Local 9, 687 F.3d 744, 750 (6th Cir.2012) (quoting Trafftech, 461 F.3d at 695). The first occurs if the NLRB “has already exercised jurisdiction over [the] matter and is either considering ... or has already decided” the claim. Id. (quoting Trafftech, 461 F.3d at 695); see also Int’l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO v. Olympic Plating Indus.,
1832	"of ""at least five articulable facts [that] support[ed] their suspicion."" It does not. And even if this thin set of facts were enough to justify a working assumption that Richmond had a gun, so what? Generally speaking, to justify an investigatory stop, the police must have ""a particularized and objective basis for suspecting the particular person stopped of criminal activity."" Navarette v. California , 572 U.S. 393, 396, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014), citing United States v. Cortez , 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Mere possession of a firearm in a high-crime area-assuming for a moment that the police had an adequate basis for even this conclusion-is not good enough. See As we pointed out in Watson , ""[p]eople who live in rough neighborhoods may want and, in many situations, may carry guns for protection. They should not be subject to more intrusive police practices than are those from wealthy neighborhoods."" Id. at 897. The police did not have the necessary reasonable suspicion to frisk Richmond, had they accosted him before he reached his front door, and they made no effort to do so. Even if they did, they knew that he was no longer carrying the mystery package; for officer safety, they could have escorted him to the squad car, far from the package, and gone about their business. I am aware of no authority that endorses the conduct"
4424	94, 111.) The certifications stated that BoA’s financial statements did not contain untrue statements or material omissions and stated that BoA’s internal control system brought relevant financial concerns to the signatories’ attention. (SAC ¶ 76.) 9. BoA’s Class Period reports to the SEC also stated that the Bank disclosed loss contingencies in accordance with Generally Accepted Accounting Principles. (SAC ¶¶ 70, 73, 92,110.) With respect to representations about particular litigations or settlements, the plaintiffs argue that BoA’s public filings misled investors by disclosing matters that, though similar to the AIG suit, involved materially smaller losses. This claim fails because a corporation is not required to reveal all facts on a subject just because it reveals a single fact. See There is an obvious difference between an actual lawsuit and threatened litigation that has not been brought. No reasonable investor would believe that disclosures of pending litigation meant that no other litigations were possible. Accordingly, the defendants’ truthful disclosures regarding pending litigations and recent settlements were not rendered incomplete or inaccurate by their failure to make disclosures about threatened litigation, particularly a threatened litigation with a loss range as indeterminate as the AIG suit. This is especially so because BoA was careful to note that particular litigations and settlements did not preclude additional fraud or securities claims. For example, the defendants qualified their announcement of the Gibbs Group settlement by noting first that the settlement did not cover “the investor securities
3639	"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., 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 with examples of upheld convictions where ""a defendant pushed the shoulder of an electronics store clerk, causing her to fall onto shelves while the defendant took possession of a television,” and where a defendant ""push[ed] the victim’s hand off of a carton of cigarettes.”) . Eason was also convicted of first degree battery under Ark. Code Ann. § 5-13-201. Because the government has established only one other predicate offense, we need not determine whether this conviction qualifies under the force clause."
4240	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); 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
4636	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 that sometimes forces the denial of both motions, 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); 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.
3932	& 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. 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 been discharged from a job during the time that his postal application was pending. Accordingly, plaintiff was not otherwise qualified for the position of PTF mail carrier. Defendants would not have offered plaintiff employment had they known of
57	law by illegally reentering the United States shortly after he had been removed. Duran-Olvera has failed to show that the district court did not consider a factor that should have received significant weight, gave significant weight to a factor that it should not have so weighted, or made a clear error of judgment when it balanced the relevant factors. Cooks, 589 F.3d at 186. He has thus failed to rebut the pre sumption of reasonableness that we apply to his within-guidelines sentence. See Campos-Maldonado, 531 F.3d at 388. As Duran-Olvera concedes, his argument that the presumption of reasonableness should not be applied to his sentence because § 2L1.2 lacks an empirical basis is foreclosed. See Duarte, 569 F.3d at 530-31; The judgment of the district court is AFFIRMED. 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.
1728	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. 1, 13/103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). . Grable & Sons Metal Prods., Inc., v. Darue Eng’g & Mfg.,-U.S. -, 125 S.Ct. 2363, 2368, 162 L.Ed.2d 257 (2005). Accord . Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Two exceptions to the well-pleaded complaint rule permit removal of state law actions: when the claims are completely preempted by federal law and 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
117	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 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 within the discretionary function exception to the FTCA; and/or (2) a private person would not be liable
1059	(Tr. 390:10-11 (Johnson).) Cassing Hammond, M.D., a licensed physician and board-certified obstetrician and gynecologist, is an Assistant Professor in Obstetrics and Gynecology at the Northwestern University School of Medicine, the Director of the Northwestern Program in Family Planning, and the Medical Director at Prentice Ambulatory Care. (Tr. 517:12-522:2 (Hammond); Ex. 98, Curriculum Vitae of Cassing Hammond, M.D. [Hammond C.V.].) Dr. Hammond has performed thousands of previa-bility abortions, including D & E and D & X. (Tr. 526:1-530:8, 533:9-20 (Hammond).) He teaches various abortion procedures, including D & E and D & X, to residents and medical students at Northwestern. (Tr. 534:2-535:20 (Hammond).) Dr. Hammond previously testified in two cases that challenged partial-birth abortion bans. (Tr. 538:3-8, 539:21-540:10 (Hammond);  rev’d, 353 F.3d 436 (6th Cir.2003); Hope Clinic v. Ryan, 995 F.Supp. 847, 849, 850-51 (N.D.Ill.1998).) He is also a plaintiff in this case. (Tr. 522:3-5 (Hammond).) Dr. Carolyn Westhoff, M.D., a licensed physician and board-certified obstetrician and gynecologist, is the Medical Director of Special GYN Services, Medical Director of the Family Planning Clinic, an attending physician at New York Presbyterian-Columbia Presbyterian Medical Center, and Professor of Epidemiology and of Population and Family Health in the School of Public Health at Columbia University. (Tr. 731:2-10, 732:14-23, 765:6-16 (West-hoff); Ex. 126, Curriculum Vitae of Carolyn L. Westhoff, M.D. [Westhoff C.V.].) She has performed hundreds of previability abortions, including D & E and D & X procedures. (Tr. 743:9-744:4, 745:12-746:11, 747:18-751:4 (Westhoff).)
2444	for 5.3 grams of crack instead of 3.57, an increase of 49%, and 28.5 grams of marijuana instead of 22, an increase of 30%. Nobody noticed the mistake until appeal, but as the government now acknowledges, the miscalculation caused the court to arrive at an incorrect range of 97 to 121 months instead of the correct range of 63 to 78 months for the two drug convictions. Given the magnitude of the mistake, the government concedes that the oversight constituted plain error warranting resentencing, and we accept the concession. Although after United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the guidelines are advisory, a sentencing court still must calculate and consider the advisory range. United States v. Baretz, 411 F.3d 867, 877 (7th Cir.2005). And whether pre- or post-Booker, basing a sentence on a miscalculated range is an error that affects substantial rights and may constitute plain error. Baretz, 411 F.3d at 877; United States v. Hall, 212 F.3d 1016, 1022 (7th Cir.2000); United States v. Maggi, 44 F.3d 478, 484 (7th Cir.1995). Accordingly, we VACATE the sentence and REMAND for resentencing.
732	jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.” La.R.S. 13:3201(B). Thus, the issue is whether the assertion of jurisdiction over Ward under the facts of this case comports with due process. The Court must apply a two step analysis to resolve this issue: (1) there must be some minimum contact with the state; and, (2) it must be fair and reasonable to require the defendant to come into the state to defend the action. See Southern Investors II v. Commuter Aircraft Corp., 520 F.Supp. 212 (M.D.La.1981). On the issue of minimum contacts, the United States Supreme Court has considered a similar type of transaction in In Burger King, a franchiser brought an action against the franchisee to enforce the franchise contract and for trademark infringement. The only contacts of the defendant with Florida involved the franchise agreement. The defendant had not entered Florida physically. The Court reasoned that the defendant’s contract alone was not sufficient to establish minimum contacts. However, the prior negotiations, contemplated future consequences, the terms of the contract, and the parties’ actual course of dealing must be considered to determine whether the defendant purposefully established minimum contacts with the forum. The defendant in Burger King had established minimum contacts through a substantial and continuing relationship with the franchiser’s headquarters in Miami. Also, the contract applied Florida law and
2836	"the evidence does not show that the vessel was ""engaged in freighting brick on the Hudson river”; nor on any theory of a customary rate for scows of this description, since the statute is manifestly intended to be comprehensive of all vessels engaged in transporting freight or passengers. There is no force in the suggestion that there is no general maritime lien against a domestic vessel for wharfage. The converge is held, upon sound reasoning, in The Allianca, 56 Fed. 609; The Advance, 60 Fed. 766; The Kate Tremaine, 5 Ben. 60, Fed. Cas. No. 7,622; and Woodruff v. One Covered Scow, 30 Fed. 269; and we find nothing to Weaken the authority of those cases in the circumstance that in Nor do we consider that The Lottawanna, 21 Wall. 558, is an analogous case, dealing as it did wholly with the question of materials and supplies. The decree of the district court is affirmed, but, since both sides appealed, without interest or costs."
2173	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 “[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
2248	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, 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 Defendants “abused their discretion” in not maintaining copies of particular documents in his Central File and by categorizing those documents as exempt from the Freedom of Information Act. In response, the Defendants have requested the disposition of this case for primarily two reasons. First, it is argued that the entire complaint is vexatious in nature and “falls squarely within the definition of ‘immaterial, impertinent and scandalous matter.’ ” Doe. No. 8 at 3,
2153	2510, 91 L.Ed.2d 202 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties’ differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). The evidence must be construed in a light most favorable to the party opposing the motion. This action was brought in 1996 in connection with a now 17-year-old environmental cleanup dispute involving a piece of property formerly owned by the defendant, Vermont American Corporation (‘VAC”). 500 Associates, Inc. v. Natural Resources and Environmental Protection Cabinet, 204 S.W.3d 121 (Ky.App.2006) recounts the facts underlying this action, as found by the Environmental Protection Cabinet’s hearing officer and affirmed by the Kentucky Court of Appeals. From 1949 to 1986, VAC owned the property in issue at 500 East Main Street, Louisville, Kentucky. VAC’s American Saw and Tool Division manufactured circular saw blades and hand tools there. During the manufacturing process, it generated various hazardous wastes associated with its electroplating and heat treatment operations. In March, 1986, VAC closed its manufacturing
4315	complaint. Tootsie Roll argued that the “express terms of the arbitration provision” in the purchase agreement required Weiner to submit his complaint to arbitration. Tootsie Roll also argued that the arbitration provision was enforceable under federal and Illinois law, as well as Georgia law. The district court decided the parties’ motions based on the pleadings. The district court denied Weiner’s motion to remand, and the district court granted the motion of Tootsie Roll to compel arbitration. II. STANDARDS OF REVIEW Two standards govern our review of this appeal. We review de novo the denial of Weiner’s motion to remand and the order compelling him to arbitrate. See Moore v. N. Am. Sports, Inc., 623 F.3d 1325, 1328 (11th Cir.2010); We review findings of jurisdictional facts for clear error. See Scarfo v. Ginsberg, 175 F.3d 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
564	Guidelines § 3E1.1 based on these same facts. The court stated that Larsen had not clearly demonstrated his acceptance of responsibility but instead engaged in “business as usual,” by attempting to obtain assets illegally and to place them in the hands of another person for his own use. To an offense level of fourteen the court added a criminal history category of I, which lead to a sentencing range of between fifteen and twenty-one months imprisonment. The court sentenced Larsen to the maximum term of twenty-one months imprisonment. Whether Larsen accepted responsibility within the meaning of Guidelines § 3E1.1 is a question of fact for the district court to resolve. United States v. Franklin, 902 F.2d 501, 505-06 (7th Cir.1990); This court will uphold a district court’s factual findings in determining a sentence unless they are clearly erroneous. 18 U.S.C. § 3742(e); Franklin, 505-06; Jordan, 890 F.2d at 972. Application Note 5 of Guidelines § 3E1.1 provides that “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.” Guidelines § 3El.l(a) provides that “[i]f the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for the offense of conviction, reduce the offense level by 2 levels.” This Guideline also states that while a guilty plea may provide
4452	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., 617 F.2d 396 (5th Cir.1980); Austracan, (U.S.A.) Inc. v. M/V LEMONCORE, 500 F.2d 237 (5th Cir.1974); The Maria, supra. Cases in which the appellate courts have held jurisdiction proper for the appeal although the facts differed from those of the original justification for the appeal include All Alaskan Seafoods, Inc. v. M/V Sea Producer, 882 F.2d 425 (9th Cir.1989); Dunham v. M/V Marine Chemist, 812 F.2d 212, 214 n. 2 (5th Cir.1987); O'Donnell v. Latham, 525 F.2d 650 (5th Cir.1976); Doyle v. Bethlehem Steel Corp., 504 F.2d 911 (5th Cir.1974); Bergeron v. Elliot, 466 F.2d 514, 516 n. 3 (5th Cir.1972); Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d 1198 (2d Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 452, 30 L.Ed.2d 369 (1971). As the careful eye will note, some circuits appear in both lists (neither of which is exhaustive), and these circuits have addressed this matter and developed fairly detailed rules to explain the dis tinctions between the various procedural postures presented and the applicability of § 1292(a)(3) to each. . Since we recognize that both parties believed jurisdiction to lie for this appeal, and we understand that the circuits
1150	apparently first learned of the additional charge. Yet it took 17 days before the appellant was brought to trial on both charges. Where, as here, an accused’s case involves separate sets of charges occurring on different dates, each set has a different starting time for the purpose of determining the government’s burden under the decision of United States v. Burton, supra. This determination of separability for the purpose of computing the government’s accountability has long been recognized by the United States Court of Military Appeals. See United States v. Marell, 23 U.S. C.M.A. 240, 49 C.M.R. 373 (1974); United States v. Mosley, 22 U.S.C.M.A. 515, 47 C.M.R. 932 (1973); United States v. Mohr, 21 U.S.C.M.A. 360, 45 C.M.R. 134 (1972); Of significant applicability here, is what was said in United States v. Ward, 23 U.S. C.M.A. 391, 394, 50 C.M.R. 273, 276, 1 M.J. 21, 23 (1975): “When different charges become known, or are committed at different times, two procedural principles are operative. The first is the Manual policy that all known offenses ‘should be tried at a single trial.’ Manual for Courts-Martial, United States, 1969 (Rev.), paragraph 31g. The second is that every charge must be speedily brought to trial. This case and others that have come to our attention since Johnson convince us that while the Manual policy on joinder of offenses may provide advantages to the accused as well as the Government, he, not the Court,
3096	PER CURIAM: Tyrone Miller pled guilty to conspiracy to possess more than fifty grams of cocaine base (crack) and more than 500 grams of cocaine with intent to distribute, 21 U.S.C. § 846 (2000), and was sentenced to a term of 170 months imprisonment. Miller’s attorney has filed a brief pursuant to  challenging the adequacy of the guilty plea under Fed.R.Crim.P. 11, but stating that, in his view, there are no meritorious issues for appeal. Miller has been informed of his right to file a pro se supplemental brief, but has not filed a brief. We affirm. Although counsel questions whether the district court fully complied with Rule 11 in accepting Miller’s plea, after a thorough review of the record, we conclude that the court followed all the requirements of Rule 11 to ensure that Miller’s guilty plea was knowing and voluntary. Pursuant to Anders, we have examined the entire record and find no meritorious issues for appeal. Accordingly, we affirm the district court’s judgment. This court requires
3972	to Dismiss (“Dismissal Order”) on March 7, 2014, for Schlegels’ “[flailure to fully complete plan payments on or before five (5) years from the commencement of this case.” It entered a separate order denying the Hardship Motion on March 5, 2014, but Schlegels did not appeal that order. Schlegels timely appealed the Dismissal Order on March 21, 2014. II.JURISDICTION The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(2)(A). We have jurisdiction under 28 U.S.C. § 158. III.ISSUE Did the bankruptcy court abuse its discretion in dismissing Schlegels’ bankruptcy case for failure to complete plan payments within five years? IV.STANDARDS OF REVIEW A court’s interpretation and application of a local rule is reviewed for an abuse of discretion. We review the bankruptcy court’s dismissal of a chapter 13 bankruptcy case under any of the enumerated paragraphs of § 1307(c) for abuse of discretion. Ellsworth v. Lifescape Med. Assocs., P.C. (In re Ellsworth), 455 B.R. 904, 914 (9th Cir. BAP 2011). A bankruptcy court abuses its discretion if it applied the wrong legal standard or its findings were illogical, implausible or without support in the record. TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832 (9th Cir.2011). Y. DISCUSSION The bankruptcy court did not abuse its discretion when it dismissed the Schlegels’ chapter 13 bankruptcy case for failing to complete their plan payments within the five-year period. Before we turn to the merits of the bankruptcy court’s decision to
3595	in Mississippi, citing Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, — U.S. -, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). 10. In light of the foregoing, the Board filed its Notice of Motion, dated April 15, 1993, for an order permitting it to file a late proof of claim with respect to the CERCLA claim which is the subject of the District Court action in Mississippi. The debtor maintains that such late filing should not be accepted as “excusable neglect.” DISCUSSION Allowability At the outset, it should be noted that 42 U.S.C. §§ 9607(a) and 9613(f) per mit a private party to recover from a responsible party response costs it incurs in conducting cleanup pursuant to CERCLA. Dant & Russell, Inc. v. Burlington Northern Railroad Co. (In re Dant & Russell, Inc.), 951 F.2d 246, 248 (9th Cir.1991); Syntex Corp. v. The Charter Company (In re Charter Co.), 862 F.2d 1500, 1503 (11th Cir.1989). Whether or not a contingent response claim is allowable in bankruptcy depends, in part, on a finding that it is not a claim for reimbursement or contribution which is dis-allowable under 11 U.S.C. § 502(e)(1)(B). A contingent CERCLA claim that is not a direct claim between the parties but depends upon the co-liability of the parties, as to a third party or to the Environmental Protection Agency (“EPA”), is a disallowa-ble claim for reimbursement or contribution. Dant & Russell, 951 F.2d at 249;
2015	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); 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
2854	to the defendant; and (2) “there was no real division in fact or in use of the building into separate halves.” Id. at 502-503, 45 S.Ct. at 416. The Supreme Court held: “It is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.” Id. Under that rule as applied to those facts the warrant was upheld. Search warrants with faulty descriptions of the place to be searched have been upheld in a number of cases. See, e.g., Hanger v. United States, 398 F.2d 91 (8th Cir.1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969); United States v. Goodman, 312 F.Supp. 556 (N.D.Ind.1970); United States v. Joseph, 174 F.Supp. 539 (E.D.Pa.1959), aff’d 278 F.2d 504 (3d Cir.), cert. denied, 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960); United States v. Contee, 170 F.Supp. 26 (D.D.C.1959). In United States v. Sklaroff, 323 F.Supp. 296 (S.D.Fla. 1971), the court reviewed these prior decisions and concluded, at page 321: The foregoing decisions illustrate the principle that the determining factor [in deciding] whether a search warrant describes the premises to be searched with sufficient particularity is not whether the description given is technically accurate in every detail but rather whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that
583	adjustment under that section that would have resulted in a refund of the full amount of her claim. I am adopting as the Court’s findings of fact herein the stipulation of facts, dated August 30, 1945, received as Exhibit 1 on the trial February 28, 1946. As a conclusion of law, I rule that the petitioneriplaintifif is entitled to judgment against the defendant United States of America for the amount sued for, $4,490.23, with interest from December 15, 1937. On the question of interest see Title 26 U.S.C.A. Int.Rev. Code, § 3771; Blair v. United States ex rel. Birlcenstock, 271 U.S. 348, 46 S.Ct. 506, 70 L.Ed. 983; and Title 28 U.S.C.A. § 284(b);  Ct.Cl., 32 F.Supp. 767.
4006	of W. Allan Eva ¶ 8, Pis.’ Ex. 17, ECF No. 274-3.) Plaintiffs also point to Rueckert’s deposition testimony which establishes that he has used an Ultra to drydock his boat, Ginger Snapper. (See Rueckert Dep. at 160-162, Pl.’s Ex. 18, ECF No. 274^.) Considering this evidence, there is no genuine issue of material fact concerning whether or not Defendant has driven a craft onto an Ultra. Consequently, Defendant has directly infringed the '833 patent and is liable for direct infringement under § 271(a). Second, Plaintiffs also show direct infringement by Zeppelin’s customers. Direct infringement of a patented method may be established through different actors performing different steps of a method. See, e.g., see also Moleculon Research Corp. v. CBS, Inc., 793 F.2d 1261 (Fed.Cir.1986). In Metabolite, the Federal Circuit found that there was sufficient circumstantial evidence in the record to find that various physicians, who were non-parties to the suit and performed only the second step of the method, directly infringed the method claim at issue and therefore, the defendant could be held liable for inducing infringement. Id; see also Moleculon, 793 F.2d 1261 at 1272 (holding that although method claims could only be directly infringed by non-party puzzle-users who attempted to solve the Rubic’s cube puzzle, and not by the defendant that had made the accused puzzles, defendant was liable for inducing infringement.). In the instant case, Plaintiffs have shown the existence
3146	petitioner alleges that he was never formally sentenced under one of the prior convictions that was used for enhancement. Indeed, he states, that only after he began serving his life sentence as a habitual criminal did the convicting court pass sentence and issue its mandate sentencing him to 10 years in the penitentiary and ordering this sentence to run concurrently with the life sentence. At most, this raises a question of State law, not a federal question over which this Court has jurisdiction. Compare Beto v. Sykes, 360 F.2d 411 (5th Cir. 1966). See also United States ex rel. Read v. Martin, 263 F.2d 606 (2d Cir. 1959); Elwood v. Smith, 164 F.2d 449 (9th Cir. 1947); If petitioner’s allegations are true, however, he should be entitled to relief in the State courts as a matter of State law. In White v. State of Texas, 171 Tex.Cr.R. 683, 353 S.W.2d 229 (1962), the defendant was convicted of burglary, with two prior convictions alleged for enhancement, and sentenced to life imprisonment. To prove the two prior convictions, the State introduced certified copies of the judgments for each prior conviction. On appeal, the Court of Criminal Appeals reversed, holding that the judgments were not sufficient to show the two prior convictions. The Court stated: “There, is no evidence in the record showing that sentence was pronounced upon the appellant in the prior convictions alleged. The pronouncement of sentence upon the defendant
2948	to loyal counsel, for the presumption against the waiver of fundamental rights is strong. Glasser, supra. However, the court considers it noteworthy that petitioner has waited so long to question the loyalty of an attorney first appointed in 1965, especially when the prosecutor in 1965 had highlighted the possibility of a conflict of interest. Although the main thrust of petitioner Durham’s argument deals with Simpson’s allegedly divided loyalty between Howard and petitioner, petitioner complains because Simpson was a part-time Judge of the County Court when he represented petitioner. This claim lacks merit, because mere employment by the Commonwealth is not enough to establish a conflict of interest. There must be some connection relating to the investigation or prosecution of the case. In addition, petitioner knew that Simpson was County Judge, yet petitioner stated on the record that he had no objection to Simpson’s representing him. It could well be that petitioner was happy to have a locally prominent lawyer representing him, especially a lawyer who was familiar with petitioner’s case from having already tried it once in 1965. Notwithstanding the charges petitioner has leveled against Simpson, this court holds unequivocally that petitioner’s constitutional right to zealous and impartial defense counsel has not been diluted. The court notes that two attorneys, Simpson and Tisinger, represented petitioner at his 1972 trial. While petitioner alleges that Simpson was limited by a divided loyalty, petitioner has made no such allegation against Tisinger, nor has he alleged that
878	rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972) ; United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969) ; United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied, 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970). . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). . 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). . Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), subsequently codified in 18 U.S.C. § 3500. . But cf.  cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), holding that a statement that would support impeachment for bias and interest “relates” to the witness’ testimony under 18 U.S.C. § 3500. See also Rosenberg v. United States, 360 U.S. 367, 370, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959). . See United States v. Crisona, 416 F.2d 107, 112-114 (2d Cir. 1969), cert. denied, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970); United States v. Sopher, 362 F.2d 523, 525-526 (7th Cir.), cert. denied. 385 U.S. 928, 87 S.Ct. 286, 17 L.Ed.2d 210 (1966) ; cf. United States v. Birnbaum, 337 F.2d 490, 497-498 (2d Cir. 1964). . People v. Butler, 33 A.D.2d 675-676, 305
3390	a desired end, do not anticipate an invention which, for the first time effectually meets all requirements and successfully accomplishes such end. In Beckwith v. Malleable Iron Range Co., 174 Fed. 1001, 1009, 1010, the United States Circuit Court, E. D. of Wisconsin, said: It is elementary that when it is sought to ascertain the state of the art by means of prior patents, nothing can be used except what is disclosed on the face of those patents. Such patents can not be reconstructed in the light of the invention in suit and then used as a part of the prior art. Naylor v. Alsop Process Co., 168 Fed. 911, 920, 94 C. C. A. 315. A syllabus of In General Electric Co. v. DeForest Radio Co., 17 F. (2d) 90, 91, the doctrine was stated that: Prior patent, to constitute “ anticipation,” must be sufficiently full, clear, and exact to enable persons skilled in art to construct or practice the invention without exercise of further inventive skill or experiment, and description must be sufficient to constitute a specification. The disclosures of the Clark patent do not seem to
2315	generated, it would be by the sole efforts of the insurance company’s agents in selling insurance to the association members. The selling of insurance, the servicing of the policy, the collection of premiums and payment of claims, in short, everything connected with the insurance program was wholly in the hands of the insurance company.' The only significant participation of Plaintiff in the insurance program was that it was made available under its name to its members. Otherwise, Plaintiff was only passively involved. Thus, the activities of Plaintiff regarding the group insurance program by the common and generally accepted understanding of the terms cannot be considered a trade or business. Deputy v. Dupont, 308 U.S. 488, 60 S.Ct. 363, 84 L.Ed. 416; Orange County Builders Association, Inc. v. United States of America, 65-2 CCH US Tax Cases, 96, 828 (S.D.Cal.1965). Next, with reference to whether the group insurance program is not substantially related to the exempt purpose of Plaintiff, the arrangement of making group life, health and accident insurance available to the association membership at economic rates is deemed to be sub- stantially related to the purposes of the exempt organization. Plaintiff is an exempt organization by virtue of 26 U.S. C.A. § 501(c) (5). Plaintiff's Constitution states that it was organized to promote educational and scientific programs affecting the cattle industry of Oklahoma, to prevent cattle theft and control cattle diseases, to improve cattle breeding, “ * * * and in
2079	self-incrimination precludes the government from using statements elicited from a suspect during a custodial interrogation if those statements were extracted without a prior warning. Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990), quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). For the Fifth Amendment protection to come into play, however, the statements must be the result of a custodial interrogation. A defendant is said to be in custody when he or she is either subjected to a formal arrest or restrained to the degree usually associated with a formal arrest. United States v. Fernandez Ventura, 85 F.3d 708, 709 (1st Cir.1996), quoting Stansbury v. California, 511 U.S. 318, 323-24, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994). To determine whether a particular restraint on freedom of movement meets this test, the Court “must examine all the 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;
4282	liquidate “the whole or any part of its capital stock.” Thus Park Lake filed Form 966 because the course of action it was to pursue was, in the words of section 148(d), an “adoption by [Park Lake] of a resolution or plan for [its] dissolution.” The only reasonable construction of the 1946 resolution is that it was a plan of complete liquidation which was to be, in its own words, “effected as soon as possible, contingent upon the disposition of what remains of its property.” A plan of liquidation may extend over a number of years and may be carried out notwithstanding that the liquidating corporation is meanwhile engaging in some business activities. Cf. R. D. Merrill Co., 4 T.C. 955, 969-970; Rollestone Corporation, 38 B.T.A. 1093, 1105; T. T. Word Supply Co., 41 B.T.A. 965, 980-981. The action taken subsequent to the 1946 resolution is consistent with a plan of complete liquidation. Between 1946 and 1958 properties were sold and distributions to shareholders were made; after the resolution of November 6, 1946, and prior to 1958, Park Lake sold property in the amount of $53,050 and made distributions in the amount of $57,000. No new property was acquired. All of the distributions were designated “liquidating” or “partial liquidating” dividends. These sales and distributions resulted in a marked contraction of corporate activity and a substantial reduction in corporate assets. There was no mention in the corporate records
3018	that Palazzolo could not “maintain a claim that the CRMC ha[d] deprived him of all beneficial use of the property.” Ibid. It is true that the Rhode Island courts, in the course of ruling for the State, briefly touched base with Penn Central. Cf. ante, at 624. The critical point, however, underplayed by the Court, is that Palazzolo never raised or argued the Penn Central issue in the state system: not in his complaint; not in his trial court submissions; not — even after the trial court touched on the Penn Central issue — in his briefing on appeal. The state high court decision, raising and quickly disposing of the matter, unquestionably permits us to consider the Penn Central issue. See But the ruling below does not change the reality essential here: Palazzolo litigated his takings claim, and it was incumbent on the State to defend against that claim, only under Lucas. If Palazzolo’s arguments in this Court had tracked his arguments in the state courts, his petition for certiorari would have argued simply that the Rhode Island courts got it wrong in failing to see that his land had “no use” at all because of CRMC’s rules. Brief of Appellant 11. This Court likely would not have granted certiorari to review the application of MacDonald and Lucas to the facts of Palazzolo’s case. However, aided by new counsel, Palazzolo sought— and in the exercise of this Court’s discretion obtained —
3387	MEMORANDUM Toney August Schomer appeals from the sentence imposed upon the revocation of supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Schomer contends that the district court violated Fed.R.Crim.P. 32.1(b)(2)(B) and his right to due process by engaging in an ex parte conversation with a probation officer who confirmed the allegations against him. We need not reach the issue whether the district court committed error because any alleged error would be harmless in light of the fact that Schomer admitted the violations. See Schomer’s contention that the imposition of a sentence upon supervised release based on judicial findings violates United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) is foreclosed by United States v. Huerta-Pimental, 445 F.3d 1220, 1224 (9th Cir.2006). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
2525	motion to amend denied, 331 F.Supp.2d 1354 (M.D.Ala.2004); Hoefs v. CACV, 365 F.Supp.2d 69, 73 (D.Mass.2005); Johnson v. Arrow Fin’l Servs., LLC, 2006 WL 2170663, at * 3 (N.D.Ill. Sept. 15, 2006). In addition, there is no evidence that the Robertsons continued receiving account statements at the same address where the Notice and New Agreement purportedly were sent, and thereafter continued making payments on their account. See, e.g., Battels v. Sears Nat’l Bank, 365 F.Supp.2d 1205, 1209 n. 3 & 1213 (M.D.Ala.2005); Hoefs, 365 F.Supp.2d at 73. There has also been no showing that Monogram’s or GE’s records of plaintiffs’ account reflected that the Notice or New Agreement were mailed to them. See, e.g., Taylor, 325 F.Supp.2d at 1311; Marsh, 103 F.Supp.2d at 917. Nor is there extensive discussion of Monogram’s or GE’s routine business practices regarding the mailing of the Notices, or that any quality assurance controls were utilized to ensure that such procedures were correctly followed. See, e.g., Marsh, 103 F.Supp.2d at 916-19. In addition, the court is not convinced that Ms. Koehler has the requisite personal knowledge to establish that the Notice or New Agreement were mailed to plaintiffs. Ms. Koehler works for GE; however, the Notice and New Agreement were sent by Monogram, of which GE became successor by merger in 2005. It is entirely unclear whether Ms. Koehler worked for GE or for Monogram prior to the merger and, indeed, whether she worked for either
939	transcripts are wholly inappropriate — under the rule of completeness.” Federal Rule of Evidence 106 embodies the “rule of completeness,” providing that “if a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — nr any other writing or recorded statement — that in fairness ought to be considered at the same time.” By no later than September 5, 2012, the Defendants shall each file a notice indicating which, if any, portions of recordings that the Defendants believe should be played in addition to the excerpts the Government intends to play, and why the additional portions should be played for the jury. See, e.g., The D.C. Circuit’s analysis in Holton was guided by two overarching concerns: (1) that the defendant(s) be provided sufficient opportunity to object to the accuracy of the transcripts; and (2) that the jury not rely on the transcript as evidence of the recorded conversation, but rather use the transcript as merely an aid. In this case, the defendants have been provided copies of and can raise objections to the transcripts well in advance of trial. The Court shall instruct the jury regarding the purpose and function of the transcripts. Holton, 116 F.3d at 1543. Additionally, during deliberations, the transcripts
2562	U.S. 160, 164, 59 S.Ct. 131, 83 L.Ed. 100, rehear. den., 305 U.S. 674, 59 S.Ct. 247, 83 L.Ed. 437, aff’g. In re Tax Service Association v. Avery Brundage Co., 95 F.2d 373 (7th Cir. 1938); MacDonald v. Plymouth County Trust Co., 286 U.S. 263, 267, 52 S.Ct. 505, 76 L.Ed. 1093 (1932). The waiver was effective to permit the exercise of summary jurisdiction by the court even though the escrow fund had been attached in the state action. See Taubel-Scott-Kitzmiller Co. v. Fox, 264 U.S. 426, 433, 434, 44 S.Ct. 396, 68 L.Ed. 770 (1924); Carney v. Sanders, 381 F.2d 300, 302 n. 3 (5th Cir. 1967); O’Dell v. United States, 326 F.2d 451, 455, 456 (10th Cir. 1964); cf. 5 Remington on Bankruptcy (5th ed. 1953) § 2200. The appellants rely upon In re Consolidated Container Carriers, Inc., 385 F.2d 362 (3rd Cir. 1967). In that case the court sustained an objection to the summary jurisdiction of the bankruptcy court over a fund that had been attached in a state action. The court pointed out, however, that at least one and possibly both of the objecting parties had “steadfastly refused to consent to the bankruptcy court’s summary jurisdiction”. 385 F.2d at 365. The ease is therefore distinguishable from the one before us, in which there was consent. The appellants rely on the statement of the court in the Consolidated Container Carriers case (385 F.2d at
2319	of Canada, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s denial of his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir.2005). We deny the petition for review. The agency did not abuse its discretion by denying as untimely Oraha’s motion 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 . 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.
1168	simple, straightforward and easily resolved in favor of the parties defending the settlement. Thus, regardless of whether we were to dismiss the appeals for lack of jurisdiction or to reach the merits of the appeals, the settlement would stand. Although jurisdictional issues are normally resolved prior to a determination of the merits, under the circumstances here, we may disregard potentially difficult jurisdictional issues and proceed directly to the merits where there is no practical difference in the outcome. See e.g., Norton v. Mathews, 427 U.S. 524, 532, 96 S.Ct. 2771, 2775, 49 L.Ed.2d 672 (1976); Safeco Life Insurance Company v. Musser, 65 F.3d 647, 650 (7th Cir.1995); Rekhi v. Wildwood Industries, Inc., 61 F.3d 1313, 1316 (7th Cir.1995); United States v. Parcel of Land, 928 F.2d 1, 4 (1st Cir.1991); Browning-Ferris Industries of South Jersey, Inc. v. Muszynski, 899 F.2d 151, 154-60 (2d Cir. 1990). We believe it is prudent to do so here. III. Federal courts naturally favor the settlement of class action litigation. E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 888-89 (7th Cir.1985), cert. denied, 478 U.S. 1004, 106 S.Ct. 3293, 92 L.Ed.2d 709 (1986); Metropolitan Housing Development Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1013 (7th Cir.1980); Armstrong v. Board 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
1808	"Milone articulated objectively reasonable grounds to suspect Richmond was engaged in criminal activity that justified their entry onto the porch. Richmond describes the facts differently. But ""[t]he need to resolve ambiguous factual situations-ambiguous because the observed conduct could be either lawful or unlawful-is a core reason the Constitution permits investigative stops."" United States v. Miranda-Sotolongo , 827 F.3d 663, 669 (7th Cir. 2016). Because the aggregate facts support a particularized and objective basis for the officers to suspect Richmond was engaged in criminal activity, their suspicions were reasonable within the meaning of the Fourth Amendment. The sum of all the information known to officers at the time of the stop is considered, including the behavior and characteristics of the suspect. Here, that information included specific and articulable facts which taken together fostered Boyack's and Milone's reasonable suspicion that ""criminal activity is afoot."" B. The Search We next address whether Milone exceeded the permissible scope of Terry when he partially opened the screen door to search for a gun. Richmond depicts his exchange with the officers as a ""consensual encounter,"" not an investigatory stop. In so doing, he acknowledges the officers were permitted to enter onto the porch area to ask him questions to dispel their suspicions, but contends a warrant or his consent was required to open the screen door. From this he argues there is no specific exception for a ""search incident to a Terry stop."" Even so,"
3142	the benefit of its creditors and (if the value justifies) equitable owners. 2009 U.S. Dist. LEXIS 119063 at *17, 2009 WL 5184458 at *5. The District Court also ruled that “[i]mplicit in the duties of a Chapter 11 trustee or a debtor-in-possession as set out in Sections 1106 and 704 of the Bankruptcy Code is the duty of such a fiduciary to protect and preserve the estate, including an operating business’s going concern value.” 2009 U.S. Dist. LEXIS 119063 at *17-18, 2009 WL 5184458 at *5. The District Court did not cite nor discussed the Kmart case. (E) Interrelation of Sections 105, 363 and 1107 for Critical Vendor Orders This court is persuaded by the reasoning applied in  for payment to critical vendors and adopts its analysis to the instant case. In Tropical Sportswear Int’l Corp., the court refused to use its equitable powers under Section 105 by itself to order payment to critical vendors. Instead, it ruled that a bankruptcy court may utilize Section 105(a) together with Section 363 of the Bankruptcy Code to justify the grant of a critical vendor order under appropriate circumstances. 320 B.R. at 20. “Bankruptcy courts recognize that Section 363 is a source for authority to make critical vendor payments, and Section 105 is used to fill in the blanks. After all, the Bankruptcy Code does not contemplate every business crisis that could arise in a bankruptcy case, and this Court is of the
4202	42 U.S.C.A. § 1997e(d)) mandates that the attorney’s fees limitations apply to the awards made in the May, August,- and October orders, regardless of when the work being compensated was performed. We acknowledge that other courts that have addressed the applicability of the attornej^s fees provisions of § 803 of the PLRA to pending cases have refused to apply the limitations, concluding that such application would have an impermissible retroactive effect. See Jensen v. Clarke, 94 F.3d 1191, 1201-03 (8th Cir.1996) (concluding that application of the attorney’s fees provisions in § 803(d) to Plaintiffs and their attorneys who had worked for “literally years” on the assumption that their fees would be based on 42 U.S.C.A. § 1988 would be “manifestly unjust”); see also Weaver v. Clarke, 933 F.Supp. 831, 834 (D.Neb.1996) (refusing to apply § 803(d)’s limitations when determining attorney’s fees awarded after the enactment of the PLRA for work performed prior to the enactment of the PLRA). But cf. Hadix v. Johnson, 947 F.Supp. 1113, 1114-15 (E.D.Mich.1996) (concluding that § 803 of the PLRA applies when determining attorney fee awards for work completed after enactment of the PLRA in a prison conditions ease arising prior to enactment of the PLRA). With all due respect to our sister Circuits, we find their analyses flawed. In Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court outlined a three-step inquiry to be undertaken
55	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. 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 illegally reentering the United States shortly after he had been removed. Duran-Olvera has failed to show that the district court did not consider a factor that should have received significant weight, gave significant weight to a factor that it should not have so weighted, or made a clear error of judgment when it balanced the relevant factors. Cooks, 589 F.3d at
4366	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 principal place of business of a corporation at the time the complaint is filed. Simply because a company’s principal place of business may have been in a particular state when an earlier action was instituted does not necessarily mean it remained in that state when the complaint in a later case is filed. Accordingly, we will deny the motion of the plaintiffs to collaterally estop Avco from relitigating the determination of Pennsylvania as its principal place of business. ORDER AND NOW, this 9th day of May, 2012, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that the motion of plaintiffs Pamela Lewis, individually and as personal representative of the estate of Steven Edward Lewis, deceased, and Keith Whitehead and John Wroblewski as co-personal representatives of the estate
3111	Accordingly, whether the parties asserting this defense were parties to the CBA is irrelevant. Notably, numerous courts, including the Ninth Circuit, have found system boards of adjustment to have exclusive jurisdiction over suits brought against pension benefit plans, even though the plans themselves were not parties to a CBA. See Long v. Flying Tiger Line, Inc. Fixed Pension Plan for Pilots, 994 F.2d 692 (9th Cir.1993) (holding system board had exclusive jurisdiction over ERISA suit brought against pension plan); see also Stephens v. Retirement Income Plan for Pilots of U.S. Air, Inc., 464 F.3d 606 (6th Cir.2006) (holding system board had exclusive jurisdiction over parts of ERISA suit brought against pension plan); If pension benefit plans have standing to assert this defense, there is no reason that a disability benefit plan like the Plan here cannot. Second, Pearson repeatedly suggests that the RLA cannot “apply” to ERISA claims at all. This, however, is a matter of settled law in the Ninth Circuit, as well as all other circuits to have considered the question. In Long, the court rejected this an argument, and held that a federal court lacks jurisdiction over an ERISA claim if that claim is a dispute falling under the exclusive jurisdiction of a system board of adjustment. The court explained: If we were to find subject matter
2095	the search of his wallet. In view of the above mentioned case law, the Court finds that the agent acted properly when it searched Fernandez Santana’s wallet and discovered the note which established a purported link between him, Juanito Fiel and the Eagle Caribe. Upon review of the totality of the circumstances, 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 . 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.
2681	de novo the res judi-cata effect of a Chapter 13 plan and interpretation of the Bankruptcy Code and Rules, because these matters are legal issues or mixed questions of law and fact in which legal issues predominate. George v. Morro Bay (In re George), 318 B.R. 729, 732-33 (9th Cir.BAP 2004); Wells Fargo Bank v. Yett (In re Yett), 306 B.R. 287, 290 (9th Cir.BAP 2004). Interpretation of the contractual terms of a Chapter 13 plan is generally a factual issue which we review for clear error (Yett, 306 B.R. at 290) but such factual issues can become mixed with legal issues. Whether a contract is ambiguous is a matter of law, which we review de novo.  aff'd, 284 B.R. 121 (N.D.Cal.2002) (“Miller II”). In this case we need not decide which standard applies to interpretation of the Plan because we would reach the same result whether we reviewed the bankruptcy court’s interpretation for clear error or de novo. Whether adequate notice has been given for purposes of due process in a particular instance is a mixed question of law and fact that we review de novo. Educ. Credit Mgmt. Corp. v. Repp (In re Repp), 307 B.R. 144, 148 (9th Cir.BAP 2004). V.DISCUSSION There is no question that Ventura violated the automatic stay by sending the Tax Lien Notice. The question is what damages are appropriate, if any. The bankruptcy court
2572	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, 98 S.Ct. 1099; Dellenbach v. Letsinger, 889 F.2d 755, 759 (7th Cir.1989), cert. denied, 494 U.S. 1085, 110 S.Ct. 1821, 108 L.Ed.2d 950 (1990). Judge Rieckhoff is entitled to absolute judicial immunity if his actions meet a two-part test: first, the acts must be within the judge’s jurisdiction; second, these acts must be performed in the judge’s judicial capacity. Judge Rieckhoff had the jurisdiction and capacity to sentence Mr. Hansborough. See  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
322	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. 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 the former. 440 F.2d at 915-16. Now we are again confronted by similar alternatives. Since the occurrence of the facts supporting the claims in Turner, Sackett, and Hecht, supra, the California legislature has enacted a statute of limitations for actions brought pursuant to a state statute similar to section
522	"AMEND. Plaintiffs shall file their First Amended Complaint to cure the problems identified in this Opinion and Order on or before May 29, 2012. . Plaintiffs define supported employment services as ""vocational training services that prepare and allow people with intellectual and developmental disabilities to participate in integrated employment.” Complaint, ¶ 4. . See Radaszewski v. Maram, 383 F.3d 599 (7th Cir.2004) (at-home private-duty nursing services); Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir.2003) (cessation of unlimited medically-necessary prescription benefits); Helen L. v. DiDario, 46 F.3d 325 (3rd Cir.), cert. denied, 516 U.S. 813, 116 S.Ct. 64, 133 L.Ed.2d 26 (1995) (requiring basic and ancillary services to be provided only in nursing home, rather than in recipient’s home); Peter B. v. Sanford, 2010 WL 5912259 (Report and Recommendation, Nov. 24, 2010), adopted, 2011 WL 824584 (D.S.C. Mar. 7, 2011) (risk of forcing institutionalization due to reduction or termination of medical and personal-care services); Pitts v. Green stein, 2011 WL 2193398 (M.D.La. June 6, 2011) (reduction in maximum number of home and community-based health service hours); Cruz v. Dudek, 2010 WL 4284955 (S.D.Fla. Oct. 12, 2010) (risk of forcing institutionalization of quadriplegics due to inadequate in-home health services); Brantley v. Maxwell-Jolly, 656 F.Supp.2d 1161 (N.D.Cal. 2009) (funding cuts in adult health day-care program); Mental Disability Law Clinic v. Hogan, 2008 WL 4104460 (E.D.N.Y. Aug. 28, 2008)"
2503	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 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 an injunction would impact the public interest. Nutrition M v. United States, 930 F.2d 867, 869, 18 USPQ2d 1347, 1348-49 (Fed.Cir.1991); Hybritech Inc. v. Abbott Lab., 849 F.2d 1446, 1451, 7 USPQ2d 1191, 1195 (Fed.Cir.1988). A. Likelihood of Success: In order to demonstrate likelihood of success, Bell & Howell must show that, in light of the presumptions and burdens that will inhere at trial,
2582	20 C.F.R. § 404.-1534(b) (1973). During the extensive leaves of absence from the hospital, the plaintiff functioned efficiently operating farm machinery, planting and harvesting crops, purchasing feed, selling crops, installing roofing and siding, and performing work as a carpenter. While it is true plaintiff has a mental impairment, this evidence is insufficient to overcome the presumption of ability to engage in substantial gainful work created by his earnings record. Moreover, the mere presence of an impairment is not tantamount to “disability”, particularly where it can be remedied by treatment. Henry v. Gardner, 381 F.2d 191 (6th Cir. 1967). Finally, the burden is at all times upon the plaintiff to establish the existence of the disability upon which he bases his claim. Thus, there is surely substantial evidence to support the determinations of the Secretary. For the foregoing reasons it is ordered that the defendant’s motion for summary judgment be granted. So ordered.
2515	petition the court for an order compelling arbitration, and the court shall order the parties to arbitration if it is satisfied that the making of the agreement is not in issue. In resolving a motion to compel, the court must engage in a two-part inquiry: first, it must determine whether the parties agreed to arbitrate the dispute in question, by considering whether there is a valid agreement to arbitrate and whether the dispute in question falls within the scope of that arbitration agreement; and second, it must consider whether legal constraints external to the parties’ agreement foreclose arbitration of those claims. Bank One, N.A. v. Coates, 125 F.Supp.2d 819, 82 (S.D.Miss.2001), aff'd, 34 Fed.Appx. 964 (5th Cir. Apr.5, 2002) (citing Did the Parties Agree to Arbitrate the Dispute in Question? 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
3050	use of those substances is therefore the financial responsibility of the customer, the manufacturer would not have to take any responsibility for its actions. That is not putting the burden where it belongs. TDY also offered the theory that when contamination is the result of services performed in support of a national defense program, an allocation of all or the vast majority of cleanup costs should be borne by the Government (i.e., the taxpayers). To this end, it compares this case to the circumstances of thé' Dow -Chemical synthetic rubber plant in Cadillac Fairview/California, 299 F.3d 1019; the American Viscose high tenacity rayon plant in FMC Corp., 29 F.3d 833; . and the oil company aviation fuel refineries As discussed above, this was not a situation similar to FMC Corp, in which the United States commandeered the plant during WWII for the production of specific products and supervised the ; personnel. Nor is it akin to Cadillac Faimiew/Califor-nia, in which the United States was aware that a direct byproduct of the manufacture of the wartime essential product was a pollutant, and to advance its military objectives, the United States sanctioned or directed the disposal of those toxic' wastes that later resulted in the remediation efforts and costs. Id., 299 F.3d at 1024-25 (the government obtained monthly reports on the residues dumped and recommended disposing of wastes by-getting them underground). In Shell Oil Co., the United States admitted arranger liability
1764	"972 (N.D.Cal.1989) (where an initial complaint was removable, subsequent events do not make it ""more removable” or ""again removable”) (citations omitted); Jeffrey M. Goldberg & Assoc. v. Collins, Tuttle & Co., 739 F.Supp. 426, 430 (N.D.Ill.1990) (finding that the addition of a ""new tortious interference claim” that did not change the basic legal theory in an initially removable complaint did not restart the removal clock); Potty Pals, Inc. v. Carson Fin. Group, Inc., 887 F.Supp. 208, 209 (E.D.Ark.1995) (finding that the addition of a claim for a preliminary and permanent injunction where no change occurred in the basic nature of the complaint did not restart the clock for removal on a complaint which was initially removable)). . See, e.g., . See Objections at 10; Plaintiffs' Reply to Defendant Shell Oil Company's Response to Plaintiffs’ Objections to Magistrate Judge's Report and Recommendation re Plaintiffs’ Motion to Remand (""Reply Mem.”) at 6-7. . Motion for Remand at 2, 8-9. . Shell Oil Company’s Opposition to Plaintiffs’ Motion for Remand at 1. . See R & R at 7. . Id. (quoting Complaint III ¶¶ 45, 47). . See Objections at 10. . See id. . Complaint III ¶ 60. . Id. ¶ 10. . 7/18/05 Deposition of Steven Schuler, County of Kane v. Shell Pipeline Company LP, et"
2658	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); 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,
4742	whether Congress intended to create a private right of action when enacting the statute. Virginia Bankshares, Inc. v. Sandberg, — U.S. —, 111 S.Ct. 2749, 2763-64, 115 L.Ed.2d 929 (1991); Karahalios v. National Fed’n of Fed. Employees, 489 U.S. 527, 109 S.Ct. 1282, 1286, 103 L.Ed.2d 539 (1989); Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 536, 104 S.Ct. 831, 838, 78 L.Ed.2d 645 (1984); Middlesex County Sewage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981); Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981); Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 91, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979); Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). Various factors have been considered by the Supreme Court in discerning whether Congress intended a private remedy in a statute that does not expressly provide one. Key factors include the language of the statute itself, the surrounding statutory scheme, and the legislative
349	concerned were agreed that this clause required the receiver to pay the tax, and procured an order from the Circuit Court of Baltimore' City directing him to do so. For cases bearing upon the right of a voluntary payor to recover a tax illegally exacted, see: Wourdack v. Becker, 8 Cir., 55 F.2d 840, certiorari denied, 286 U.S. 548, 52 S.Ct. 501, 76 L.Ed. 1285; Clift & Goodrich Inc. v. United States, 2 Cir., 56 F.2d 751; Central Aguirre Sugar Co. v. United States, Ct. Cl., 2 F.Supp. 538; Ohio Locomotive Crane Co. v. Denman, 6 Cir., 73 F.2d 408; certiorari denied 294 U.S. 712, 55 S.Ct. 508, 79 L.Ed. 1246; White v. Hopkins, 5 Cir., 51 F.2d 159; The judgment of the District Court will therefore be affirmed but without prejudice to the Government to assess and collect the tax if funds are available after the claims of the bank’s depositors have been satisfied, and if it be found that the certificates are within the purview of section 901 of title 26 U.S.C.A. “§ 901. Corporate securities “On all bonds, debentures, or certificates of indebtedness issued by any corporation, and all instruments, however termed, issued by any corporation with interest coupons or in registered form, known generally as corporate securities on each $100 of face value or fraction thereof, 10 cents until July 1, 1934, and 5 cents thereafter.” “(a) Whenever and after any bank or trust company, a substantial portion
3315	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 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 before the grand jury. During cross-examination about his role in the investigation of alleged corruption in New Brunswick, Weisenbeck testified that he scheduled no time for the case before the grand jury prior to leaving the United States Attorney’s office in September 1985, he had no recollection
123	implicates budgetary and policy-making decisions. The Federal Defendants rely on Limar Shipping Ltd. v. United States, 324 F.3d 1, 10 (1st Cir.2003) (citing United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 820, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)), in support of this contention. The Federal Defendants further argue that the United States is liable neither for Anderson’s alleged negligence in disconnecting Sampson’s call, nor for the FBI’s alleged negligence in training or supervising Anderson because, under Massachusetts law, a private person would not be liable in like circumstances. Alternatively, the Federal Defendants argue that the complaint does not establish that the United States owed McCloskey a duty of care. They cite  in support of the proposition that there is no general duty to protect victims of crimes. For their part, the Plaintiffs assert that, in the context of a motion to dismiss, it is not proper for this court to determine whether a purely “discretionary act” is involved here. They assert that further discovery is needed to determine whether, in disconnecting Sampson’s call and failing to inform his supervisors of the call, Anderson violated any applicable policy, rule, or regulation. Relying on Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988); Mulloy v. United States, 884 F.Supp. 622, 631-32 (D.Mass.1995); and Williams v. United States, 450 F.Supp. 1040 (D.S.D.1978), the Plaintiffs also argue that the United States
1137	the instant case. Having concluded that the stay order was neither a final order appealable under § 1291 nor an injunction appealable under § 1292(a) (1), it follows that the appeal must be Dismissed. . See and compare Baltimore Contractors v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233; Morgantown v. Royal Insurance Co., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347; Ettelson v. Metropolitan Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176; Enelow v. New York Life Insurance Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440; Shanferoke Coal & Supply Corporation of Delaware v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583; Chronicle Publishing Co. v. National Broadcasting Co., 9 Cir., 294 F.2d 744; Ferguson v. Tabah, 2 Cir., 288 F.2d 665; Glen Oaks Utilities, Inc. v. City of Houston, 5 Cir., 280 F.2d 330; Arny v. Philadelphia Transportation Co., 3 Cir., 266 F.2d 869; Thibodaux v. Louisiana Power & Light Co., 5 Cir., 255 F.2d 774, reversed, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058; United Gas Pipeline Co. v. Tyler Gas Service Co., 5 Cir., 247 F.2d 681; Day v. Pennsylvania Railroad Co., 3 Cir., 243 F.2d 485; Council of Western Electric Technical Employees-National v. Western Electric Co., 2 Cir., 238 F.2d 892. . Council of Western Electric Technical Employees-National v. Western Electric Co., 238 F.2d 892 at 894.
105	language on the “Departure Record” is inconsistent with LPR status because it suggests that the carrier of such a document actually has some other alien status. We agree with the district court that this language is misleading and potentially damaging to a LPR’s ability to secure em ployment as well as to his or her ability to prove LPR status. The INS argues, however, that it bears no responsibility for the fact that employers will not honor legally sufficient documentation. We disagree. First, the INA and IRCA require that LPRs be provided with documentation of their rightful legal status. While the original purpose for requiring the registration of aliens was to aid the government in regulating and monitoring aliens, see  we agree with the district court that IRCA reflects a congressional intent to broaden the purposes for which registration documentation is used. 748 F.Supp. at 997. Today, the registration card is much more than a monitoring device for the government. It serves to establish employment authorization and eligibility for government benefit programs. Second, the INS has established elaborate procedures to ensure employer compliance with IRCA. The INS cannot so easily “pass the buck.” As the agency charged with administering the INA and IRCA, the INS has a duty and a responsibility to ensure that LPRs are afforded their legal rights. To blame the employers for what is essentially the product of the INS’s own actions would be improper. Arguments of
1803	"for the trees: when evaluating the reasonableness of a police intrusion, we look at the totality of circumstances and ""must not be overly focused on any one factor."" United States v. Swift , 220 F.3d 502, 506 (7th Cir. 2000). Richmond's presence in a neighborhood beset by drug trafficking and gun violence does not, by itself, support a particularized suspicion that he was committing a crime. But it is among the relevant contextual considerations in a reasonable suspicion analysis. See, e.g. , Wardlow , 528 U.S. at 124-125, 120 S.Ct. 673 (concluding defendant's evasive behavior in a high crime area and unprovoked flight after seeing the police had aroused a reasonable suspicion that he was engaged in criminal activity); A suspect's evasive behavior, and the experience of the officers, are also relevant factors. United States v. Oglesby , 597 F.3d 891, 894 (7th Cir. 2010) (evasive behavior); Jackson , 300 F.3d at 746 (officer experience). That Richmond changed his direction to head home does not alter the analysis. The officers did not know he lived at the duplex when they pulled over and approached him on the porch. And both officers testified he was not acting the way someone with a concealed-carry license would act on their own property. ""[B]ehavior which is susceptible to an innocent explanation when isolated from its context may still give rise to reasonable suspicion when considered in light of all of"
3826	no discretion in his activities and merely followed orders given by co-defendants via telephone. He asserts that he was only 18 years old at the time of the offense and that nothing in his background or role in the offense suggests that he deserved the sentence he received. One of the § 3553(a) factors requires the district court to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” § 3553(a)(6). However, this disparity factor requires the district court to avoid only unwarranted disparities between similarly situated defendants nationwide, and it does not require the district court to avoid sentencing disparities between co-defendants who might not be similarly situated. While Balleza argues that two co-defendants, Jose Silva and Patrick Hooper, were similarly situated or more culpable co-defendants who received far lesser sentences, Silva was convicted of the money laundering conspiracy charge only and Hooper was convicted of the drug conspiracy charge only, unlike Balleza who pleaded guilty to both charges. While Balleza asserts that the two-level enhancement for his being convicted of the money laundering conspiracy created an unwarranted sentence disparity, this is incorrect as the sentence disparity factor requires only that unwarranted sentence disparities not be created between defendants “who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). At sentencing, Balleza’s counsel acknowledged that Silva or Hooper likely received a downward departure based on a
71	case, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008). Substantial evidence supports the IJ’s adverse credibility determination, which was based, in part, on inconsistencies between Uddin’s hearing testimony and his asylum application. See Xiu Xia Lin, 534 F.3d at 165-66; cf. Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.2006). No reasonable adjudicator would be compelled to credit Uddin’s explanations for the inconsistencies that it “slipped his mind” or was a “mistake.” See 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
1626	Pet. 138, 8 L. Ed. 636, that an indictment for a statutory misdemeanor is sufficient if the offense be charged in the words of the statute, must, under more recent decisions, be limited to cases where the words of the statute themselves, as was said by this court in 558, 23 L. Ed. 588. ‘The fact that the statute in question, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the ease within that intent.’ U. S. v. Carll, 105 U. S. 611, 26 L. Ed. 1135. Even in the cases of misdemeanors the indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court of the exact offense intended to be charged; not only that the former may know what he is called upon to meet, but
3982	dismiss debtors’ case under § 1307(c)(6) for a material default in the plan. Debtors responded with a motion for discharge under § 1328(a). The issue before the Rivera court involved which plan provision takes precedence — the percentage dividend to unsecured creditors or the monthly plan payments. Persuaded by the reasoning of In re Carr, 159 B.R. 538 (D.Neb.1993) and In re Phelps, 149 B.R. 534 (Bankr.N.D.Ill.1993), the Rivera court found that debtors’ payment of less than the percentage dividend required in the plan precluded a discharge. Id. at 334-335. By failing to pay their unsecured creditors the promised 65% dividend, the debtors had not completed their payments under the plan within the meaning of § 1328(a). Id. at 335. In  the bankruptcy court considered two separate cases in one decision involving a husband and wife in one and an individual woman in the other. In each case, the debtors or debtor had a confirmed plan providing for monthly payments and a 100% dividend plus 10% interest to unsecured creditors. Id. at 746-48. In both cases, total claims ended up being more than debtors had accounted for, and the debtors failed to seek amendments to their plans in order to complete them within 60 months, despite the trustee’s notices that their plan payments would necessarily exceed the five-year term. In one of the cases, the debtor needed an additional 33 months to complete the plan payments; in the other, debtors needed an
1850	other grounds. The first was that the contractor had falsified the results of leak tests performed on the TVPCs. The second was that Triad fraudulently concealed from MICOM its discovery that the wrong type of soldering flux may have been used on completed units. Fraud taints everything it touches. Carrier Corp. v. United States, 328 F.2d 328, 164 Ct.Cl. 666, 678 (1964). Consequently, proof of fraud by clear and convincing evidence is a ground for default termination. Joseph Morton Co., 757 F.2d at 1278-79; see United States v. Acme Process Equipment Co., 385 U.S. 138, 144-48, 87 S.Ct. 350, 354-56, 17 L.Ed.2d 249 (1966). Fraud is sufficient to vitiate acceptance of delivered contract goods. See On this basis, defendant seeks confirmation of the decision to default terminate, as well as return of payments made in excess of the value of completed units accepted. The government also raises as a defense a special plea in fraud pursuant to 28 U.S.C. § 2514 (1988). The effect of this provision is to forfeit claims tainted by fraud. Such fraud consists of knowingly or recklessly making false statements with intent to deceive. Ingalls Shipbuilding, Inc. v. United States, 21 Cl.Ct. 117, 122 (1990). The defense must be established by clear and convincing evidence. O’Brien Gear & Machine Co. v. United States, 591 F.2d 666, 672, 219 Ct.Cl. 187, 199 (1979). The government also seeks damages and penalties under the False
4956	more PCPI fsinfo blocks, each PCPI fsinfo block associated with a PCPI. As noted in Applicants’ specification ‘[e]ach additional fsinfo block [that] is associated with a PCPI includes the inode of the inode file for the PCPI, which in turn includes appropriate inodes for active maps and the like.’ [Citation omitted.] On disk, the volinfo block contains pointers to a plurality of fsinfo blocks, including one for the active file system and fsinfo blocks for each PCPI. [Citation omitted.] '720 Patent File History, March 7, 2007 Amendment at 7-8 (emphasis added). These statements to the PTO make clear that NetApp viewed the preamble as comprising the critical limitation that distinguished its invention from the prior art. See 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
148	Section 1988 claims (counts II and HI) The Federal Defendants point out that counts II and III of the complaint do not set forth a deprivation “under color of any state law” of any right, privilege, or immunity guaranteed by the United States Constitution, but concern, instead, the acts or omissions of federal officials employed by the FBI. They explain that, on its face, Section 1983 does not apply to the acts of federal officers or agents. Therefore, according to the Federal Defendants, the court should dismiss the Plaintiffs’ Section 1983 claims. The Federal Defendants further suggest that counts II and III of the complaint could be construed as asserting a claim under The Federal Defendants insist, however, that while Bivens allows suits against individual federal actors, it does not permit claims against federal agencies or federal employees sued in their official capacities, and does not establish an exception to the federal government’s sovereign immunity. Relying on Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), the Federal Defendants reiterate 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
3396	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. 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 not a party to the action, refused to make designated payments provided for in § 676. In the former case, following the general rule, we held that “in [the] absence of express litigation
796	insufficient. It contains conclusory allegations devoid of sufficient facts. It fails to set forth adequate and specific circumstances to support the allegation that the undersigned judge is personally biased or prejudiced, or that the undersigned judge’s impartiality might reasonably and objectively be questioned. In Re United States, 666 F.2d 690 (1st Cir.1981); Brody v. Pres, of Fellows of Harvard College, 664 F.2d 10 (1st Cir.1981); Home Placement Service, Inc. v. Providence Journal Company, 739 F.2d 671 (1st Cir.1984). Thus, a party cannot subjectively say that a judge is prejudiced and thereby, ipso facto, disqualify a judge. Instead, facts must be presented that, assuming their truth, would lead a reasonable person to believe that the judge’s impartiality or fairness may be cert. den. 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585; Blizard v. Frechette, 601 F.2d 1217, 1220 (1st Cir.1979). “... appellant argues that the Judge’s recitation of record support for all of his less-than-complimentary findings of fact demonstrates a subjective, self-justifying approach to the section 455(a) issue where an objective evaluation of the appearance created by his prior words and acts was called for. We disagree. As a finder of fact ..., a trial judge must give his candid evaluation of plaintiff’s case. If a case is weak to the point of frivolousness, it is appropriate to say so. (Emphasis added.) Id., at 1220. Accordingly, disqualification is not required if an allegation that a judge might not be impartial is
1568	his pretext argument, plaintiff contends that he was the most qualified applicant for the SSA positions and that discrimination can be inferred from his non-selection in favor of less qualified, non-minority applicants. Plaintiff further argues that SAC Huggins’s has a history of discriminatory conduct which supports the inference - that plaintiffs non-selection was the result of racial animus. The evidence in the record, however, does not support Mr. Pendleton’s assertions. Although Mr. Pendleton correctly argues that a court may infer discrimination where a plaintiff who was denied a promotion was significantly more qualified than the applicant who received the promotion, our Circuit has held that the qualifications gap must be “wide and inexplicable.” Holcomb v. Powell, 433 F.3d 889, 897 (D.C.Cir.2006)(quoting Such a gap does not exist in this case. First, although Mr. Pendleton argues that he was more experienced than either of the other two agents selected, plaintiff acknowledges that seniority was not a critical element in the OIG’s selection decision. PL Dep. 74:17^-21. Moreover, although plaintiff had more years of investigatory experience, the other two agents selected were both experienced investigators by the time they applied for the SSA positions. Second, although plaintiff argues that he has excelled throughout his career, his colleagues and former supervisors have testified that plaintiff has had difficulty handling complex investigations and consistently demonstrated a lack of organization and an inability to communicate effectively. As a result, plaintiffs supervisors have testified, plaintiff was ill-suited for the
1669	of the three Judge Advocates who constituted the Board of Review while tho views of the respondent appear to be supported by at least an equal number of lawyers in tho Judge Advocate General’s Department. McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049. Cf. Carter v. Roberts, 177 U.S. 496, 20 S.Ct. 713, 44 L.Ed. 861; Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 48 L.Ed. 236; Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640; Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225; French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; 42 S.Ct. 326, 66 L.Ed. 692. Contra Sanford v. Robbins, 5 Cir., 115 F.2d 435. See, e. g. Ex parte Bigdow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005. Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436; Ex parte Hans Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. Cf. Rosborough v. Rossell, 1 Cir., 150 F.2d 809; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; and Amrine v. Tines, 10 Cir., 131 F.2d 827. Title 30 U.S.C.A. § 1511. “As to number (article 40). No person shall,
3812	law affording that protection to intentional touching between workers and patrons, even if that touching may occur during part of an expressive performance. Indeed, section 3-129(9) is less restrictive than the “no touch” provision upheld in Hang On, 65 F.3d at 1253 (prohibiting all physical contact between dancers and customers); Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 556-62 (5th Cir.2006); and Krontz v. City of San Diego, 136 Cal.App.4th 1126, 39 Cal.Rptr.3d 535, 544 (2006). It is also less restrictive than physical buffer and stage height requirements that have been routinely upheld. Gammoh v. City of La Habra, 395 F.3d 1114, 1127-28 (9th Cir.2005); Fantasy Ranch, 459 F.3d at 555-56; Deja Vu, 274 F.3d at 396-98; In Hang On, the Fifth Circuit Court of Appeals held that the Arlington “no touch” provision did not restrict any First Amendment interests of either the dancer or the customer. 65 F.3d at 1253-54. “[I]ntentional contact between a nude [or clothed] dancer and a bar patron is conduct beyond the expressive scope of the dancing itself. The conduct at that point has overwhelmed any expressive strains it may contain. That the physical contact occurs while in the course of protected activity does not bring it within the scope of the First Amendment.” Id. at 1253. Thus, even if some modicum of First Amendment rights was implicated by the “no touch” provision in Hang On, the restriction nevertheless passed the O’Brien
4248	Brandenberger process (par. 8). Coming to the legal contentions of the parties, we agree of course that Rule 56 applies to patent cases, as well as other cases, and permits entry of summary judgment where no genuine issue as to material facts exists and the moving party is entitled to judgment as a matter of law. Aleo Kar Kurb, Inc. v. Ager, 181 F.Supp. 97, 104 (D.N.J.1960); aff’d 286 F.2d 931, 933 (C.A. 3, 1961). Defendant contends that this is a case of file wrapper estoppel. The argument is that since claims 18 and 19 were can-celled during pendency of Patent Office proceedings, the claims granted can not be interpreted as including anything covered by the abandoned claims. However, it will be noted that these were product claims. The patent as finally granted related to a process. The reason for rejection of the product claims appears to be primarily that the product has no intrinsic or independent identity, but is described in terms of the process of its production. Also, they do not accurately define the product other than by saying that it is a “solid product of such nature” that it can be poured hot into a tube; also they do not limit it to a food product. A further reason for rejection is that there was no novelty in the method of packaging. “The selection of a specific article to
4516	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: 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 the future stopped, detained, questioned or searched by [the defendants’] agents
2346	WINTER, Circuit Judge: Once again we address an appeal from a denial of Social Security disability benefits by the Secretary of Health and Human Services on a factual record that implicates the so-called “treating physician” rule. Notwithstanding assurances that the Secretary adheres to this rule as his national policy, see Stieberger v. Bowen, 801 F.2d 29, 36 (2d Cir.1986),  the record in the instant case discloses no awareness of that rule among the relevant Social Security Administration adjudicators. We therefore reverse and remand. Dan Havas injured his back on January 17, 1983, while operating a snow blower in the course of his employment as supervisor of a work crew for the New York State Department of Environmental Conservation. He was then 57 years old. Havas sought treatment for back pain from Dr. Edwin G. Mulbury, his general physician, who referred him to Dr. Brian O’M. Quinn, an orthopedist. Dr. Quinn determined that Havas was suffering from acute “L4-5 disc disease on the left side” as well as from chronic “degenerative disc and joint disease in the low back.” At
1511	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 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 that the answer appellant elicited from the officer was of that character, precluding appellant from attempting contradiction by extrinsic testimony.
4964	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. 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 term does not specify the numerical capacity before the invention and therefore does not provide sufficient guidance as to how many consistency point images must be stored in order to infringe upon the claims. Brandt Decl., ¶¶ 19-21. Sun argues that the plain meaning
545	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); 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 & n. 84, 56-57 (1992); see also, e.g., Susan S. Gibson, Lack of Extraterritorial Jurisdiction over Civilians:
4901	31,119, which holds that mechanics employed to repair tractors used by their employer in agricultural services for individual farmers were not exempt from the Act since the work was not performed on a farm. Defendant contends that the Wenatchee and Lafayette cases cannot be distinguished from the present case and were erroneously decided. Two additional cases cited by Amicus Curiae concern employees in the floral business employed in various operations in maintaining their employers’ greenhouses. The exemption was applied to them, primarily because they were employed by the farmer himself in his own horticultural practices. Walling v. Rocklin, 132 F.2d 3, C.C.A. 8th, 1942; Damutz v. William Pinchbeck, Inc., 158 F. 2d 882, 170 A.L.R. 1246, C.C.A.2d, 1946. . 254, 75 S.Ct. 719, 99 L.Ed. 1040, involved a large, completely mech anized farming operation in Hawaii. The court discusses application of the agricultural exemption to various types of employees, holding those involved in farming operations exempt from the Act, and others not so involved covered. This case is a good example of the fine distinctions which must be made in applying the exemption, and is further authority for the proposition that all employees of a single concern do not stand in the same position. This Court holds, therefore, that Defendant is an independent contractor performing agricultural services to farm-ers, but his employees are not exempt from the provisions of the Fair Labor Standards Act unless their work is done -on a farm. Judgment,
412	and we remand for further proceedings. I. FACTUAL & PROCEDURAL BACKGROUND This case involves the latest chapter in a long-running proceeding arising from Cajun Electric Power Cooperative, Inc.’s (Cajun) filing of a petition seeking reorganization under Chapter 11 of the Bankruptcy Code on December 21, 1994. Cajun has twelve members, all of whom are electric distribution cooperatives serving retail customers in Louisiana. Cajun generates and sells electricity to each member and to non-members, and each member has contracted to purchase at wholesale rates all of the member’s electric power requirements from Cajun. Cajun’s bankruptcy proceeding is a “mega-case,” involving more than five billion dollars in debt and over seven hundred creditors.  cert. denied, — U.S. -, 119 S.Ct. 2019, 143 L.Ed.2d 1031 (1999). Most of Cajun’s debt is owed to the Rural Utilities Service of the United States Department of Agriculture (the RUS), which has filed a claim in excess of four billion dollars. On January 23, 1996, the Louisiana Public Service Commission (the LPSC or Commission), acting pursuant to authority granted by Louisiana law, reopened a rate investigation of Cajun. See La. Const. art. IV, § 21 (stating that the LPSC “shall regulate ... public , utilities and have such other regulatory authority as provided by law”); La.Rev.StatAnn. § 45:1163 (stating that the LPSC “shall exercise all necessary power and authority over any ... public utility for the purpose of
986	to each challenged determination of the bankruptcy court. The identification of genuine disputes of material fact in a potentially overinclusive manner, as the bankruptcy court has done in this case, may be an approach to case management that in some circumstances is compatible with the fair and efficient administration of justice. For example, when a decisionmaker is presented with closely debated legal questions, some of the possible answers to which may imply that a material factual dispute remains on the record, the decisionmaker may choose to be overinclusive provisionally in order to postpone decision of those legal questions because findings of fact at trial may moot one or another of those legal questions. See A hasty decision as a matter of law in the face of closely debated legal questions and disputed questions of fact is likely to lead to both unfair outcomes and unfair burdens of delay and expense because of appeals and retrials. A somewhat different calculus applies when, as here, an appeal is already in progress, and the appellate tribunal is considering what choice to make. Here, the lack of clarity that would remain if this court declines to exercise appellate jurisdiction may weigh in favor of exercising jurisdiction and attempting to clarify. The weight of this factor is particularly heavy in this case because, not only the bankruptcy judge below will have her hands tied to an uncertain course but
978	a district court has discretion to allow an appeal from the order as an appeal from an interlocutory order. Also, the district court has discretion to treat a Notice of Appeal as a motion for leave to appeal from a nonfinal order. The district court, however, before allowing leave, should determine whether the order is “surrounded by the finality or exceptional conditions” that would warrant intervention. In re 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. 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
4203	the awards made in the May, August,- and October orders, regardless of when the work being compensated was performed. We acknowledge that other courts that have addressed the applicability of the attornej^s fees provisions of § 803 of the PLRA to pending cases have refused to apply the limitations, concluding that such application would have an impermissible retroactive effect. See Jensen v. Clarke, 94 F.3d 1191, 1201-03 (8th Cir.1996) (concluding that application of the attorney’s fees provisions in § 803(d) to Plaintiffs and their attorneys who had worked for “literally years” on the assumption that their fees would be based on 42 U.S.C.A. § 1988 would be “manifestly unjust”); Cooper v. Casey, 97 F.3d 914, 921 (7th Cir.1996) (same); see also But cf. Hadix v. Johnson, 947 F.Supp. 1113, 1114-15 (E.D.Mich.1996) (concluding that § 803 of the PLRA applies when determining attorney fee awards for work completed after enactment of the PLRA in a prison conditions ease arising prior to enactment of the PLRA). With all due respect to our sister Circuits, we find their analyses flawed. In Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court outlined a three-step inquiry to be undertaken when determining whether a court should apply a new statute to actions
2322	stopped paying on the loan in 1989. Payments due for January 1989 through July 1989 were never transmitted to the credit union, resulting in a total of $1,400.00 received by appellant, from which no loan payments were made. The car, which had been sold to a third party, was ultimately repossessed because of appellant’s failure to make those payments. During the providence inquiry, appellant acknowledged that he had appropriated that money to his own personal use and that it should have been applied on the car loan. He expressly agreed that the total amount misappropriated to his own use was $1,400.00. Record of Trial at 52, 53 and 54. Before this Court, citing U.S. v. Searcy, 24 MJ 943 (ACMR . v. McCanless, 29 MJ 985 (AFCMR 1990), appellant now contends that these facts will not support the offense of wrongful appropriation of the other Coast Guardsman’s money because this was a mere creditor/debtor relationship, not the proper subject of larceny or wrongful appropriation. Furthermore, he asserts that any debt owed by appellant was to the credit union which took appropriate remedial action through the mechanism of repossession of the automobile. We disagree with his conclusion that these facts do not constitute the offense of wrongful appropriation. In Part IV of the Manual for Courts-Martial, 1984, the various punitive articles of the Uniform Code of Military Justice are discussed. Paragraph 46 deals with larceny and wrongful appropriation. In subparagraph c,
4017	license and a valid certificate of registration as a U.S. registered pilot on the Great Lakes.” The letter concluded by noting that the denial of The court addressed each of Menkes’s three claims in turn, beginning with the APA challenge. Although recognizing that there is a strong presumption of reviewability under the APA, the court explained that APA review is not available if agency action is “committed to agency discretion by law.” See 5 U.S.C. § 701(a)(2). A matter is committed to agency discretion when there is a lack of judicially manageable standards to guide meaningful review. Steenholdt v. F.A.A., 314 F.3d 633, 638 (D.C.Cir.2003). The court reasoned that the regulations, by specifically giving the Director sole authority to make determinations about the need for non-association pilots, failed to provide a judicially manageable standard by which to review such a decision. Thus, whether additional pilots
3920	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 that there exists no genuine issue as to a material fact and that the evidence together with all inferences to be drawn therefrom must be considered in the light most favorable to the party opposing the motion. The mov-ant’s papers are to be closely scrutinized while those of the opponent are to be viewed indulgently. 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.
4470	a case under Chapter 13 or convert the case to a Chapter 7 case, whichever is in the best interests of the creditors and the estate, for cause. For Chapter 13 cases, § 1307(c) specifically enumerates ten circumstances in which a court may convert or dismiss a case. Although lack of good faith is not specifically enumerated as “cause,” it is well established that lack of good faith (or bad faith) is “cause” for dismissal or conversion of a Chapter 13 case under § 1307(c). See In re Cabral, 285 B.R. 563, 573 (1st Cir. BAP 2002); Leavitt, 171 F.3d at 1224; Ho, 274 B.R. at 877; In re Dicey, 312 B.R. 456, 458 (Bankr.D.N.H.2004); Fleury, 294 B.R. at 5; and Courts differ in their approach to determining a debtor’s good faith, but the majority favor a totality of the circumstances test to determine whether a debtor lacked good faith in filing a Chapter 13 petition for purposes of § 1307(c). The United States Bankruptcy Appellate Panel for the First Circuit originally did not adopt a totality of the circumstances approach to determine lack of good faith, but instead advocated an examination of only the circumstances relevant to the debtor’s proposed plan and post-filing conduct. See In re Keach, 243 B.R. 851, 856 (1st Cir. BAP 2000). However, in the five years since the Panel’s decision in Keach, the bankruptcy courts in this circuit have expanded Keach’s examination of the debtor’s lack
4246	determined that defendant’s ‘secret process’ does not infringe the Brandenberger patent on which plaintiff relies” (Par. 5). He also points out (par. 7) that product claims 18 and 19 were cancelled during proceedings in the Patent Office (thus creating a file wrapper estoppel); and that Gage patent No. 1,654,871 (for tamales) discloses every feature of the alleged infringement by defendant of the Brandenberger process (par. 8). Coming to the legal contentions of the parties, we agree of course that Rule 56 applies to patent cases, as well as other cases, and permits entry of summary judgment where no genuine issue as to material facts exists and the moving party is entitled to judgment as a matter of law. aff’d 286 F.2d 931, 933 (C.A. 3, 1961). Defendant contends that this is a case of file wrapper estoppel. The argument is that since claims 18 and 19 were can-celled during pendency of Patent Office proceedings, the claims granted can not be interpreted as including anything covered by the abandoned claims. Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211, 218, 220-221, 61 S.Ct. 235, 85 L.Ed. 132 (1940). However, it will be noted that these were product claims. The patent as finally granted related to a process. The reason for rejection of the product claims appears to be primarily that the product has no intrinsic or independent identity, but is described in terms of the process of its production. Also,
1993	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 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 injury) or a medical diagnosis (such as with respect to a current disability), competent medical evidence is generally required to fulfill the well-grounded-claim requirement of section 5107(a) that the claim be “possible” or “plausible”. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); see Caluza, supra. Where the determinative issue does not require medical expertise, lay testimony may suffice by itself (such as in the recounting of symptoms or, in certain circumstances, attesting to in-service incurrence or aggravation of a disease or injury). See Caluza, supra; Heuer v. Brown, 7 Vet.App. 379, 384 (1995) (citing Grottveit, supra). A
2452	1929 substandard and redistillable violet toilet water, and he had diverted, during that year, denatured alcohol allotted to him, and had made false records purporting to show that it had been manufactured into a product and that this product had been sold to the Mohank Sales Company. Although appellant was advised that he might have a hearing after this denial, none was requested. In the absence of such a request, there is no provision requiring a hearing before refusing a permit. Ma-King Products Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046; Fox v. Blair, 20 F.(2d) 235 (D. C. E. D. Pa.); Halpern v. Andrews, 21 F.(2d) 969 (D. C. 3); C. A. 7). The administrator’s investigation of the conduct of the appellant’s business in 1929 revealed, by the analysis of the government chemist, that the appellant’s product—violet toilet water—contained 7.1.30 per cent, alcohol by volume, and examination showed this product to be a substandard toilet preparation which yields potable alcohol upon simple manipulation and distillation. Moreover, it was shown that the appellant sold in bulk practically its entire product to the Mohank Sales Company, except one shipment of 665 gallons, which was made to another concern. There was a discrepancy in ingredients shown. There were total sales of 14,770 gallons for the year to the Mohank Sales Company, which government agents reported was in bad standing in the Prohibition Department. The Mohank
70	2009), ajfg No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City July 12, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. In this case, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008). Substantial evidence supports the IJ’s adverse credibility determination, which was based, in part, on inconsistencies between Uddin’s hearing testimony and his asylum application. See Xiu Xia Lin, 534 F.3d at 165-66; cf. No reasonable adjudicator would be compelled to credit 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
2190	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 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
3261	has found that the layoffs of Gloria Gonzalez, Dorothy Zatkovich, Betty Watkins, Henry Stys, Joan Baker and Patricia Mendez occurred because U.S. Truck transferred the work that they had performed to COLDS or to its subsidiary, Adams Cartage. The rejected agreement contained an anti-subcontracting clause. See Finding of Fact 28, above. The Court concludes that this clause would preclude U.S. Truck from eliminating jobs either by subcontracting the billing work to COLDS, or by consolidating its office operation with Adams Cartage. Anti-subcontracting clauses are enforceable in grievance procedures and in suits under 29 U.S.C. § 185. The employer’s financial crisis is not a defense to breach of an anti-subcontracting clause. See, e.g., Norton and Son of California, Inc. and Brotherhood of Painters, Decorators and Paperhangers of America, Local 1232, 67-1 Lab.Arb.Awards 118340 (1967) (CCH) (neither operational convenience nor outright financial anguish excuse an improper layoff, concerning layoffs out of seniority order). The question is what damages the employees incurred in losing the protection of this clause. Generally, employees laid off in violation of an anti-subcontracting clause are awarded reinstatement and back pay, less mitigation. Back pay can substitute for reinstatement, the back pay obligation continuing as long as the right to reinstatement. 48A. Am.Jur.2d, Labor and Labor Relations § 1590 at 103 (2d ed. 1979). The cutoff date for determining damages is the expiration date of the contract, International Brotherhood of Electrical Workers v.
4931	"orders arise out of the same factual matrix ..."" even if considering the orders together may be encouraged under ""considerations of efficiency."" Hoxworth v. Blinder, Robinson & Co. , 903 F.2d 186, 209 (3d Cir. 1990). ""[T]he pendent appellate jurisdiction standard is not satisfied when we are confronted with two similar, but independent, issues, and resolution of the non-appealable order would require us to conduct an inquiry that is distinct from and 'broader' than the inquiry required to resolve solely the issue over which we properly have appellate jurisdiction."" Myers v. Hertz Corp. , 624 F.3d 537, 553-54 (2d Cir. 2010) (citation omitted). Thus, if the appealable order may be properly ""dispose[d] of ... without venturing into otherwise nonreviewable matters[,]""  we ""have no need-and therefore no power-to examine the [nonreviewable] order,"" Hoxworth , 903 F.2d at 208. Here, we must determine, as a matter of first impression, whether an order granting certification under Rule 23 is ""inextricably intertwined"" with an order granting final collective action certification under the FLSA. Citizens claims that we may do so because review of the FLSA certification order is necessary to ensure meaningful review of the Rule 23 order. Plaintiffs maintain that, although we have jurisdiction to review the class certification order, our jurisdiction does not extend to the FLSA order because "" Rule 23 actions are fundamentally different from collective actions under the FLSA"" and thus cannot be considered ""inextricably intertwined"""
1554	failure to establish all of them may eliminate the necessity to even conduct a totality of the circumstances examination. Monroe v. City of Woodville, Miss., 881 F.2d 1327 (5th Cir.1989), on petition for rehearing, 897 F.2d 763 (5th Cir.1990); Overton v. City of Austin, 871 F.2d 529 (5th Cir.1989). Although the Fifth Circuit has apparently not yet squarely so held, it seems rather clear that the majority population with which Thornburg v. Gingles is concerned is a voting majority, not simply a population majority. The Court of Appeals has at least implied that the single-member district which is created must contain at least a voting age majority of the minority group. See  (where the court referred to this issue as “critical”); Brewer v. Ham, 876 F.2d 448, 452 (5th Cir.1989); Overton v. City of Austin, 871 F.2d 529, 542 (5th Cir.1989), Jones, J., concurring. This court concludes that in order to be viable under the Thornburg v. Gingles rationale any such district must contain at least a voting age majority of the minority group. In the absence of sufficient votes to effectively compete, clearly it is not the existence of the multimember district that deprives the minority group of the opportunity to elect its preferred candidates. In this case the defendants’ expert, Dr. Weber, had accurate voter registration data available. In drawing subdistricts he attempted to form black voter registration majorities. Although it may
1637	Constitution is that “whenever government * * * allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs.” Engel v. Vitale, supra, 370 U.S. at 431, 82 S.Ct. at 1267. The Supreme Court has again and again condemned exactly the practice which the named officials of Alabama now seek to effect. School District of Abington v. Schempp, supra; Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711; Engel v. Vitale, supra ; Cantwell v. Connecticut, supra; Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292; People of State of t. 461, 92 L.Ed. 649; McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982; West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. In People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. at 227, 68 S.Ct. at 473, the Court stated, “the Constitution * * * prohibited the Government common to all from becoming embroiled, however innocently, in the destructive religious conflicts of which the history of even this country records some dark pages.” Then in Zorach v. Clauson, supra, 343 U.S. at 312, 72 S.Ct. at 683, the Court stated, “There cannot be
4776	". 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 upon Brickey. . In concurring in Breitkreutz, Judge Norris noted that the majority’s assumption that the nature of the past conviction is relevant in a § 922(g) prosecution conflicted with Barker. 8 F.3d at 693. . The decision of the Third Circuit in  also facially supports the government’s position. The stipulation at issue there, however, concerned the fact of the prior conviction, and the decision therefore simply may reflect agreement with our conclusion in Collamore that a defendant may not modify a statute by eliminating one of its elements from the jury's consideration. . Both the eyewitness testimony explicitly identifying Tavares as the radio thief and the testimony about defendant's police station behavior create some risk of injecting unfair prejudice for the defendant without adding significant weight to the prosecution’s case, if the government seeks to re-introduce this evidence in a new trial, we urge the district court to ""remain vigilant"" as to whether it survives the Rule 403 balancing, see United States"
3991	as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Fed.R.Civ.P. 56(e). However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. In reviewing summary judgment motions, this court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941, 943-44 (6th Cir.1990). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standard. Thus, in most civil cases the court must decide “whether reasonable
4393	but that if it results unfavorably objections will be made.” 31 C.J.S. Estoppel § 115a, page 602. Furthermore, a party may not complain of error which he himself induced the Court to commit by his silence or acquiescence (Harris v. Jackson, (D.C.Okl.) 30 F.Supp. 185, 187), nor may a party voluntarily submit himself to an Order of a Court one day and avoid said Order the next day when its application proves more distasteful than he had anticipated (N.L.R.B. v. Retail Clerks International Association, (9 Cir.), 203 F.2d 165, 169). Additionally, it is well established that even the most sacrosanct constitutional rights may be waived if such waiver is voluntarily, knowingly, and intelligently made. (185, 92 S.Ct. 775, 31 L.Ed.2d 124). Applying the aforesaid legal principles, it seems logical to me that the NCTA, having taken no steps to advise the District Court in Boomer II that the information or statistics presented in the defendant’s report of December 31, 1968, perverted the goal of elimination of racial discrimination or ran counter to the specific intendments of the court’s Order of August 5, 1968, should be estopped from relitigating an identical issue based solely on the identical statistics contained in the aforesaid report. Also, since the NCTA was, in my opinion, chargeable with knowledge of the filing in Boomer II of the report of December 31, 1968, and with the statistical contents of said report, I have concluded
2076	Marta Berrocal. Suppression of the Money/Luis Fernandez Santana’s Statement Regarding Ownership of the Money Defendant Luis Fernandez Santana seeks suppression of the $26,000.00 seized from the red Mitsubishi Mirage. Defendant claims that agent Andaluz improperly questioned him regarding the ownership or custody of the money after he was arrested, without advising him of his Miranda rights. Thus, since the agents obtained the money pursuant to an incriminating statement made by Luis Fernandez, the Court should suppress both the money and the statement as “fruits of the poisonous tree.” Defendant correctly argues that the Fifth Amendment protection against self-incrimination precludes the government from using statements elicited from a suspect during a custodial interrogation if those statements were extracted without a prior warning.  quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). For the Fifth Amendment protection to come into play, however, the statements must be the result of a custodial interrogation. A defendant is said to be in custody when he or she is either subjected to a formal arrest or restrained to the degree usually associated with a formal arrest. United States v. Fernandez Ventura, 85 F.3d 708, 709 (1st Cir.1996), quoting Thompson v. Keohane, - U.S. -, -, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995); Stansbury v. California, 511 U.S. 318, 323-24, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994). To determine whether a particular restraint
3135	Stat. 2549 (effective October 1, 1979, codified as amended at 11 U.S.C. §§ 101 et seq. (2000)). Still, most courts that have expanded the doctrine of necessity beyond railroad reorganization cases have done so relying on the equitable power provided in Section 105(a) of the Bankruptcy Code. See In re Just for Feet, Inc., 242 B.R. 821, 824 (D.Del.1999) (explaining that even if the doctrine of necessity is not codified in the Bankruptcy Code, courts have authorized pre-petition claims when necessary using their equitable powers under Section 105(a)). (B) The Kmart Case Before the Kmart case, supra, bankruptcy courts routinely exercised their discretion in granting critical vendor motions under the “necessity of payment doctrine.” See e.g., In re Just for Feet, Inc., 242 B.R. at 822; In re Ionosphere, 98 B.R. 174, 175 (Bankr.S.D.N.Y.1989). In Ionosphere, the court explained the rationale behind allowing a Chapter 11 debtor-in-possession to pay prepetition claims. 98 B.R. at 174. The debtor in that case had already obtained court approval to pay the pre-petition salaries and benefits of active employees and the pending contested matter was whether striking employees were entitled to receive commensurate payments. Id. at 175. The court ultimately ruled against the striking employees, but in so doing, noted that Section 368(b) gives courts broad discretion to allow debtors to pay pre-petition claims in the ordinary course of business when the debtor “articulate[s] some business justification.” Id. at 175.
169	of the taxpayer and said: “I am of the opinion that this language changes the rule theretofore prevailing, and that an action may now. be maintained against a collector for the recovery of income taxes 'erroneously paid, regardless of protest.” I am somewhat loath to differ from my associate in his view of the law on this point. He cites as his authority for his conclusion the case of 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,
1261	1983 allows a victim to seek legal or equitable relief. Deloach v. Delchamps, Inc., 897 F.2d 815, 822 (5th Cir. 1990). Front pay and reinstatement are both equitable remedies. Id. Reinstatement is generally the preferred remedy for a discriminatory discharge, but front pay may be awarded if reinstatement is not feasible. Deloach, 897 F.2d at 822; Johnson v. Chapel Hill I.S.D., 853 F.2d 375, 382 (5th Cir.1988). Reinstatement is considered to be not feasible if the plaintiff can no longer be a satisfactory employee for the defendant, if the plaintiffs •reinstatement would disrupt the employment of others, or if antagonism between.the victim and the discriminatory employer exists such that would make reinstatement unfeasible. Deloach, 897 F.2d at 822; see also Mitchell v. Sisters of Charity of the Incarnate Word, 924 F.Supp. 793, 803 (S.D.Tex.1996). It is for the court to determine whether a front pay award is appropriate, and to determine the amount. Both the decision to award front pay and the amount awarded are reviewed by an appellate court under an abuse of discretion standard. Deloach, 897 F.2d at 822, 824. The court is allowed to conduct further proceedings as necessary to make the required determinations on an award of front pay. Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 871 (5th Cir.1991). The cases do not indicate that expei*t testimony is necessary
318	"Cir.1999); see also Hargett v. Valley Federal Sav. Bank, 60 F.3d 754, 763 (11th Cir.1995) (""if a party omits the defense of statute of limitations in the answer, the defense is not waived if the litigant includes it in the pretrial order”). Plaintiffs offer no argument why Sanibel has not adequately cured its failure to present the affirmative defense in its answer by raising it in its principal brief on summary judgment, well in advance of the pretrial order. Third, the touchstone of the Rule 8(c) pleading requirement for affirmative defenses is the prevention of unfair prejudice or surprise to the plaintiff. ""When there is no prejudice, the trial court does not err by hearing evidence on the issue.” see also Mitchell v. Jefferson County Bd. of Educ., 936 F.2d 539, 544 (11th Cir.1991) (finding no abuse of discretion for district court to consider affirmative defense that defendant had failed to plead, where plaintiff could not legitimately claim surprise and prejudice from failure to plead defense affirmatively). Plaintiffs have not shown, or even suggested, that they were prejudiced by defendant’s omission of the ""common promotional plan” angle to its invocation of the 100-unit exemption in the answer. . Sanibel correctly asserts that the presumption created by § 1701(4) is not conclusive or irrebuttable. ."
3835	on July 6, 1986 at 6:00 p.m. he was released on bond, but his money and identification were not returned to him until 8:00 a.m. the next day because the jail safe could not be opened. Van Cleave’s complaint states that he was subjected to cruel and unusual punishment. The district court held that Van Cleave’s complaint was frivolous and dismissed it pursuant to 28 U.S.C. § 1915(d). A claim is frivolous within the meaning of § 1915(d) where: 1) the claim has slight realistic chance of ultimate success; 2) the claim has no arguable basis in law or fact; or 3) the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Van Cleave contends generally that he was subjected to cruel and unusual punishment. During the time period Van Cleave complains of he was a pretrial detainee. A pretrial detainee is protected by the due process clause of the Fourteenth Amendment rather than the Eighth Amendment. Bell v. Wolfish, 441 U.S. 520, 536 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Due process prohibits the punishment of a person prior to an adjudication of guilty. 441 U.S. at 535, 99 S.Ct. at 1871-72. A pretrial detainee has not been adjudged guilty of a crime and therefore “[d]ue process requires that a pretrial detainee [may] not be punished.” Id. at 536 & n. 16, 99 S.Ct. at 1872. “Not every disability
2920	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.” 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.
2044	in the local court case nowhere specifies under what statutes the claim is being brought, although it does state that Marcano has been a victim of abuse prohibited by the United States and Puerto Rico constitutions and state and federal laws which prohibit age discrimination. The same attorney is representing Marcano in both cases. K-Mart argues that because the Superior Court case is so similar to the present action, this Court 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. 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
366	L.Ed.2d 481 (1997). The standards for issuing a CPC and the AEDPA-required COA are identical. See Lucas v. Johnson, 132 F.3d 1069 (5th Cir.1998); Muniz v. Johnson, 132 F.3d 214 (5th Cir.1998). Blankenship v. Johnson, 106 F.3d 1202 (5th Cir.1997), opinion withdrawn and superseded on rehearing by, 118 F.3d 312 (5th Cir.1997). . 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). . 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Hogue v. Johnson, 131 F.3d 466 (5th Cir.1997). . Dr. Lett otherwise concluded. . . Dr. Griffith, permitted to testify about Barber's ■ future dangerousness during the punishment phase, testified that Barber did not suffer from any form of mental illness, but he did have a sociopathic anti-social personality disorder. He testified that a sociopathic personality was characterized by: (1) repeated confrontations with authority; (2) mental laziness preventing success in school; (3) inability to plan for the future; (4) inability to develop useful skills necessary to retain employment; (5) inability to develop personal relationships; (6) inability to feel or show remorse; (7) lack of concern for others; (8) a tendency to derive pleasure from hurting others; (9) inability to learn from experience or punishment; (10) the ability to manipulate others;
896	to Drayton, Wood’s spouse. Plaintiffs objection to that decision does not amount to a viable claim for •breach of fiduciary duty by Defendants. Furthermore, even if Defendants acted improperly by failing to timely provide Plaintiff with information she requested, including the decision on her appeal, Plaintiff may not recover because she was not a beneficiary to the Plan and was not entitled to the Plan benefits. IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment (Doc. 86) is GRANTED. IT IS FURTHER ORDERED that Plaintiffs Motion for Summary Judgment (Doc. 99) is DENIED. IT IS SO ORDERED. . Doc. 54-1 at 4-5. .Id. at 5. . Doc. 79 at 20-28. . Id. at 20-21. . Fed.R.Civ.P. 56(a). . . Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). . Adler, 144 F.3d at 670 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler,
4873	addressed to plaintiffs’ counsel, the letter was actually to Ivan Rodriguez. In it, Oses claimed to have changed his story concerning the 1976 shooting in exchange for assurances by the federal government that he would be moved to a minimum security prison for the balance of his sentence. 2. Analysis On the basis of these facts, plaintiffs argued to the court, before trial, that the federal government had engaged in “obstruction of justice, misconduct and abuse of governmental power” in its dealings with Oses. Any judgment rendered in defendants’ favor — without curing the government’s misconduct — plaintiffs urged, would have to be set aside. Properly pruned, plaintiffs’ allegations amounted to a claim of “fraud on the court.” See A “ ‘fraud on the court’ occurs where ... a party has ... set in motion some unconscionable scheme calculated to ... improperly influence] the trier [of fact], or unfairly hamper[] the presentation of the opposing party’s claim or defense.” Id. When evidence of a fraud on the court is adduced prior to trial, the district court may fashion an appropriate pre-trial remedy to cure the effect of any misconduct. Id. at 1119. However, the choice of remedy is committed to the broad discretion of the trial court, and we review such decisions for abuse only. Id. at 1117. In this case, the district court declined to make a pre-trial finding of fraud on the court. It ruled,
4147	counsel. AU Doyle also heard evidence from medical advisor Dr. Robin Fintel and vocational expert Thomas Grezik (“Grezik”). As already stated, Paige won before AU Doyle, only to lose on review by Council — the decision that represents Secretary’s final word on the matter. Statutory Framework To establish entitlement to disability and SSI benefits, a claimant must show he or she is “disabled.” Sections 416(i)(l) and 423(d) define “disability” as: inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months____ Secretary has promulgated extensive procedural regulations for determining whether an applicant is disabled. (1) Is the claimant presently unemployed? (2) Is the claimant’s impairment “severe”? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled. 20 C.F.R. § 404.1520 (1983). Once
1416	plaintiff may be entitled to as much as $7,500 in damages, under the trebling of its actual damages. Eventually, the matter of damages will have to be tried. If plaintiff does not prove actual damages, or if three times its actual damages is less than $1,500, then plaintiff will be entitled to damages of $1,500. [2]Finally, Defendants ask that plaintiffs claim for $5 million in punitive damages on the First Cause of Action be stricken, on the ground that the treble damages for which the statute expressly provides precludes an award of punitive damages, because the treble damages serves the same function as punitive damages. Perez v. Z Frank Oldsmobile, Inc., 223 F.3d 617, 621 (7th Cir.2000); see also While the Second Circuit has not, to my knowledge, opined on this issue, I find the reasoning of the Seventh Circuit to be persuasive. I therefore dismiss the claim for punitive damages in connection with the First Cause of Action. Second Cause of Action (New York State Odometer Act) [3] The Second Cause of Action is brought under a New York State statute, N.Y. Gen. Bus. Law § 392-e, which provides that, upon transfer of ownership of a motor vehicle, giving a false statement of the vehicle’s mileage renders the violator “guilty of a misdemeanor.” N.Y. Gen. Bus. Law §§ 392-e (1-2). Obviously, this is a criminal statute, enforceable by a district attorney, not by a private plaintiff. See People
3917	discretion to deny the request for a preliminary injunction under these circumstances. See Seller Agency Council, Inc. v. Kennedy Ctr. for Real Estate Educ., Inc., 621 F.3d 981, 986 (9th Cir.2010) (explaining that the doctrine of unclean hands bars relief to a plaintiff who has violated good faith or other equitable principles in the transaction at issue). 2. No. 10-16526 The district court denied Silvas’s request for a preliminary injunction as to her contention that neither Countrywide Home Loans, Inc., nor Recontrust Co., has the authority to foreclose on her home. While this appeal was pending, the district court dismissed the underlying complaint. Because the operative complaint has been dismissed, we dismiss this interlocutory appeal as moot. See AFFIRMED as to No. 10-16525; DISMISSED AS MOOT as to No. 10-16526. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . Because the parties are familiar with the facts, we repeat them here only as necessary to the disposition of the case. . Silvas has requested that we take judicial notice of orders of the United States District Court for the District of Arizona dismissing her complaint and other complaints in pending multidistrict litigation without prejudice, and of the district court's order granting a motion to file an amended consolidated complaint in the multidistrict litigation. We need not take judicial notice of documents that are part of the record
1796	"relied on Richmond's exhibits to confirm the porch was narrow, so regardless of whether Richmond remained near the door (per Milone) or moved onto the porch steps (per Boyack), Richmond stood unrestrained within a stride or two of the gun and could have armed himself quickly had he so chosen. Last, the district court noted Terry searches are not restricted to the suspect's person, and ruled that Milone's search was justified as narrowly confined to the only place from which the officers had reason to believe Richmond could obtain a weapon. II. DISCUSSION When considering a district court's denial of a motion to suppress, we review its legal conclusions de novo and its findings of fact for clear error. We give due weight, as we must, to a trial court's assessment of the officers' credibility and the reasonableness of their inferences. Ornelas v. United States , 517U.S. 690, 700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (requiring reviewing courts to review findings of historical fact only for clear error and give due weight to factual inferences drawn by resident judges and local law enforcement officers); Howard , 883 F.3d at 707 (holding the same). ""Because the resolution of a motion to suppress is a fact-specific inquiry, we give deference to credibility determinations of the district court, who had the opportunity to listen to testimony and observe the witnesses at the suppression hearing."" United States v. Groves , 530"
4405	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 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
934	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 the other co-defendants,” but have not been disclosed to the defense. Def.’s Brady Mot. at 2. The Government contends that “[t]he defendant fails to cite any authority to support his claim that a coconspirator’s lack of knowledge of the accused’s participation in a conspiracy constitutes exculpatory or favorable material,” and “and his claim that the information is favorable is both conclusory and speculative.” Gov’t Brady Opp’n ¶¶ 2, 3. The Court disagrees. Several days after the Defendant filed his motion, the D.C. Circuit reversed the conviction of Alvin Gaskins for conspiracy to distribute narcotics. Gaskins was tried with three codefendants on charges that the defendants were members of a nearly five-year narcotics distribution conspiracy in Virginia, Maryland, and the District of Columbia. Id. at 572-73. The jury convicted Gaskins of conspiracy to distribute between 100 grams and one kilogram of heroin. Id. at 575-76. In reversing Gaskins’ conviction for insufficient evidence, the court found a complete lack of affirmative evidence that Gaskins “knowingly joined the narcotics conspiracy or had the specific intent to further its aims,” and noted that “[n]one of the [eight] cooperating witnesses testified that Gaskins was involved in their drug trafficking operation.” Id. at 577. The court emphasized that “given the scope of the government’s investigation and the role its witnesses played in
1866	one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint. Mere presence in the vicinity of a piece of property or mere knowledge of its physical location does 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. 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.
3379	based on the handicapped status of potential residents, the FHA applies. The Court has discretion whether to grant or deny a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir.1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change 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 994). 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
2113	may be achieved when assets, including manufacturing know-how, are transferred to a foreign corporation, the guideline at section 2.02, Rev. Proc. 68-23, requires, inter alia, valid business reasons to exist for such a transfer. Absent a substantial business reason, the guideline presumes that the transferor consummated the transfer in pursuance of a plan having as one of its principal purposes the avoidance of Federal income taxes. In addition, the section 367 guidelines set out at Rev. Proc. 68-23, 1968-1 C.B. 821, are not positive enactments of law but are merely official interpretations of the law made by respondent for guidance to those taxpayers seeking a section 367 ruling. Christian Manner International, Inc. v. Commissioner, 71 T.C. 661, 666 (1979). See also Section 367, on the other hand, is positive law and must be the basis upon which the instant case is decided. The relevant language thereunder is that “such exchange is not in pursuance of a plan having as one of its principal purposes the avoidance of Federal income taxes.” Neither Congress in its hearings nor respondent in his rulings has ever defined what is meant by a “principal purpose.” Although we have never interpreted the term principal purpose within the context of section 367, nonetheless, we have interpreted the meaning of principal purpose in a somewhat analogous provision under section 269. That section, unlike section 367, focuses on whether the principal purpose for which an acquisition was made is the evasion
2947	had prepared the affidavit that was later used to prosecute defendant. See also Annot., “Circumstances Giving Rise to Conflict of Interest Between or Among Criminal Codefendants Precluding Representation by Same Counsel,” 34 A.L. R.3d 470 (1970). Petitioner has the burden of proving by a preponderance of the evidence that his constitutional rights were abridged in the state court, Post v. Boles, supra, and in reviewing the state records and transcripts, this court cannot perceive the existence of a conflict of interest in Simpson’s representation of petitioner. The cases that petitioner cites are distinguishable from the instant case, and this court holds that no conflict of interest existed and that petitioner’s right to the effective assistance of counsel has not been denied.  is typical of the cases that petitioner cites for the established and well-accepted rule that it is improper for the court-appointed attorney to represent codefendants at their joint trial, when there is an obvious diversion of interest between the codefendants, who are placed in adversary and combative positions. Sawyer and the other cases petitioner cites are distinguishable from the case at bar, simply because petitioner’s attorney Simpson did not represent Otha Howard and petitioner simultaneously at a joint trial. Simpson represented Howard more than seven years earlier, even before the first trial in 1965. The Commonwealth’s Attorney nolle prossed the charges against Howard before the 1965 trial, and Howard was never tried at all, and certainly not as a codefendant
2324	for a liquid-soap dispenser in 1923 as showing the equivalent of Packwood’s dispensing and agitating elements. This resulted in Packwood’s acquiescence in the rejection of three of his proposed claims, all of which were for a dispenser including as an element a plunger with a cup member secured to it, but none of which included agitation means as an element, as did Claim 4. The claim of the application which became Claim 4 of the patent was allowed without criticism or comment. It is of no consequence that, in the course of the proceedings in the Patent Office, the rejection of narrow claims was followed by the allowance of a broader claim. Smith v. Snow, 294 U.S. 1, 16, 55 S.Ct. 279, 79 L.Ed. 721; See and compare, National Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co., 8 Cir., 106 F. 693, 714. The defendant also contends that Claim 4 must be read in the light of the specification and drawings, and that, when so read, it is apparent that the accused device does not infringe, because the dispensing element attached to the plunger of that device is different. The particular forms of devices described in specifications are to be considered as the forms which are preferred by the inventor. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 418, 28 S.Ct. 748, 52 L.Ed. 1122; National Hollow Brake-Beam Co. v. Interchangeable
2414	exhausted, refused to dismiss the action. Instead, the Court noted that under 5 U.S.C. § 1009(d), it could stay the discharge pending completion of the military’s administrative processes. More importantly, it found that plaintiff had fulfilled all of the conditions traditionally required for the .granting of such a stay: (1) A likelihood that petitioner will prevail on the merits of the appeal; (2) Irreparable injury to the petitioner unless the stay is granted; (3) No substantial harm to other interested persons; and (4) No harm to the public interest. [Id. at 252] Under the circumstances of that case, the court concluded that it was appropriate to stay the upcoming discharge pending a final determination by the ABCMR. Accord, Nelson v. Miller, 373 F.2d 474 (3rd Cir. 1966) ; Crawford v. Davis, 249 F.Supp. 943 (E.D.Pa.), cert. den. 383 U.S. 921, 86 S.Ct. 923, 15 L.Ed.2d 676 (1966). We find the principles set forth in Covington and similar cases to be sound and properly applicable to this case. Our sole remaining task is to determine whether, under the facts of this case, a stay is properly granted. III. Likelihood of Success on the Merits In his petition for relief in this ease, petitioner alleges the following errors by the Army Physical Evaluation Board: a. That the Board failed to find that petitioner was unfit for military duty under the provisions of Army Regulation 40-501. b. That the Board failed to
1864	can get to it. The law also recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint. Mere presence in the vicinity of a piece of property or mere knowledge of its physical location does 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. 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
3295	and the district court sentenced him to the statutory minimum of 120 months in prison. On appeal, his counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Alarcon seeks appointment of new counsel and has filed a pro se supplemental brief. Counsel argues in the Anders brief that the sentence imposed is unreasonable. We disagree. See United States v. Vaughn, 519 F.3d 802, 804-05 (8th Cir. 2008) (reviewing sentence for procedural error and substantive reasonableness), cert. denied, — U.S. —, 129 S.Ct. 998, 173 L.Ed.2d 297 (2009); see also United States v. Rojas-Coria, 401 F.3d 871, 874 n. 4 (8th Cir.2005) (Supreme Court’s decision in  has no impact on case involving sentence imposed as result of statutory minimum). Alarcon’s pro se argument that his guilty plea was not knowing or voluntary is not cognizable in this appeal, see United States v. Villareal-Amarillas, 454 F.3d 925, 932 (8th Cir.2006) (claim that guilty plea was not knowing and intelligent was not cognizable on direct appeal where defendant did not attempt to withdraw guilty plea in district court); United States v. Murphy, 899 F.2d 714, 716 (8th Cir.1990) (claim that guilty plea was involuntary must first be presented to district court and is not cognizable on direct appeal); and his claim that his counsel was ineffective is more properly raised in a motion under
1465	still consider the legal questions raised by the undisputed facts. See Stifel, Nicolaus & Co. v. Dain, Kalman & Quail, Inc., 578 F.2d 1256, 1263 (8th Cir. 1978), and cases cited. We have carefully considered the record before us, and we affirm without difficulty the action of the district court in granting summary judgment against Watts and dismissing his complaint. First, let us point out that there are three things that this case does not involve. It does not involve the right of an inmate of a prison or jail to have access to the federal courts to seek relief from his imprisonment or from the conditions thereof. That right has been established since the decision of the Supreme Court in Neither does the case involve the right of an inmate to have the assistance of another inmate in gaining access to the courts for the redress of grievances where those who have the former inmate in charge have not otherwise provided him with legal assistance or made more conventional legal assistance available to' him.. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Finney v. Arkansas Bd. of Correction, 505 F.2d 194, 213 (8th Cir. 1974); Finney v. Hutto, 410 F.Supp. 251, 262-63 (E.D.Ark.1976), aff’d, 548 F.2d 740 (8th Cir. 1977), aff’d, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). Finally, the case presents no question as to constitutional deprivations,
3165	appoint an African American as a grand jury foreperson within 20 or more years preceding his indictment. This court has seen several similar claims that arose from parishes in this division, and it has granted relief to one African American petitioner in a case from Bossier Parish. See Clarence Hicks v. Cain, 97 CV 2460 (appeal filed by Warden but dismissed voluntarily). B. Procedural Bar The State first argues that the Campbell claim is proeedurally barred because Petitioner did not file a timely motion to quash the indictment as required by Louisiana law. That defense is fatal to most of the foreman-discrimination claims seen by this court. See Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); This Petitioner also failed to file a timely motion to quash, but his claim is not subject to a procedural bar because the last reasoned state-court decision did not rely on the bar. A procedural bar serves as a defense to a federal petition only when the State court clearly and expressly relied upon the bar in its last reasoned ruling. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991); Foster v. Johnson, 293 F.3d 766, 786 (5th Cir.2002). Petitioner’s original post-conviction application did not challenge the indictment directly. Rather, he complained that his counsel were ineffective for failing to pursue the issue. (Tr. 1758, 1779-81) The trial judge summarily denied the application (Tr. 1337),
3678	get past the state trial court.” Id. at 99. However, “Hull only needed a waiver from the Pennsylvania Courts, not necessarily for the state’s highest court.” Id. (citations omitted). When the Pennsylvania Supreme Court denied Hull’s petition for allocatur without comment, it left the trial court’s order, and thus the state waiver, standing. If Hull had filed a petition for allocatur nunc pro tunc without the order from the Court of Common Pleas, the state supreme court’s denial without comment would have been properly read as a denial based on procedural default. See id. at 95 (reversing its earlier opinion based on two recent Supreme Court cases, Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) and With the Court of Common Pleas order on the record, however, the Third Circuit reasoned that the Supreme Court could have reversed the order “by either dismissing (rather than denying) Hull’s second petition, or by clearly stating that Hull’s petition remained untimely and that his procedural default remained effective.” Id. The Third Circuit concluded: “We are of course bound by Hull II but, at all events, agree that on these facts when the Pennsylvania courts granted Hull the right to file a petition for allowance of appeal nunc pro tunc, the subsequent denial of that petition was on the merits.” Id. at 100. The difference between the procedure in this case from that in Hull, is that
763	S.Ct. 529, 68 L.Ed. 1094, and if the drugs are worthless, he cannot escape by hiding behind the phrase the “doctors say”, United States v. John J. Fulton Co., 9 Cir., 33 F.2d 506. Moreover, proof of the false and fraudulent character of any one of the various claims is sufficient, Goodwin et al. v. United States, 6 Cir., 2 F.2d 200. There can be no doubt that enough was proved to justify an inference that the defendants knew the articles did not possess the curative or therapeutic qualities claimed for them in the statements appearing on the containers and labels, and that the court was justified in holding that they were made with a fraudulent purpose. See Defendants assigned as further grounds for error rulings on the admission and exclusion of evidence. Counsel has failed to quote the evidence alleged to have been improperly admitted or excluded, or to present any argument or reason in support of this assignment. We have therefore assumed that it has been waived and we refrain from any special consideration of it. Finding no error in the proceeding below, the judgments are affirmed.
895	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) ; 
2641	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); 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
4604	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 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
2125	in the same manner as other provisions of the Internal Revenue Code in which the Commissioner is given the discretionary authority to act; that is, Congress contemplated that his action would be sustained by the courts unless he acted arbitrarily or unreasonably. For example, section 166(c) provides that there shall be allowed, in the discretion of the Commissioner, a deduction for a reasonable addition to a reserve for bad debts. Because of the discretionary authority specifically granted in the allowance of deductions under the reserve method, the Commissioner’s determinations regarding the reasonableness of additions to bad debt reserves carry more than the usual presumptive correctness, and the taxpayer’s burden of proof is greater than merely overcoming such presumption. Roth Steel Tube Co. v. Commissioner, 68 T.C. 213, 218 (1977); Roanoke Vending Exchange, Inc. v. Commissioner, 40 T.C. 735 (1963). Thus, the taxpayer must not only demonstrate that its addition to its reserve for bad debts was reasonable, but also that the Commissioner’s disallowance of such addition amounted to an abuse of discretion. Similarly, section 446(b) authorizes the Commissioner to change the method of accounting used by a taxpayer when he finds that such method does not clearly reflect income. In Thor Power Tool Co. v. Commissioner, supra, the Supreme Court held that when the Commissioner changes a taxpayer’s method of accounting, the Court should accept the Commissioner’s action unless the Court finds that he has abused his discretion. And section
4821	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. 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”
4866	ORDER Sehyun Eom traveled to Wisconsin from Illinois intending to have sex with a 14-year-old girl he met in an Internet chat room. The girl turned out to be an undercover police officer, and Eom, then 32 years old, was arrested. He pleaded guilty to traveling in interstate commerce to engage in sexual conduct with a minor. See 18 U.S.C. § 2423(b). The district court sentenced him to 51 months’ imprisonment, at the bottom of the guidelines range. Eom appeals, but his appointed lawyer has moved to withdraw because he cannot identify a nonfrivolous argument to pursue. See Eom has not responded to our invitation to comment on counsel’s submission, see CIR. R. 51(b), and we confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel begins by telling us that Eom has said he wants only to challenge his prison sentence and does not wish to have his guilty plea set aside. Thus, counsel should have omitted any discussion of possible challenges to the voluntariness of Eom’s plea or the adequacy of the plea colloquy. See United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009); United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel has evaluated whether Eom could challenge the
3993	be entered against the adverse party. Fed.R.Civ.P. 56(e). However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing summary judgment motions, this court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standard. Thus, in most civil cases the court must decide “whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Id. at 252,106 S.Ct. 2505. IV. LAW AND ANALYSIS A. Validity of the '833 Patent As an initial matter, this court declines to reconsider the validity of the '833 patent. This court previously determined that the '833 patent is valid. (See Summ. J. Order at
4808	believed Room 20 had been vacated and, on that premise, gave the officers permission to search that room. We have reviewed the circumstances which led Mrs. Lambert to conclude that the room had been vacated and believe that they were ample to support her view. Defendant Jackson testified that the room had been vacated. When the officers entered the room there was nothing to put them on notice that the room was still occupied. The only item seized in that room was found in a trash can. Under the evidence we conclude that the room was then vacant. Defendants thus may not complain of the search of that room and the seizure of an item from a trash can therein. United States v. Kress, 446 F.2d 358 (9th Cir. 1971). The other items seized at the motel and later received in evidence were taken from a trash can outside Rooms 19 and 20. What a person knowingly exposes to the public is not a subject of Fourth Amendment protection. Katz v. United States, 389 U.S. 347, 351, 88 5. Ct. 507, 19 L.Ed.2d 576 (1967). When defendants placed articles in this public trash can outside the room, they surrendered their privacy with regard to those articles. See United States v. Minker, 312 F.2d 632, 634 (3d Cir. 1962). See also, Wattenburg v. United States, 388 F.2d 853, 857 (9th Cir. 1968). After being arrested at
3714	substance, claims to correct inven-torship under 35 U.S.C. § 256. Larson v. Correct Craft, Inc., 569 F.3d 1319, 1325 (Fed.Cir.2009). Defendant asserts that Plaintiff does not have standing because it has no ownership interest in any of. the patents-in-suit. MTD at 3-5. Constitutional standing requires that a plaintiff has suffered an injury-in-fact, that the injury is traceable to the conduct complained of, and that the injury is redressable by a favorable decision. U.S. Const, art. Ill, § 2; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To have standing to under Section 256, the Federal Circuit holds that a plaintiff must have a concrete financial interest in the patents at issue. This does not mean that the plaintiff must have an ownership interest in the patent. Id. A plaintiffs financial interest however, cannot be contingent upon on relief outside the scope of remedies available to the court. Larson, 569 F.3d at 1326-27 (dismissing case because Plaintiffs financial interests depended on his obtaining rescission of his patent assignments). For example, in Chou the Plaintiff had assigned her intellectual property interests to her university employer. 254 F.3d at 1359. However, because the university was obligated to pay named inventors a share of a patent’s royalties, Plaintiff had standing to under Section 256 to assert inventorship. Id. The Plaintiff in Larson, however, who had assigned rights in boat parts he designed, did not have standing
120	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 within the discretionary function exception to the FTCA; and/or (2) a private person would not be liable in like circumstances under Massachusetts law. Citing Horta v. Sullivan, 4 F.3d 2, 21 (1st Cir.1993), and  the Federal Defendants argue that investigative functions and decisions, including whether, when and how to investigate or apprehend fugitives, are subject to the discretionary function exception. They contend that the United States has not waived its sovereign immunity for claims based on the FBI’s exercise of its discretion to determine whether, when, and how to investigate or apprehend individuals like Sampson. See 28 U.S.C. § 2680(a). They add that the Plaintiffs’ negligence claim, arising out of the FBI’s failure to use specific technology to reconnect or trace calls, is also subject to the discretionary function exception, because it implicates budgetary and policy-making decisions. The Federal Defendants rely on Limar Shipping Ltd. v. United States, 324 F.3d 1, 10 (1st Cir.2003)
2304	of September 1, 1996 through December 31, 1996; its third application sought $19,234.20 for January 1, 1997 through October 31, 1997; and its fourth application was for $17,331.31 for the 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. 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
691	WOOD, Circuit Judge. Until the recent enactment of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005), which among other things amended the judicial review provisions governing orders of removal in immigration cases, this case would have required a straightforward inquiry. If, as the government argued, Miguel Angel Ramos was being removed because he had been convicted of a controlled substance offense, we would have had jurisdiction only to ensure that he was indeed the correct person, that the offense qualified as one covered by § 242(a)(2)(C) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1252(a)(2)(C), and that Ramos raised no “substantial” constitutional claims. See Lara-Ruiz v. INS, 241 F.3d 934, 939 (7th Cir.2001). If those preliminary inquiries demonstrated no flaws in the removal order, we would have lacked jurisdiction to proceed any further with the case. Flores v. Ashcroft, 350 F.3d 666, 668 (7th Cir.2003). The REAL ID Act has changed all of that. It amended INA § 242(a) to permit the courts of appeals on a proper petition for review to consider constitutional claims and questions of law. See REAL ID Act § 106(a)(l)(A)(iii), amending 8 U.S.C. § 1252(a)(2) by adding a new subpart (D). This amendment was effective on the date of the enactment of the statute, May 11, 2005, and applies to all appeals from removal orders “issued before, on, or
3446	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 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. Id. at 1267-68. But this leap of responsibility between the attorney and the defendant must be carefully evaluated. In Purchess, we stated that where the defendant stays silent on relevant conduct, but his attorney challenges facts presented in the PSIR, it would be best for the court to determine whether the defendant understands and agrees with his attorney’s argument before denying the reduction. Id. However, it is not the responsibility of the court to interrogate the defendant
705	"Co., 635 F.2d 379 (5th Cir. Unit A Jan.1981) (holding that all risk policy did cover loss when concrete dome collapsed as a result of faulty construction of styrofoam form over which concrete was poured). . 690 F.2d at 462. . Couch on Insurance 3d, § 148:59, at 148-104 (1998) (citing City of Barre, 136 Vt. 484, 396 A.2d 121). . Equitable Fire & Marine Ins. Co., 421 F.2d 512. . City of Barre, 136 Vt. 484, 396 A.2d 121. . U.S. Indus., 690 F.2d at 462 (emphasis added) (citations omitted). . See Trinity Indus., 916 F.2d at 271 (""[T]he parties did not intend the policy to cover the costs of repairing defective initial construction.”); . See Lake Charles Harbor & Terminal Dist. v. Imperial Cas. & Indem. Co., 857 F.2d 286, 287 (5th Cir.1988) (no dispute that policy excluded coverage for costs of replacing and repairing worn cable that broke and sent heavy shuttle crashing into shiploader but dispute regarding coverage for resulting damage to loader). . Couch on Insurance 3d, § 102:2, at 101-9 to -10 (1998) (noting principle is equally applicable to all-risks policies); ""see Hoffman v. State Farm Fire & Cas. Co., 16 Cal.App.4th 184, 19 Cal.Rptr.2d 809, 810 (1993) (holding that property owners could not recover under all-risk policy unless damage occurred during policy period). . We disagree, however, with"
88	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 omitted). In addition to these constitutional requirements, the federal courts have adopted a set of prudential considerations. First, the plaintiff must be asserting “his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth, 422 U.S. at 499, 95 S.Ct. at 2205. Second, exercise of federal jurisdiction is not warranted when the harm asserted is a “generalized grievance” shared equally by all of a large class of citizens. Id. (citing 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
3271	only eligibility requirement for paid holidays under the collective bargaining agreement was that the driver must work the day before the holiday. Exhibit 29 however assumed a requirement that the employee first earn $20,000 for that year before taking holidays or sick days. Under the rejected agreement, vacation pay was pro-rated from an employee’s average pay. Exhibit 29, however, calculated it at the minimum hourly rate, which would be a minimum for the employee’s average pay. The Court concludes that such complex calculations, while necessarily somewhat contrived, do not overstate the value of the Committee’s claim, and most likely understate it. See Laborers Clean-Up Contract Administration Trust Fund v. Uriarte Clean-Up Service, 736 F.2d 516, 521 (9th Cir.1984);  cert. denied, 464 U.S. 1045, 104 S.Ct. 716, 79 L.Ed.2d 178 (1984); Heheman v. E.W. Scripps Co., 661 F.2d 1115, 1126 (6th Cir.1981), cert. denied, 456 U.S. 991, 102 S.Ct. 2272, 73 L.Ed.2d 1286 (1982); and United Brotherhood of Carpenters, Local 379 v. Day & Zimmerman, Inc., 531 F.Supp. 696, 700 (E.D.Tex.1982). Therefore, the Court concludes that the total losses calculated in Exhibit 29 are reasonably accurate and the debtor’s objections to the calculations must be rejected. 19. Four Local Unions Are Entitled to Damages For the Debtor’s Violation of the Dues Checkoff Provision of the Rejected Agreement. The Committee presented evidence on behalf of four local unions for lost membership dues. The Committee argues that U.S. Truck was obligated
2701	be reached, since the County subsequently stipulated to the amount. The Bankruptcy Appellate Panel’s decision ought to be vacated because the case was moot when it was issued. . We review de novo decisions of the BAP. See In re CFLC, Inc., 166 F.3d 1012, 1015 (9th Cir.1999). We independently review the bankruptcy court’s rulings on appeal from the BAP, reviewing the bankruptcy court’s con-elusions of law de novo and its factual findings for clear error. See id. . We note that the dissent agrees with us and with the BAP that the confirmed Plan affected only the Brawders’ personal liability, not the County's lien for the pre-petition taxes owed, secured against the property. Dissent at 875; see also .. [A] bankruptcy discharge extinguishes only one mode of enforcing a claim-namely, an action against the debtor in personam-while leaving intact another-namely, an action against the debtor in rem.”). Thus, the dissent parts ways with the majority opinion only with respect to the effect of the stipulation. .In September 1995, the County filed an untimely proof of claim for $20,264.32, which was later withdrawn. The County, through the declaration of a former employee in support of its summary judgment motion, presented evidence
933	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. 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 the other co-defendants,” but have not been disclosed to the defense. Def.’s Brady Mot. at 2. The Government contends that “[t]he defendant fails to cite any authority to support his claim that a coconspirator’s lack of knowledge of the accused’s participation in a conspiracy constitutes exculpatory or favorable material,” and “and his claim that the information is favorable is both conclusory and speculative.” Gov’t Brady Opp’n ¶¶ 2, 3. The Court disagrees. Several days after the Defendant filed his motion, the D.C. Circuit reversed the conviction of Alvin Gaskins
1846	not result in settlement of a contractor claim. Burden of Proof, Standard of Proof The defendant bears the burden of proving the correctness of the default termination. Although the notice of default termination was predicated solely on an asserted fraud by the contractor in certifying the training of its solderers, that issue was abandoned by the government prior to trial. Instead, the government attempted to sustain the default on two other grounds. The first was that the contractor had falsified the results of leak tests performed on the TVPCs. The second was that Triad fraudulently concealed from MICOM its discovery that the wrong type of soldering flux may have been used on completed units. Fraud taints everything it touches. Consequently, proof of fraud by clear and convincing evidence is a ground for default termination. Joseph Morton Co., 757 F.2d at 1278-79; see United States v. Acme Process Equipment Co., 385 U.S. 138, 144-48, 87 S.Ct. 350, 354-56, 17 L.Ed.2d 249 (1966). Fraud is sufficient to vitiate acceptance of delivered contract goods. See Universal Sportswear Inc. v. United States, 180 F.Supp. 391, 145 Ct.Cl. 209, 214 (1959). On this basis, defendant seeks confirmation of the decision to default terminate, as well as return of payments made in excess of the value of completed units accepted. The government also raises as a defense a special plea in fraud pursuant to 28 U.S.C. § 2514 (1988). The effect of this
3043	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 characteristics of such hazardous wastes; and 6. The degree of cooperation by the parties with Federal, State or local officials to prevent any harm to the public health or the environment. The Court, however, is not limited to these factors, which may or may not be appropriate in a given situation. Boeing, 207 F.3d at 1187. In any given case, “a court may consider several factors, a few factors, or only one determining factor .depending on the totality of circumstances presented to the court.” Envtl. Transp., 969 F.2d at 508. Among the factors which may be considered include the relative fault of the parties. Id. Among the Gore Factors, the Court finds, in the context of this case, the most applicable concepts are expressed in facj tors 1 and 4, the contribution and involvement of each party in the discharge, release or disposal of hazardous material and in factor 5, the-
566	to the probation officer even after he had notice that the probation officer had made a specific inquiry for this information. As the district court noted, this pattern of activity was consistent with Larsen’s conduct in the underlying offense. An enhancement for obstruction of justice under § 3C1.1 would not have been clearly erroneous and therefore the district court’s refusal to adjust the base level offense downward for acceptance of responsibility was proper. For these reasons, the judgment of the district court is Affirmed. . The Commentary to the Guidelines, which includes the application notes, is to be treated as the legal equivalent of a policy statement. Guidelines § 1B1.7; United States v. DeCicco, 899 F.2d 1531, 1537 (7th Cir.1990); Because they are contemporaneous explanations of the Guidelines by their authors, these notes are entitled to substantial weight. United States v. Terry, 900 F.2d 1039, 1042 (7th Cir.1990).
181	will suffer no immediate economic injury through competition with Panhandle for industrial markets since Panhandle will have to seek Commission approval for any such sale. In its petition for rehearing, Michigan Consolidated asserted that the Commission’s ruling was in error because (1) the possibilities of competition entitled it to intervene as of right, and (2) intervention was necessary to protect its right of review in No. 14975. Since the rehearing petition did not assert that the Commission erred in denying intervention on the ground that Michigan Consolidated was not an existing customer of Panhandle, we cannot consider that claim here. Section 19 of the Natural Gas Act, 52 Stat. 831 (1938), 15 U.S.C.A. § 717r(b); t. 467, 99 L.Ed. 583. We think Michigan Consolidated had no right to intervene with respect to the 30,000 Mcf to protect its right of review in No. 14975. The two proceedings were consolidated only for the purpose of administrative convenience. The fact that the gas made available by the expansion was distributed in a manner similar to that made available by the abandonment does not make the expansion gas “part and parcel of the abandonment case” as Michigan Consolidated claims. It may be that Panhandle would have proposed or the Commission approved a different plan of distribution for the 30,000 Mcf had they not believed that the 127,000 Mcf were also available. But even if this were true, and the Commission
2378	"River Tow, LLC v. Nelson, Civ.A. No. 04-2850, 2005 WL 331706, 2005 U.S. Dist. LEXIS 2071, at *8-9 (E.D.Pa. Feb. 10, 2005). Cf. also Windsor Mt. Joy Mut. Ins. Co. v. Pozzi, 832 F.Supp. 138, 140 (E.D.Pa.1993) (""Where ... there is an absence of a controlling federal statute or an established rule of general maritime law, state law governs the scope and validity of contracts of marine insurance.”). . A party is a ""prevailing party” for purposes of awarding costs when the Court has, after considering the merits of the case, awarded that party some relief ""on any issue that is fundamental to the action.” Hygienics Direct Co. v. Medline Indus., 33 Fed.Appx. 621, 625 (3d Cir.2002) (citing & Care Home, Inc. v. W. Va. Dep’t of Health & Human Resources, 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)). Delaware River Tow is clearly a prevailing party because the Court entered judgment in its favor after a bench trial. . Indeed, other circuits to have considered the issue have held that a court may not award attorneys' fees in an admiralty case absent a finding that the non-prevailing party acted in bad faith. See Madeja v. Olympic Packers, 310 F.3d 628, 635 (9th Cir.2002) (""The equitable grant of attorneys' fees is appropriate in admiralty only when the shipowner acted arbitrarily, recalcitrantly, or unreasonably.”) (citing Vaughan v. Atkinson, 369 U.S. 527, 531-32, 82"
4920	"Cir. 2011) ). ""If proof of the essential elements of the [claim] requires individual treatment, then class certification is unsuitable."" Newton v. Merrill Lynch, Pierce, Fenner & Smith Inc. , 259 F.3d 154, 172 (3d Cir. 2001) (citation omitted). To satisfy their wage-and-hour claims, Plaintiffs must show that: (1) pursuant to Citizens' unwritten ""policy-to-violate-the-policy,"" the class MLOs performed overtime work for which they were not properly compensated; and (2) Citizens had actual or constructive knowledge of that policy and of the resulting uncompensated work. See Kellar v. Summit Seating Inc. , 664 F.3d 169, 177 (7th Cir. 2011) (citing Reich v. Dep't of Conservation & Natural Res. , 28 F.3d 1076, 1082 (11th Cir. 1994) ); see generally Thus, to satisfy the predominance inquiry, Plaintiffs must demonstrate (1) that Citizens' conduct was common as to all of the class members, i.e. , that Plaintiffs' managers were carrying out a ""common mode"" of conduct vis-à-vis the company's internal ""policy-to-violate-the-policy,"" and (2) that Citizens had actual or constructive knowledge of this conduct. See Sullivan , 667 F.3d at 299 ; Dukes , 564 U.S. at 358, 131 S.Ct. 2541 ; see also Tyson Foods, Inc. , 136 S.Ct. at 1046 (explaining that, although a plaintiff's suit may raise ""important questions common to all class members,"" class certification is proper only if proof of the essential elements of the class members' claims does not involve ""person-specific inquiries into individual work"
2337	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 F. 452, 457; Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U.S. 428, 434, 435, 31 S.Ct. 444, 55 L.Ed. 527;  S.Ct. 322, 67 L.Ed. 523; JensenSalsbery Laboratories, Inc., v. Salt Lake Stamp Co., 8 Cir., 28 F.2d 99, 101, 102, and cases cited; Donner v. Sheer Pharmacal Corp., 8 Cir., 64 F.2d 217, 221, 222 and cases cited; Strong-Scott Mfg. Co. v. Weller, 8 Cir., 112 F.2d 389, 394. The following language from the case of Trane Co. v. Nash Engineering Co., 1 Cir., 25 F.2d 267, 269, is pertinent here: “The Eibel Case [261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523] certainly admonishes this court to give great weight to the practical results from a claimed invention; to look beyond the paper expression to the state of the art, before and after an alleged invention which is tested in
2846	or residences in a single building. But probable cause must be shown for searching each residence unless it be shown that, although appearing to be a building of several apartments, the entire building is actually being used as a single unit. Federal courts have consistently held that the Fourth Amendment’s requirement that a specific “place” be described when applied to dwellings refers to a single living unit (the residence of one person or family). Thus, a warrant which describes an entire building when cause is shown for searching only one apartment is void. United States v. Barkouskas, D.C., 38 F.2d 837; United States v. Diange, D. C., 32 F.Supp. 994; United States v. Chin On, D.C., 297 F. 531; United States v. Mitchell, D.C., 274 F. 128. The basic requirement is that the officers who are commanded to search be able from the “particular” description of the search warrant to identify the specific place for which there is probable cause to believe that a crime is being committed. This requirement may be satisfied by giving the address of the building and naming the person whose apartment is to be searched. Kenney v. United States, 81 U.S.App.D.C. 259, 157 F.2d 442; Shore v. United States, 60 App.D.C. 137, 49 F.2d 519. Hinton was recently held to be controlling precedent in United States v. Higgins, 428 F.2d 232 (7th Cir.1970). The Government has argued that the premises at 4637 Newport, while being constructed as
2390	Appeal from D. C. S. D. Ohio. Judgment vacated and cause remanded for further consideration in light of  and Huffman v. Pursue, Ltd., 420 U. S. 592 (1975). Mr. Justice Brennan, with whom Mr. Justice Marshall joins, dissenting. Nuisance proceedings were begun against appellants in Ohio courts on the theory that the some of the books sold in a bookstore on premises owned by one appellant and leased by the others were obscene, and that the bookstore was therefore a nuisance. The Ohio statutory scheme underlying these nuisance proceedings is outlined in Huffman v. Pursue, Ltd., 420 U. S. 592 (1975). Appellants filed suit in Federal District Court while the state proceedings were pending seeking injunctions against the state proceedings. The parties agreed not to go forward with the state-court proceedings until the Federal District Court litigation was completed.
1200	facts of the case before us fit neatly within the ambit of Vargas. As we made clear in that case, Congress, together with the Sentencing Commission and the Attorney General, has made the policy determination that fast-track programs are appropriate in some districts but not in others. See id. at 100. Although district courts have great discretion to determine sentences, see Cooper, 437 F.3d at 330, it would not be reasonable for district courts to reduce sentences in non-fast-track districts to match those in districts where fast-track programs have been authorized by the legislative and executive branches. To do so would be to create fast-track programs by judicial fiat in areas where the Attorney General has not authorized them. See Section 3553(a)(6) does not authorize judges to undermine Congress’ will. From Rondon-Urena’s perspective, his stiffer sentence may seem like an accident of geography. Although we note that Rondon-Urena appears to have been in Philadelphia by choice when he was detained — he might have chosen to be in an area with a fast-track program — we do recognize the role of fortuity here. Fortuity, however, is by no means an unauthorized entrant to the criminal justice system. While its impact may be more palpable in this case owing to the similarity of many illegal reentry offenses and the clear-cut borders of fast-track districts, an individual puts himself at the mercy of the fortuities of the criminal justice system when he
1383	Court takes judicial notice of the dockets in the cases of Garlick v. County of Kern, Case No.: 1:13-cv-01051 LJO JLT, The Estate of Christopher McDaniel v. County of Kern, Case No.: 1:15-cv-01320 JAM JLT, 2015 WL 7282881 (E.D. Cal. Nov. 11, 2008) and M.M. v. County of Kern, Case No.: 1:16-cv-00376 DAD JLT. The court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid, 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The record of this Court's docket is a source whose accuracy cannot reasonably be questioned, and judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th. Cir. 1980). , The Court recognizes, as do the Plaintiffs, that this does not mean that no such unconstitutional conduct has occurred within this time period. However, it directly contradicts the statements of Plaintiff's counsel that such court determinations have been made (Doc. 37-1 at 2).
2020	each medical report and give an adequate statement of reasons or bases under 38 U.S.C. § 7104(d)(1) for accepting or rejecting each one. However, the BVA decision contains another defect, discussed below, that supersedes the reason-or-bases error with respect to the PTSD diagnoses. Because it is clear that the Board doubted the adequacy of the PTSD diagnoses in this case, specifically, the sufficiency of the claimed stressors, the Board was required to comply with the retum-for-clarification requirement in applicable VA regulatory provisions discussed in part II.B.1.a., above. The Board is not free to disregard VA regulations. See Sutton v. Brown, 9 Vet.App. 553, 568-69 (1996) (citing Morton v. Ruiz, 415 U.S. 199, 232, 94 S.Ct. 1055, 1073, 39 L.Ed.2d 270 (1974),  and Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957)). In any event, because the sufficiency of the stressors to support a PTSD diagnosis and the adequacy of the veteran’s symptomatology are medical questions, the Board was not free to reject uncontradicted, unequivocal medical diagnoses of record — by Dr. Singh, Dr. Robinson, or Mr. Young — that are presumed to have found the veteran’s stressors and symptoms to be sufficient to support the PTSD diagnosis and in this case did specifically find the veteran’s war-experience stressors sufficient to warrant a PTSD diagnosis, without first returning the reports to the original examiner(s) for clarification in accordance with applicable
3847	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 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
4884	“to have the photographs.” If, as the district court concluded, plaintiffs were seeking merely to reargue the admissibility of the photographs, the court — having already addressed the merits of the issue — was well within its rights to deny the request. If, on the other hand, as plaintiffs argue in their reply brief, they sought to use the photographs for the limited purpose of refreshing Murphy’s memory as to the location of the bullet wounds on Mr. Fernandez’s torso, the district court’s ruling may have been in error. See 20th Century Wear, Inc. v. Sanmark-Stardust, Inc., 747 F.2d 81, 93 n. 17 (2d Cir.1984) (use of extrinsic evidence to refresh witness’s present recollection is permissible); 3 J. Wigmore, Evidence § 758 (1970 & Supp.1991) (same). Once prompted by the sight of the photographs, plaintiffs contend, Murphy might have been able to recall the location of Mr. Fernandez’s entry wounds, as he saw them at the morgue within hours of the shooting. By precluding the use of the photographs during Murphy’s cross-examination, the district court thus may have deprived the jury of critical evidence that Mr. Fernandez had been shot in the back. Whatever the merits of this argument, plaintiffs have not (nor could they have on this record) carried their burden of proving harm. As we already have pointed out, the jury had before it independent, incontrovertible evidence that Mr. Fernandez was shot in
4260	méler de corriger le monde.” Other fine players are Herbert Wechs-ler, “Toward Neutral Principles of Constitutional Law,” [Holmes lecture, 1959] reprinted in Principles, Politics, and Fundamental Law (1961) 21-22, 43-47; Alexander M. Bickel, The Least Dangerous Branch (1962) 51-55; Frederick Bernays Wiener, Uses and Abuses of Legal History: A Practitioner’s View [Selden Society Lecture at Lincoln’s Inn] (1962) 24-25; Alfred Hill, “The Inadequate State Ground”, 65 Col.L.R. (No. 6, June, 1965), 943, 989-90, 993-94, 996-98; and Anthony Lewis, “A Tough Lawyer Goes to the Court”, New York Times Magazine, (August 8, 1965), 11, 67. . Cited in Appellant’s Brief in Roman, pp. 79-87, In this connection, it is interesting to note the resemblance between the language of Chief Justice Warren in Field in “liberty of contract” cases of an earlier day, such as Butcher’s Union, etc., Co. v. Crescent City Co., 111 U.S. 746, 757, 4 S.Ct. 652, 28 L.Ed. 585 (1884), and Powell v. Com. of Pennsylvania, 127 U.S. 678, 691-692, 8 S.Ct. 992, 32 L.Ed. 253 (1888). Field’s views, expressed as dissent in the Slaughter-House Cases, 16 Wall. 36, 106, 109-111, 21 L. Ed. 394 (1873), received majority acceptance in Allgeyer v. State of Louisiana, 165 U.S. 578, 589-591, 17 S.Ct. 427, 41 L.Ed. 832 (1897). Reaching its apogee in Loehner v. State of New York, 198 U.S. 45, 53, 25 S.Ct. 539, 49 L.Ed. 937
1732	77 L.Ed.2d 420 (1983). . Grable & Sons Metal Prods., Inc., v. Darue Eng’g & Mfg.,-U.S. -, 125 S.Ct. 2363, 2368, 162 L.Ed.2d 257 (2005). Accord Broder v. Cablevision Sys. Corp., 418 F.3d 187 (2d Cir.2005). . Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Two exceptions to the well-pleaded complaint rule permit removal of state law actions: when the claims are completely preempted by federal law and 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 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,
217	contends that the ordinary rules regarding liability for negligent conduct are not applicable herein, and it seeks to invoke what it terms to be the general rule that the liability of a manufacturer for its negligence is restricted by the contractual requirements of privity. It contends that plaintiffs cannot recover unless they bring their cause of action within one of the recognized exceptions to the general rule of non-liability and that these exceptions have not, and cannot, be extended to permit recovery for mere economic loss as distinguished from injury to life and limb or physical injury to property. The defendant emphasizes the decision of the Court of Appeals of this Circuit in 865. No purpose will be served in attempting to discuss the exceptions noted' to the general rule announced by Judge Walter Sanborn in the Huset case, nor to discuss Judge Cardozo’s landmark decision in MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, wherein that court departed from, or at least extended and modernized the limited doctrine of a manufacturer’s liability as noted in the Huset case. Neither is it necessary to discuss the subtle and fine distinctions sometimes noted by courts in determining whether the article manufactured is inherently dangerous or imminently dangerous. Obviously, the failure of the thrust bearings in the generator equipment to operate properly by reason of negligent construction could not possibly be considered
4755	OPINION EN BANC COFFIN, Senior Circuit Judge. A jury found defendant Daniel Tavares guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The statute makes it a crime for any person “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm or ammunition.” At trial, defendant offered to stipulate to the fact that he had such a prior conviction. The prosecutor refused to accept the stipulation. On the basis of our decisions in  and United States v. Donlon, 909 F.2d 650 (1st Cir.1990), the court allowed the prosecutor to introduce, in addition to the fact of the prior conviction, evidence of its nature — larceny of a firearm. A panel of this court, two members concluding that under Collamore and Donlon the district court did not err in allowing the government to reject the stipulation and one member concluding the contrary, unanimously agreed that “the precise issue in our case was not the subject of a focused discussion in the prior decisions, that the issue is an important and recurring one, and that en banc consideration of the issue is appropriate.” The full court accordingly granted rehearing and entertained further briefing and argument. We
4301	been ready for trial. The question is not whether it was physically possible, but whether it was necessary. While there is no absolute right to dismiss on terms, Diamond v. United States, 5 Cir., 1959, 267 F.2d 23, 25, certorari denied 361 U.S. 834, 80 S.Ct. 85, 4 L.Ed.2d 75, the intendment of Rule 41(a) (2) is primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions. 5 Moore, Federal Practice ¶ 41.05 (2d ed. 1951). Whether, and on what terms, a dismissal without prejudice may be granted, is a matter left initially to the trial court’s discretion. Larsen v. Switzer, 8 Cir., 1950, 183 F.2d 850, 851; see d 134, 135, certiorari denied 359 U.S. 990, 79 S.Ct. 1119, 3 L.Ed.2d 978; Adney v. Mississippi Lime Co. of Missouri, 7 Cir., 1957, 241 F.2d 43, 45-46; Lyman v. United States, 1 Cir., 1944, 138 F.2d 509, certiorari denied 320 U.S. 800, 64 S.Ct. 429, 88 L.Ed. 483. But that does not excuse the failure to exercise any discretion, see Martin v. Graybar Electric Co., supra, 266 F.2d at page 203; cf. Grivas v. Parmelee Transp. Co., 7 Cir., 1953, 207 F.2d 334, 338, certiorari denied 347 U.S. 913, 74 S.Ct. 477, 98 L.Ed. 1069; Harvey Aluminum, Inc. v. American Cyanamid Co., D.C.S.D.N.Y. 1953, 15 F.R.D. 14, 18, or save from reversal an unpermitted exercise. We have already expressed our belief that the court
987	issues that were genuinely disputable, despite grave doubt, under applicable law, that the bankruptcy court could properly act as a finder of fact in ruling as it did on these issues. V. This Court’s Decision of Travelers’ Appeal A. Standard of Decision in the Bankruptcy Court and in this Court A bankruptcy court may not allow summary judgment for a party if a genuine dispute of material fact exists in the ease. F.R.Civ.P. 56. When a district court exercises discretionary appellate jurisdiction over the decision of 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 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,
700	"its alternative holding that (1) two express policy exclusions, for “cracking ... of foundation” and “faulty workmanship, material, construction, or design” apply, and (2) Ochsner failed to identify separate and distinct “physical damage not excluded by the Policy.” Ochsner’s understandable efforts to create a separate non-excluded damage from the phrase, “material impairment of structural integrity,” which appeared in a 1997 report prepared by an engineering consultant, fails. The diminished structural integrity is indistinguishable from the diminished capacity of the foundation which results directly and only from deficient design or construction or a combination of both. Because the policy’s exclusions clearly preclude indemnity by Allendale for such design and construction damage to the foundation, it owes Ochsner no indemnity. AFFIRMED. . . U.S. Indus., Inc. v. Aetna Cas. & Sur. Co., 690 F.2d 459, 461 (5th Cir.1982) (construing Louisiana law and citing Dow Chem. Co. v. Royal Indem. Co., 635 F.2d 379, 387 (5th Cir.1981) (construing Texas law)). . U.S. Indus., 690 F.2d at 461. . Neither party argues, nor did the district court rely on, the “Other Insurance” clause of the policy, but we note its relevance to the issue of Ochsner’s apparent failure to seek coverage of its loss from other sources: ""The Company shall not be liable for loss under this Policy if at the time of loss there is any other insurance which would"
677	to 33 U.S.C. § 921 of the LHWCA, as incorporated into the Coal Act by 30 U.S.C. § 932(a), the Board had jurisdiction over the ALJ’s final decision and we have jurisdiction to review the Board’s determination. We exercise plenary review over the Board’s interpreta tion of law and we also exercise plenary review to satisfy ourselves that the Board adhered to the statutory scope of review. Barbera v. Director, Office of Workers’ Compensation Programs, 245 F.3d 282, 287 (3d Cir.2001). When the Board adopts the factual findings of the ALJ, we independently review the record to determine whether the findings are supported by substantial evidence, are rational, and are in accord with the applicable law. Acknowledging the lack of supporting medical evidence on the record, Ciliberto contends nonetheless that the medical opinion of Dr. Gibbons, Ciliberto’s treating physician for over 32 years, is dispositive in establishing that he has pneumoconiosis and that he is totally disabled as a result. Ciliberto argues that the ALJ erred in failing to find as such, and alleges that the ALJ “substitut[ed] her own medical assessment for that of the treating physician.” We disagree. The ALJ considered all of the evidence on the record and rationally concluded that Ciliberto established neither the existence of pneumoconiosis nor total disability. First, the ALJ found that Dr. Gibbons’ pneumoconiosis diagnosis was not well reasoned and, therefore, entitled to little weight. Specifically, the ALJ
3851	(7) the use of the mark in trade journals; (8) the size of the company; (9) the number of sales; (10) the number of customers; and, (11) actual confusion. See id. “With respect to ownership of an unregistered mark, the first party to adopt a mark can assert ownership 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 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
3875	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 prescription medications; (2) Dr. Basse’s failure to treat his infected toenail; (3) the State’s failure to award good time credits; and (4) the denial of his right to humane conditions of confinement are raised for the first time on appeal and are factual in nature; therefore, we do not consider them. See Bonneville’s appeal is without arguable merit and, therefore, frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.1983). Accordingly, the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. In light of the foregoing and because Bonneville has not shown the existence of exceptional circumstances warranting the appointment of counsel, his motion is denied. See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir.1982). The district court’s dismissal of Bonneville’s complaint as frivolous and this court’s dismissal of his appeal as frivolous count as two strikes for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388
4917	"Cir. 2018) ; Tyson Foods, Inc. v. Bouaphakeo , --- U.S. ----, 136 S.Ct. 1036, 1045, 194 L.Ed.2d 124 (2016) (citation omitted). In practice, this means that a district court must look first to the elements of the plaintiffs' underlying claims and then, ""through the prism"" of Rule 23, undertake a ""rigorous assessment of the available evidence and the method or methods by which [the] plaintiffs propose to use the evidence to prove"" those elements. Marcus , 687 F.3d at 600 (citing In re DVI, Inc. Sec. Litig. , 639 F.3d 623, 630 (3d Cir. 2011) ). ""If proof of the essential elements of the [claim] requires individual treatment, then class certification is unsuitable."" To satisfy their wage-and-hour claims, Plaintiffs must show that: (1) pursuant to Citizens' unwritten ""policy-to-violate-the-policy,"" the class MLOs performed overtime work for which they were not properly compensated; and (2) Citizens had actual or constructive knowledge of that policy and of the resulting uncompensated work. See Kellar v. Summit Seating Inc. , 664 F.3d 169, 177 (7th Cir. 2011) (citing Reich v. Dep't of Conservation & Natural Res. , 28 F.3d 1076, 1082 (11th Cir. 1994) ); see generally Davis v. Abington Memorial Hosp. , 765 F.3d 236, 240-41 (3d Cir. 2014). Thus, to satisfy the predominance inquiry, Plaintiffs must demonstrate (1) that Citizens' conduct was common as to all of the class members, i.e. , that"
2688	originally confirmed the plan did not make any final determination of the matter at issue, and claim preclusion generally does not apply to a “claim” that was not within the parties’ expectations of what was being litigated, nor where it would be plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme. See Miller I, 253 B.R. at 456-59, aff'd, Miller II, 284 B.R. at 124; Repp, 307 B.R. at 148 n. 3; Associated Vintage Group, 283 B.R. at 554-65. Another major limitation is that due process requires adequate notice and procedures. See, e.g., Repp, 307 B.R. at 149-54 (notice requirements); 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
3864	against prosecution witnesses by the sole testimony of unsuccessful defendants, and societal indignation over the effect of perjury on the judicial process, indignation which often enacted harsh penalties disproportionate to the materiality of the falsity, are cited as reasons for requiring numerosity of witnesses or corroboration. See generally 7 Wigmore On Evidence §§ 2040-2042 (Chadbourn, Rev. 1978). While we share the inherent concern of earlier courts, we believe the better approach is one which seeks no higher threshold for the evidence presented by the government in a penury or false swearing case than that standard necessary for conviction of all other offenses under the Code: such evidence, whether direct or circumstantial, must establish proof of the falsity beyond reasonable doubt. Cf. United States v. Freedman, 445 F.2d 1220 (2d Cir. 1971). In this case, from our examination of the trial record we find credible testimony of a government witness, Corporal Pringle, who conclusively identified appellant as the person seen in the vicinity of the larceny victim’s cubicle, empty-handed, in a barracks deserted of personnel over an extended liberty period. Moments later, Corporal Pringle, after noting that appellant was an obvious stranger in the barracks, saw appellant running from the direction of the victim’s cubicle with a stereo unit under his arm, saw appellant exiting the barracks, and then observed appellant running into an adjacent building, Barracks 214, with the stereo unit still in his possession. Further trial testimony by a
2273	the debtor performed the remediation work necessary to abate any imminent threat when it removed the leaking storage tanks in 1989. Further, it appears that the contaminated soil was not removed in 1989 because the regulations applicable at that time did not require removal. Finally, as the trustee points out, the debt- or did not own the property and cleanup was effected almost two years after the lease was rejected and the trustee returned the property to PLC. In short, unlike the site in Conroy it appears that, the property in the instant case could have been abandoned by the trustee because it posed no imminent threat to the public. See In re Smith-Douglass, Inc., 856 F.2d 12, 16 (4th Cir.1988); In re FCX, Inc., 96 B.R. 49, 54-55 (Bankr.E.D.N.C.1989). The court in Conroy addressed only the specific issue before it: whether the response costs incurred post-petition by a state agency to clean up an ongoing hazardous condition on a debtor’s property are entitled to receive administrative expense priority. Unsurprisingly and sensibly the court answered in the affirmative. Notably, the court distinguished the matter before it from the Dant & Russell case: Contrary to the Conroys’ suggestion, the Ninth Circuit’s decision in In re Dant & Russell, Inc., 853 F.2d 700 (1988), is also distinguishable. That case held that a lessor who has a bankruptcy claim against a lessee for the costs of cleaning up hazardous wastes deposited by the lessee on
2956	substantially failed to convince this court that Simpson and Tisinger were incompetent. Petitioner challenges the adequacy of Simpson’s opening statement, and respondent maintains that the opening statement is a matter of trial tactics. This court agrees with respondent. The matter of trial tactics and the attorney’s judgments are beyond this court’s review. Tompa v. Commonwealth, 331 F.2d 552 (4th Cir. 1964); Franklin v. Conway, 391 F.Supp. 1233 (W.D. Va.1975), aff’d 546 F.2d 579 (4th Cir. 1976). Petitioner attacks his attorneys’ failure to put on a defense in that no witnesses were called to testify on petitioner’s behalf. However, based on a professional judgment, counsel’s decision not to call witnesses does not deprive a defendant of his constitutional right to effective assistance. Since petitioner’s voluntary confession placing him at the crime scene had been admitted into evidence, Simpson and Tisinger might have feared disastrous results in introducing witnesses who petitioner said would provide him with an alibi, especially where the alibi witnesses might be of questionable character and credibility. Furthermore, the evidence is not clear whether petitioner even wanted these witnesses at his trial. When petitioner made his oral statement to the sentencing court, he never mentioned the existence of witnesses who would prove his innocence, although petitioner was vocal on other points about his trial. Petitioner states that his attorneys failed to develop inconsistencies in the Commonwealth’s evidence, particularly in that the depth of the knife wounds on the murder victims was inconsistent
4650	requested in discovery, and cited the lease in its reply brief. Piona did not seek permission to file a sur-reply brief or to reopen discovery; he instead responded with a motion for sanctions and to disqualify opposing counsel. The district court denied Plona’s motion for sanctions and granted summary judgment in favor of UPS. It held that Piona could not demonstrate that a 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. 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
1742	"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. Gloucester Envtl. Mgmt. Serv. Inc., 719 F.Supp. 325, 334 (D.N.J.1989) (""If a court dismissed the federal defendant from ... a case [removed pursuant to section 1442(a)(1)], it must use its discretion to decide whether to remand the remaining ancillary claims to state court or to maintain jurisdiction over those claims.”). . See Mesa v. California, 489 U.S. 121, 136, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989). . Jefferson 16 James Wm. Moore et al., Moore's Federal Practice (""Moore's”), ¶ 107.15[1][b][ii]. . The requirement for a federal defense is broadly construed; a defense need only be colorable, not clearly sustainable. See Jefferson County, 527 U.S. at 431, 119 S.Ct. 2069 (""We ... do not require the officer virtually to 'win his case before he can have it removed.’ ”) (citation omitted); Colorado v. Symes, 286 U.S. 510, 519, 52 S.Ct. 635, 76 L.Ed. 1253 (1932) (where a defendant seeks removal pursuant to the federal officer removal statute, ""no determination of fact is required but it must fairly appear from the showing made that [the defendant’s removal] claim is not without foundation and is made in good faith”). . The statute"
2313	the ALJ considered the claimant’s medical condition as a whole). y. RES JUDICATA Finally, Mr. Griffin contends the ALJ, in formulating his residual functional capacity assessment, should have given res judicata effect to, or at least considered, a March 29, 2001 decision from the ALJ in his disability proceedings, which would have resulted in a finding of disability. The findings and decision of the Commissioner that are made after a hearing are binding upon all individuals that were party to the hearing. 42 U.S.C. § 405(h). Under the SSA’s regulations, administrative res judicata applies when the agency has made a previous final determination or decision regarding the claimant’s rights on the same facts and issues. 20 C.F.R. § 404.957(c)(1); see also The ALJ properly declined to give the March 29, 2001 decision res judicata effect, as the ALJ’s prior decision adjudicates a different time period, from April 30, 1996 to March 29, 2001. The proceeding at issue here did not address this time period, and the prior decision did not finally adjudicate any issues or facts that were raised in this proceeding. Under such circumstances, administrative res judicata does not apply. VI. CONCLUSION Substantial evidence in the record supports the ALJ’s finding that Mr. Griffin could perform a full range of light work during the relevant time period, and that a significant number of jobs existed in the national economy that he could perform. The ALJ properly articulated a credibility finding
1285	abetting the production of child pornography, in violation of 18 U.S.C. § 2 and § 2251(a) (Count I), and to a separately occurring child-pornography-production offense, in violation of 18 U.S.C. § 2251(b) (Count II). The district court sentenced him to concurrent sentences of 25 years on Count I and 20 years on Count II, to be followed by lifetime supervised release. On appeal, counsel has moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that Medley’s sentence is unreasonable. Upon careful review, we conclude that the district court did not abuse its discretion in sentencing Medley, and that the court imposed a substantively reasonable sentence. See see also United States v. Wadena, 470 F.3d 735, 737 (8th Cir.2006) (appellate court reviews sentence, including any downward vari-anee, for reasonableness under abuse-of-discretion standard). Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues for appeal. Accordingly, we grant counsel’s motion to withdraw, and we affirm. . The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas.
403	“shall remain eligible to receive such visa” plainly means that aliens, like Nyaga, who have been randomly selected to qualify for a visa under 'the diversity visa program cannot be issued a visa after midnight of the final day of the fiscal year for which they were selected. As of midnight on September 30, 1998, Nyaga was no longer eligible to receive an immigrant visa. The 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 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
706	"over which concrete was poured). . 690 F.2d at 462. . Couch on Insurance 3d, § 148:59, at 148-104 (1998) (citing City of Barre, 136 Vt. 484, 396 A.2d 121). . Equitable Fire & Marine Ins. Co., 421 F.2d 512. . City of Barre, 136 Vt. 484, 396 A.2d 121. . U.S. Indus., 690 F.2d at 462 (emphasis added) (citations omitted). . See Trinity Indus., 916 F.2d at 271 (""[T]he parties did not intend the policy to cover the costs of repairing defective initial construction.”); CXY Chems. U.S.A. v. Gerling Global Gen. Ins. Co., 991 F.Supp. 770, 778 (E.D.La.1998) (citing policy exclusion for ""[t]he cost of making good faulty workmanship”). . See . Couch on Insurance 3d, § 102:2, at 101-9 to -10 (1998) (noting principle is equally applicable to all-risks policies); ""see Hoffman v. State Farm Fire & Cas. Co., 16 Cal.App.4th 184, 19 Cal.Rptr.2d 809, 810 (1993) (holding that property owners could not recover under all-risk policy unless damage occurred during policy period). . We disagree, however, with the district court's holding that actual or imminent collapse of the Tower must occur before the loss would be covered. Requiring Ochsner to build ten additional “doomed” stories to gain"
4769	“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);  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
792	of August 22, 1984, scheduling a hearing on defendant’s application for attorneys’ fees. In order to disqualify a judge, a timely objection must be made, otherwise the objection is waived. U.S. v. Hall, 424 F.Supp. 508, affmd., 536 F.2d 313, cert. den., 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285; Andrews, Mosburg, Davis, Elam, Legg & Bixter, Inc. v. General Ins. Co. of America, 418 F.Supp. 304 (D.C.Okl.1976). Accordingly, a motion for disqualification is untimely and becomes moot when filed after judgment. Kent v. Regional Office of Am. Friends Service Committee, 497 F.2d 1325, 1330 (9th Cir. 1974); Weber v. Coney, 642 F.2d 91, 92 (5th Cir.1981); U.S. v. Hall, 424 F.Supp. 508, affmd., 536 F.2d 313; Plaintiffs motion filed 19 days after entry of Judgment is clearly untimely. B. SUFFICIENCY OF AFFIDAVIT. Plaintiff’s affidavit is a mixture of conclusory allegations, legal arguments, hearsay speculations, non sequiteurs, and irrelevant matters. Plaintiff asserts that attorney Harvey Nachman, a former law partner of the undersigned judge, is at present counsel for the undersigned judge. Plaintiff further alleges that: “Attorney William Estrella, representing defendants in the above captioned case, and Attorney Harvey Nachman, have been law partners for many years, and they too enjoy an ongoing professional relationship, jointly litigating cases in the Federal District Court. Attorney William Estrella, Harvey Nachman, and District Judge Héctor Laffitte are so closely connected, that District Judge impartiality might be reasonably questioned.” Plaintiff does not
3440	now argues four points of error; points two and four merge. The resulting arguments are as follows: first, that the district court erred in denying credit for his acceptance of responsibility, second, that his sentence was unreasonable, and third, that the district judge’s findings on relevant conduct violated his right to due process. II. Discussion A. Acceptance of Responsibility. On appeal Lister primarily argues against the district court’s finding that he failed to accept responsibility for his crimes, see U.S.S.G. § 3E1.1. This denial of credit, he argues, led to an erroneous application of the guidelines. In seeking credit for accepting responsibility for his crimes, the defendant bears the burden of proving this acceptance by a preponderance of the evidence. United States v. Ewing, 129 F.3d 430, 435 (7th Cir.1997). We review the district court’s decision on this fact-based finding for clear error. United States v. Hicks, 368 F.3d 801, 808 (7th Cir.2004); United States v. Mayberry, 272 F.3d 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
2862	regard to the contention that the search warrant failed to describe the premises with particularity, . . . there was no showing at any stage of the State court proceedings, and there has been no showing to date, that 1 Thomas Park appeared to be a multiple unit dwelling. The State court record indicates, to the contrary, that there was only one door from the outside, which opened into a hallway which gave access to the entire house. There has been no showing that the police officers knew or should have known from its physical appearance that 1 Thomas Part was a multiple dwelling house when they applied for the warrants . . .. [emphasis supplied] . Two companion cases,  and United States v. Gomez, 42 F.R.D. 347 (1967), have been cited by the Government in support of its position on this point. The search warrant alleged to be defective in those cases authorized the search of “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
4451	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., 617 F.2d 396 (5th Cir.1980); Austracan, (U.S.A.) Inc. v. M/V LEMONCORE, 500 F.2d 237 (5th Cir.1974); The Maria, supra. Cases in which the appellate courts have held jurisdiction proper for the appeal although the facts differed from those of the original justification for the appeal include All Alaskan Seafoods, Inc. v. M/V Sea Producer, 882 F.2d 425 (9th Cir.1989); Nichols v. Barwick, 792 F.2d 1520 (11th Cir.1986); O'Donnell v. Latham, 525 F.2d 650 (5th Cir.1976); Doyle v. Bethlehem Steel Corp., 504 F.2d 911 (5th Cir.1974); Bergeron v. Elliot, 466 F.2d 514, 516 n. 3 (5th Cir.1972); Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d 1198 (2d Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 452, 30 L.Ed.2d 369 (1971). As the careful eye will note, some circuits appear in both lists (neither of which is exhaustive), and these circuits have addressed this matter and developed fairly detailed rules to explain the dis tinctions between the various procedural postures presented and the applicability of § 1292(a)(3) to each. . Since we recognize that both parties believed jurisdiction
2450	and this included the 1923 permit. The application for the 1830 permit was disapproved, for the reason that the appellant had manufactured during 1929 substandard and redistillable violet toilet water, and he had diverted, during that year, denatured alcohol allotted to him, and had made false records purporting to show that it had been manufactured into a product and that this product had been sold to the Mohank Sales Company. Although appellant was advised that he might have a hearing after this denial, none was requested. In the absence of such a request, there is no provision requiring a hearing before refusing a permit. Ma-King Products Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046; C. E. D. Pa.); Halpern v. Andrews, 21 F.(2d) 969 (D. C. 3); Chicago Grain Products Co. v. Mellon, 14 F.(2d) 362 (C. C. A. 7). The administrator’s investigation of the conduct of the appellant’s business in 1929 revealed, by the analysis of the government chemist, that the appellant’s product—violet toilet water—contained 7.1.30 per cent, alcohol by volume, and examination showed this product to be a substandard toilet preparation which yields potable alcohol upon simple manipulation and distillation. Moreover, it was shown that the appellant sold in bulk practically its entire product to the Mohank Sales Company, except one shipment of 665 gallons, which was made to another concern. There was a discrepancy in ingredients shown. There were total sales of 14,770
1741	"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. Gloucester Envtl. Mgmt. Serv. Inc., 719 F.Supp. 325, 334 (D.N.J.1989) (""If a court dismissed the federal defendant from ... a case [removed pursuant to section 1442(a)(1)], it must use its discretion to decide whether to remand the remaining ancillary claims to state court or to maintain jurisdiction over those claims.”). . See Mesa v. California, 489 U.S. 121, 136, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989). . Accord Mesa, 489 U.S. at 133-35, 109 S.Ct. 959; In re Agent Orange Prod. Liab. Litig., 304 F.Supp.2d 442, 446 (E.D.N.Y.2004); 16 James Wm. Moore et al., Moore's Federal Practice (""Moore's”), ¶ 107.15[1][b][ii]. . The requirement for a federal defense is broadly construed; a defense need only be colorable, not clearly sustainable. See Jefferson County, 527 U.S. at 431, 119 S.Ct. 2069 (""We ... do not require the officer virtually to 'win his case before he can have it removed.’ ”) (citation omitted); Colorado v. Symes, 286 U.S. 510, 519, 52 S.Ct. 635, 76 L.Ed. 1253 (1932) (where a defendant seeks removal pursuant to the federal officer removal statute, ""no determination of fact is required"
3586	didn’t know he had to allege an injury to himself, and merely took for granted that the court would assume that, of course, he is a smoker. So if we affirmed the dismissal of the suit with prejudice on the ground of lack of standing, we would be barring him on the basis of what may well be a pleading error rather than a fatal deficiency in the suit. Unless the plaintiff has standing, a court cannot reach the merits of his case. But there is an exception for the frivolous case. A frivolous case does not engage the jurisdiction of the court. Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946); So frivolousness is an alternative jurisdictional ground for dismissal to lack of standing. Beauchamp’s case is frivolous. We can imagine that the sudden withdrawal of an addictive substance like tobacco might be employed as a form of torture by police or guards, but that is not alleged and with the Supreme Court having just held that prison officials may have a constitutional duty to protect inmates from high levels of ambient cigarette smoke, Helling v. McKinney, — U.S. -, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993), a prison could hardly be thought to be violating the Constitution by restricting smoking in the manner illustrated by the present case or by implementing such a restriction in stages to observe its effects before
519	"the ADA and the Rehabilitation Act by denying employment services to plaintiffs for which they are eligible with the result of unnecessarily segregating them in sheltered workshops. ORDER For the reasons stated above, defendants’ Motion to Dismiss (docket # 29) is GRANTED. Plaintiffs’ claims are dismissed WITHOUT PREJUDICE and WITH LEAVE TO AMEND. Plaintiffs shall file their First Amended Complaint to cure the problems identified in this Opinion and Order on or before May 29, 2012. . Plaintiffs define supported employment services as ""vocational training services that prepare and allow people with intellectual and developmental disabilities to participate in integrated employment.” Complaint, ¶ 4. . See Radaszewski v. Maram, 383 F.3d 599 (7th Cir.2004) (at-home private-duty nursing services); Helen L. v. DiDario, 46 F.3d 325 (3rd Cir.), cert. denied, 516 U.S. 813, 116 S.Ct. 64, 133 L.Ed.2d 26 (1995) (requiring basic and ancillary services to be provided only in nursing home, rather than in recipient’s home); Hiltibran v. Levy, 793 F.Supp.2d 1108 (W.D.Mo.2011) (risk of forcing institutionalization in order to obtain Medicaid coverage of medically necessary incontinence briefs); Peter B. v. Sanford, 2010 WL 5912259 (Report and Recommendation, Nov. 24, 2010), adopted, 2011 WL 824584 (D.S.C. Mar. 7, 2011) (risk of forcing institutionalization due to reduction or termination of medical and personal-care services); Pitts v. Green stein, 2011 WL 2193398 (M.D.La. June 6, 2011) (reduction in maximum number of home and community-based health"
863	L.Ed.2d 476 (1968), made retroactive in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968). . In each instance when Conroy’s statements were testified to, the court, following Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), which was in effect when this case was tried, instructed the jury that Conroy’s admissions were received only as against him and were to be disregarded in determining Butler’s guilt or innocence. The instruction was repeated in the court’s charge. . See 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) ; United States ex rel. Ross v. La Vallee, 448 F.2d 552 (2d Cir. 1971) ; Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971) ; United States ex rel. Joseph v. LaVallee, 415 F.2d 150 (2d Cir. 1969), cert. denied, 397 U.S. 951, 90 S.Ct. 976, 25 L.Ed.2d 133 (1970) ; United States ex rel. Dukes v. Wallack, 414 F.2d 246 (2d Cir. 1969). . Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972) ; see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). . Cf. United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973) ; United States ex rel. Duff v. Zelker, 452
760	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 deceive, — an intent which may be derived from the facts and circumstances, but which must be established.” The owner has a right to give his views regarding the effect of his drugs, Seven Cases v. ctors say”, United States v. John J. Fulton Co., 9 Cir., 33 F.2d 506. Moreover, proof of the false and fraudulent character of any one of the various claims is sufficient, Goodwin et al. v. United States, 6 Cir., 2 F.2d 200. There can be no doubt that enough was proved to justify an inference that the defendants knew the articles did not possess the curative or therapeutic qualities claimed for them in the statements appearing on the containers and labels, and that the court was justified in holding that they were made with a fraudulent purpose. See Simpson v. United States,
3329	allegedly committed by Nelson in furtherance of the conspiracy, including alteration of the closing statement and alteration of city tax records, Shamy complains that he may have been convicted of conspiracy on the basis of acts he neither authorized nor adopted. We, however, are satisfied that the jury could reasonably have found there was a conspiracy between Shamy and Nelson to obstruct justice and there were overt acts committed in furtherance of the conspiracy during its existence. Thus, Shamy was responsible for the acts even if committed by Nelson. See United At trial the United States presented evidence that: (1) Nelson withheld $5,000 from Malouf s closing proceeds without informing Malouf he was doing so; (2) two years later, upon learning about Weisen-beck’s investigation, Nelson altered Mal-ouf s closing statement, adding a notation representing that $5,000 had been withheld on Shamy’s behalf; (3) when interviewed by Weisenbeck, Shamy claimed that he had proposed that Nelson withhold $5,000 from Malouf; (4) Nelson produced a letter dated April 16, 1983 in which Shamy outlined his proposal that Nelson withhold $5,000 from the proceeds; (5) at his appearance before the grand jury, Shamy testified that he had dictated the letter to his secretary while in Ohio and had signed it
2816	and circumstances present in the record. The City of Memphis under appropriate statutory authority to make its City Hall, or any portion of it available for non-governmental purposes, might make and publish appropriate regulations governing the conditions, restrictions, and circumstances of such use provided they were nondiscriminatory and provided they did not confine expression of sentiments to those officially approved. Tinker v. Des Moines Independent Community School District, 898 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Such regulations relating to use of City Hall by private groups or organizations, if adopted, must not be of such character that rights of free speech would be effectively denied. Terminello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); Thomas v. Collins, 323 U.S. 516, 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
3936	MEMORANDUM OPINION AND ORDER WINGATE, District Judge. This is a class action suit brought pursuant to 28 U.S.C. § 1331. The named plaintiffs, two “BankAmericard” bank cardholders, sued the defendant national bank which issued the bank credit cards contending that certain charges made by defendant bank were usurious under the National Bank Act, 12 U.S.C. §§ 85 and 86. This case was appealed to the Fifth Circuit Court of Appeals,  and thereafter to the United States Supreme Court, Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980), on a procedural issue relative to class certification. Subsequently, in an order dated November 10, 1980, this Court certified plaintiffs’ class as: All holders of bankamericard credit cards issued by Deposit Guaranty National Bank by whom finance charges were paid during the period between September 17, 1969, and January 7, 1974. The parties have filed cross motions for partial summary judgment on the issue of defendants’ liability under 12 U.S.C. §§ 85 and 86 of the National Bank Act, which incorporates by reference state usury laws. Essentially, plaintiffs contend that defendants’ finance charges to the consumer cardholders
2388	Logue was fully qualified to take over the management of a proposed new branch office in Cincinnati. These factors, plus the inconsistency of much of defendant’s testimony, plus the basic determination of the lack of credibility of defendant’s principal witnesses, cause us to conclude that the alleged qualifications explanation was a pretext for intentional sex discrimination against plaintiff. This Court having found all of the defendant’s reasons for the discharge pretex-tual, the burden remains on the plaintiff to show that she was the victim of discrimination. As the Court noted in the final argu ment before the Court rendered its oral opinion (J.A. p 467) the manner in which this may be accomplished is set forth in She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. See McDonnell Douglas [Corp. v. Green], 411 U.S. [792], at 804-805 [93 S.Ct. 1817, 1825-1826, 36 L.Ed.2d 668 (1973)]. We therefore find that plaintiff’s discharge was based on discrimination by reason of
1659	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.  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 of double jeopardy may be passed upon in a habeas corpus proceeding has already been discussed. Being of the opinion that it may, the Court now holds that petitioner was placed in
4445	Section 1292(a)(3) was not intended to clutter the federal docket with interlocutory odds and ends. City of Fort Madison, 990 F.2d at 1089 (internal quotations and citations omitted). This understanding of the statute’s purpose is universal. E.g., Burghacher v. University of Pittsburgh, 860 F.2d 87, 88 (3d Cir.1988); Seattle-First Nat’l Bank, 772 F.2d at 568; The SS TROPIC BREEZE, 456 F.2d 137, 139 (1st Cir.1972); The Maria, 67 F.2d 571 (2d Cir.1933); 9 James Wm. Moore et ah, Moore’s Federal Practice ¶ 110.19[3] (2d ed. 1994); 16 Charles Alan Wright et al., Federal Practice and Procedure § 3927 (1977). Indeed, this circuit indicated that this was its understanding of the purpose of the statute in  where, quoting from the Second Circuit’s opinion in The Maria, supra, it stated: That statute [now 28 U.S.C. § 1292(a)(3) ] was primarily intended to avoid the expense and delay of a reference to compute damages, since it is always possible that the libelant may later turn out to have no right to recover at all. Medomsley Steam Shipping Co., 317 F.2d at 742. Over time, however, this narrow scenario that justified the initial enactment of the provision has fallen into desuetude, while parties have attempted to use the provision to support interlocutory appeals in many situations that do not supply the same logical justification for an exception to the finality rule. While in many instances courts have read the provision
3829	the sentence he received, the facts set forth in the PSR that were adopted by the district court showed that Balleza significantly participated in a major drug conspiracy for a substantial amount of time. Given the facts of the case and the deference given to district court sentencing decisions, Balleza has not shown that the district court abused its discretion or that the sentence was unreasonable. See United States v. Rodriguez-Rodriguez, 530 F.3d 381, 384-87 (5th Cir.2008). AFFIRMED. . We take this opportunity to clarify this court's jurisprudence on whether an overt act in furtherance of the conspiracy is an element of the offense of conspiracy to launder money in violation of 18 U.S.C. § 1956(h). It is not. Overruling  the Supreme Court held that an overt act is not an element of conspiracy to launder money. Whitfield v. United States, 543 U.S. 209, 214, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005). After Whitfield, this court mistakenly recited in dicta that an overt act is an element of the offense. United States v. Bueno, 585 F.3d 847, 850 (5th Cir. 2009); United States v. Armstrong, 550 F.3d 382, 403 (5th Cir.2008). In conformity with Whitfield, we recognize that an overt act is not an element of the offense of conspiracy to launder money.
3704	to sustain recovery under some viable legal theory.” Twombly, 550 U.S. at 562, 127 S.Ct. 1955. In other words, the Complaint must describe the alleged misconduct in enough detail to lay the foundation for an identified legal claim. To the extent that the pleadings can be cured by the allegation of additional-facts, the plaintiff should be afforded leave to amend. Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.1990) (citations omitted). B. 12(b)(1) Legal Standard Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for “lack of subject-matter jurisdiction.” Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court’s subject matter jurisdiction. A federal court is presumed to lack jurisdiction in a particular-case unless the contrary affirmatively appears: Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir.1981). A challenge to subject matter jurisdiction may be facial 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
2344	F.2d 389, 394. The following language from the case of Trane Co. v. Nash Engineering Co., 1 Cir., 25 F.2d 267, 269, is pertinent here: “The Eibel Case [261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523] certainly admonishes this court to give great weight to the practical results from a claimed invention; to look beyond the paper expression to the state of the art, before and after an alleged invention which is tested in actual practice. Dubilier Condenser Corp. v. New York Coil Co. (C.C.A.) 20 F.2d 723, 725; Minerals Separation v. Hyde, 242 U.S. 261, 270, 37 S.Ct. 82, 61 L.Ed. 286. “An invention is a real thing; a patent is the description of it in words and/or drawings. 12 S.Ct. 76, 35 L.Ed. 800. The description must be reasonably' adequate, in order to warn the public and competitors of the nature and extent of the monopoly claimed. But the essence of the matter is a new and useful reality, frequently best tested and demonstrated by actual experience.” The issuance of a patent is prima facie evidence of both novelty and utility. When one attacks a patent he must make good his attack with reasonable clearness. The burden of proof is upon him and every reasonable doubt must be resolved against him. While commercial sue cess cannot convert mechanical skill into invention, it may, in doubtful cases, constitute evidence of invention. Donner v. Sheer Pharmacal Corp., 8 Cir., 64 F.2d 217, 220-222;
54	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. 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 illegally reentering the United States shortly after he had been removed. Duran-Olvera has failed to show that the district court did not consider a factor that should have received significant weight, gave significant weight to a factor that it should not have so weighted, or made a clear error of judgment
3138	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  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
1439	prima facie eligible to apply for adjustment of status. The provisions in § 1255(i) render eligible an alien who would otherwise be prima facie ineligible to apply for adjustment of status. These provisions simply do not preclude the IJ or BIA from considering transgressions of the immigration laws in making the ultimate discretionary determination whether to grant adjustment of status. Third, although Westover asserts that the IJ contravened the dictates of § 1255(i) when adjudicating her application for adjustment of status, she did not object at her hearing, and she did not raise the issue on appeal before the BIA. Having remained silent, she has waived any challenge to the BIA’s consideration of the factors listed in § 1255(i). See Bernal- C. Estoppel Claim Westover claims that the INS should be estopped from charging her with being excludable at entry and being present without a valid visa, as she acquired her visa upon instructions from the INS. This argument is without merit. The INS did not instruct Westover that if she intended to stay permanently in the United States, she should apply for a new visa. Instead, the INS instructed Westover that she could leave the country and apply for a new six-month visa. She did this. Nothing in the record suggests that the INS knew, at the time it gave her this advice, that she was intending to violate immigration laws or that she had previously violated immigration laws. Later
1247	"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 does not specify the precise damages. . In  Judge Kaplan suggested that the Second Circuit's standard that the defendant show ""no possibility” of recovery ""cannot be taken literally” because “[e]ven if a plaintiff's claim against a non-diverse defendant were squarely precluded by a recent decision of a state's highest court ..., there always would be a 'possibility,' however remote, that the court or legislature might change its mind so as to permit the plaintiff to prevail.” Id. at 280 n. 4. As a result, Rezulin Products and several subsequent decisions in this district have interpreted Pampillonia to mean that defendants must show that no reasonable basis for liability exists on the claims alleged. See id.; see also Matsumura v. Benihana Nat’l Corp., No. 06-CV-7609, 2007 WL 1489758, at *3 (S.D.N.Y."
4838	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 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 makes clear that states do not have a similar interest in regulating foreign corporations. The Court in fact specifically distinguished MITE, which involved an Illinois statute similar to Tennessee’s IPA, because the statute in that case “applied as well to out-of-state corporations as to in-state corporations.” Id. at 1651. Tennessee’s ACPA therefore does not create burdens on interstate commerce incidental to the exercise of a legitimate state interest. Rather it directly regulates offers for non-Tennessee corporations to insulate these corporations from the market for
2973	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 to define “reasonable doubt” in charge to jury). Here the trial court properly instructed the jury that the government bore, throughout the trial, the burden of proving its case beyond a reason able doubt, and its failure to supplement this instruction with a definition of reasonable doubt is not grounds for reversal. Headspeth also argues that the district court erred in refusing to allow his counsel to define the term reasonable doubt in closing argument. This argument is flatly refuted by our decision in  which held that it was not an abuse of discretion to limit closing argument in this fashion. Id. at 1317. Finally, Headspeth contends that the district court erred in refusing to give his requested instruction on the defendant’s privilege not to testify. Since the district court gave an instruction on testimonial privilege that accurately and adequately stated the governing law, however, its failure to give the precise instruction requested by Headspeth was not reversible error. See United States v. Scheper, 520 F.2d 1355, 1357-58 (4th Cir.1975) (not error to refuse to give precise instruction requested so long as charge given adequately covers its substance); United States v. Beltran, 761 F.2d 1, 11 (1st Cir.1985) (same). Accordingly, the judgment of conviction is
3759	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 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. Plaintiffs facial challenges to the AEC’s license suspension and revocation provisions are also ripe. See id. 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,
335	denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). But see Charney v. Thomas, 372 F.2d 97 (6th Cir. 1967). However, they have also determined that the adopted state statute shall only run in accordance with the federal law which decrees that the statute does not begin to run until the fraud is, or should be, discovered. Parrent, supra at 128; Vanderboom, supra at 1240. Accord Janigan v. Taylor, 344 F.2d 781 (1st Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). See also Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946) ; Bailey v. Glover, 88 U.S. (21 Wall.) 342, 22 L.Ed. 636 (1875). . See SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963). . See Azalea Meats, Inc. v. Muscat, 386 F.2d 5, 8 (5th Cir. 1967) ; Beefy Trail, Inc. v. Beefy King Int’l, Inc., 348 F.Supp. 799, 803 (M.D.Fla.1972). . See note 7, supra. . See note 1, supra. . See note 7, supra. . However, even if Congress is so disposed, it may wait until it receives The American Law Institute’s proposed Federal Securities Code. Professor Louis Loss, the reporter for the project, currently estimates that the ALI Code will reach Congress in 1976 or 1977. Federal Securities Code, Introductory Memorandum at xv (Ten. Draft No.
313	"In particular, plaintiffs state as follows: ""Based on the evidence produced in discovery, Plaintiffs Janice Pigott, Kimberly Barnes and Christopher Barnes cannot prove their fraud claim found in Count II of their Amended Complaint. (Doc. 53) Therefore, these Plaintiffs consent to a judgment dismissing Count II of their Amended Complaint only.” (Doc. 94, at 18 n. 13.) On that basis, Sanibel’s Motion for Summary Judgment is granted with respect to this claim, and Count II of the Amended Complaint brought by Pigott, Barnes and Barnes is dismissed. . The Court is mindful of its obligation under Rule 56 to construe the record, including all evidence and factual inferences, in the light most favorable to the nonmoving party. See Thus, with respect to each motion for summary judgment, the non-movant’s evidence is taken as true and all justifiable inferences are drawn in its favor. . Even if defendant had not made admissions on these points, the summary judgment record unambiguously confirms the veracity of those statements. In particular, plaintiffs have submitted uncontroverted affidavits confirming that none of them ever received a property report from Sanibel or anyone else in connection with their purchase of Project units. (Hersey Aff., ¶ 4; C. Priolet Aff., ¶ 5; Taylor Aff., ¶ 6; Pigott Aff., ¶ 5; K. Barnes Aff., ¶ 7.) Thus, as a matter of both admission and affirmative evidence, there is no question that Sanibel failed to provide plaintiffs with"
2380	"that party some relief ""on any issue that is fundamental to the action.” Hygienics Direct Co. v. Medline Indus., 33 Fed.Appx. 621, 625 (3d Cir.2002) (citing County of Morris v. Nationalist Movement, 273 F.3d 527, 536 (3d Cir.2001)) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Resources, 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)). Delaware River Tow is clearly a prevailing party because the Court entered judgment in its favor after a bench trial. . Indeed, other circuits to have considered the issue have held that a court may not award attorneys' fees in an admiralty case absent a finding that the non-prevailing party acted in bad faith. See ) (citing Vaughan v. Atkinson, 369 U.S. 527, 531-32, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962)); Galveston County Navigation List. No. 1 v. Hopson Towing Co., 92 F.3d 353, 357 (5th Cir.1996) (""The evolution of this bad faith exception to the American Rule in the context of admiralty law began with Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962)''); Goodman v.1973 26 Foot Trojan Vessel, 859 F.2d 71, 74 (8th Cir.1988) (""[AJttorney's fees are not ordinarily awarded in admiralty cases. An exception is made to this general rule when the losing party has acted in bad faith.”)"
69	July 12, 2007 decision of Immigration Judge (“IJ”) Paul A. DeFonzo, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jamal Uddin, No. [ AXXX XXX XXX ] (B.I.A. Jan. 13, 2009), ajfg No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City July 12, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. In this case, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Substantial evidence supports the IJ’s adverse credibility determination, which was based, in part, on inconsistencies between Uddin’s hearing testimony and his asylum application. See Xiu Xia Lin, 534 F.3d at 165-66; cf. Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.2006). No reasonable adjudicator would be compelled to credit 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.
163	years 1917 and 1918. The first question presented in this case is, quoting the language of the learned judges of the Circuit Court of Appeals in Warner v. Walsh, supra, “whether an annuity, payable first out of income, but, if necessary, out of principal, of a similar trust fund, but acquired solely in lieu of, and in consideration for, the relinquishment of valuable statutory rights in the estate, is income, bequest, or annuity.” The Circuit Court held that this was a purchased annuity, and is, until the purchase price shall have been returned, exempt from taxation. Substantially the same question has recently been passed upon by the Circuit Court of Appeals for the First Circuit in the case of The law on this question, therefore, is settled in so far as the instant case is concerned. The defendant’s second claim is that the taxpayer never presented in writing to the Commissioner of Internal Revenue the “alleged purchase for value theory” as a ground for her claim for refund, and therefore the claim for refund was never prpperly presented, or considered within the meaning of the statutes, and hence this action will not lie. This claim was made to the court in the previous case of Warner v. Walsh (D. C.) 24 F.(2d) 449, and in the ease of Union & New Haven Trust Co. v. Eaton, Collector (D. C.) 20 F.(2d) 419, and in both
3051	"Oil Co., the United States admitted arranger liability .for certain wastes at issue aqd the court further found- that due to wartime demands the government refused to"" allocate the materials and resources necessary to reprocess avgas wastes so they were* dumped. Id., 294 F.3d at 1051. The situation in the present case is not comparable. Nor does the Court find authority for a general rule that contracts -for the production 'of military products automatically make the Gdvernment (i.e., the taxpayers) responsible for the polluting ■ acts of the manufacturer. To the contrary, ■ it is 'the intent of CERCLA to- hold responsible parties accountable '""and not shift the burden of cleaning up the environment to the taxpayers. - Cf. -992) (by requiring responsible parties to pay for cleanup efforts, CERCLA also ensures that the taxpayers are not required to shoulder the financial burden of a nationwide cleanup). TDY supplied aeronautical products for the national defense throughout various military campaigns. The contract relationship between TDY and the Government was mutually beneficial. The Government benefited from TDY’s research and production and TDY received payment for its services and products. There was no evidence the Government received any benefit from TDY’s manufacturing practices that caused the contamination. The national defense purposes for the products produced at the Site does not in itself justify making the taxpayers responsible for the costs of remediation at this site. V. Conclusion For the reasons set forth above,"
4316	complaint to arbitration. Tootsie Roll also argued that the arbitration provision was enforceable under federal and Illinois law, as well as Georgia law. The district court decided the parties’ motions based on the pleadings. The district court denied Weiner’s motion to remand, and the district court granted the motion of Tootsie Roll to compel arbitration. II. STANDARDS OF REVIEW Two standards govern our review of this appeal. We review de novo the denial of Weiner’s motion to remand and the order compelling him to arbitrate. See Moore v. N. Am. Sports, Inc., 623 F.3d 1325, 1328 (11th Cir.2010); Pendergast v. Sprint Nextel Corp., 592 F.3d 1119, 1132 n. 11 (11th Cir.2010). We review findings of jurisdictional facts for clear error. See 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.,
483	"that breakdown in communication. Plaintiff further argues that defendant's failure to attempt to supplement the administrative record it perceived to be inadequate was contrary to law. Plaintiff alleges that ITA’s determination that it could not resolve petitioner’s claims of sales made outside the normal course of trade resulted from its failure to conduct a proper investigation in accordance with law, rather than from any deficiency by Extra-co. Plaintiff states that defendant’s last request for information from Extraco was made on May 19, 1982 and that the final determination was made on September 9, 1983, and that during this time defendant did not take steps to supplement a record it perceived to be inadequate. Plaintiff cites That case involved a preliminary injury determination by the ITC. The Court found that the Commission, in its investigation, had obtained no data on domestic procedures within the rel evant industry, yet found that the domestic industry was not injured. Given this lack of information in the record, and the failure of the Commission to provide an explicit statement of reasoning, the Court was left ""in a quandary as to the basis of and theory underlying the Commission’s findings of fact and resulting determination.” Id. 1 CIT at 76,"
2571	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, 98 S.Ct. 1099; Dellenbach v. Letsinger, 889 F.2d 755, 759 (7th Cir.1989), cert. denied, 494 U.S. 1085, 110 S.Ct. 1821, 108 L.Ed.2d 950 (1990). Judge Rieckhoff is entitled to absolute judicial immunity if his actions meet a two-part test: first, the acts must be within the judge’s jurisdiction; second, these acts must be performed in the judge’s judicial capacity. Judge Rieckhoff had the jurisdiction and capacity to sentence Mr. Hansborough. See  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
753	is because of the absence of any such provision that this part of the appeal is prosecuted. As a general rule, no doubt, the mortgagee has the right, upon condition broken, to foreclose his mortgage and have the. mortgaged property sold at public auction to the highest bidder, and the proceeds of the sale applied in satisfaction of the mortgage debt; and in order to obtain a satisfaction of his mortgage he cannot be compelled to bid in either the mortgaged property, or the mortgaged property and other property, at a price fixed by the court. Dane v. Daniel, 23 Wash. 379, 387, 63 Pac. 268; Bailey v. Hendrickson, 25 N. D. 500, 143 N. W. 134, Ann. Cas. 1915C, 739; 11 L. Ed. 143. But this rule is not absolute, or without qualification. Thus in Shepherd v. Pepper, 133 U. S. 626, 10 Sup. Ct. 438, 33 L. Ed. 706, one party held two liens by deeds of trust on a part of an indivisible tract, and a second party held a like lien on the remainder. The decree of foreclosure directed a sale of the entire tract as one parcel, authorized the auditor of the court to ascertain the relative values of the two parcels, and provided that the proceeds of the sale should be applied on the debts secured by the different deeds of trust in accordance with the values thus ascertained. This decree was affirmed by the Supreme Court. Mr.
1534	act or omission causes damages to another through fault or negligence shall be obliged to repair the damage so done. Concurrent imprudence of the party aggrieved does not exempt from liability but entails a reduction of the indemnity. 31 L.P.R.A. § 5141. 27. Under Article 1802, if both the plaintiff and defendant are at fault, the plaintiff can still recover, but his recovery is limited to the proportion of the damages sustained by the plaintiff that were proximately caused by the defendant’s negligence. See, e.g., Montero Saldaã v. American Motors Corp., 107 D.P.R. 452 (1978). 28. The Federal Aviation Administration has published regulations (“FAR”) that govern the operation of airplanes by pilots. These regulations have the force of law. See, e.g., 29. The FARs establish that the pilot in command of an aircraft is the final authority for the safety of the operation of his aircraft. Federal Aviation regulation 91.-3(a) provides that “[t]he pilot in command of an aircraft is directly responsible for, and is the final authority as to the operations of that aircraft.” 14 C.F.R. § 91.3(a). 30. The FAA also publishes the Airman’s Information Manual (“Manual”) to instruct pilots in the application of the FARs in various situations. The Manual is evidence of the standard of care among all pilots. Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180-81 (5th Cir.1975). 31. The Manual essentially repeats the contents of the FAR regarding pilot responsibility and
4098	the evidence reveals that the appellant’s own statements establish that his report to security personnel at Kings Bay, that Ms. L had stolen a purse from his quarters, was false. Prosecution Exhibits 1-4. Furthermore, those statements are corroborated by the unrebutted testimony of Ms. L that the purse in question was hers. Record at 189-191. The fact that the statement was not made in the line of duty is totally irrelevant under the facts of this case, because the statement was made to a security officer. Even where there is no duty to report an offense, lying to a law-enforcement agent conducting an investigation is a violation of Article 107, UCMJ. United States v. Caballero, 37 M.J. 422, 425 (C.M.A.1993)(citing The appellant’s third assignment of error is totally without merit. Instructional Error Appellant alleges that the military judge committed plain error when he did not instruct the members concerning the definition of “official” as it relates to a violation of Article 107, UCMJ. Appellant must assert plain error because he did not object to the instructions concerning this issue. Absent plain error, the error, if any, was waived. Rule for Courts-Martial 920(f), Manual for Courts-Martial, United States (1998 ed.). While it is true that the military judge did not define “official,” he was not required to do so. There was no error. The Military Judges’ Benchbook, Dept, of the Army Pamphlet 27-9, H l-3b (30 Sep 1996), provides that, “Notes are
2089	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 A particularly pertinent case is Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). In Bertine, a police officer arrested appellant for drunk driving. After taking Bertine into custody and prior to the arrival of a tow truck to take Bertine’s van to an impoundment lot, a backup officer inventoried the contents of the van. The backup officer inventoried the van in accordance with local police procedures, which required a detailed inspection and inventory of impounded vehicles. He found the backpack directly behind the front seat of the van. The officer opened the closed backpack in which he found controlled substances, which included cocaine and a large amount of cash.
3744	Their status as employees is not altered merely because they find it more desirable or convenient to share the use of a shop and the cost of its maintenance with another tailor similarly situated. With respect to the tailor, Stigliani, who employs an apprentice to help him with the actual tailoring, defendant poses a problem which may be stated thus: Does a tailor, who would otherwise clearly be classified as an employee, lose his employee status because he himself employs a single helper? To state the problem is, in effect, to dispose of it. We are here dealing with a remedial statute whose declared purpose is to eradicate the evils attendant upon low wages, long hours, and sub-standard labor conditions. . 451, 85 L.Ed. 609, 132 A.L.R. 1430; Missel v. Overnight Motor Transportation Co., 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682. Drawing the line between employees and independent contrac tors cannot be done mechanically; it calls for rational judgment as the facts vary, but that need not terrify us. (Chitty, J., said that “courts of justice ought not to be puzzled by such old scholastic questions as to where a horse’s tail begins and where it ceases. You are obliged to say, ‘This is a horse’s tail’ at- some time.”) We think that the mere fact of hiring a single helper clearly does not suffice to put a tailor on the independent-contractor side of the line. For that fact does
3974	158. III.ISSUE Did the bankruptcy court abuse its discretion in dismissing Schlegels’ bankruptcy case for failure to complete plan payments within five years? IV.STANDARDS OF REVIEW A court’s interpretation and application of a local rule is reviewed for an abuse of discretion. United, States v. Heller, 551 F.3d 1108, 1111 (9th Cir.2009). We review the bankruptcy court’s dismissal of a chapter 13 bankruptcy case under any of the enumerated paragraphs of § 1307(c) for abuse of discretion. Ellsworth v. Lifescape Med. Assocs., P.C. (In re Ellsworth), 455 B.R. 904, 914 (9th Cir. BAP 2011). A bankruptcy court abuses its discretion if it applied the wrong legal standard or its findings were illogical, implausible or without support in the record. Y. DISCUSSION The bankruptcy court did not abuse its discretion when it dismissed the Schlegels’ chapter 13 bankruptcy case for failing to complete their plan payments within the five-year period. Before we turn to the merits of the bankruptcy court’s decision to dismiss Schlegels’ chapter 13 case, we address an argument they raise regarding whether the court properly deemed the Motion to Dismiss as “uncontested.” The caption of the Dismissal Order, which appears to be a form order submitted by Trustee, reads: “Order on Noncontested Motion Dismissing Chapter 13 Case.” A motion to dismiss a bankruptcy case under § 1307(c) is a contested matter subject to Rule 9014(a). Rule 1017(f)(1). Schlegels contend that Rule 9014(a) did not require them to
245	Markowitz, supra, 176 F.Supp. at pp. 686-687. . The court held in the Burch case that the principles of res judicata and collateral estoppel were not a bar to the forfeiture action because the criminal action involving the defendant was on a charge of conspiracy, not on the substantive acts [see pp. 6 and 7 of 294 F.2d 1 (5th Cir. 1961)]. It is noted that the criminal indictment against Markowitz was on the conspiracy charge, not on the substantive facts. . See, also, United States v. LaFranca, 282 U.S. 568, 575, 51 S.Ct. 278, 75 L.Ed. 551 (1931). . E. g., Helvering v. Mitchell, 303 U.S. 391, 397-400, 405-406, 58 S.Ct. 630, 82 L.Ed. 917 (1938); See, also, United States v. International Building Co., 345 U.S. 502, 73 S.Ct. 807, 97 L.Ed. 1182 (1953). . In the answer, he merely asserts that he is the President of the company; in the pre-trial memorandum he is called only the “principal” stockholder (see Documents Nos. 8 and 16). . His wife owned the remaining 10 shares. . In that case, the Coffey case was carefully distinguished. Noto also that the court, at p. 554 of the decision, stated: “The application of these general ideas to the case of a criminal prosecution followed by a civil suit has not been easy” (showing that the U. S. Court of Appeals for the Third Circuit would
855	"if no confusion as to source, party entitled to summary judgment as to trademark infringement and false designation of origin if confusion as to sponsorship established). . Liquid Glass asserts that affixing a disclaimer that Porsche is not affiliated with Liquid Glass products to all advertisements with any reference to Porsche would eradicate any likelihood of confusion. PI. Opp. Br. at 18. Disclaimers have frequently been found to be insufficient to avoid consumer confusion in the marketplace. See, e.g., International Kennel Club of Chicago, Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1093 (7th Cir.1988)(""we are convinced that plaintiff’s reputation and goodwill should not be rendered forever dependent on the effectiveness of fineprint disclaimers often ignored by consumers”); Indeed, courts are so skeptical about the effectiveness of disclaimers that the burden has been shifted from the mark owner to show how a disclaimer would not prevent confusion, to the infringer to show that the disclaimer would prevent confusion. Home Box Office, Inc. v. Showtime/Movie Channel, Inc., 832 F.2d 1311, 1315-16 (2d Cir.1987)(noting that disclaimers using brief negator words such as ""no” or ""not” are not generally effective in preventing confusion). Furthermore, disclaimers will never remedy dilution because consumer confusion is irrelevant in establishing a dilution claim. See 15 U.S.C. § 1127. It is unlikely that a disclaimer either at the beginning of the video or in the comer of a magazine advertisement would cure the likelihood of consumer"
869	1726, 23 L.Ed.2d 284 (1969) ; United States ex rel. Siegel v. Lennox, 460 F.2d 690 (3d Cir. 1972) ; United States ex rel. Ross v. La Vallee, 448 F.2d 552 (2d Cir. 1971) ; Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971) ; United States ex rel. Joseph v. LaVallee, 415 F.2d 150 (2d Cir. 1969), cert. denied, 397 U.S. 951, 90 S.Ct. 976, 25 L.Ed.2d 133 (1970) ; United States ex rel. Dukes v. Wallack, 414 F.2d 246 (2d Cir. 1969). . Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972) ; see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). . Cf. United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972) ; United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969) ; United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied, 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970). . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). . 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). . Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), subsequently codified in 18 U.S.C. §
4474	13 petition in good faith. See In re Love, 957 F.2d 1350, 1354-55 (7th Cir.1992); Dicey, 312 B.R. at 458; Fleury, 294 B.R. at 5; and Virden, 279 B.R. at 407. Second, the debtor must file the Chapter 13 plan in good faith. See id.; see also 11 U.S.C. § 1325(a)(3). The only distinction is that under § 1307(c), the objecting creditor has the burden of proof, while under § 1325(a)(3), it is the debtor’s burden. See Dicey, 312 B.R. at 458; and Virden, 279 B.R. at 407. Both inquiries advance one of the primary purposes of bankruptcy, which is to relieve the honest but unfortunate debtor from the weight of oppressive indebtedness, allowing the debtor to start afresh. If a creditor is successful in proving that the debtor filed the petition in bad faith, the court may dismiss the petition for cause. The term “good faith” is not defined in the Bankruptcy Code and thus, the meaning has been the subject of extensive litigation. Since it is not defined, the inquiry is necessarily a “fact intensive determination.” Love, 957 F.2d at 1355. Therefore, courts engage in a multi-faceted analysis that is applied on a case-by-case basis. Virden, 279 B.R. at 407-09. “Whether this balancing of equities is called moralistic, judging, or evaluating, it is exactly what the courts have been left with under the ambiguous requirement of good faith.” Dicey, 312 B.R. at
3296	counsel and has filed a pro se supplemental brief. Counsel argues in the Anders brief that the sentence imposed is unreasonable. We disagree. See United States v. Vaughn, 519 F.3d 802, 804-05 (8th Cir. 2008) (reviewing sentence for procedural error and substantive reasonableness), cert. denied, — U.S. —, 129 S.Ct. 998, 173 L.Ed.2d 297 (2009); see also United States v. Rojas-Coria, 401 F.3d 871, 874 n. 4 (8th Cir.2005) (Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), has no impact on case involving sentence imposed as result of statutory minimum). Alarcon’s pro se argument that his guilty plea was not knowing or voluntary is not cognizable in this appeal, see United States v. Murphy, 899 F.2d 714, 716 (8th Cir.1990) (claim that guilty plea was involuntary must first be presented to district court and is not cognizable on direct appeal); and his claim that his counsel was ineffective is more properly raised in a motion under 28 U.S.C. § 2255, see United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir.2006). By his guilty plea, Alarcon has waived any non-jurisdictional challenge to his prosecution, see Smith v. United States, 876 F.2d 655, 657 (8th Cir.1989) (per curiam), and he cannot challenge the drug
3355	order is affirmed in part, modified in part, and remanded for further proceedings in accordance with this opinion. . The grant or denial of a preliminary injunction is customarily within the discretion of the district court, and the decision will not be disturbed on review unless there has been an abuse of that discretion. See State of New York v. Nuclear Regulatory Commission, 550 F.2d 745, 750-51 (2d Cir. 1977); Triebwasser & Katz v. A.T. & T. Co., 535 F.2d 1356, 1358 (2d Cir. 1976); 7 Moore’s Federal Practice f| 65.-04[2], at 65-47 to 65-49, fi 65.21 at 85 (Supp. 1976-77). This, of course, does not mean that we must inevitably affirm the district court’s decision. See  (. . . Congress would scarcely have made orders granting or refusing temporary injunctions an exception to the general requirement of finality as a condition to appealability . . . if it intended appellate courts to be mere rubber-stamps save for the rare cases when a district judge has misunderstood the law or transcended the bounds of reason). Carroll v. American Federation of Musicians, 295 F.2d 484, 488-89 (2d Cir. 1961). In trademark cases, a preliminary injunction will lie where there is a likelihood of confusion by shoppers, Hills Bros. Coffee, Inc. v. Hills, Supermarkets, Inc., 428 F.2d 379 (2d Cir. 1970). . Courts have framed relief differently even when the threat of confusion has been much
1553	factors does not prove a violation of Section 2, failure to establish all of them may eliminate the necessity to even conduct a totality of the circumstances examination. Monroe v. City of Woodville, Miss., 881 F.2d 1327 (5th Cir.1989), on petition for rehearing, 897 F.2d 763 (5th Cir.1990); Overton v. City of Austin, 871 F.2d 529 (5th Cir.1989). Although the Fifth Circuit has apparently not yet squarely so held, it seems rather clear that the majority population with which Thornburg v. Gingles is concerned is a voting majority, not simply a population majority. The Court of Appeals has at least implied that the single-member district which is created must contain at least a voting age majority of the minority group. See  vacated on other grounds, 869 F.2d 807 (1989), (where the court referred to this issue as “critical”); Brewer v. Ham, 876 F.2d 448, 452 (5th Cir.1989); Overton v. City of Austin, 871 F.2d 529, 542 (5th Cir.1989), Jones, J., concurring. This court concludes that in order to be viable under the Thornburg v. Gingles rationale any such district must contain at least a voting age majority of the minority group. In the absence of sufficient votes to effectively compete, clearly it is not the existence of the multimember district that deprives the minority group of the opportunity to elect its preferred candidates. In this case the defendants’ expert, Dr. Weber, had accurate voter registration data available. In drawing subdistricts he attempted
228	72 L.Ed. 290; Baruch v. Beech Aircraft Corp., 10 Cir., 1949, 175 F.2d 1; New York Trust Co. v. Island Oil & Transport Corp., 2 Cir., 1929, 34 F.2d 649; The Federal No. 2, 2 Cir., 1927, 21 F.2d 313; Kelly v. Central Hanover Bank & Trust Co., D.C.S.D.N.Y., 1935, 11 F.Supp. 497, 513, reversed oh other grounds, 2 Cir., 1936, 85 F.2d 61; Tipton v. Burson, 1951, 73 Ariz. 144, 238 P.2d 1098; Dewey v. Kaplan, 1937, 200 Minn. 289, 274 N.W. 161; Brink v. Wabash R. Co., 1901, 160 Mo. 87, 60 S.W. 1058, 53 L.R.A. 811; see Twitchell v. Glenwood-Inglewood Co., 1915, 131 Minn. 375, 155 N.W. 621; see .D. 119, 121; Phillips v. Belding Heminway, D.C.S.D.N.Y., 1943, 50 F.Supp. 1015, 1019; see Prosser, Torts 991-996 (1941); 30 Am.Jur. Interference § 22; Note, 26 A.L.R.2d 1227, 1246. This is also the view adopted by the American Law Institute. See Restatement, Torts, § 766, comment d. Plaintiffs’ contention as set forth in Paragraphs VI to IX of their amended complaint wherein it is asserted that they are third party beneficiaries of the covenants, warranties and guaranties made by defendant to the Government is likewise untenable. In determining whether a third party has the right to enforce covenants of a contract to which he is not a party, one, of course, must look to the intent of , the parties. Although the contract between the defendant
1317	by the power of the United States to enforce them. Clearly, then, if this dividend had been declared', and the dividend and interest paid at either of the principal offices of the company, or within the military lines of the United States, the taxes sued for would have been recoverable, notwithstanding the payments were made out of earnings derived from the use of property which had been taken inside the lines of the enemy. Thus the question now to be determined seems to be whether the company is exempt from the tax, because the resolution declaring the dividend was adopted within the Confederate lines, and the payments, on account of which the taxes are demanded, were actually made there. In The United States, 106 U. S. 327, it was held that the internal revenue tax on interest and dividends was an excise tax on the business of corporations, to be paid by the corporations out of their earnings, income and profits. The payments made in this ease were for dividends to.stockholders and interest to bondholders out of the earnings, income, and profits of the corporation in its business. By means of the dividend the surplus earnings were distributed to the stockholders, and the debts of the company were discharged to the extent of the interest paid. In this way the earnings on the inside of the Confederate lines were made available to the corporation which was
3976	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 dismiss a case for “cause,” including a material default with respect to a term of a confirmed plan. See § 1307(c)(6). The decision to dismiss a chapter 13 case under § 1307(c) is a discretionary decision of the trial court. The bankruptcy court dismissed the Schlegels’ case under § 1307(c)(6) for failing to complete their plan payments within five years from the commencement of their case. Although Schlegels had made their $812 monthly plan payments, they had failed to pay their unsecured nonpriority creditors the promised 48% dividend. Schlegels contend that the bankruptcy court erred in dismissing their case because they completed all of their payments under the Plan as required by § 1328(a) even if they failed to pay the required percentage dividend. Neither, the Ninth Circuit nor this Panel has addressed this precise issue. However, persuasive authority supports the bankruptcy court’s decision to dismiss for this 'reason. B. Analysis 1. Authority supporting dismissal of the case
1582	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.” 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.” 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
3187	with a copy thereof. Counsel are directed to furnish a courtesy copy of.any objections or responses to the District Judge at the time of filing. A party’s failure to file written objections to the proposed findings, conclusions and recommendation set forth above, within 10 days after being served with a copy, shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. U.S.A.A., 79 F.3d 1415 (5th Cir.1996) (en banc). Aug. 6, 2004. . A claim may be procedurally barred if the state court bases its denial of relief on a state procedural default and alternatively reaches the merits of a claim. Cotton v. Cockrell, 343 F.3d 746, 754 (5th Cir.2003). . Judge Burchett offered similar testimony at the hearing in the Hicks case. The parties in Hicks also stipulated that the procedure described by Judge Burchett “was the same selection process that was done by the other judges who were contemporaries of Judge Burchett and those who preceded him, also.” 97 CV 2460; Doc. 27, p. 5. . It is unknown how many opportunities were presented during those years to select a black foreman. It may be that some of the venires drawn did not include a black member. The district attorney does not, however, contend that that was ever the case, and Castaneda does
2341	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 F. 452, 457; Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U.S. 428, 434, 435, 31 S.Ct. 444, 55 L.Ed. 527; Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 63, 43 S.Ct. 322, 67 L.Ed. 523; JensenSalsbery Laboratories, Inc., v. Salt Lake Stamp Co., 8 Cir., 28 F.2d 99, 101, 102, and cases cited; Donner v. Sheer Pharmacal Corp., 8 Cir., 64 F.2d 217, 221, 222 and cases cited; Strong-Scott Mfg. Co. v. Weller, 8 Cir., 112 F.2d 389, 394. The following language from the case of . 45, 43 S.Ct. 322, 67 L.Ed. 523] certainly admonishes this court to give great weight to the practical results from a claimed invention; to look beyond the paper expression to the state of the art, before and after an alleged invention which is tested in actual practice. Dubilier Condenser Corp. v. New York Coil Co. (C.C.A.) 20 F.2d 723, 725; Minerals Separation v. Hyde, 242 U.S. 261, 270, 37 S.Ct. 82, 61 L.Ed. 286. “An invention is a real thing; a patent is the description of it in words and/or drawings. McClain v. Ortmayer, 141 U.S. 419, 12 S.Ct. 76, 35 L.Ed. 800. The description must be reasonably' adequate, in order to warn the
2922	not reduce the fair market value of the property given the donees by 36 percent of the amount of the mortgage, on October 2, 1978, they filed a timely claim for a refund reflecting such reduction. On June 15, 1979, the Alexanders filed suit in this court for a refund, the Commissioner having failed to act on their request within 6 months. II. The general rule is that, for gift tax purposes, a gift of property subject to a mortgage is valued at the excess of the fair market value of the property over the amount of the mortgage outstanding at the time of the gift. Janos v. Commissioner, 11 T.C.M. (CCH) 1211 (1952). See generally  cert. denied, 393 U.S. 826, 89 S.Ct. 88, 21 L.Ed.2d 97 (1968); Jackman v. Commissioner, 44 B.T.A. 704 (1941), acq. 1941-2 C.B. 7. The amount of the mortgage is deducted from the market value of the property even when the donor agrees to make the mortgage payments, because no consideration exists for the donor’s promise to do so, which therefore is not a legally binding obligation. Each mortgage payment is treated as a separate taxable gift when actually made. Rev.Rul. 78-362, 1978-2 C.B. 248. See generally Housman v. Commissioner, 105 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
3454	remand. See United States v. Paladino, 401 F.3d 471 (7th Cir.2005). While our established review for unreasonableness may have come to an end, Lister’s challenges do not. He contends that Booker and its predecessors charge this court with the responsibility to avoid unwarranted sentencing disparities between co-defendants, and between controlled substances where Congress has specifically legislated differing, advisory, punishments. We note only briefly that the judiciary has no power to maintain charges against an individual where the United States Attorney exercises its executive discretion and chooses to dismiss them, as was the case here. This is not a matter of the “sentencing disparities” as considered by Booker, but instead an example of the separation of powers in our legal system. Hoffman, 225 F.2d 463, 464-65 (7th Cir.1955)). Regarding the 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
3831	or that the sentence was unreasonable. See United States v. Rodriguez-Rodriguez, 530 F.3d 381, 384-87 (5th Cir.2008). AFFIRMED. . We take this opportunity to clarify this court's jurisprudence on whether an overt act in furtherance of the conspiracy is an element of the offense of conspiracy to launder money in violation of 18 U.S.C. § 1956(h). It is not. Overruling United States v. Wilson, 249 F.3d 366, 379 (5th Cir.2001), the Supreme Court held that an overt act is not an element of conspiracy to launder money. Whitfield v. United States, 543 U.S. 209, 214, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005). After Whitfield, this court mistakenly recited in dicta that an overt act is an element of the offense. United States v. Armstrong, 550 F.3d 382, 403 (5th Cir.2008). In conformity with Whitfield, we recognize that an overt act is not an element of the offense of conspiracy to launder money.
1266	his conduct and efficiency were rated as being unsatisfactory, and these could have been masked out without impairing the relevant portions of the exhibit. In making his objection to the proffered evidence, defense counsel specifically noted that he was objecting only to those remarks. At that time the accused had not placed the quality of his service in issue and we believe the law officer erred in not sustaining the objection until the two entries had been obliterated. It would have been a simple matter to have done so, and we find no reason for the law officer not keeping from the court-martial members evidence which is incompetent even though it is included in a document which is admissible. 28 CMR 331; United States v Larue, 11 USCMA 470, 29 CMR 286. While we find error — indeed the Government forthrightly concedes the law officer should not have allowed the entire document to go to the court-martial without masking the two remarks with which we are here concerned — nevertheless we are certain the impropriety had no impact on the findings or sentence. The facts of the substantive offenses are largely uncontested, and they are ample to sustain the findings of guilt beyond a reasonable doubt. In fact, the evidence of the prosecution, when coupled with the voluntary pretrial confession of the accused, compels a finding that the accused was guilty of the alleged crimes. The incompetent entries were not inflammatory, and
1762	"to prove that their right to removal was revived because the initial complaint was amended so "" 'drastically that the purposes of the 30-day limitation would not be served by enforcing it.’ ” Objections at 7-8 (quoting Wilson, 668 F.2d at 964; Cantrell v. Great Republic Ins. Co., 873 F.2d 1249, 1255 (9th Cir.1989) (finding that removal was untimely and that plaintiff's addition of a plaintiff and defendant did not change the nature of the action and did not restart the removal clock); Samura v. Kaiser Found. Health Plan, Inc., 715 F.Supp. 970, 972 (N.D.Cal.1989) (where an initial complaint was removable, subsequent events do not make it ""more removable” or ""again removable”) (citations omitted); Potty Pals, Inc. v. Carson Fin. Group, Inc., 887 F.Supp. 208, 209 (E.D.Ark.1995) (finding that the addition of a claim for a preliminary and permanent injunction where no change occurred in the basic nature of the complaint did not restart the clock for removal on a complaint which was initially removable)). . See, e.g., Hibbs v. Consolidation Coal Co., 842 F.Supp. 215, 216 (N.D.W.Va.1994) (initially non-removable action was removed within thirty days of amendment to the complaint, though case had been ongoing in state court for a year). . See Objections at"
376	beyond a reasonable doubt”). . Some courts have held that the Brecht standard is applicable only when the state appellate court previously has applied the more stringent Chapman standard. See Starr v. Lockhart, 23 F.3d 1280 (8th Cir.1994) (applying the Chapman harmless error standard on habeas review where state courts had not found constitutional error on direct review, and thus, had not performed harmless error analysis); Orndorff v. Lockhart, 998 F.2d 1426 (8th Cir.1993) (same); Other courts have held that the language of Brecht applies to all federal habeas proceedings. See Davis v. Executive Director of Dep't of Corrections, 100 F.3d 750 (10th Cir.1996) (Brecht standard applies to all federal habeas proceedings); Sherman v. Smith, 89 F.3d 1134 (4th Cir.1996) (same); Tyson v. Trigg, 50 F.3d 436 (7th Cir.1995) (federal habeas corpus courts should apply the Kotteakos standard even if state courts have not conducted a Chapman analysis.) . 131 F.3d 466 (5th Cir.1997). . 131 F.3d at 499; see Davis v. Executive Director of Dep’t of Corrections, 100 F.3d 750 (10th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1703, 137 L.Ed.2d 828 (1997); Sherman v. Smith, 89 F.3d 1134 (4th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 765, 136 L.Ed.2d 712 (1997); Tyson v. Trigg, 50 F.3d 436 (7th Cir.1995), cert. denied, 516 U.S. 1041, 116 S.Ct. 697, 133 L.Ed.2d 655 (1996); Horsley v. State of Alabama, 45 F.3d 1486 (11th Cir.), cert. denied, 516 U.S. 960, 116 S.Ct.
2941	issue. Arguing for the state, respondent contends that petitioner has failed to show the existence of a conflict of interest on the part of Simpson. In addition, respondent emphasizes that petitioner was represented by two attorneys, Simpson and Tisinger, and that petitioner has failed to allege or show that Tisinger was influenced by a conflict of interest. Therefore, respondent avers that petitioner was not denied the effective assistance of counsel. The Sixth Amendment’s guarantee of the right to counsel is a fundamental constitutional safeguard which is vital in protecting the criminal defendant’s right to a fair trial. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The right to counsel was explicitly extended to state proceedings in 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
1820	"than necessary to verify the reasonable suspicion of danger, and that search was limited to the only place where the firearm could be accessed. Based on the totality of these circumstances, Boyack and Milone were objectively and reasonably concerned with their safety, so the balancing required by Terry weighs in favor of Milone's minimally intrusive search in which he found the gun. Opening the screen door thus fell within the bounds of a constitutional search. 3. Deference is owed to reasonable factual inferences. ""[T]he Supreme Court [in Ornelas ] deliberately chose a formulation that allows the court of appeals to give deference where that is due, but to reject deference where its independent review suggests it is not due."" ., concurring) (citing Ornelas , 517 U.S. at 699-700, 116 S.Ct. 1657 ). In either case, our determination ""must be based on commonsense judgments and inferences about human behavior."" Wardlow , 528 U.S. at 125, 120 S.Ct. 673. To demand more of the district court, or Boyack and Milone, under the circumstances of this case would be an unreasonable demand for certainty where none exists. See id. at 124-125, 120 S.Ct. 673. The facts articulated by Boyack and Milone prompt a reasonable inference that Richmond was illegally carrying a gun. Richmond's activity was also consistent with hiding a gun, which the officers suspected and subsequently confirmed. The officers searched only for a gun and found only a gun."
773	"Director failed to voluntarily comply with the order within 90 days. The Director filed a Fed. R.Civ.P. 59(e) motion to alter or amend the court’s judgment. Following the district court’s denial of this motion, the Director filed a timely notice of appeal. On appeal, the Director renews his contention that the district court lacked jurisdiction under § 2241(d). Second, the Director asserts 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. 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"
316	"Court to strike the ""common promotional plan” argument because Sanibel did not plead it as an affirmative defense. (Doc. 94, at 13 n. 10.) This contention fails for three reasons. First, plaintiffs misapprehend the nature of the ""common promotional plan” issue. It is not a separate statutory or regulatory exemption, but is instead a definitional linchpin of the 100-unit exemption, which Sanibel did plead as an affirmative defense. (See doc. 24, at 4; doc. 25, at 6.) Second, even if it were an affirmative defense, Sanibel’s omission of it in its pleadings does not conclude the inquiry. Under Eleventh Circuit law, ""omission of an affirmative defense is not fatal as long as it is included in the pretrial order."" see also Hargett v. Valley Federal Sav. Bank, 60 F.3d 754, 763 (11th Cir.1995) (""if a party omits the defense of statute of limitations in the answer, the defense is not waived if the litigant includes it in the pretrial order”). Plaintiffs offer no argument why Sanibel has not adequately cured its failure to present the affirmative defense in its answer by raising it in its principal brief on summary judgment, well in advance of the pretrial order. Third, the touchstone of the Rule 8(c) pleading requirement for affirmative defenses is the prevention of unfair prejudice or surprise to the plaintiff. ""When there is no prejudice, the trial court does not err by hearing evidence on the issue.” Grant v."
4458	unreasonably delaying and hindering the Superior Court Interpleader Action. The Debtor objected. While the motion to dismiss was pending, the Debtor filed an adversary proceeding against ABMS and their attorneys, Harmon Law Offices, seeking an order requiring them to turn over the surplus proceeds from the foreclosure sale of the Property, which remain the subject of the Interpleader Action in Superior Court. The bankruptcy court held a hearing on Solimini’s motion to dismiss on September 23, 2004, and took the matter under advisement. On October 22, 2004, the bankruptcy court issued an order dismissing the case with a bar to refiling for 180 days, and an accompanying Memorandum. This appeal ensued. F. Bankruptcy Court’s Decision Adopting the standard set forth in  and conducting a totality of the circumstances test,' the bankruptcy court found that dismissal was warranted in this case. First, the bankruptcy court found that “the Debtor’s present Chapter 13 ease and plan are predicated upon a fundamental inconsistency with respect to her proposed use of the surplus from the sale of the Property,” noting that the Debtor claimed an exemption in the surplus proceeds and yet proposed to use them, at least in part, to satisfy the claims of her creditors. The court concluded that the proceeds were the Debtor’s only asset of consequence and that if the Debtor were to obtain the proceeds, she could dismiss her case without using them to pay Solimini or the IRS. The court concluded
1075	has not been the law. Lamprecht v. FCC, 958 F.2d 382, 392 (D.C.Cir.1992). And this is not a case in which Congress has found facts on a clean slate. Instead, Congress’s findings were an expression of disagreement with an Article III court’s findings. Congress stated, “In reaching [its] conclusion, the Supreme Court deferred to the Federal district court’s factual findings .... However, substantial evidence presented at the Stenberg trial and overwhelming evidence presented and compiled at extensive congressional hearings ... not included in the Stenberg trial record [established that the district court’s findings were incorrect].” Act § 2(4)-(5), 117 Stat. at 1202. The Supreme Court has struck down congressional legislation passed in response to a controversial judicial decision. See The Court in City of Boeme considered a slightly different, though analogous, issue — congressional legislation disagreeing with a constitutional interpretation. See Employment Div. v. Smith, 494 U.S. 872, 878, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (holding Free Exercise Clause does not require exceptions to neutral, generally applicable laws to accommodate individuals’ religious practices). As the Supreme Court in City ofBoeme put it: When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be
2043	OPINION AND ORDER LAFFITTE, District Judge. Before the Court is a motion by Defendant K-Mart, Inc. to have the Court stay this action pursuant to the abstention doctrine established in Plaintiff Maria Marcano Arroyo (“Marcano”) works at a K-Mart store in Juana Diaz, Puerto Rico. She brings this action under the Age Discrimination in Employment Act of 1967 (“ADEA”). She alleges that she was transferred from a position in which she was in charge of the store’s clerical organization to a position in the store’s warehouse. She claims that this transfer was done because of her age and was done as a plan to eventually discharge her. Because she brings this claim pursuant to ADEA, the Court has jurisdiction due to the existence of a federal question. Marcano filed her claim in this Court on June 27, 1997. In March 1996, Marcano had filed a similar
3230	as well. Note, The Labor-Bankruptcy Conflict: Rejection of a Debtor’s Collective Bargaining Agreement, 80 Mich.L.Rev. 134, 151-52 (1981). 4. The New Agreement Did Not Waive the Committee’s Contract Rejection Claim. No doubt the parties could have executed a new agreement that waived the Committee’s contract rejection claim. The question is whether the new agreement, assuming it was effective, did waive this claim for damages. In support of its position that the new agreement did waive the Committee’s claim, U.S. Truck cites Turner v. Local Union No. 302, International Brotherhood of Teamsters, 604 F.2d 1219 (9th Cir.1979); Fraser v. Magic Chef-Food Giant Markets, Inc., 324 F.2d 853, 857 (6th Cir.1963); Veale v. Eltra Corporation, 112 L.R.R.M. 2347 (BNA) (M.D.Pa.1982), and United Steelworkers Local 1617 v. G.F. Business Equipment, Inc., 105 L.R.R.M. 2762 (BNA) (N.D.Ohio 1978), aff'd, 620 F.2d 303 (6th Cir.1980). The Court concludes that these cases are inapposite because they concern claims for breach of expressly modified provisions arising from the employer’s post-modification conduct. Most of these cases decide whether the modification itself was a breach of the duty of fair representation, or an unfair labor practice, or a breach of contract. They do not apply to a claim for contract breach which accrued before a modification or a new agreement. More applicable are the cases which apply the common law doctrine of accord and satisfaction in the labor setting. See, e.g., Keppard v. International Harvester Co., 581 F.2d 764
4533	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 in a personal remedy.” 813 F.2d 1539, 1542 (9th Cir. 1987). For that reason, the Court held the EEOC’s enforcement action was not mooted by a private plaintiffs lawsuit and settlement based on the sáme facts. Id. at 1543 (“[The private plaintiffs] settlement does not moot the EEOC’s right of action seeking injunctive relief to protect employees as a class and to deter the employer from discrimination.”). Goodyear Aerospace Corp. involved a previous suit by an individual private plaintiff. But the court’s analysis relied in part on In Fitzsimmons, the Seventh Circuit held the Secretary of Labor was not barred by res judicata’ from bringing an ERISA enforcement action based on the same facts as a previously settled class action in which the Secretary had intervened. Fitzsimmons, 805 F.2d at 699. The decision was based in part on the history and structure of ERISA. The court noted ERISA arose out of concern over the “increasingly interstate” “operational scope and eeonomic impact” of employee benefit plans and the direct effect such plans had on the “well-being and security of millions of employees and their dependents.” Id. at 689 (citing 29 U.S.C. § 1001(a)). Employee benefit plans were also thought to “substantially affect the revenues of the United States” and
4058	"Rule 56[ (d) ].”). . Fed.R.Civ.P. 56(e)(2). . Fed.R.Civ.P. 56(e)(3). . See, e.g., Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) (""Although a 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). . . 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"
1324	plan. But it doesn’t stop there. The code says that all of the debtor’s projected disposable income that will be received during the applicable commitment period must be applied to make payments to unsecured creditors under the plan. Although “disposable income” and “current monthly income” are defined in the code, “projected disposable income” is not. The Bankruptcy Appellate Panel of the Eighth Circuit has recognized that at least three interpretations of the meaning of “projected disposable income” have developed in the context of § 1325(b) and the means test. Coop v. Frederickson (In re Frederickson), 375 B.R. 829, 833 (8th Cir. BAP 2007). First, some courts continue to calculate projected disposable income from the debtor’s schedules I and J. Id. (citing The Hardacre court believed that the term “projected disposable income” must be based upon “the debtor’s anticipated income during the term of the plan, not merely an average of her prepetition income.” Hardacre, 338 B.R. at 722. Second, some courts calculate projected disposable income from either Form B22C or the debtor’s schedules I and J, whichever more accurately reflects the debtor’s 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
554	"1903, U.S.-Cuba, art. Ill, T.S. No. 418 (""[T]he Republic of Cuba consents that during the period of the occupation by the United States of [Guantanamo Bay] ... the United States shall exercise complete jurisdiction and control over and within said areas ....”), quoted in McNary, 969 F.2d at 1342. Accordingly, whether Guantanamo Bay is within the ""special maritime and territorial jurisdiction of the United States” as defined in § 7(3) may involve separate considerations from those explored in this opinion. . Some criticism of Erdos is inapplicable to this case. For example, commentators have chided the Erdos Court for its statement that American embassies are "" 'part of the territoty of the United States.' "" 474 F.2d at 159 (quoting See, e.g., Bin Laden, 92 F.Supp.2d at 212-13; Paust, supra, at 310-12. As a leading authority, co-edited by Sir Robert Jennings, the sometime Whewell Professor of International Law at the University of Cambridge and recent past President of the International Court of Justice, has explained, the extraterritoriality of embassy premises is an “inaccurate fiction"" and the law of a receiving state ""still applies] to events taking place on a foreign embassy’s premises.” 1 Oppenheim’s International Law § 494, at 1077 nn. 15-16 (Robert Jennings & Arthur Watts eds., 9th ed.1992); see also 1 Restatement (Third) of the Foreign Relations Law of the United States § 466 (1987) (""Acts committed on [diplomatic and consular] premises are within the territorial jurisdiction of the"
263	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. 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 cannot establish a claim for false arrest if probable cause existed at the time of the arrest. Singer, 63 F.3d at 118-19. Probable cause is presumed to exist if a plaintiff is arrested pursuant
800	601 F.2d 1217, 1220 (1st Cir.1979). “... appellant argues that the Judge’s recitation of record support for all of his less-than-complimentary findings of fact demonstrates a subjective, self-justifying approach to the section 455(a) issue where an objective evaluation of the appearance created by his prior words and acts was called for. We disagree. As a finder of fact ..., a trial judge must give his candid evaluation of plaintiff’s case. If a case is weak to the point of frivolousness, it is appropriate to say so. (Emphasis added.) Id., at 1220. Accordingly, disqualification is not required if an allegation that a judge might not be impartial is only speculative, conclusory, spurious, or vague. Smith v. Pepsico, 434 F.Supp. 524 (S.D.Fla.1977); Wounded Knee Legal Defense Offense Committee v. F.B.I., 507 F.2d 1281 (1974). In short, when an affidavit of prejudice does not meet the requirements imposed by 28 U.S.C. § 144 or 28 U.S.C. § 455, the Judge has no obligation to disqualify himself. U.S. v. Anderson, 433 F.2d 856 (8th Cir.1970). As a matter of law, the trial judge is equally obligated not to recuse himself when the facts do not give support to a charge of prejudgment. U.S. v. Dioro, 451 F.2d 21 (2nd Cir.1971), cert. den. 405 U.S. 955, 92 S.Ct. 1173, 31 L.Ed.2d 232; U.S. v. Devlin, 284 F.Supp. 477 (1968). Plaintiff, a disgruntled and pertinacious litigant, seeks a review of the Court’s Opinion and Order filed on
472	the medical examiner should be conclusive proof of the facts therein certified. The statute made it a misdemeanor punishable by fine and imprisonment to bring into this country any alien not lawfully entitled to enter, but no crime was defined arising out of the failure to have the medical examination made abroad before permitting the alien to embark for the United States — that matter being dealt with exclusively by section 9 of the act. It was not essential, therefore, under section 9, that proof of any crime be made as a condition precedent to the laying of the exaction which the section prescribed.' The court, after reviewing a number of authorities, redeclared the law as laid down in  no longer open to discussion. The court rested the constitutionality of section 9, there under review, upon the absolute authority of Congress over foreign commerce and the power to control the coming of aliens to the United States and to regulate those subjects in the fullest possible degree. In the course of the opinion, Mr. Justice White writing, it is said: .“The exaction which the section [Section 9] authorizes the Secretary of Commerce and Labor to impose, when considered in
467	manner and by the same procedure as other taxes on the manufacture of or traffic in liquor.” Thus, it will be seen, this statute undertakes to confer the power or jurisdiction to assess and collect the prescribed penalties on administrative officers, and the procedure to be employed is to be the same as in the case of other taxes on the manufacture of or traffic in liquor, including the power of distraint. (7) The penalty prescribed is not imposed as an incident to a tax, properly so-called, for the purpose of insuring promptness on the part of the taxpayer. And, finally, the section is found in a highly penal statute, which is in no sense a revenue measure. It is insisted by learned counsel for the defendants that constitutional warrant for the enactment of. the section, as supplemented by the Willis-Campbell Act, is found in section 2 of the Eighteenth Amendment, which reads,. “The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation;” that when acting in a field within its constitutional power Congress may commit to administrative officers the imposition and collection of money penalties, so long as the manner of doing so is not contrary to any provision in the Constitution and does not infringe any rights guaranteed by the Constitution ; that no provision of the Constitution requires or guarantees trial by jury in the imposition of the penalties provided by
750	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. The District Court concluded that, even if the trial court erred in denying the motion for a mistrial after the testimony had been given, the error was at most “harmless” within the rule of We conclude also that, despite reception of this unconstitutional testimony, the great predominance of incriminating evidence rendered any potential prejudice minuscule. The judgment of conviction will be conditionally suspended, and the case remanded to the District Court to make and state its findings of fact upon the appellant’s second complaint. Cf. United States v. McKinney, supra, 429 F.2d 1019, 1031 (5 Cir. 1970). Should it be found that the jury did consider the evidence aliunde heretofore described, then ascertainment shall be made whether the consideration was prejudicial to Downey. If discussion of this evidence did actually occur, then, unless the Court find that clearly he was not prejudiced, the Court shall order a new trial. Moreover,
3937	MEMORANDUM OPINION AND ORDER WINGATE, District Judge. This is a class action suit brought pursuant to 28 U.S.C. § 1331. The named plaintiffs, two “BankAmericard” bank cardholders, sued the defendant national bank which issued the bank credit cards contending that certain charges made by defendant bank were usurious under the National Bank Act, 12 U.S.C. §§ 85 and 86. This case was appealed to the Fifth Circuit Court of Appeals, Roper v. Consurve, Inc., 578 F.2d 1106 (5th Cir.1978), and thereafter to the United States Supreme Court,  on a procedural issue relative to class certification. Subsequently, in an order dated November 10, 1980, this Court certified plaintiffs’ class as: All holders of bankamericard credit cards issued by Deposit Guaranty National Bank by whom finance charges were paid during the period between September 17, 1969, and January 7, 1974. The parties have filed cross motions for partial summary judgment on the issue of defendants’ liability under 12 U.S.C. §§ 85 and 86 of the National Bank Act, which incorporates by reference state usury laws. Essentially, plaintiffs contend that defendants’ finance charges to the consumer cardholders exceeded the eight percent (8%) per annum maximum amount of interest allowable under Mississippi law at the time. Defendants
2798	of Maciura’s claim, Trawler initiated this action on 26 February 2016, seeking exoneration from or limitation of liability under the Limitation of Liability Act, 46 U.S.C. §§ 30501 et seq. (“Limitation Act”), and Rule F of the Supplemental Rulés for Admiralty or Maritime Claims and Asset Forfeiture Actions. (DE # 1.) Shortly thereafter, on 7 March 2016, Maei-ura filed suit in the District of New Jersey against Trawler, Joseph Lee Rose (“Rose”), and the F/V SUSAN ROSE, alleging claims under the Jones Act, 46 U.S.C. § 30104, and the general maritime law of unseaworthiness and maintenance and cure. (See Ex. 2, DE # 24-2.) Maciura also demanded a jury trial on all of his claims as permitted under (Id. ¶4.) On 11 March 2016, this court entered an injunction and order enjoining the commencement or further prosecution of any action against Trawler arising from Maci-ura’s injuries while the limitation action was pending. (DE # 11.) This court further ordered that all claims arising from the events set forth in the complaint be submitted on or before 10 June 2016. (DE ## 13, 21.) In accordance with this order, Maciura filed an answer to the limitation complaint, (DE # 25), along with a claim of damages for injury on 10 June 2016, (DE #26). On that same date, Maciura filed' the instant motion requesting this court stay the limitation action and lift the injunction so
3151	and places within the commercial zone of Washington, D. C. as defined by the Interstate Commerce Commission, in special and charter sightseeing service, via limousines and buses.” The difference between the authority already held under docket MC-1'10258 and that applied for in MC-110258, Sub-No. 1 is that the Sub 1 application did not restrict the operations to tours originating and terminating in Washington, D. C., and did not restrict the operations to limousines having a capacity of not more than six adult passengers; and permitted the tours to be conducted partially by limousines and partially by buses. In its more important legal aspects, this case is quite similar to the decision of this Court in . 802, 71 S.Ct. 68, 95 L.Ed. 590, where this Court (District Judge Bryan dissenting) sustained an order of the Interstate Commerce Commission removing a “closed-door” restriction, thus permitting a motor common carrier of passengers to improve its service to the public by picking up passengers that formerly were passed by. We think it is necessary to add little to what was said in the opinion in that case, for, in the light of that opinion, the instant suit must be dismissed. There is no force in A. B. and W.’s contentions that the Commission failed to make adequate findings or that those findings were not supported by adequate and substantial evidence. The Commission (quite properly, we think) found
3765	The County also identifies Plaintiffs suits arising from the County’s 2002 attempt to suspend Plaintiffs license as res judicata of the current challenges to the suspension, 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. 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.
3019	the gravel fill, but then work your way through approximately 70,75 feet of marsh land or conservation grasses”). Neither of the CRMC applications supplied a clear map of the proposed development. See App. 7, 16 (1983 application); Tr. 190 (June 18-19, 1997) (1985 application). The Rhode Island Supreme Court ultimately concluded that the 74-lot development would have been barred by zoning requirements, apart from CRMC regulations, requirements Palaz-zolo never explored. See 746 A. 2d 707, 715, n. 7 (2000). After this Court granted certiorari, in his briefing on the merits, Palaz-zolo presented still another takings theory. That theory, in tension with numerous holdings of this Court, see, e, g.,  was predicated on treatment of his wetlands as a property separate from the uplands. The Court properly declines to reach this claim. Ante, at 631. If Palazzolo’s claim were ripe and the merits properly presented, I would, at a minimum, agree with Justice O’Connor, post, at 682-686 (concurring opinion), Justice Stevens, ante, at 643 (opinion concurring in part and dissenting in part), and Justice Breyer, post this page and 655 (dissenting opinion), that transfer of title can impair a takings claim. Justice Breyer, dissenting. I agree with Justice Ginsburg that Palazzolo’s takings claim is not ripe for adjudication, and I join her opinion in full. Ordinarily I would go no further. But because the Court holds the takings claim to
4908	"that remand is necessary because the Court failed to ""define the class or class claims"" as mandated by Rule 23(c)(1)(B). (Appellant's Br. 65-66). Plaintiffs counter that the SM Reports ""clearly set[ ] out the class definition, and defined the classes as 'identified in the Amended Complaint[.]' "" (Appellees' Br. 52). We agree with Citizens and find that the certification order here is deficient. To satisfy Rule 23(c)(1)(B), an order granting class certification must include: ""(1) a readily discernible, clear, and precise statement of the parameters defining the class or classes to be certified, and (2) a readily discernible, clear, and complete list of claims, issues or defense to be treated on a class basis."" Wachtel ex rel. ""Although a motion for class certification presents a discretionary question for a district court, the court 'must clearly articulate its reasons, in part, so we can adequately review the certification decision on appeal under Rule 23(f).' "" Neale v. Volvo Cars of N. Am., LLC , 794 F.3d 353, 369 (3d Cir. 2015) (quoting Beck v. Maximus, Inc. , 457 F.3d 291, 297 (3d Cir. 2006) ). Our decision in Marcus is instructive on this issue. In that case, after applying the Wachtel standard to the facts at issue, we held that the district court failed to satisfy Rule 23(c)(1)(B) because the court's order, ""[r]ather than set[ting] out its own [class] definition,"" merely stated that ""the New Jersey sub-class"
2958	with intent to commit robbery and in the course of said robbery or attempt to rob, Mrs. Snow was killed you shall find him guilty of murder in the first degree.” This instruction states the famil iar felony murder rule, and since petitioner in his confession admitted breaking into the Hoover home with Howard, the jury could have found the evidence sufficient to convict petitioner of first degree murder, regardless of what knife was used or who wielded it. Petitioner complains because his attorneys failed to object to the admission of the June, 1964, confession that he made to state investigators at the penitentiary. Failure to object to the proper admission of evidence does not entitle petitioner to habeas corpus relief,  and the federal court that granted petitioner his 1972 retrial had held in a thorough opinion that petitioner’s June, 1964, confession was voluntary and admissible. See Durham v. Cox, 328 F.Supp. 1157 (W.D.Va.1971). However, the attorneys did succeed in excluding two of petitioner’s later statements, the July, 1964, statement made in the prosecutor’s office after the reenactment and the March, 1965, statement made in jail. This latter statement could have been devastating, since petitioner therein changed his story to name George Easter instead of Otha Howard as the actual murderer. Petitioner claims that his attorneys did not ask for a jury instruction commenting on petitioner’s right not to testify. However, this is a matter of trial tactics, as an attorney may not
4204	of the PLRA to pending cases have refused to apply the limitations, concluding that such application would have an impermissible retroactive effect. See Jensen v. Clarke, 94 F.3d 1191, 1201-03 (8th Cir.1996) (concluding that application of the attorney’s fees provisions in § 803(d) to Plaintiffs and their attorneys who had worked for “literally years” on the assumption that their fees would be based on 42 U.S.C.A. § 1988 would be “manifestly unjust”); Cooper v. Casey, 97 F.3d 914, 921 (7th Cir.1996) (same); see also Weaver v. Clarke, 933 F.Supp. 831, 834 (D.Neb.1996) (refusing to apply § 803(d)’s limitations when determining attorney’s fees awarded after the enactment of the PLRA for work performed prior to the enactment of the PLRA). But cf. With all due respect to our sister Circuits, we find their analyses flawed. In Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court outlined a three-step inquiry to be undertaken when determining whether a court should apply a new statute to actions that occurred prior to the enactment of the statute. See id. at 280,114 S.Ct. at 1505. First, we ascertain whether Congress expressly prescribed the reach of the statute. Although we are bound by Congress’s directive, see id.,
445	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  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 of the district court for substantially the same reasons stated in the district court’s order dated January 5, 2010. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
3015	not be filled unless the Council exercised its authority to make exceptions to that rule under certain circumstances. Cf. App. to Brief for Respondents A-13 (laying out narrow circumstances under which the Council retains the discretion to grant a “special exception”). Under the reading of the regulations most favorable to Pa-lazzolo, he acquired no more than the right to a discretionary determination by the Council as to whether to permit him to fill the wetlands. As his two hearings before that body attest, he was given the opportunity to make a presentation and receive such a determination. Thus, the Council properly respected whatever limited rights he may have retained with regard to filling the wetlands. Cf. Lopez v. Davis, 531 U. S. 230 (2001) (involving a federal statute that created an entitlement to a discretionary hearing without creating any entitlement to relief). Though the majority leaves open the possibility that the scope of today’s holding may prove limited, see ante, at 629-630 (discussing limitations implicit in “background principles” exception); see also ante, at 632-636 (O’Connor, J., concurring) (discussing importance of the timing of regula tions for the evaluation of the merits of a takings claim); post,
3432	"States v. Nichols, 124 F.3d 1265, 1266 (11th Cir.1997); United States v. McAllister, 77 F.3d 387, 390 (11th Cir.1996). . The prior conduct was proven sufficiently, as the government proffered a certified copy of the guilty plea, and Terrell does not dispute the validity of the evidence. . Rule 403 states: ""[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.Evid. 403. Rule 403 is ""an extraordinary remedy which the district court should invoke sparingly, and [t]he balance ... should be struck in favor of admissibility.” . Terrell’s reliance on Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), is misplaced. In that case, the government sought to admit evidence of prior violent felonies in order to establish that the defendant had a prior felony conviction, and the defendant had offered to stipulate to the prior convictions. 519 U.S. at 191-92, 117 S.Ct. 644. In contrast, in this case, the government is offering the evidence to establish Terrell's knowledge. The evidence did not apply to whether Terrell had a prior conviction as required under § 922(g). The U.S. Supreme Court did not discuss the evidence in the context of this first prong of"
812	"induction. Smith v. Sikorsky Aircraft, 420 F.Supp. 661 (D.C. Calif.1976). Wherefore, I hereby disqualify myself from this case. The Clerk is hereby instructed to return the case to the assigning judge. IT IS SO ORDERED. In San Juan, Puerto Rico, this 21st day of September, 1983. /s/ Hector M. Laffitte Hector ,M. Laffitte U.S. District Judge . The statute provides in relevant part: ""In any action or proceeding to enforce a provision of ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fees as part of the costs.” . The Court must focus on the legal sufficiency of the affidavit, but cannot consider the truth or falsity of the allegations. U.S. v. Clark, 605 F.2d 939 (5th Cir. 1979). . Mr. Harvey Nachman is not and has not acted as counsel in this case in any manner, as the record of this case shows. The undersigned judge, upon taking office, issued an order disqualifying himself in Mr. Nachman’s cases as per the attached Opinion and Order in Civil case 82-3063 (HL), dated September 2, 1983, which is annexed hereto as an Appendix. . A hearing on this Court’s ruling awarding attorneys’ fees to defendant was scheduled for September 4, 1984, exactly seven days prior to the filing of plaintiffs motion to recuse. . The recent revision of Rule 11 of the Federal Rules of Civil Procedure"
1770	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); .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 subsequent argument about the nature of the threat. See United States v. Newman, 148 F.3d 871, 876 (7th Cir.1998) (defendant’s stipulation to conduct in plea agreement conclusively admitted facts and waived subsequent challenge to them). Accordingly, Siegler’s argument that the letter did not contain a “true threat” is irrelevant to his appeal of his sentence. Siegler also argues that because he did not send the letter to Hauger or directly communicate the threat to her, there was no conduct evidencing his intent
2123	toll charge will find the gate completely closed. Undeniably, it is convenient for the Court not to have to prolong litigation with secondary proceedings over toll charges and conditions, and the majority opinion perhaps spares us consideration of difficult issues. However, our Court exists not for its own sake but for the benefit of the litigants before it. Regrettably, as Congress has recently chosen to bestow various new forms of jurisdiction upon us in the declaratory relief area, we have reacted with the most begrudging and narrow interpretations, engendering both statutory and judicial reversals of our positions. See, e.g., Sheppard & Myers v. Commissioner, 67 T.C. 26 (1976), in effect reversed by amendments to sections 7428(a) and 7476(a);  revd. 573 F.2d 179 (4th Cir. 1978). We should take the hint and attempt, where we can do so within a fair construction of the congressional language, to read these new provisions so as to effectuate rather than frustrate the congressional purpose. Dawson, J., dissenting: I respectfully disagree with the judicial standard invoked by the majority opinion in reviewing the Commissioner’s determination in this case and the result reached therein. Section 367(a)(1) expressly authorizes the Commissioner to issue a favorable ruling only when “it has been established to the satisfaction of” the Commissioner that “such exchange is not in pursuance of a plan having as one of its principal purposes the avoidance of Federal income taxes.” Section 7477(a)(2) expressly authorizes this Court
440	"escrow funds may be used for “legitimate bankruptcy-related expenses not reflect in rates.” Ex parte Louisiana Pub. Serv. Comm’n, 1996 WL 875337, at *1, 1996 La. PUC LEXIS 69, at *2. . Even if preventing a windfall for Louisiana consumers ""merely by reason of the happenstance of bankruptcy” were to provide a sufficient basis for the bankruptcy court’s injunction under § 105(a), we see no potential for such a windfall when any refund would be subsequent to the bankruptcy court’s determination that Cajun has no postpetition interest obligation and would therefore not use such funds for the purpose for which they were collected. . Mabey cites the Seventh Circuit's opinion in In re Fesco Plastics Corp., 996 F.2d at 155, and  as supporting his contention. These cases simply do not provide any support whatsoever for the proposition that a regulated debtor’s prices must be preserved intact throughout a Chapter 11 proceeding so as to build up a pot for undersecured and unsecured creditors. We have found no cases suggesting such a rule under § 502(b)(2) or elsewhere. . We have previously recognized that significant authority exists suggesting that courts may properly invoke § 105(a) to enjoin proceedings that are excepted from the automatic stay under § 362(b)(4). See Commonwealth Oil Refining Co., 805 F.2d at 1188 n. 16 (noting that, although ""[c]ourts considering the scope of § 105 have seen it as an avenue available for staying actions that are found"
4803	also experienced in such matters and rationally inferred that the Negro robbers might seek a haven in the Negro area of Phoenix which could lead them to drive out Twentieth Street. Fourth, the Cadillac with its three Negroes approached along Twentieth Street, headed in the direction of the Negro area of the city. The circumstances called for swift action. Under these facts the officers acted reasonably in stopping the Cadillac and questioning the occupants concerning their identity and residences. This was intelligent, effective police work. If police officers may not do what was done here, law enforcement would be seriously crippled. The Fourth Amendment was not intended to handcuff the police in their reasonable effort to handcuff criminals. See also, 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.
1522	without regard to such transaction. According to the Fund, SUPERVALU’s purported 2002 withdrawal from the plan and the bargaining agreement upon which it was based should be disregarded. This pushed the withdrawal date into plan year 2003, the year in which SUPERVALU closed its Belle Vernon operation. The Arbitrator found in favor of the Fund, and issued a final award for the full amount of the withdrawal liability assessed. This timely appeal followed. III. Standard of Review An arbitrator’s conclusions of law in a withdrawal liability case are subject to de novo review in federal court. Parmac, Inc. v. I.A.M. Nat’l Pension Fund Benefit Plan A, 872 F.2d 1069, 1071 (D.C.Cir. 1989); Union Asphalts and Roadoils, Inc. v. MORAN Teamsters Pension Fund, 857 F.2d 1230, 1233-34 (8th Cir.1988). Arbitration is the primary method for resolution of disputes arising under ERISA and the arbitrators’ decisions are entitled to deference. A court will not overturn an arbitrator’s application of the law absent a firm conviction that an error was been made. TV. Discussion A. The Legal Basis for the Arbitrator’s Award The parties do not contest and the court accepts the Arbitrator’s summary of relevant facts: SUPERVALU was fully aware that its intended withdrawal from the Fund after June 30, 2002, would result in ... substantial withdrawal liability due to the investment losses the Fund was experiencing during the plan year ending on that
1580	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 generally 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
291	his guilty-plea conviction of importation of marijuana in violation of 21 U.S.C. §§ 952 and 960. We dismiss for lack of jurisdiction. Reschly contends that the district court lacked jurisdiction to revoke his supervised release because the appeal from his conviction was pending before this Court. Reschly has completed serving the sentence imposed as a result of the revocation of his supervised release; accordingly, there ceases to be a justiciable case or controversy. See Spencer v. Kemna, 523 U.S. 1, 14, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (declining to presume that revocation of parole creates collateral consequences sufficient to extend standing beyond expiration of the sentence and rejecting as moot a challenge to an allegedly erroneous parole revocation); cf. DISMISSED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
3461	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 PSIR’s chronology, he offered no evidence to counter the quantity calculations and he chose not to disavow his prior statements. Furthermore, these statements made during his PSIR interview were non-immunized and against his own interest. When presented with such a challenge, we cannot say that the district court committed clear error in its findings of fact. See Isirov, 986 F.2d 183,185 (7th Cir.1993) (internal quotation marks omitted))). Therefore, Lister’s due process claim must fail. Affirmed.
3311	purposes of 18 U.S.C. § 1503. Simmons, 591 F.2d at 210. Although the grand jury’s role in the early phase of an investigation can be unclear, we have resisted adoption of rigid standards for determining when a prosecutor’s inquiry ripens into a grand jury investigation. In particular, we have rejected suggestions that an investigation be deemed pending only -if (1) the grand jury actually hears testimony, (2) the grand jury plays an active role in the decision to issue the subpoena, or (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 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
1331	disposable income, this Court believes that conversion to chapter 7 remains viable. Any scrutiny for presumption of abuse would need to be based on § 707(b), the only subsection that references “abuse” in relation to the filing of a case. But, the test for abuse under § 707(b), whether based on a presumption as defined in § 707(b)(2), or on either bad faith or the totality of the circumstances of the debt- or’s financial situation as recognized in § 707(b)(3), relates specifically to a case filed by an individual debtor under chapter 7, not to a case filed under chapter 13 and later converted. See In re Fox, 370 B.R. 639 (Bankr.D.N.J.2007); but see In re Kellett, 379 B.R. 332 (Bankr.D.Or.2007); Therefore, § 707(b) may not even apply to a debtor who files a case under chapter 13 in good faith but is unable to propose a feasible plan based on Congress’s mandated means test for above income debtors. It is incongruous to require the debtor to follow a code mandated formula to determine disposable income in a chapter 13 case, and then not allow the same debtor relief under another chapter when the debtor cannot propose a feasible plan because of that code mandated formula. Restricting the presumption of abuse test to cases filed under chapter 7 still allows the unfortunate chapter 13 debtor who is precluded from confirming a chapter 13 plan access to protection under the code, without diminishing the
509	Sloat testified for appel-lee. Watt also testified that said hook as it now appears in Exhibit 28 was not upon said exhibit when it was made by the witness and appellee, but that said Exhibit 28 then did have a similar tensioning means. The witness Sloat testified that Exhibit 28, at the time he testified, was identical with the exhibit as it left his shop, thus contradicting both appellee and the witness Watt. We think that the close similarity in general appearance between lace fastened without a tensioning means and lace fastened with such tensioning means makes especially applicable the rule that oral testimony given long after the events testified to must be carefully scrutinized. In the case of ral testimony peculiarly untrustworthy; particularly so if the testimony be taken after the lapse of years from the time the alleged anticipating device was used. * * * ” In the case of Eibel Process Company v. Minnesota & Ontario Paper Company, 261
4454	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., 617 F.2d 396 (5th Cir.1980); Austracan, (U.S.A.) Inc. v. M/V LEMONCORE, 500 F.2d 237 (5th Cir.1974); The Maria, supra. Cases in which the appellate courts have held jurisdiction proper for the appeal although the facts differed from those of the original justification for the appeal include All Alaskan Seafoods, Inc. v. M/V Sea Producer, 882 F.2d 425 (9th Cir.1989); Dunham v. M/V Marine Chemist, 812 F.2d 212, 214 n. 2 (5th Cir.1987); Nichols v. Barwick, 792 F.2d 1520 (11th Cir.1986); O'Donnell v. Latham, 525 F.2d 650 (5th Cir.1976); Bergeron v. Elliot, 466 F.2d 514, 516 n. 3 (5th Cir.1972); Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d 1198 (2d Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 452, 30 L.Ed.2d 369 (1971). As the careful eye will note, some circuits appear in both lists (neither of which is exhaustive), and these circuits have addressed this matter and developed fairly detailed rules to explain the dis tinctions between the various procedural postures presented and the applicability of § 1292(a)(3) to each. . Since we recognize that both parties believed jurisdiction to lie for this appeal, and we understand that the circuits have not provided helpful guidance in this area over time, we think it appropriate that each side bear
890	28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587 (1971). . Similarly, Jenohs was decided under the Supreme Court’s rule-making powers for the administration of justice in the federal courts rather than as a matter of federal constitutional law. See Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). . Cf. People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 236, 299 N.Y.S.2d 617, 619, 247 N.E.2d 492, 493 (1969). . United States ex rel. Sadowy v. Fay, 284 F.2d 426, 427 (2d Cir. 1960), cert. denied, 365 U.S. 850, 81 S.Ct. 814, 5 L.Ed.2d 814 (1961) ; United States ex rel. Murphy v. Denno, 234 F.Supp. 692, 695 (S.D.N.Y.1964) ; see Buchalter v. New York, 319 U.S. 427, 429-430, 63 S.Ct. 1129, 87 L.Ed. 1492 (1943). . Cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). . United States v. Keogh, 391 F.2d 138, 146-147 (2d Cir. 1968). . In an affidavit to the Appellate Division the Assistant District Attorney who prosecuted the case swore he was on vacation when the wiretapping occurred and that when he was told by a subordinate there was nothing of evidentiary value on the tapes he did not waste time listening to them. Brief for Respondent at 23-24, People v. Butler, 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d
3696	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 was a zoning ordinance violation, the County’s order requiring the Jen-sens to schedule inspection to confirm abatement is reasonable and does not present a Fourth Amendment violation. See G.H. Love, Inc. v. Fleming, 161 F.2d 726, 728 (9th Cir.1947). The Jensens’ claim that they were penalized for seeking a hearing in violation of their First Amendment right to petition the government for redress also lacks merit. As the district court noted, there is no evidence in the record — including on the penalty sheet — to support the Jensens’ claim that they were penalized for either seeking or participating in the hearing. The Jensens’ due process claim, which is also based on the penalty sheet, also lacks basis and support in the record. The penalty sheet provides parameters and limitations for the administrative officer to make a penalty calculation, and the Jensens had an opportunity to be heard
838	dilution can be established independent of disparagement or tarnishment. Dilution may occur when subsequent uses blur the distinctiveness of the mark, regardless of whether the use is degrading. See Illinois High School Ass’n v. GTE Vantage, Inc., 99 F.3d 244, 247 (7th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1083, 137 L.Ed.2d 218 (1997). For many years, Porsche has endeavored to maintain its good will and reputation for producing high quality products catering to an exclusive market of automobile consumers. Liquid Glass’s unauthorized use of Porsche’s trademarks and trade dress is likely to slowly whittle away the distinctiveness of Porsche’s marks, demeaning the Porsche cachet and blurring the value of its famous and strong marks. See . ”). Although Liquid Glass is a “comparatively small company” (Pl. Opp. Br. at 25), “the theory of dilution by blurring is that if one small user can blur the sharp focus of the famous mark to uniquely identify one source, then another and another small user can and will do so.” McCarthy, McCarthy on Trademarks and Unfair Competition, § 24.94 at 24-161 (4th Ed.1997). Finally, Liquid Glass’s fair use defense
229	1949, 175 F.2d 1; New York Trust Co. v. Island Oil & Transport Corp., 2 Cir., 1929, 34 F.2d 649; The Federal No. 2, 2 Cir., 1927, 21 F.2d 313; Kelly v. Central Hanover Bank & Trust Co., D.C.S.D.N.Y., 1935, 11 F.Supp. 497, 513, reversed oh other grounds, 2 Cir., 1936, 85 F.2d 61; Tipton v. Burson, 1951, 73 Ariz. 144, 238 P.2d 1098; Dewey v. Kaplan, 1937, 200 Minn. 289, 274 N.W. 161; Brink v. Wabash R. Co., 1901, 160 Mo. 87, 60 S.W. 1058, 53 L.R.A. 811; see Twitchell v. Glenwood-Inglewood Co., 1915, 131 Minn. 375, 155 N.W. 621; see Cat’s Paw Rubber Co. v. Bario Leather & Findings Co., D.C.S.D.N.Y., 1951, 12 F.R.D. 119, 121; upp. 1015, 1019; see Prosser, Torts 991-996 (1941); 30 Am.Jur. Interference § 22; Note, 26 A.L.R.2d 1227, 1246. This is also the view adopted by the American Law Institute. See Restatement, Torts, § 766, comment d. Plaintiffs’ contention as set forth in Paragraphs VI to IX of their amended complaint wherein it is asserted that they are third party beneficiaries of the covenants, warranties and guaranties made by defendant to the Government is likewise untenable. In determining whether a third party has the right to enforce covenants of a contract to which he is not a party, one, of course, must look to the intent of , the parties. Although the contract between the defendant and .the Government provided that the generators to be furnished
4304	F.2d 23, 25, certorari denied 361 U.S. 834, 80 S.Ct. 85, 4 L.Ed.2d 75, the intendment of Rule 41(a) (2) is primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions. 5 Moore, Federal Practice ¶ 41.05 (2d ed. 1951). Whether, and on what terms, a dismissal without prejudice may be granted, is a matter left initially to the trial court’s discretion. Larsen v. Switzer, 8 Cir., 1950, 183 F.2d 850, 851; see Shaffer v. Evans, 10 Cir., 1958, 263 F.2d 134, 135, certiorari denied 359 U.S. 990, 79 S.Ct. 1119, 3 L.Ed.2d 978; Adney v. Mississippi Lime Co. of Missouri, 7 Cir., 1957, 241 F.2d 43, 45-46; . 800, 64 S.Ct. 429, 88 L.Ed. 483. But that does not excuse the failure to exercise any discretion, see Martin v. Graybar Electric Co., supra, 266 F.2d at page 203; cf. Grivas v. Parmelee Transp. Co., 7 Cir., 1953, 207 F.2d 334, 338, certiorari denied 347 U.S. 913, 74 S.Ct. 477, 98 L.Ed. 1069; Harvey Aluminum, Inc. v. American Cyanamid Co., D.C.S.D.N.Y. 1953, 15 F.R.D. 14, 18, or save from reversal an unpermitted exercise. We have already expressed our belief that the court did not even purport to exercise discretion. But were we to assume that it did, the reasons given — that Alamance had brought the suit, and obliged the defendant to employ counsel to file an answer
4985	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.,  others read the language 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
1360	motion must produce affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction. Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). Under a factual attack, the court need not presume the plaintiffs allegations are true. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000); accord Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). In the absence of a full-fledged evidentiary hearing, however, disputed facts pertinent to subject matter jurisdiction are viewed in the light most favorable to the nonmoving party. Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1996). Federal courts are courts of limited jurisdiction, adjudicating only cases which the Constitution and Congress authorize. An Article III federal court must ask whether a plaintiff has suffered sufficient injury to satisfy the “ease or controversy” 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,
648	in the same manner as a grant of real property is acknowledged, a of nonabandonment of homestead and file the declaration for record in the office of the recorder of the county in which the property is situated. The of nonabandonment of homestead must contain: (1) A statement that the owner claims the property as a homestead, that the owner intends to occupy the property in the future, and that the owner claims no other property as a homestead; (2) A statement of where the owner will be residing while absent from the homestead property, the estimated of the owner’s absence, and; (3)A legal description of the homestead property. Idaho Code § 55-1006. This Court has previously considered the issue. In  Judge Hagan interpreted § 55-1006 as creating, after an absence of 6 months, a rebuttable presumption of abandonment. Cavanaugh, 175 B.R. at 372, 94 I.B.C.R. at 220. The Court there found that the debtors presented sufficient evidence to rebut that presumption. The issue here is whether the Koopals have likewise, upon the entirety of the record, sufficiently rebutted the presumption of abandonment that arises under § 55-1006. There is no unequivocal evidence of an actual subjective intent to permanently abandon the Priest River Property. On the other, hand, the conclusion that the Koopals firmly and always intended to reoccupy the Priest River Property after the Jerome job is equally unsupported. The testimony reflects, in essence, that the Koopals
2290	Center was at the firm to review documents, Mr. Center openly reviewed the files in the firm’s library and did not remove the original documents from the premises, and a firm employee photocopied the files during office hours while Mr. Center chatted with firm members. Therefore, we agree with the district court’s finding that Mr. Center had implicit permission from the firm to copy documents. Finally, Mr. White alleges that outrageous conduct by the government justifies reversal of his conviction. We have previously noted that there is doubt as to the validity of the outrageous governmental conduct doctrine. United States v. D’Antoni, 874 F.2d 1214, 1219 (7th Cir.1989); United States v. Bontkowski, 865 F.2d 129, 131 (7th Cir.1989); but see In any event we have never reversed a conviction on this ground. United States v. Duncan, 896 F.2d 271, 275 (7th Cir.1990); United States v. Sababu, 891 F.2d 1308, 1326 (7th Cir.1989). In the initial opinion in this case, we suggested that: [i]f, however, the government, having the kind of hold over an attorney that it had over Center—for when it approached him he had been convicted but not yet sentenced—extracts from him client secrets that it then uses in a criminal trial of the client to the latter’s substantial prejudice, this might be the kind of serious governmental misconduct that would violate a criminal defendant’s rights under the due process clause of the Fifth Amendment. 879 F.2d
3684	to bar Blaske’s recovery would in effect cause this Court to adopt a rule which is contrary to the decisions in this Circuit, id est, that every vessel guilty of a statutory fault has the burden of establishing that its fault could not by any strettfh of the imagination, have had a causal relation to the collision, no matter how speculative, improbable or remote. The Court notes that this same argument has been previously advanced and completely repudiated in the Fifth Circuit. In the Queenston Heights, 220 F.2d 120 (5th Cir. 1955) the Court stated: We are in accord with the statement of the First Circuit, in Seaboard Tug & Barge v. Rederi, AB/Disa, 213 F.2d 772, that the Supreme Court, in ve, improbable, or remote. 220 F.2d at 122. Pilot Palmer was serving aboard the Pat Chotin for the very first time. All of his previous experience had been on twin-screw towboats rather than a triple-screw towboat such as the Pat Chotin. He was new in the pilothouse, having boarded the vessel at approximately 7:00 P.M. the previous night as the tow was proceeding through Memphis. He had commenced his first watch aboard
4333	action may be dismissed, settled or compromised without the approval of the Court. Rule 23(e), Fed. R.Civ.P. Before giving its approval, the Court must provide adequate notice to all members of the class, id., conduct a “fairness hearing,” and find, after notice and hearing, that the “settlement is fair, adequate and reasonable and is not the product of collusion between the parties.” Thomas v. Albright, 139 F.3d at 231. In performing this task, the Court must protect the interests of those unnamed class members whose rights may be affected by the settlement of the action. In this circuit there is “no obligatory test” that the Court must use to determine whether a settlement is fair, adequate and reasonable. 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
1144	appellant was sentenced to forfeit $280.00 pay per month for twelve months, to be confined at hard labor for twelve months, to be discharged from the service with a bad-conduct discharge, and reduction to the grade of Private E-l. The convening authority, in otherwise approving the sentence, reduced the confinement at hard labor to ten months and suspended the bad-conduct discharge for the period of confinement and six months thereafter. Before us, as at the trial level, the appellant contends that he was denied a speedy trial because he was held in pretrial confinement for 101 days. The question presented, therefore, is whether the government refuted the presumptive violation of Article 10, Code, supra, 10 U.S.C. § 810, imposed by  by meeting its heavy burden to show diligence. Most of the relevant facts are contained in a stipulation admitted into evidence in conjunction with the appellant’s motion below to dismiss the charges for lack of a speedy trial. A few of the significant events set forth therein and the attendant delays merit noting here. The stipulation indicates that charges were initially preferred against the appellant on 12 February 1975, the day after he was placed in pretrial confinement. On 25 February 1975 (12 days delay), the charges and allied papers were received by the summary court-martial convening authority and referred to the courts and boards office for administrative review. It was not until 14 March 1975 (17 days delay),
699	the subject believes that § 1101(a)(48)(A) governs the handling of repeat offenders and that ex-pungements (or restorations of civil rights) under state law do not negate a ‘conviction’ for purposes of immigration law.” 335 F.3d at 577. Although the question in Gill had to do with the treatment of deferred dispositions, the underlying decision to defer to the BIA’s characterization of the conviction for immigration purposes applies here as well. Thus, the Nebraska conviction provides an independent basis for rejecting Ramos’s challenge to the BIA’s decision. Equal Protection. Ramos’s equal protection argument relies on the fact that the government is treating his state conviction more harshly than it would an analogous conviction under the FFOA, 18 U.S.C. § 3607. See The first problem with this contention is once again Gill. Addressing a similar point, this court held that there is a distinction between prosecution in federal court and prosecution in state court, and that we are bound to observe that distinction as long as § 1101(a)(48)(A) reads as it does. 335 F.3d at 578. Second, Ramos’s premise— that someone with a FFOA conviction would escape immigration consequences— is not necessarily correct. We do not know what the BIA would do if it were confronted with this situation, nor do we know whether its decision would pass legal muster. All we can say is that
1535	the operation of airplanes by pilots. These regulations have the force of law. See, e.g., Tilley v. U.S., 375 F.2d 678, 680 (4th Cir.1967). 29. The FARs establish that the pilot in command of an aircraft is the final authority for the safety of the operation of his aircraft. Federal Aviation regulation 91.-3(a) provides that “[t]he pilot in command of an aircraft is directly responsible for, and is the final authority as to the operations of that aircraft.” 14 C.F.R. § 91.3(a). 30. The FAA also publishes the Airman’s Information Manual (“Manual”) to instruct pilots in the application of the FARs in various situations. The Manual is evidence of the standard of care among all pilots. 31. The Manual essentially repeats the contents of the FAR regarding pilot responsibility and authority during an emergency. 440. PILOT RESPONSIBILITY AND AUTHORITY a. The pilot in command of an aircraft is directly responsible for and is the final authority as to the operation of that aircraft. In an emergency requiring immediate action, the pilot-in-command may deviate from any rule in the FAR, Subpart A, General, and Subpart B, Flight Rules, to the extent required to meet that emergency. (FAR-91.-3(b)). 32. N27PR was involved in a Part 135 operation, described by the First Circuit in Federal Express Corp. v. United States, 664 F.2d 830 (1st Cir.1981), and as such could not, pursuant to 14 C.F.R. §§ 135.3, 135.99(a) and 135.109,
1283	PER CURIAM. Phillip Stephen Medley pleaded guilty to aiding and abetting the production of child pornography, in violation of 18 U.S.C. § 2 and § 2251(a) (Count I), and to a separately occurring child-pornography-production offense, in violation of 18 U.S.C. § 2251(b) (Count II). The district court sentenced him to concurrent sentences of 25 years on Count I and 20 years on Count II, to be followed by lifetime supervised release. On appeal, counsel has moved to withdraw, and has filed a brief under  arguing that Medley’s sentence is unreasonable. Upon careful review, we conclude that the district court did not abuse its discretion in sentencing Medley, and that the court imposed a substantively reasonable sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (in reviewing sentence for abuse of discretion, appellate court first ensures that district court committed no significant procedural error, and then considers substantive reasonableness of sentence); see also United States v. Wadena, 470 F.3d 735, 737 (8th Cir.2006) (appellate court reviews sentence, including any downward vari-anee, for reasonableness under abuse-of-discretion standard). Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988),
4341	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;  cert. denied sub nom. Reilly v. Tucson Elec. Power Co., 512 U.S. 1220, 114 S.Ct. 2707, 129 L.Ed.2d 834 (1994). The parties also exerted extraordinary efforts to reach class members through a massive advertising campaign in general circulation and African American targeted publications and radio and television stations. See pages 90-91 above. Second, the content of the notice was sufficient because it “fairly apprise[d] the ... members of the class of the terms of the proposed settlement and of the options that are open to them in connection with [the] proceedings.” See Maywalt v. Parker and Parsley Petroleum Co., 67 F.3d at 1079 (internal quotations omitted). The notice provided class members with information on the class, the purpose and
4891	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 verdict in favor of the municipal defendant, the Town of Brookline, was against the weight of the evidence. The decision to grant or deny a motion under Rule 59 or 60 is committed to the wide discretion of the district court and must be respected absent abuse. 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.
1335	case that the petitioner’s Fourth Amendment rights were violated when the police stopped his car and eventually found burglary tools in his possession. The issue can only be resolved by an examination of the police activity in this case in light of the Fourth Amendment principles. The Supreme Court has recognized that the protection of the Fourth Amendment applies at all times whenever an individual has a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576. It is quite clear that a person driving an automobile has such an expectation and is therefore protected by the Fourth Amendment. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L. Ed.2d 142; 45 S.Ct. 280, 69 L.Ed. 543. There is no doubt that petitioner was protected by the Fourth Amendment when he drove through the streets of Blair, Nebraska. The Fourth Amendment provides: “[T]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The important Fourth Amendment issues therefore are whether there was a “search” or “seizure” or both in this case and whether they were “reasonable.” The Supreme Court recently in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889, defined the Fourth Amendment term seized for the purpose of police-citizen street encounters. The Court said: “It must be recognized that whenever a police officer accosts
1730	808, 106 S.Ct. 3229; Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 13/103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). . Grable & Sons Metal Prods., Inc., v. Darue Eng’g & Mfg.,-U.S. -, 125 S.Ct. 2363, 2368, 162 L.Ed.2d 257 (2005). Accord Broder v. Cablevision Sys. Corp., 418 F.3d 187 (2d Cir.2005). . Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Two exceptions to the well-pleaded complaint rule permit removal of state law actions: when the claims are completely preempted by federal law and when Congress ''expressly so provides” for removal of those claims. Id. at 8, 123 S.Ct. 2058. Neither of these exceptions is relevant here. . 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
2890	(8th Cir.1985). We affirm the judgment of the district court. I. Under the “best interests of creditors” test of Chapter 13, a plan should not be confirmed if the property to be distributed under the plan is less than the amount each allowed unsecured creditor would be paid if the debtor’s estate were liquidated under Chapter 7. 11 U.S.C. § 1325(a)(4). EAC argues that because a student loan is not dischargeable under Chapter 7, EAC would have been entitled to payment in full, thus, the loan should not be discharged under Chapter 13. The simple fact that a loan that is nondischargeable under Chapter 7 does not make it nondischargeable under Chapter 13. The district court correctly rejected this argument. See In re Johnson, 787 F.2d 1179, 1181 (7th Cir.1986); In re Kitchens, 702 F.2d 885, 887 n. 2 (11th Cir. 1983); In re Akin, 54 B.R. 700, 702 (Bkrtcy.D.Neb.1985). The relevant issue is whether a creditor would in fact receive more in a Chapter 7 liquidation than it will under the proposed Chapter 13 plan. To determine this, the bankruptcy court mus. value the estate property, taking into account those assets that would be beyond the reach of the creditors in a Chapter 7 liquidation. If any creditor would receive more in a liquidation, the plan may not be confirmed. Thus, even if the loan could not have been discharged under Chapter 7, that does not mean that
365	the effective date of the AEDPA his application must be construed as a request for a certificate of probable cause (CPC). Lindh v. Murphy, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The standards for issuing a CPC and the AEDPA-required COA are identical. See Lucas v. Johnson, 132 F.3d 1069 (5th Cir.1998); Muniz v. Johnson, 132 F.3d 214 (5th Cir.1998). Blankenship v. Johnson, 106 F.3d 1202 (5th Cir.1997), opinion withdrawn and superseded on rehearing by, 118 F.3d 312 (5th Cir.1997). . 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). . 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . . Dr. Lett otherwise concluded. . Barber v. State, 737 S.W.2d 824 (Tex.Crim.App.1987). . Barber v. State, 757 S.W.2d 359 (Tex.Crim.App.1988), cert. denied, Barber v. Texas, 489 U.S. 1091, 109 S.Ct. 1559, 103 L.Ed.2d 861 (1989). . Dr. Griffith, permitted to testify about Barber's ■ future dangerousness during the punishment phase, testified that Barber did not suffer from any form of mental illness, but he did have a sociopathic anti-social personality disorder. He testified that a sociopathic personality was characterized by: (1) repeated confrontations with authority; (2) mental laziness preventing success in school; (3) inability to plan for the future; (4) inability to develop useful skills necessary to retain employment; (5) inability to develop personal relationships; (6) inability to feel or
3423	jury verdict must be admitted by the defendant or proven to a jury beyond a reasonable doubt. — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621. This court has explained that a Booker error also results from the district court’s use of a mandatory guidelines scheme, even in the absence of any constitutional error. United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir .2005). There was no constitutional error in the application of the armed career criminal provisions. First, under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4, a defendant is an armed career criminal if he has three previous convictions for, inter alia, violent felonies. Burglary qualifies as a violent felony. 18 U.S.C. § 924(e)(1), (2)(B)(ii); see also ). Here, the indictment alleged that Terrell had more than three prior burglary convictions. Additionally, Terrell conceded that his criminal history established the predicate offenses. Accordingly, there was no constitutional error under Booker. Additionally, although this court has recognized that there is a statutory error in the mandatory application of the guidelines, to be entitled to relief, Terrell must establish that his sentence would have been different but for the mandatory application of the sentencing guidelines. Shelton, 400 F.3d at 1331. Terrell’s burden to show that his substantial rights were affected is very high, and he fails to meet this burden. Although the district court stated at sentencing that it
3421	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. 04-9034) (Mar. 7, 2005). Under these facts, Terrell cannot show substantial prejudice. C. Booker When a defendant fails to object to an error before the district court, we review the argument for plain error. In Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621, the Supreme Court held that the Sixth Amendment required that any fact that increased a defendant’s sentence beyond the maximum sentence authorized by the facts established by a plea or a jury verdict must be admitted by the defendant or proven to a jury beyond a reasonable doubt. — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621. This court has explained that a Booker error also results from the district court’s use of a mandatory guidelines scheme, even in the absence of any constitutional error. United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir .2005). There was no constitutional error
646	clear idea of what work he would do after his six month term of employment at the dairy, but hoped his brother-in-law might help him find additional work in the southern Idaho area. Mr. Koopal testified that he moved to Jerome in December 1997 and his family moved to Jerome in January 1998, where they lived in a house that was -provided by Mrs. Koo-pal’s brother. The Koopals made sporadic visits back to northern Idaho for purposes of maintaining the Priest River Property, which they had placed on the market for sale. The Koopals re-established physical residence in the Priest River Property only after filing bankruptcy. DISCUSSION Debtors in Idaho are authorized to claim state statutory exemptions, including a homestead exemption. § 522(b); Idaho Code §§ 11-609, 55-1001 et seq. Idaho Code § 55-1001(2) provides: “Homestead” means and consists of the dwelling house or the mobile home in which the owner resides or intends to reside, with appurtenant buildings, and the land on which the same are situated and by which the same are surrounded, or improved, or unimproved land owned with the intention of placing a house or mobile home thereon and residing thereon .... Property included in the homestead must be actually intended or used as a principal home for the owner. When these conditions are met, the Idaho Code provides for a $50,000.00 automatic exemption. The exemption is “automatic” in that the debtor need
4077	be admissible for other purposes, such as proof of intent, knowledge, or plan. See United States v. Pierce, 792 F.2d 740, 743 (8th Cir.1986). The District Court admitted Hasse’s testimony for the purpose of showing intent and a plan on the part of the appellant that encompassed both Paul Havard and the victims named in the indictment. Trial Transcript at 388. Lanier contends that this was error because Havard is not mentioned in the indictment. Evidence of other wrongs is admissible if (1) an issue is raised on which evidence of other crimes may be received; (2) the evidence is relevant to that issue; (3) the evidence is clear and convincing; and (4) the probative worth outweighs any prejudicial impact. The trial court is vested with broad discretion in deciding whether to admit wrongful act evidence, and its decision to admit such evidence will be overturned only when the challenged evidence has no bearing on any issue involved. Id. We 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
1090	"This Act, like Nebraska’s statute struck down in Stenberg, makes no distinction between pre- and postviability abortions, thus ""aggra-vat[ing] the constitutional problem presented.” Id. . Although this case involves a challenge to federal legislation which must be tested against the restraints of the Fifth Amendment Due Process Clause, while Stenberg invalidated a state statute under the Due Process Clause of the Fourteenth Amendment, the Supreme Court has generally interpreted the clauses to be coextensive. See, e.g., Paul v. Davis, 424 U.S. 693, 702 n. 3, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (applying precedents decided under both due process clauses because ""the Fourteenth Amendment imposes no more stringent requirements upon state officials than does the Fifth upon their federal counterparts”); ); Curry v. McCanless, 307 U.S. 357, 370, 59 S.Ct. 900, 83 L.Ed. 1339 (1939) (""[T]he due process clause of each amendment is directed at the protection of the individual and he is entitled to its immunity as much against the state as against the national government.”). Both clauses protect against deprivations of a person's liberty without due process of law. See U.S. Const, amends. V, XIV. And the Supreme Court has construed both clauses to include substantive protections. See Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d"
1343	place in Blair prior to the morning in question. Once it has been shown that the police conduct was reasonable up until the car was searched incident to a valid search warrant, the seizure of the evidence by the use of the warrant can only be held constitutionally valid. It follows from our holding that the stopping of the car and the subsequent request for Hawkins to get out of the car was proper, that officer Cowan could constitutionally observe the burglary tools on the floor of the ear because they were in “plain view”. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; Creighton v. United States, 132 U.S.App.D.C. 115, 406 F.2d 651; Since the tools were properly observed, the observation could supply the basis for probable cause for arrest and the issuance of a search warrant to seize them. Since the evidence was validly seized, it could be introduced into evidence at the petitioner’s trial. The judgment of the trial court denying habeas corpus relief is affirmed. . We express no opinion on the legality of this search. . Made applicable to the states by the Fourteenth Amendment. . The state concedes that no probable cause for arrest existed prior to the time of the observation of the burglary tools. . Arrest is used in the constitutional sense here to mean that the person has probable cause to believe the person arrested (1) committed a
4101	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. In the instant case the testimony was un-controverted. The appellant never made the slightest suggestion that his written statement, which initiated a criminal investigation, was not “official.” The appellant did not request the military judge to define the term to the members, and he did not object to the instructions given concerning this issue. Quite simply, the evidence never raised the issue and the members were fully capable to determine, without instructions, whether or not the appellant made a false “official” statement. Furthermore, given the clear precedent as discussed in the section above, the military judge did not abuse his discretion when he did not define this very common term to the members. Thus, even if it
2524	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 that Monogram or GE ever received any returned mail from the Robertsons. See, e.g., Taylor v. First N. Amer. Nat’l Bank, 325 F.Supp.2d 1304, 1311 (M.D.Ala.2004), motion to amend denied, 331 F.Supp.2d 1354 (M.D.Ala.2004); Hoefs v. CACV, 365 F.Supp.2d 69, 73 (D.Mass.2005); Johnson v. Arrow Fin’l Servs., LLC, 2006 WL 2170663, at * 3 (N.D.Ill. Sept. 15, 2006). In addition, there is no evidence that the Robertsons continued receiving account statements at the same address where the Notice and New Agreement purportedly were sent, and thereafter continued making payments on their account. See, e.g., Hoefs, 365 F.Supp.2d at 73. There has also been no showing that Monogram’s or GE’s records of plaintiffs’ account reflected that the Notice or New Agreement were mailed to them. See, e.g., Taylor, 325 F.Supp.2d at 1311; Kurz v. Chase Manhattan Bank, 319 F.Supp.2d 457, 464 (S.D.N.Y.2004); Marsh, 103 F.Supp.2d at 917. Nor is there extensive discussion of Monogram’s or GE’s routine business practices regarding the mailing of the Notices, or that any quality assurance controls were utilized to ensure that such procedures were correctly followed. See, e.g., Marsh, 103 F.Supp.2d at 916-19. In addition, the court is not convinced that Ms. Koehler has the requisite personal knowledge to establish that the Notice or New Agreement were
1146	32 investigation officer was appointed and his report was submitted to the brigade commander on 15 May 1975 (10 days delay). On that same date the charges were forwarded to the staff judge advocate who, in turn, prepared and submitted his pretrial advice to the convening authority. On 16 May 1975, the charges were referred for trial by a general court-martial and the case was set for trial on 22 May 1975. The government contends that the commission of an intervening offense was an extraordinary circumstance which contributed to the delay and automatically authorized deferment of the original charge. (Citing United States v. Ward, 23 U.S.C. M.A. 391, 50 C.M.R. 273, 1 M.J. 21 (1975); The Government also contends that the appellant’s own interference with the government’s ability to try him should estop him from raising the shield of Article 10 in his own behalf. We disagree. In United States v. Burton, supra, the United States Court of Military Appeals held that: “[A] presumption of an Article 10 violation will 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
2590	fact that counsel have not tried to press claims against CIS which they believe (and justifiably so) are unsuitable for class treatment does not make them inadequate. To the contrary, that is the proper course for them to take. See p. 265, infra. Defendants have not seriously challenged the adequacy of the representative plaintiffs. e. Predominance In order to allow an action to proceed as a class action under Rule 23(b)(3), the Court must find “that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members * * Defendants recognize that common questions generally predominate in securities fraud cases involving standardized written representations to a class of investors. E. g., 7A C. Wright & A. 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
194	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,  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 meaning.” Arrow Electronics, Inc. v. Ducommun Inc., 724 F.Supp. 264, 266 (S.D.N.Y.1989). In light of these principles and because defendants have not made a clear showing that they will be more inconvenienced by having to come to Puerto Rico to defend this action than plaintiffs would be in going to New Jersey to prosecute it, defendants have not
1819	"Terry , 392 U.S. at 23, 88 S.Ct. 1868. Officers must make quick decisions in the field, so we judge from the perspective of a reasonably prudent person in the circumstances before us, not 20/20 hindsight. See id. at 27, 88 S.Ct. 1868 ; Cady , 467 F.3d at 1061-62. Even if we second-guess, had the officers moved Richmond further away from the gun, anyone in the house would still have had ready access to the firearm. Milone's on-the-spot response is not rendered unreasonable because Richmond was cooperative in the present moment. ""The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving."" The entire encounter here lasted no longer than half a minute, which called for ""necessarily swift action predicated upon the on-the-spot observations of the officer[s] on the beat."" Long , 463 U.S. at 1047 n.11, 103 S.Ct. 3469. The only information the officers knew during the search was that a suspected gun located between the screen door and front door was accessible to Richmond and to duplex occupants. Milone's corresponding search lasted no longer than necessary to verify the reasonable suspicion of danger, and that search was limited to the only place where the firearm could be accessed. Based on the totality of these circumstances, Boyack and Milone were objectively"
3162	Campbell v. Louisiana, 523 U.S. 392, 118 S.Ct. 1419, 140 L.Ed.2d 551 (1998)(white defendant has standing to challenge exclusion of blacks from grand jury foreman post) and (2) a claim that defense counsel were ineffective for failing to move to quash the indictment on that basis. The court reasoned that Campbell, not decided until after Petitioner’s conviction was final, was a “new rule” for purposes of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) so could not be applied retroactively to this white defendant’s case. The Fifth Circuit later held that Campbell was not a newly recognized and retroactive rule that would delay commencement of the limitations period for the claim under 28 U.S.C. § 2244(d)(1)(C).  cert. denied, 537 U.S. 1118, 123 S.Ct. 886, 154 L.Ed.2d 796 (2003). The rationale that doomed the prisoner in Peterson to untimeliness was welcome news for this Petitioner who had filed a timely petition. Given the analysis in Peterson, the Fifth Circuit had little choice but to vacate the portions of this court’s judgment on the foreman-related issues noted above. It denied COA as to all of Petitioner’s other claims. Crandell v. Warden, 72 Fed.Appx. 48 (5th Cir.2003); Docs. 25 and 27. On remand, the court appointed attorney Randall Robinson to represent Petitioner. An evidentiary hearing, at which Petitioner was present, was held on March 26, 2004. Counsel submitted 12 joint exhibits and questioned Judge Graydon K. Kitchens, Jr. about the
2654	purposes of Rule 33(b)(4). In making such an analysis, the court should look into the circumstances behind the failure to object [or in this case, timely respond], whether it was inadvertent, defiant, or part of a larger calculated strategy of noncompliance. The Court may also look at subsequent actions by the party to ascertain whether it was acting in good faith, as opposed to acting in a disinterested, obstructionist or bad faith manner. The court should always take into account any resulting prejudice or lack thereof, and the need to preserve the integrity of the rules by serving as a warning to other litigants. Finally, the Court may assess lesser sanctions should that be more appropriate. As discussed above, Plaintiff does not substantively address its failure to timely respond to the discovery, aside from arguing that Elk Run failed to meet and confer on the issue. Plaintiff does not otherwise explain why the discovery responses were late. Furthermore, a review of the disputed discovery suggests a larger strategy of noncompliance and an unnecessarily obstructionist approach to discovery. 1. Elk Run’s First Request for Production of Documents Elk Run’s Motion addresses four requests for production of documents as follows: Request No. 4: Please produce all notes, records, or other documents that reflect any inspections and/or tests you undertook pursuant to “Section GC-10 Inspection, Tests” of the Subcontract. Request No. 5: Please produce all notices you received from ZD
3842	inability to open the safe does not evidence an intent to punish Van Cleave. In his complaint Van Cleave also alleged that he was denied a toothbrush, toothpaste, a comb, and a towel during his three nights of confinement. He also alleges that he asked a jailer for a Bible, but was given a Spanish Bible which he could not read. These issues are not addressed in Van Cleave’s motion for IFP. Federal Rule of Appellate Procedure 24(a) requires that the IFP applicant provide “a statement of the issues which he intends to present on appeal.” Van Cleave’s allegations concerning the denial of hygienic items and an English-language Bible are not addressed in his IFP motion and are deemed abandoned. See Accordingly, we grant Van Cleave’s motion to appeal IFP. We vacate and remand the district court’s order insofar as it relates to the claims of denial of medical attention and newspapers and remand to the district court to give Van Cleave an opportunity to amend his complaint to state specific facts, if any he can, that would constitute a claim for which relief could be granted. In doing so, the district court may wish to call Van Cleave’s attention to the provisions of Federal Rule of Civil Procedure 11. We, of course, intimate no opinion concerning whether or not Van Cleave will be able to so amend his complaint as to state a claim or as to the ultimate merits
584	would have resulted in a refund of the full amount of her claim. I am adopting as the Court’s findings of fact herein the stipulation of facts, dated August 30, 1945, received as Exhibit 1 on the trial February 28, 1946. As a conclusion of law, I rule that the petitioneriplaintifif is entitled to judgment against the defendant United States of America for the amount sued for, $4,490.23, with interest from December 15, 1937. On the question of interest see Title 26 U.S.C.A. Int.Rev. Code, § 3771; Blair v. United States ex rel. Birlcenstock, 271 U.S. 348, 46 S.Ct. 506, 70 L.Ed. 983; and Title 28 U.S.C.A. § 284(b); 
3483	§ 1442(a)(1). The Estate filed a Motion to Remand (Instrument No. 5), arguing that removal was improper as Armco was unable to produce any evidence to demonstrate its entitlement to federal jurisdiction under 28 U.S.C. § 1442(a). In addition, the Estate argues that Armco removed this case without obtaining consent from the other parties. The Estate also requests sanctions for Armco’s improper use of federal-removal procedure. In response, Armco claims that it proffered adequate proof to satisfy the statutory requirements of § 1442(a)(1) and that removal of this action was appropriate even without consent of the other parties. II. On a motion to remand, the Court must determine whether the case was properly removed to federal court. See 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
2065	public spaces and ask them questions without triggering the protections of the Fourth Amendment, (citations omitted).” Id. at 5-6. The Court in Young continued: “The remaining two tiers of Fourth Amendment analysis comprise de facto arrests requiring probable cause, and lesser 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  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
1822	a suspect's immediate access or control. III. CONCLUSION Given the totality of the circumstances, the officers' suspicions were reasonable that Richmond was illegally carrying a gun. Because Richmond (or someone else) had ready access to the gun, officer Milone acted reasonably to extinguish a patent safety threat when he performed a brief search limited exclusively to the area where both officers saw the object, later confirmed to be a gun, was placed. For these reasons, we AFFIRM. Richmond's girlfriend resided at the duplex, and Richmond had been living there for about one month before his arrest. Richmond cites Moore v. Pederson , 806 F.3d 1036, 1044-46 (11th Cir. 2015) (involving the warrantless seizure of a suspect inside his home); United States v. Struckman , 603 F.3d 731, 743 (9th Cir. 2010) (holding the warrantless entry by two officers into a fully enclosed backyard-one officer kicking open a padlocked gate and the other scaling a fence-was not supported by probable cause, Terry , or exigent circumstances); and United States v. Reeves , 524 F.3d 1161, 1167-69 (10th Cir. 2008) (involving the warrantless seizure of a suspect inside his motel room and construing the encounter as occurring within the home). Perea-Rey and Struckman proscribed police entries without consent into cordoned
3045	facilitate the production of national defense requirements and historical evidence regarding the Government’s ability to commandeer manufacturing plants for the war effort. ' TDY further emphasized that after WWII, the Site continued to provide parts and aircraft for military defense, often under top secret conditions, thereby inferring that throughout its operation the plant was presumptively operated by the Government, The actual evidence, 'however, did not support the characterization that the TDY plant was directly and substantially operated by the Government. There was no evidence that TDY was ever ordered, coerced or forced to operate as a military defense plant. The situation at the TDY plant' was not similar to the California synthetic rubber plants at issued in  or the Virginia high tenacity rayon plant at issue in FMC Corp. v. United States Dep’t of Commerce, 29 F.3d 833, 836-37 (3rd Cir.1994) (en banc )(the United States diverted American Viscose from its previous commercial endeavors and directed the plant to produce high tenacity rayon, and to ensure the manpower to run the facility obtained draft deferments for personnel, directed workers in other industries to come to the plant, provided housing- for additional workers, and managed and participated in the supervision of the workers to ensure productivity). TDY voluntarily and actively sought the aviation contract work and financial
825	Porsche filed a counterclaim alleging trademark and trade dress dilution under Section 43(e) of the Lanham Act, trademark infringement under Section 32(1), false designation of origin or sponsorship and trade dress infringement under Section 43(a), as well as a claim for common law trademark infringement. Porsche now petitions this court to preliminarily enjoin the allegedly infringing and diluting Liquid Glass advertisements and video. II. A preliminary injunction may be granted if the moving party demonstrates that it is likely to succeed .on the merits and, in the absence of an injunction, it will be irreparably harmed. Furthermore, the court should consider the harm to the party to be enjoined and, if appropriate, the public interest. A. Probability of Success This court finds that Porsche is likely to prevail on the merits of its counterclaim. To prevail on a claim of trademark infringement under Section 32(i) of the Lanham Act, Porsche must show that Liquid Glass (1) used in commerce any reproduction or copy of a “registered mark” in connection with the advertising of any goods (2) which is “likely to cause confusion, or to cause mistake, or to deceive[.]” 15 U.S.C. § 1114(Z )(a). The elements of trade dress infringement under Section 43(a) of the Lanham Act are similar: in terms of this case, the shape of the automobile must be distinctive (defined as either inherently distinctive or having acquired distinctiveness through secondary meaning), non-functional
1425	to obtain damages from a state the Eleventh Amendment serves as a bar to the suit, even though a state is not named as a party to the action. Accordingly, when the action is in essence one for recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants. Edelman v. Jordan, supra, at 415 U.S. 662-663, 94 S.Ct. 1347. Furthermore, whether a suit is one against a state is to be determined, not by the fact of the party named as a defendant on the record, but by the result of the judgment or decree which may be entered. In the instant action, it seems clear that the object and intended effect of this suit was to recover damages from the state treasury. This action, in essence, is an inverse condemnation action utilizing 42 U.S.C. § 1983 as a jurisdictional basis. Plaintiff asks for a recovery of roughly the fair market value of his property, in essence a forced sale of that property. Did plaintiff intend to proceed against each of the defendants with the end result being the commissioners and state agencies being forced into becoming co-tenants in his property? Such a result would be ludicrous. Rather the more logical answer seems to be that the object of plaintiff’s suit was a recovery from the state.
3989	(In re Brawders), 503 F.3d 856, 872 (9th Cir.2007). Secured liens pass through bankruptcy unaffected. Long v. Bullard, 117 U.S. 617, 620-21, 6 S.Ct. 917, 29 L.Ed. 1004 (1886); Dewsnup v. Timm, 502 U.S. 410, 418, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992); In re Brawders, 503 F.3d at 872. However, if the lien is avoided and the formerly secured creditor failed to file a secured claim prior to the claims bar date, the creditor' may file a proof of claim within 30 days after the order avoiding the lien becomes final. See Rule 3002(c)(3); Prestige Ltd. P’ship-Concord v. E. Bay Car Wash Partners (In re Prestige Ltd. P’ship-Concord), 234 F.3d 1108, 1118 (9th Cir.2000); The exception under Rule 3002(c)(3) permits a creditor like CitiMortgage, whose unsecured claim arises as the result of an order invalidating its secured claim, to file a proof of claim within 30 days after entry of the order regardless of expiration of the 90-day limitation in Rule 3002(a). As explained in the Advisory Committee Notes to Rule 3002(c): Although the claim of a secured creditor may have arisen before the petition, a judgment avoiding the security interest may not have been entered until after the time for filing claims has expired. Under Rule 3002(c)(3), the creditor who did not file a secured claim may nevertheless file an unsecured claim within the time prescribed. A judgment does not become final for the
4241	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); 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
2026	reasons or bases for rejecting his testimony that “although his MOS had been power generator equipment mechanic, he had never performed that duty while he was in Vietnam” and that instead he had been assigned, among other duties, to work on convoys and to perform guard duty. Br. at 17. The appellant contends that his experiences with mortar and rocket attacks and sniper fire are entirely consistent with the type of duty, i.e., guard and convoy, that he performed in Vietnam and that his testimony supports a finding that his stressors were related to combat. In this case, the Board failed to make a finding as to the credibility of the veteran’s sworn testimony describing his duties while in Vietnam, see Ohland v. Derwinski, 1 Vet.App. 147, 149-50 (1991); Hatlestad v. Derwinski, 1 Vet.App. 164, 169, 170 (1991), and the Board failed to articulate clearly whether it found the veteran to have engaged in combat. In order for this Court to be able to carry out effective review of a BVA denial of a PTSD service-connection claim, the Board must generally make specific findings of fact, supported by an adequate statement of reasons or bases under section 7104(d)(1), as to whether or not the veteran was engaged in combat with the enemy, and, if so, whether the claimed stressor was related to such combat. See Zarycki, 6 Vet.App. at 98; see also Caluza, Gabrielson, and Gilbert, all supra. Because of the Board
354	or other evidence was offered to establish what the nursing staff “should have known” in these circumstances. In them brief, plaintiffs imply that the “brief phone call” with Dr. Sutton, the administration of over-the-counter medications, the fact that Grassi was allowed to return to his cell, and transportation to the hospital in a van rather than an ambulance rise to the level of deliberate indifference. Plaintiffs, however, point to no evidence suggesting that any CCCF employee was subjectively aware that these actions posed any substantial risk of harm to Grassi but chose, nevertheless, to disregard that risk. See Sealock, 218 F.3d at 1209. Because ineffective and even negligent treatment does not establish an Eighth Amendment violation,  the district court properly granted summary judgment to CCA on the medical treatment claim. In addition to the medical treatment claim, Plaintiffs allege violation of the Eighth Amendment stemming from CCA’s hiring of inexperienced and unqualified medical staff, particularly the hiring of Dr. Sutton. See Aplt.App. at 10-12. In their brief on appeal, however, plaintiffs fail to make any substantive legal argument to support this claim. Plaintiffs have therefore waived any consideration of this issue on appeal. Bledsoe v. Garcia, 742 F.2d 1237, 1244 (10th Cir.1984). Slate Law Claims. After granting summary judgment on the Eighth Amendment claims, the district court exercised its discretion to retain supplemental jurisdiction over the remaining state-law claims
4161	"returning to his previous work did not rely on that group of jobs formerly held by Paige, looking instead to his final work. It is therefore unnecessary to go into any further detail about those earlier jobs and their physical demands. . That evidence, summarized in the Appendix, should not be misinterpreted as reflecting all the proof on the subject. On the contrary, the record also contains some evidence downgrading the severity of Paige’s impairments. But it is important to recognize the abundance of clinical evidence supporting Paige’s claims. Before Secretary can validly conclude a claimant is not disabled, he ""must articulate his analysis of 'considerable evidence [which] is presented to counter the agency's position,’ at least at a minimum level” ( quoting Burnett v. Bowen, 830 F.2d 731, 735 (7th Cir.1987), in turn quoting Orlando v. Heckler, 776 F.2d 209, 213 (7th Cir. 1985)). .Because parts of the tape of the Hearing were inaudible and could not be transcribed, the incomplete transcript has limited this Court’s review to a minor degree. . Dr. Fintel’s only comment as to Paige’s arthritis-related complaints came in response to a question from Paige’s attorney as to whether she was basing her opinion solely on Paige’s heart problems. She responded (R. 94): A. Yes, I have taken his other complaints into my decision. In regard to his back discomfort, I go to the last exam from 1983, the neurological exam shows good coordination, his gait is"
1061	Assistant Professor in Obstetrics and Gynecology at the Northwestern University School of Medicine, the Director of the Northwestern Program in Family Planning, and the Medical Director at Prentice Ambulatory Care. (Tr. 517:12-522:2 (Hammond); Ex. 98, Curriculum Vitae of Cassing Hammond, M.D. [Hammond C.V.].) Dr. Hammond has performed thousands of previa-bility abortions, including D & E and D & X. (Tr. 526:1-530:8, 533:9-20 (Hammond).) He teaches various abortion procedures, including D & E and D & X, to residents and medical students at Northwestern. (Tr. 534:2-535:20 (Hammond).) Dr. Hammond previously testified in two cases that challenged partial-birth abortion bans. (Tr. 538:3-8, 539:21-540:10 (Hammond); Women’s Med. Prof'l Corp. v. Taft, 162 F.Supp.2d 929, 932 (S.D.Ohio 2001), rev’d, 353 F.3d 436 (6th Cir.2003);  He is also a plaintiff in this case. (Tr. 522:3-5 (Hammond).) Dr. Carolyn Westhoff, M.D., a licensed physician and board-certified obstetrician and gynecologist, is the Medical Director of Special GYN Services, Medical Director of the Family Planning Clinic, an attending physician at New York Presbyterian-Columbia Presbyterian Medical Center, and Professor of Epidemiology and of Population and Family Health in the School of Public Health at Columbia University. (Tr. 731:2-10, 732:14-23, 765:6-16 (West-hoff); Ex. 126, Curriculum Vitae of Carolyn L. Westhoff, M.D. [Westhoff C.V.].) She has performed hundreds of previability abortions, including D & E and D & X procedures. (Tr. 743:9-744:4, 745:12-746:11, 747:18-751:4 (Westhoff).) In 2003, she performed or supervised fifty D & E and D & X abortions. (Tr.
506	court. Concluding that the bankruptcy court’s findings of fact were not clearly erroneous and that the court’s application of Georgia law to those findings was correct, the district court affirmed. This appeal followed. II. The proposition that a transaction that is, on its face, an absolute conveyance of title, may, in actuality, convey title only as security for a loan is black letter law. See Restatement (Third) of Prop.: Mortgages § 3.2 (1997). It is necessary to look beyond the four corners of some conveyances — to consider parol evidence — to determine, in light of all the circumstances, whether the parties to the transaction intended to transfer title or to create a mortgage. See Conway’s Ex’rs and Devisees v. Alexander, 11 U.S. (7 Cranch) 218, 237, 3 L.Ed. 321 (1812); Spence v. Steadman, 49 Ga. 133, 138 (Ga.1873). Georgia law has long recognized that the determinative factor in distinguishing a mortgage from an absolute conveyance is the intent of the parties. See Monroe v. Foster, 49 Ga. 514, 519 (Ga. 1873) (“[I]f ... it appear that the loan of money and security for its repayment was, in truth, the purpose and intent of the parties, it will be treated as such, notwithstanding very strong language may be used at the time to give it a different appearance.”); see also Restatement (Third) of Prop.: Mortgages § 3.2 (1997). The intent of the parties in a given scenario
431	"by the bankruptcy court only if ""[a]ny governmental regulatory commission with jurisdiction, after confirmation of the plan, over the rates of the debtor has approved any rate change provided for in the plan, or such rate change is expressly conditioned on such approval.” . Under the Johnson Act, The district courts shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where ... [¡jurisdiction is based solely on diversity of citizenship or repugnance of the order to the Federal Constitution.... 28 U.S.C. § 1342. Relying on our decision in  the LPSC argues that ""the Johnson Act is a limitation on bankruptcy jurisdiction” and that therefore the bankruptcy court’s order was improper. In Gulf Water Benefaction, we affirmed the lower courts’ determination that the Johnson Act deprived them of jurisdiction to consider a regulated utility’s claim that the rates set by a public utility commission violated the federal constitution as a taking of property without just compensation and without affording the utility due process. See id. at 465. Because our jurisdiction in this case is based on neither diversity of citizenship nor a constitutional claim, the Johnson Act does not apply to the claims we consider here. See New Orleans Pub. Serv., Inc. v. City of New"
3877	time credits; and (4) the denial of his right to humane conditions of confinement are raised for the first time on appeal and are factual in nature; therefore, we do not consider them. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.1999) (stating that this court will not allow a party to raise a claim for the first time on appeal). Bonneville’s appeal is without arguable merit and, therefore, frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.1983). Accordingly, the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. In light of the foregoing and because Bonneville has not shown the existence of exceptional circumstances warranting the appointment of counsel, his motion is denied. See The district court’s dismissal of Bonneville’s complaint as frivolous and this court’s dismissal of his appeal as frivolous count as two strikes for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.1996). Bonneville is hereby cautioned that if he accumulates three strikes he will no longer be allowed to proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he “is under imminent danger of serious physical injury.” § 1915(g). APPEAL DISMISSED; MOTION FOR THE APPOINTMENT OF COUNSEL DENIED; SANCTION WARNING ISSUED. 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
2034	was well grounded, if the Board doubts the veteran’s medical evidence regarding the third requisite PTSD-elaim element, then fulfillment of the statutory duty to assist under section 5107(a) would require that VA seek a medical opinion on this nexus question. See Allday, Suttmann, and Green, all swpra. C. Miscellaneous Pursuant to its statutory duty to assist, ‘VA has a duty to assist in gathering social security records when put on notice that the veteran is receiving social security benefits”. Clarkson v. Brown, 4 Vet.App. 565, 567-68 (1993); see Murincsak v. Derwinski, 2 Vet.App. 363 (1992) (pursuant to duty to assist, VA must seek to obtain all pertinent records, including Social Security Administration (SSA) records, of which it is put on notice); 38 C.F.R. § 3.159 (1996). In this case, the veteran gave sworn testimony at a March 1993 hearing before the Board that in 1989 he started receiving Social Security disability benefits because of his unemployability due to PTSD. R. at 247-48. The record before the Court does not include records from the SSA. On remand, pursuant to section 5107(a), the BVA must seek to obtain the SSA records, and, if obtained, consider them in its readjudication of the veteran’s PTSD claim, and support its assessment of them with an adequate statement of reasons or bases. See 38 U.S.C. §§ 5107(a), 7104(d)(1). D. Beneñt-of-the-Doubt Rule The appellant contends that there was an approximate balance of positive and negative evidence presented on the
1246	"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  there is no reason why Defendants here cannot intelligently ascertain the damages from a summons with notice that does not specify the precise damages. . In In re Rezulin Products Liability Litigation, 133 F.Supp.2d 272 (S.D.N.Y.2001), Judge Kaplan suggested that the Second Circuit's standard that the defendant show ""no possibility” of recovery ""cannot be taken literally” because “[e]ven if a plaintiff's claim against a non-diverse defendant were squarely precluded by a recent decision of a state's highest court ..., there always would be a 'possibility,' however remote, that the court or legislature might change its mind so as to permit the plaintiff to prevail.” Id. at 280 n. 4. As a result, Rezulin Products and several subsequent decisions in this district"
4508	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. 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
837	tasteful magazine ads or the video, which, while containing scenes of a naked woman taking a shower, is supposedly so discreet that it could only be deemed “PG-13 or PG.” PI. Opp. Br. at 16. This court need not reach the issue of whether Liquid Glass’s advertisements either in print or on video are sufficiently tasteless or degrading such that Porsche would suffer negative associations through Liquid Glass’s use of them, see Hormel Foods Corp. v. Jim Henson Prods. Inc., 73 F.3d 497, 507 (2d Cir.1996), because dilution can be established independent of disparagement or tarnishment. Dilution may occur when subsequent uses blur the distinctiveness of the mark, regardless of whether the use is degrading. See  cert. denied, - U.S. -, 117 S.Ct. 1083, 137 L.Ed.2d 218 (1997). For many years, Porsche has endeavored to maintain its good will and reputation for producing high quality products catering to an exclusive market of automobile consumers. Liquid Glass’s unauthorized use of Porsche’s trademarks and trade dress is likely to slowly whittle away the distinctiveness of Porsche’s marks, demeaning the Porsche cachet and blurring the value of its famous and strong marks. See Tiffany & Co. v. Boston Club, Inc., 231 F.Supp. 836, 844 (D.Mass.1964)(finding dilution under state law because trademark for “Tiffany” jewelers “is universally used as a symbol of quality by the public” and use of the mark by Tiffany restaurant may erode “the public’s identification of
4737	is whether a private federal cause of action can be brought by MountainWest Financial under Section 471. Visa argues that no express or implied private cause of action exists under Section 471 for an alleged violation of the statute. Because Section 471 does not contain any remedy or enforcement provision, the question is whether a private cause of action was implied by Congress. In determining whether a private cause of action is implicit in a federal statute, the Supreme Court has explained that the ultimate question is whether Congress intended to create a private right of action when enacting the statute. Virginia Bankshares, Inc. v. Sandberg, — U.S. —, 111 S.Ct. 2749, 2763-64, 115 L.Ed.2d 929 (1991); Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 536, 104 S.Ct. 831, 838, 78 L.Ed.2d 645 (1984); Middlesex County Sewage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981); Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981); California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981); Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 91, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S.
1236	Metro. Transp. Auth., No. 06-CV4283, 2008 WL 582354, at *7 (S.D.N.Y. Mar. 4, 2008). In Horsehead, for example, the First Department held that a non-signatory parent corporation could be held liable if its “conduct manifests an intent to be bound by the contract, which intent is inferable from the parent’s participation in the negotiation of the contract, or if the subsidiary is a dummy for the parent, or if the subsidiary is controlled by the parent for the parent’s own purposes.” 657 N.Y.S.2d at 633. In certain cases, this exception rests on the “alter ego” doctrine so that a parent corporation’s intent to be bound is used to prove that the subsidiary is the parent’s alter ego. See, e.g., Horsehead, 657 N.Y.S.2d at 633 (using the “intent to be bound” language as the test for deciding whether parent company was alter ego of subsidiary); cf. Capricorn Investors III, L.P. v. Coolbrands Int’l, Inc., No. 603795/06, 24 Misc.3d 1224(A), 2009 WL 2208339, at *7-8 (Sup.Ct. July 14, 2009) (finding that parent was not an alter ego of the subsidiary because it had not manifested an intent to be bound). As Defendants note, the type of exception recognized in Horsehead often involves a corporation alleged to be the alter ego of another corporation.
174	had been paid to him without protest and without a warning to him not to pay it into the treasury, should be held liable by giving to this 1924 amendment a retroactive effect, when to do so would make him liable under circumstances where all of his actions were in the best of faith and without the possibility of liability at the time he acted. I feel content to rest oh my view of the law following the eases above cited, and the decision of the Supreme Court in the case of United States Fidelity & Guaranty Co. v. U. S., 209, U. S. 307, 28 S. Ct. 537, 52 L. Ed. 804, and, not to multiply citations, the case of 1042, 41 L. Ed. 93, 94, note. The deprivation of the collector of his defense of voluntary payment (which, as I have held, was clearly available to him and valid in this case) would be fairly analogous to those situations where the running of a statute of limitations had cut off a remedy which the plaintiff might have had for the recovery of property in the possession of another, except for an amending act extending the period of the statute of limitations, thus depriving the defendant debtor of a vested defense. I do not go the length of holding, since it is unnecessary in the view I have taken of the ease, that the collector has a vested right
2078	“fruits of the poisonous tree.” Defendant correctly argues that the Fifth Amendment protection against self-incrimination precludes the government from using statements elicited from a suspect during a custodial interrogation if those statements were extracted without a prior warning. Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990), quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). For the Fifth Amendment protection to come into play, however, the statements must be the result of a custodial interrogation. A defendant is said to be in custody when he or she is either subjected to a formal arrest or restrained to the degree usually associated with a formal arrest.  quoting Thompson v. Keohane, - U.S. -, -, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995); Stansbury v. California, 511 U.S. 318, 323-24, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994). To determine whether a particular restraint on freedom of movement meets this test, the Court “must examine all the 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
3593	neither the debtor nor the Board had actual notice that CERCLA response costs might be incurred for removing hazardous conditions from the property in question. 8. By motion dated March 9, 1993, the debtor sought a preliminary injunction restraining the Board from continuing its CERCLA lawsuit in the United States District Court in Mississippi on the ground that the defense of such action would be a waste of the debtor’s assets. In a written decision dated April 5, 1993, this court held that it could not be concluded that defending the District Court action in Mississippi would be a needless waste of the estate’s assets to justify the issuance of a preliminary injunction. 9. On the morning of the first hearing date on the preliminary injunction application on March 19, 1993, the Board filed a post-petition administrative proof of claim. However, this court ruled that the Board’s claim for a prepetition release of hazardous wastes must be regarded as a prepetition claim. Id. The court also ruled that it could not be said with certainty that the Board’s failure to file a timely CERCLA claim would bar any recovery for the CERCLA claim asserted in the District Court in Mississippi, citing Pioneer Investment Services Co. v. Brunswick Associates Limited Partnership, — U.S. -, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). 10. In light of the foregoing, the Board filed its Notice of Motion, dated April
1019	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 the parties who appoint them. Insofar as it is consistent with their fiduciary obligations, employer trustees are expected to advance the interests of the employer while employee trustees are expected to further the concerns of the union in the ongoing collective bargaining process between them. See Lamb v. Carey, 162 U.S.App.D.C. 247, [251,] 498 F.2d 789, 793 (1974);  aff’d, 528 F.2d 69 (9th Cir. 1975); Goetz, Developing Federal Labor Law of Welfare and Pension Plans, 55 Cornell L.Rev. 901, 921 et seq. (1970). The trustees’ efforts to improve the position of the parties they represent are completely legitimate — indeed, they are essential to the operation of section 302(e)(5). Congress envisioned the conflict of views of employer and employee as a distilling process which would provide safeguards against trust fund corruption. 559 F.2d at 227-28. The logic and holding of this court’s opinion in Associated Contractors are equally applicable to the facts of this case. Accordingly, we hold that the Union’s conduct in insisting to impasse and striking to obtain Amax’s participation in the Union’s pension and trust fund violates
907	(1986)). . Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir.2010). . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Spaulding, 279 F.3d at 904. . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). . Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir.2000) (quoting Adler, 144 F.3d at 670-71); see Kannady, 590 F.3d at 1169. . City of Herriman, 590 F.3d at 1181. . Fed.R.Civ.P. 56(e); . Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). . Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). . Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). . Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). . Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991). . Calia v. Werholtz, 426 F.Supp.2d 1210, 1214 (D.Kan.2006) (citing Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir.1992)). . 29 U.S.C. § 1132(a)(1)(B). . Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). . Kimber v. Thiokol Corp., 196 F.3d 1092, 1097 (10th Cir.1999).
1706	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  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 is analogous to New York law of bailments). Bailment is a contractual arrangement, the terms of which may be either express or implied. See Zurich Ins. Group v. Grandurismo, Inc., No. 00 CIV 980(AGS),
3637	"""material as to guilt.” See Youngblood v. West Virginia, 547 U.S. 867, 870, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006) (per curiam) (Holding evidence is material to guilt if there is a reasonable probability that the result of the 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  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"
4925	"(citing E.I. DuPont , 269 F.3d at 202-03 ). The doctrine is a narrow one that ""should be used 'sparingly,' and only when there is sufficient overlap in the facts relevant to both ... issues to warrant plenary review."" Id. (quoting E.I. DuPont , 269 F.3d at 203 (internal quotation omitted) ); see also In re Montgomery County , 215 F.3d 367, 375-76 (3d Cir. 2000) (citation omitted). Further, the doctrine is ""available only to the extent necessary to ensure meaningful review of an unappealable order."" Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. City Sav., F.S.B. , 28 F.3d 376, 382 (3d Cir. 1994)as amended (Aug. 29, 1994) (citation omitted). Following the Supreme Court's decision in  we concluded that pendent appellate jurisdiction is restricted to two circumstances: (1) ""inextricably intertwined"" orders or (2) ""review of [a] non-appealable order where it is necessary to ensure meaningful review of [an] appealable order."" CTF Hotel Holdings, Inc. v. Marriott Int'l, Inc. , 381 F.3d 131, 136 (3d Cir. 2004) (citing E.I. DuPont , 269 F.3d at 203 ). ""Issues are 'inextricably intertwined' only when the appealable issue 'cannot be resolved without reference to the otherwise unappealable issue.' "" Invista S.A.R.L. v. Rhodia, S.A. , 625 F.3d 75, 88 (3d Cir. 2010) (quoting Am. Soc'y for Testing & Materials v. Corrpro Companies, Inc. , 478 F.3d 557, 580-81 (3d Cir. 2007) (citations omitted) ). ""[T]he existence"
4184	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 and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment); Berkemer v. McCarthy, 468 U.S. 420, 436-37, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); The Plaintiffs persuasively argue that no reasonable person would believe that they are free to leave when they are pulled over by a police officer for a traffic stop and ordered by an officer to show their hands at gunpoint. . The Plaintiffs also argue that Officers Zotz and Ross used excessive force when they fired shots into the backseat of the vehicle, severely injuring the Plaintiffs. Under the factors articulated in Graham, questions of fact remain that should be resolved by a jury. The severity of the crime at issue, running a stop sign, was extremely minimal. This traffic violation did not involve physical violence or damage to property. The Plaintiffs also did not
4860	class and obligating itself to make 50 percent contributions thereunto. It then follows, as his theory goes, that the excess of the value of what petitioner received over the amounts “paid”, i. e., contributions in the year the class opened plus amounts paid to withdrawing employees, is taxable income to petitioner in the year of the maturity of each fund. It is an admitted corollary of respondent’s position that a participating employee took* title to his pro rata amount of stock the instant he joined the class and that at the termination of each class petitioner received something different from what it had before, namely, stock which had appreciated in value. Respondent cites Helvering v. Clifford, 309 U. S. 331, and We think this position is unsound. Petitioner was not buying a right to receive stock m futuro. It was setting up a plan to reduce the turnover of labor and to encourage its employees to become stockholders, which latter event was expected to yield indirect benefits to petitioner because of the incentive to greater effort that comes to one who has a stake in an enterprise. Secondly, petitioner did not transfer its stock to each participant when the latter joined the class but, on the contrary, retained title, through its agents, to the stock set aside for the class. At the termination of the class petitioner did not receive something different from what it had owned previously, but was only obligated to
2579	the defendant’s interest is paramount and that a prior evidentiary hearing is not required by due process in this case. Additionally, regardless of the constitutional argument the reinstatement of the disability benefits from March, 1969 through February 1, 1972 would be preposterous since even if a pretermination evidentiary hearing had been held, the plaintiff, having been found not to satisfy the requisite disability, would not be entitled to retain the benefits. Several recent cases have also rejected similar claims. In Crites v. Weinberger, 364 F.Supp. 956 (N.D.Tex.1973), the court under substantially similar facts rejected the plaintiff’s claim, .finding that it would be ludicrous to require the Social Security Administration to reinstate plaintiff’s disability benefits. The courts in  and Lindsay v. Richardson, 357 F.Supp. 203 (W.D.N.C.1973), also agreed that a later evidentiary hearing renders moot the claim of denial of due process from the failure to have an evidentiary hearing prior to the termination of the disability benefits. Regarding the second issue, disability is defined in the Social Security Act as the inability to engage in substantial activity. 42 U.S.C. §§ 416(i), 423. The Act gives the Secretary broad authority to promulgate regulations augmenting these basic definitions. 42 U.S.C. § 423(d)(4). The relevant regulations provide that earnings greater than $140 per month are deemed to demonstrate the ability to engage in substantial activity, unless there is affirmative evidence that such work activities themselves establish that the individual does not have
183	Thus its customers will have use of the gas during the interim period, and if abandonment is ultimately approved, a valid order of distribution will already be in effect. . See Michigan Consolidated Gas Co. v. Federal Power Comm., 108 U.S.App.D.C. 409, 283 F.2d 204, at page 209, note 3, decided April 29, 1960. . Ibid. . Any hardship Panhandle and its utility customers may sustain is, we think, irrelevant, for they acted “at their own risk” in attaching new loads pending disposition of the appeal in No. 14975. See Michigan Consolidated Gas Co. v. Federal Communications Comm., No. 14975, 108 U.SApp.D.C. 409, 283 F.2d 204, at page 209, note 3, decided April 29, 1960. . . 607, 619, 64 S.Ct. 1215, 88 L.Ed. 1488. . See Michigan Consolidated Gas Co. v. Federal Power Comm., No. 14975, 108 U.S.App.D.C. 409, 283 F.2d at pages 218, 219, decided April 29, 1960.
4897	". Plaintiffs place considerable weight on the district court's having instructed them to “call ... [any evidence of misconduct] to the attention of the Department of Justice, the office of public responsibility and do it on your own.... I'm not going to function as the U.S. Attorney.” While we are somewhat troubled by the tone of these remarks, we consider them an insufficient basis for concluding that the court was unaware of, or abdicated, its supervisory authority. As we have explained, it appears that the court did exercise this power by sending the allegations of fraud to the jury, where they belonged. And we are aware of no facial impropriety in the court’s having advised plaintiffs as it did. Cf. . In conjunction with the autopsy report, plaintiffs introduced a laboratory report containing stark, simple diagrams of the three shirts worn by Mr. Fernandez at the time of his death. The drawings graphically illustrate the location of the bullet holes (but not the trajectory of the bullets) in Mr. Fernandez’s clothing. . See also Fed.R.Evid. 403 (relevant evidence is excludable if ""needless[ly] ... cumulative”). Though the district court made no explicit reference to Rule 403, it did make a finding of cumulativeness, advising plaintiffs that"
2859	a search warrant can, with reasonable effort ascertain and identify the place intended.” Id. Under that rule as applied to those facts the warrant was upheld. Search warrants with faulty descriptions of the place to be searched have been upheld in a number of cases. See, e.g., Hanger v. United States, 398 F.2d 91 (8th Cir.1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969); United States v. Goodman, 312 F.Supp. 556 (N.D.Ind.1970); United States v. Pisano, 191 F.Supp. 861 (S.D. N.Y.1961); United States v. Joseph, 174 F.Supp. 539 (E.D.Pa.1959), aff’d 278 F.2d 504 (3d Cir.), cert. denied, 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960); United States v. Contee, 170 F.Supp. 26 (D.D.C.1959). In  the court reviewed these prior decisions and concluded, at page 321: The foregoing decisions illustrate the principle that the determining factor [in deciding] whether a search warrant describes the premises to be searched with sufficient particularity is not whether the description given is technically accurate in every detail but rather whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premises might be mistakenly searched which is not the one intended to be searched under the search warrant. The search warrant being challenged in Sklaroff erroneously described the place to be searched, apartment 301, as being on the second floor when, in actuality,
2138	of its claim. Keystone Bridge Co. v. Phoenix Iron Co., 95 U.S. 274, 279, 24 L.Ed. 344; National Machine Corp. v. Benthall Machine Co., 4 Cir., 241 F. 72; Wire Wheel Corp., etc. v. Budd Wheel Co., 4 Cir., 288 F. 308; Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 37 S.Ct. 416, 67 L.Ed. 871; Victor Cooler Door Co. v. Jamison Cold Storage Door Co., 4 Cir., 44 F.2d 288. The “claim” must also be 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. 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
4953	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 the body of the claim rely upon and derive antecedent basis from it. Sun contends that the preamble of claim 1 defines the term PCPI. This term is then used in the body of the claim, which recites structure in the form of PCPI fsinfo blocks. '720 patent, col. 13:66-67. Sun argues that the preamble provides the only antecedent basis for the term PCPI used in the rest of the claim, and the meaning of this structure would be incomprehensible without the definition provided in the preamble. Sun concludes that for this reason alone, the preamble must be treated as a limitation. See Pitney Bowes, 182 F.3d at 1306 (the preamble
4448	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; Austracan, (U.S.A.) Inc. v. M/V LEMONCORE, 500 F.2d 237 (5th Cir.1974); The Maria, supra. Cases in which the appellate courts have held jurisdiction proper for the appeal although the facts differed from those of the original justification for the appeal include All Alaskan Seafoods, Inc. v. M/V Sea Producer, 882 F.2d 425 (9th Cir.1989); Dunham v. M/V Marine Chemist, 812 F.2d 212, 214 n. 2 (5th Cir.1987); Nichols v. Barwick, 792 F.2d 1520 (11th Cir.1986); O'Donnell v. Latham, 525 F.2d 650 (5th Cir.1976); Doyle v. Bethlehem Steel Corp., 504 F.2d 911 (5th Cir.1974); Bergeron v. Elliot, 466 F.2d 514, 516 n. 3 (5th Cir.1972); Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d 1198 (2d Cir.), cert. denied, 404 U.S. 985,
2023	examiner(s) for clarification in accordance with applicable VA regulatory 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 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
4105	motion to dismiss based on the forum selection clause contained in the registration agreement and based on the doctrine of forum non conve-niens, In their reply to Kerzner’s motion, the Feggestads submitted their affidavits and affidavits of their traveling companions, stating that the front desk personnel at the Atlantis misrepresented the purpose of their signature on the registration card. The district court granted Kerzner’s mo tion on the basis of the valid forum selection clause, and 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. 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
3944	Tennessee. Citing § 75-17-17, Miss.Code Ann. (Supp.1975), the Tennessee court stated: The disputed transactions were, according to defendant, tailored to fit the law of Mississippi at the time. Whether or not this is true is irrelevant since the retroactivity provision brings the charges here squarely within the law_ Finally, while plaintiff is correct in asserting that federal law controls in cases concerning national banks, 12 U.S.C. §§ 85 and 86, both incorporate by reference state usury laws. Thus, the federal rates are keyed to the state rates and must change as the respective states see fit, even retroactively. Federal law has long recognized that the retroactive lifting of usury limits is permissible since usury laws are generally remedial, rather than substantive. The fact that 12 U.S.C. § 86 provides a penalty for the violation of a usury limit does not in any way unhinge it from state usury laws. To rule otherwise would place national banks on an unequal footing with state banks, contrary to the intent of the drafters of the National Bank Act. See, Tiffany v. Na tional Bank of Missouri, 18 Wall. 409 [21 L.Ed. 862] (1874). Walters, supra, at 5-8. Thus, defendants’ primary position is that the Cappaert ruling of the retroactivity of § 75-17-1, et seq., must be applied to defendant national bank so as to place it on an equal basis with all other lenders of credit in Mississippi in the
3790	definition of SSA. On June 27, 2006, the County amended the definition of an SSA (Doc. 105-2) and asked this Court to take judicial notice of the amendment (Doc. 104). Directing this Court to the recent decision of Taurus Property Ventures, LLC v. City of Plant City, No. 06-10768, 2006 WL 1813901 (11th Cir. June 30, 2006) (Doc. 109), the County argues that the ordinance, as amended, moots at least some of Plaintiffs challenges to the criminal provisions of the AEC. (Doc. 108 at 2, 8; Doc. 113 at 10-11; Doc. 117.) The mootness doctrine demands that Article Ill’s case or controversy requirement be satisfied throughout a case’s judicial proceedings because the federal courts are prohibited from issuing advisory opinions. If a case is rendered moot because it lacks an active controversy, the case must be dismissed unless the case falls within one of the recognized exceptions to the mootness doctrine. Id. One such exception is that a case will not be dismissed following the defendant’s voluntary cessation of the offending conduct, for a dismissal on such grounds may serve as the defendant’s license to return to that conduct. 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). When a plaintiff challenges the constitutionality of an ordinance and that ordinance is subsequently repealed or amended, the repeal or amendment may be viewed as a form of voluntary
4812	from a trash can therein. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); United States v. Kress, 446 F.2d 358 (9th Cir. 1971). The other items seized at the motel and later received in evidence were taken from a trash can outside Rooms 19 and 20. What a person knowingly exposes to the public is not a subject of Fourth Amendment protection. Katz v. United States, 389 U.S. 347, 351, 88 5. Ct. 507, 19 L.Ed.2d 576 (1967). When defendants placed articles in this public trash can outside the room, they surrendered their privacy with regard to those articles. See United States v. Minker, 312 F.2d 632, 634 (3d Cir. 1962). See also, After being arrested at the motel on April 28, 1970, for failure to register as an ex-felon, defendant Jackson was transported to the Phoenix Police Department. An officer then removed several strands of hair from Jackson’s head for the purpose of expert comparison with hair samples found in the stocking remnants seized at the motel and in a stocking mask found in the alley adjacent to the bank. Jackson moved to suppress any evidence concerning the hair samples on the ground that they were taken at a time when Jackson had requested, but did not have, the assistance of counsel, and that they were taken without prior authorization of the court, and in the absence of exigent circumstances. According
387	unless he has knowledge that would make such reliance unreasonable. Id. And no Texas case has ever recognized that the statute gives rise to a duty under negligence law. Third, Johns’s negligent misrepresentation claim was correctly dismissed for failure to plead justifiable reliance. In his response to Kaelblein’s motion to dismiss, Johns stated in a conelusory fashion that he “would have taken any number of steps to rectify the situation and avoid an IRS investigation” had Kaelblein furnished accurate W-2s. Johns left the court with nothing but conjecture as to what those “steps” might have been. Lastly, Johns’s inability to establish any of the above underlying torts dooms his derivative claims for conspiracy and aiding and abetting. See The district court therefore is AFFIRMED. 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. . These facts are based on Johns’ allegations, which we must accept as true in reviewing the case at the pleadings stage. We suspect that Kaelbein, the Board, and the IRS have a quite different version of events. . Johns argues for the first time in his reply brief that the economic loss rule does not
396	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. 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
2265	liability occurs pre-petition, but the remediation costs are expended post-petition. Generally, environmental compliance costs which arise from the debtor’s pre-petition conduct are treated as general unsecured claims. Dant and Russell, 853 F.2d at 709; In re Great Northern Forest Products, Inc., 135 B.R. 46, 60-61 (Bankr.W.D.Mich.1991); In re Kent Holland Die Casting & Plating, Inc., 125 B.R. 493, 503 (Bankr.W.D.Mich.1991). However, courts have found an exception to this general rule when the pre-petition environmental contamination also poses an identifiable and imminent harm in the post-petition period which requires the expenditure of funds to contain or remediate the problem. In re Conroy, 24 F.3d 568 (3d Cir.1994); In re Chateaugay Corp., 944 F.2d 997, 1010 (2d Cir.1991); In re Peerless Plating, 70 B.R. 943, 948-49 (Bankr.W.D.Mich.1987). A number of courts which have found that post-petition costs of remedi-ating a pre-petition environmental injury are properly classified as administrative expenses, rely on Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986). See, In re Wall Tube & Metal Products Company, 831 F.2d at 123-24; In re Conroy, 24 F.3d at 570. PLC argues that the holdings in Midlantic and Conroy definitively establish that the Bankruptcy Code does not provide a safe haven for polluters, and consequently, costs expended to remediate environmental pollution should be treated as an administrative expense. It further contends that In re Torwico Electronics, 8
437	"establishment of an escrow for such funds, and the decision therefore does not affect our resolution of that issue in this appeal. . Section 105(a) gives bankruptcy courts the equitable power to issue any order ""that is necessary or appropriate to carry out the provisions” of the Bankruptcy Code, and it is in this section that bankruptcy courts find their genera] equitable powers. See Omni Mfg., Inc. v. Smith (In re Smith), 21 F.3d 660, 665 (5 th Cir. 1994). Those powers, however, ""have their limits,” id., and ""can only be exercised within the confines of the Bankruptcy Code.” Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988); see In re Fesco Plastics Corp., 996 F.2d 152, 154 (7th Cir. 1993) (""Under this section, a court may exercise its equitable power only as a means to fulfill some specific Code provision. By the same token, when a specific Code section addresses an issue, a court may not employ its equitable powers to achieve a result not contemplated by the Code.”) (citations omitted). . We emphasize that our determination that the bankruptcy court abused its discretion is necessarily limited to the circumstances presented in this appeal."
198	"involved in the case arises directly out of the non-resident's activities in the forum, a state may assert personal jurisdiction over a non-resident defendant through “Specific jurisdiction”. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), and Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). . See Hanson v. Denckla, 357 U.S. 235, 237-255, 78 S.Ct. 1228, 1229-1240, 2 L.Ed.2d 1283 (1958). Defendants maintain that their only contact with Puerto Rico is the location of the plaintiff, and that in itself is insufficient contacts for the plaintiff to maintain this action in Puerto Rico, (docket 9, p. 5) . See . See Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940); Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927). . Rule 4.7 of the Civil Rules of the Commonwealth of Puerto Rico prays as follows: ""(a) when the person to be served is not within Puerto Rico the general court of justice of Puerto Rico shall have personal jurisdiction over said non-resident as if he were a resident of the Commonwealth of Puerto Rico, if the action or claim arises as a result of the following: (1) such person or his agent carries out business transactions within Puerto Rico; or (2) executes by himself or through his agents, tortious acts within"
81	motion for severance, we can only assume that the denial was justified on the reasoning employed by the Florida Supreme Court —that is, that the trial court denied the motion because it did not meet the demands of Rule 1.190 as later interpreted by the Florida Supreme Court. We think it sufficient to repeat without lengthy citation what is now an axiom of American jurisprudence: The Constitution prohibits a state from retrospectively applying a new or modified law or rule in such a way that a person accused of a criminal offense suffers any significant prejudice in the presentation of his defense. See, e. g., Bouie v. City of Columbia, 1964, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894; 2 S.Ct. 443, 27 L.Ed. 506. The two severance rules involved here differ markedly, and by applying the newer version retrospectively, the state has cut off petitioner’s right to present the merits of his motion for severance. The new rule requires the movant to state the grounds on which it is based and further requires “a showing” of prejudice. But the statute in effect at the time petitioner stood trial only required “a motion.” We interpret that statute, and the state has cited to us no cases to the contrary, as having allowed movants to elaborate the grounds supporting their motions after filing. Petitioner claims that he relied on that interpretation of the old statute when he filed his motion, and he alleges
2676	unnecessary litigation of undisputed facts at trial. Thus, the County stipulated to the amount to be refunded to the 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 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
1476	did not meet its burden of overcoming the '373 patent’s statutory presumption of validity, 35 U.S.C. § 282. Industrial simply reargues to us its position that the facts clearly show the obviousness of the invention, relying on the “pertinence” of its newly discovered prior art. Industrial makes two fundamental errors, however. First, Industrial seems to forget that the district court expressly held that Industrial’s art was not more pertinent than the art which the patent examiner cited. This court does not consider evidence de novo. Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, at 1543 (Fed.Cir. 1984). Second, even if the art were more pertinent, this fact alone does not rebut the statutory presumption of validity. In denouncing the district court’s adverse holding, however, Industrial argues that the district court improperly adopted, and thus incorrectly relied on, the testimony of Seattle Box’s expert. This argument has no merit. A trial judge has sole discretion to decide whether or not he needs, or even just desires, an expert’s assistance to understand a patent. We will not disturb that discretionary decision except in the clearest case. This is not such a case. Here, the trial judge reasonably could have believed he needed the testimony of experts to aid him with the sometimes complex patent specifications and prior art references. Industrial bore the burden in trial of persuasion that one of ordinary skill in the art
1631	of the Constitution of the United States, a political body may require periodic public readings of religious literature of any faith to the exclusion of other faiths. The Code of Alabama, Title 52, §§ 542, 543 and 544, requires that each 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; 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
1249	"possibility' of recovery is such a finding warranted.” (citation omitted)); Arseneault v. Congoleum Corp., No. 01-CV-10657, 2002 WL 472256, at *5 n. 4 (S.D.N.Y. Mar. 26, 2002) (disagreeing with Rezulin Products’ interpretation and favoring literal ""no possibility” standard). . Plaintiffs also assert an action to enforce contractual rights. (Chun Aff. Ex. C ¶¶ 167- 171.) This new action is asserted only against RBC, and because RBC is a diverse defendant, additional claims against RBC are immaterial to whether RBCCMC should be excluded based on fraudulent joinder. . It bears noting dial the Second Circuit has held that a ""nonsignatory party may be bound to an arbitration agreement if so dictated by the ordinary principles of contract and agency.” The court has recognized five theories, ""aris[ing] out of common law principles of contract and agency law ... for binding non-signatories to arbitration agreements: 1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter ego; and 5) estoppel.” Id..; sec also Merrill Lynch Inv. Managers v. Optibase, Ltd., 337 F.3d 125, 129 (2d Cir.2003). Under the alter ego theory, courts have found, or have left open the possibility of finding, a nonsignatory bound to the arbitration agreement when it was not the parent of the signatory corporation. See Coastal States Trading, Inc. v. Zenith Navigation, S.A., 446 F.Supp. 330, 336-37 (S.D.N.Y.1977) (stating that a parent corporation may be liable for its subsidiaries contracts ""[o]r"
1397	submit for entry by this court an appropriate judgment. . At the close of the plaintiff’s case, defendant made a motion for directed verdict, pursuant to rule 50(a) of the Federal Rules of Civil Procedure, Fed.R.Civ.P. 50(a), on plaintiff’s claim under section 1981, and a motion for involuntary dismissal, pursuant to rule 41(b) of the Federal Rules of Civil Procedure, Fed.R.Civ.P. 41(b), of plaintiffs claim under Title VII. While this court recognizes that defendant in a Title VII case may rely on evidence appearing in the plaintiffs case to establish a nondiscriminatory reason for his action and need not come forward with evidence, see Flowers v. Crouch-Walker Corp., 552 F.2d 1277, 1281-82 (7th Cir. 1977),  the court deferred ruling on defendant’s motions at the close of plaintiffs case. The motions were re-urged at the close of all of the evidence, and this court directed a verdict on both plaintiff’s section 1981 and Title VII claim. Although a motion under rule 50(a) and 41(b) are similar in effect, rule 50 applies only to cases tried to a jury, while rule 41(b) applies only to nonjury cases. The difference between the two motions is important because different standards are applied: On a motion for involuntary dismissal at the close of the plaintiffs evidence in a nonjury case the court is free to weigh the evidence and to make its own findings of fact. It may not weigh
864	20 L.Ed.2d 1100 (1968). . In each instance when Conroy’s statements were testified to, the court, following Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), which was in effect when this case was tried, instructed the jury that Conroy’s admissions were received only as against him and were to be disregarded in determining Butler’s guilt or innocence. The instruction was repeated in the court’s charge. . See 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) ; United States ex rel. Siegel v. Lennox, 460 F.2d 690 (3d Cir. 1972) ; Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971) ; United States ex rel. Joseph v. LaVallee, 415 F.2d 150 (2d Cir. 1969), cert. denied, 397 U.S. 951, 90 S.Ct. 976, 25 L.Ed.2d 133 (1970) ; United States ex rel. Dukes v. Wallack, 414 F.2d 246 (2d Cir. 1969). . Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972) ; see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). . Cf. United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973) ; United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d
3229	remains in existence and a debtor in possession asking for financial concessions will be unlikely to request (or receive) other modifications as well. Note, The Labor-Bankruptcy Conflict: Rejection of a Debtor’s Collective Bargaining Agreement, 80 Mich.L.Rev. 134, 151-52 (1981). 4. The New Agreement Did Not Waive the Committee’s Contract Rejection Claim. No doubt the parties could have executed a new agreement that waived the Committee’s contract rejection claim. The question is whether the new agreement, assuming it was effective, did waive this claim for damages. In support of its position that the new agreement did waive the Committee’s claim, U.S. Truck cites Turner v. Local Union No. 302, International Brotherhood of Teamsters, 604 F.2d 1219 (9th Cir.1979); Veale v. Eltra Corporation, 112 L.R.R.M. 2347 (BNA) (M.D.Pa.1982), Hayden v. RCA Global Communications, Inc., 443 F.Supp. 396 (N.D.Ca.1978); and United Steelworkers Local 1617 v. G.F. Business Equipment, Inc., 105 L.R.R.M. 2762 (BNA) (N.D.Ohio 1978), aff'd, 620 F.2d 303 (6th Cir.1980). The Court concludes that these cases are inapposite because they concern claims for breach of expressly modified provisions arising from the employer’s post-modification conduct. Most of these cases decide whether the modification itself was a breach of the duty of fair representation, or an unfair labor practice, or a breach of contract. They do not apply to a claim for contract breach which accrued before a modification or a new agreement. More applicable are the cases which apply the
4062	"(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)). . . 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) (concluding that debt was nondischargeable when a broker deprived a customer of his property by deliberately disposing of it); State Farm Fire & Cas. Co. v. Edie (In re Edie), 314 B.R. 6, 17 (Bankr.D.Utah 2004) (discussing destruction of property by fire cases under § 523(a)(6) and concluding that where the defendant intended"
866	232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), which was in effect when this case was tried, instructed the jury that Conroy’s admissions were received only as against him and were to be disregarded in determining Butler’s guilt or innocence. The instruction was repeated in the court’s charge. . See 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) ; United States ex rel. Siegel v. Lennox, 460 F.2d 690 (3d Cir. 1972) ; United States ex rel. Ross v. La Vallee, 448 F.2d 552 (2d Cir. 1971) ; Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971) ;  cert. denied, 397 U.S. 951, 90 S.Ct. 976, 25 L.Ed.2d 133 (1970) ; United States ex rel. Dukes v. Wallack, 414 F.2d 246 (2d Cir. 1969). . Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972) ; see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). . Cf. United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973) ; United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972) ; United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969) ; United States ex rel. Catanzaro v. Mancusi,
1714	"for November 15, 2005, at 4:80 p.m. in Courtroom 15C. SO ORDERED. . See Magistrate Judge David G. Bernthal’s Report & Recommendation, Quick, et al. v. Shell Oil Co., et al., No. 05-2072 (C.D.Ill. Aug. 3, 2005) (""R & R”), Ex. 1 to Plaintiffs’ Objections to Magistrate Judge's Report and Recommendation re Plaintiffs’ Motion to Remand and Memorandum of Law in Support Thereof (""Objections”). . Objections ¶¶ 1-3 (quoting R & R at 2, 8). . 28 U.S.C. § 636(b)(1). . For a full recitation of plaintiffs' fact allegations in this MDL see In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 175 F.Supp.2d 593 (S.D.N.Y.2001) (""MTBE I”) (concerning preemptive effect of Clean Air Act); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 342 F.Supp.2d 147 (S.D.N.Y.2004) (""MTBE III"") (federal agent jurisdiction); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 341 F.Supp.2d 351 (S.D.N.Y.2004) (""MTBE IV"") (declining to abstain); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 341 F.Supp.2d 386 (S.D.N.Y.2004) (""MTBE V”) (bankruptcy jurisdiction); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 361 F.Supp.2d 137 (S.D.N.Y.2004) (""MTBE VI”) (sovereign immunity); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 364 F.Supp.2d 329 (S.D.N.Y.2004) (""MTBE VII”) (preemption constitutes a colorable federal defense for purposes of the federal officer removal statute). . See 12/12/01 Complaint at Law, Quick, et al. v. Shell Oil Co., et al, No. O1-L-147 (Ill."
3039	role and his participation in the conspiracy, noting that Jaimes had not objected to the enhance ment that applied to him based on his role as an organizer or leader in the offense. The court emphasized that the offense involved a large amount of cocaine. That amount was keyed to the guidelines’ the highest offense level based on drug quantity, which the court took as guidance indicating that Jaimes’ criminal conduct was very serious. Based on all of that, the court concluded that only a significant sentence reflected the purposes of § 3553(a)(2). Jaimes has failed to show any abuse of discretion, and we will not substitute our judgment for the district court’s or reweigh the § 3553(a) factors. See Jaimes has not shown that his 300-month sentence is substantively unreasonable. AFFIRMED.
802	We disagree. As a finder of fact ..., a trial judge must give his candid evaluation of plaintiff’s case. If a case is weak to the point of frivolousness, it is appropriate to say so. (Emphasis added.) Id., at 1220. Accordingly, disqualification is not required if an allegation that a judge might not be impartial is only speculative, conclusory, spurious, or vague. Smith v. Pepsico, 434 F.Supp. 524 (S.D.Fla.1977); Mavis v. Commercial Carriers, 408 F.Supp. 55 (C.D.Cal. 1975); Wounded Knee Legal Defense Offense Committee v. F.B.I., 507 F.2d 1281 (1974). In short, when an affidavit of prejudice does not meet the requirements imposed by 28 U.S.C. § 144 or 28 U.S.C. § 455, the Judge has no obligation to disqualify As a matter of law, the trial judge is equally obligated not to recuse himself when the facts do not give support to a charge of prejudgment. U.S. v. Dioro, 451 F.2d 21 (2nd Cir.1971), cert. den. 405 U.S. 955, 92 S.Ct. 1173, 31 L.Ed.2d 232; U.S. v. Devlin, 284 F.Supp. 477 (1968). Plaintiff, a disgruntled and pertinacious litigant, seeks a review of the Court’s Opinion and Order filed on July 10, 1984. The foregoing is apparent from plaintiff’s affidavit closing remarks, to wit: “... so the District Court erred in his [sic] remarks against plaintiff in Opinion and Order the 9th of July, 1984.” The short answer to this inarticulate allegation is that the disqualification statutes were never meant to
936	guiding principle must be that the critical task of evaluating the usefulness and exculpatory value of the information is a matter primarily for defense counsel, who has a different perspective and interest than the police or prosecutor. It is not for the prosecutor to decide not to disclose information that is on its face exculpatory based on an assessment of how that evidence might be explained away or discredited at trial, or ultimately rejected by the fact finder. Zanders v. United States, 999 A.2d 149, 163-64 (D.C.2010) (emphasis added). Denying the Defendant access to this information despite multiple grounds on which it might assist his defense would not comport with the notion of “elementary fairness” underpinning the Brady disclosure requirement. The Court finds the Defendant has made a sufficient showing that the information sought may be favorable to his defense, and therefore must be produced pursuant to the Government’s Brady obligations. B. Motion for Supplemental Expert Discovery The Defendant’s second motion seeks supplemental disclosures from two of the Government’s Experts: Detective Joseph Abdalla and FBI Special Agent Scott Eicher. Pursuant to the Court’s June 1, 2012 Minute Order and Federal Rule of Criminal Procedure 16(a)(1)(G), on July 20, 2012, the Government filed a notice of its anticipated expert witnesses. The notice identified several witnesses — Detective Jo seph Abdalla (narcotics expert), one or more Drug Enforcement Administration Forensic Chemists, Aimee Quilia (FBI fingerprint specialist), Arnold
1164	under 28 U.S.C. § 1292(a)(1). They assert that the interlocutory order appealed from neither compelled the objecting members to do anything nor refused their request for an injunction. They then argue that, to the extent the order had the effect of refusing an injunction, it did not subject the objecting members to irreparable harm, and was, therefore, not appealable. Objecting members assert that the order granted in part and denied in part the plaintiffs’ request for an injunction, thereby supporting appellate jurisdiction under 28 U.S.C. § 1292(a)(1). They take the position that they need not establish irreparable harm, but that if they do, irreparable harm is readily apparent. Second, Defendants urge this court to clarify its holding in  and embrace a rule, adopted in other circuits, that would require unnamed class members to formally intervene before they would have standing to appeal the approval of a class action settlement. They point out that only one of the unnamed class members who now appeals the approval of the settlement sought to intervene, and he did not appeal the denial of his motion to intervene. Defendants further contend that the one named class member who did appeal lost his named plaintiff status when hé filed his notice of appeal while still represented by class counsel. For their part, objecting members argue that under Research Corp., the unnamed class members properly objected to the settlement, thereby preserving their standing to appeal its
1108	this.case. Id. It must be, therefore, that these words are sufficient in the indictment to indicate the existence of, and the form and substance of, the genuine notes, without any more especial description than is furnished by their use. In other words, the language of the statute itself sufficiently describes the offense, without more; and the averments here that the obligation counterfeited was “a United States compound-interest treasury note,” etc., accompanied with the most minute description in hsec verba of the alleged forgery itself, were ample to answer the constitutional requirement that the defendant should have notice of that which he is called upon to defend. U. S. v. Jolly, ante, 108. The state decisions referred to concerning acts of the legislature authorizing private corporations to issue bank-notes, and deciding that the authority to issue the notes and the fact of issuing them should be averred in an indictment for counterfeiting them, are not in point, in my judgment. Those are in the nature of private notes circulated as currency by law, and those facts are perhaps essential, under the statutes or the common law punishing their forgery or use as counterfeits, to be averred; but the United States’ statutes proceed upon a broader ground to punish by general law, designed especially for that purpose, all forging and counterfeiting of any of its obligations or securities, and congress
4390	defendant in the operation of its public schools. In June, 1967, the North Carolina Teachers Association, (hereafter, NCTA), an organization composed primarily of black teachers, and a plaintiff-appellee in the instant case, was permitted to intervene as a party plaintiff in the Boomer case on the ground that the members of its organization constituted a class which had a substantial interest in the subject matter of that action and which class would be directly affected by the outcome of that suit. On August 23, 1967, the District Court in the Boomer case ordered a freedom of choice desegregation plan to be implemented by the defendant. Thereafter, in order to completely desegregate the defendant’s school system in compliance with . 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, on August 5, 1968, the same District Court vitiated its earlier Order in the Boomer case and directed the defendant to establish a unitary school system and, as relevant to the instant action, the District Court further directed that all teacher employment and assignment practices should be conducted without consideration of race or color. To provide for the complete implementation of its Order of August 5, 1968, (hereafter Boomer II), the District Court directed the defendant to file with the Court on or before January 1, 1969, a report containing, among other things, a statistical breakdown of the racial composition of the faculties of each school operated under the jurisdiction of said defendant. Specifically and directly complying
4310	facto arrest, and if at some point the stop escalated into a de facto arrest, there was, by that point, probable cause to justify such arrest. (2) With respect to defendant Lance Jones, the district court did not err in denying his motion to suppress the evidence recovered from the car in which he was riding on November 6, 1999, for the reasons stated above with respect to Lonnie Jones. Lance Jones is not entitled to a mistrial on the ground that he was unfairly prejudiced when jurors observed him in handcuffs during the course of his trial because it was within the discretion of the district court to conclude, after conducting a voir dire, that no prejudice ensued, see  and because, in light of the voir dire, a curative instruction was not required, cf. United States v. Taylor, 562 F.2d 1345, 1359 (2d Cir.1977). The district court was not required to determine whether Lance Jones’ offense level was 33 or 34 because the district court would have imposed the same sentence irrespective of the difference in level. The district court gave an adequate explanation describing Lance Jones’ extensive criminal history that justified a sentence at the upper end of the range corresponding to offense level 33. Accordingly, for the foregoing reasons, we affirm the judgments of conviction and sentences of the district court. As explained in the opinion also filed today, no mandate will issue at this time.
826	of its counterclaim. To prevail on a claim of trademark infringement under Section 32(i) of the Lanham Act, Porsche must show that Liquid Glass (1) used in commerce any reproduction or copy of a “registered mark” in connection with the advertising of any goods (2) which is “likely to cause confusion, or to cause mistake, or to deceive[.]” 15 U.S.C. § 1114(Z )(a). The elements of trade dress infringement under Section 43(a) of the Lanham Act are similar: in terms of this case, the shape of the automobile must be distinctive (defined as either inherently distinctive or having acquired distinctiveness through secondary meaning), non-functional and a likelihood of confusion must .exist from its use by Liquid Glass. And, finally, a claim for false designation of origin or sponsorship requires Porsche to show that Liquid Glass (1) used in commerce any false designation of origin which is (2) likely to cause confusion, mistake or deception as to the “affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services or commercial activities by another person[.]” 15 U.S.C. 1125(a)(1)(A). Liquid Glass does not dispute that Porsche has a registered trademark in its crest and the stylized word PORSCHE, as well as a protectable trade dress in the Porsche 911. Nor does it dispute that it used Porsche’s registered trademark and trade
1856	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 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 otherwise vitiate an affirmative claim by a contractor through the device of the Forfeiture Act could thwart the contractor’s effort to avoid a default termination justified on the basis of fraud. Because the court finds fraud sufficient to sustain the default termination, Triad also fails in its defense to the demand for repayment of unliquidated progress payments. It adds nothing other than confusion to say that Triad was advancing a claim that is now forfeited. The defendant also proposes that the court forfeit “future claims for compensation, including
2098	Lopez-Ordenas, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review the agency’s factual findings for substantial evidence, Alphonsus v. Holder, 705 F.3d 1031, 1050 (9th Cir.2013), and we dismiss in part and deny in part the petition for review. We lack jurisdiction to consider any challenge to the IJ’s finding that Lopez-Ordenas is statutorily ineligible for asylum following the reinstatement of his prior removal order because he did not exhaust it before the BIA. See We similarly lack jurisdiction to consider Lopez-Ordenas’ arguments regarding cancellation of removal or his class membership in Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D.Cal.1991) because he failed to raise them before the BIA. See id. Even if credible, substantial evidence supports the agency’s denial of Lopez-Ordenas’ withholding of removal claim because he failed to establish a nexus between any past or feared future harm and a protected ground. See Parussimova v. Mukasey, 555 F.3d 734, 740-41 (9th Cir.2009) (under the REAL ID Act, applicant must prove a protected ground is at least “one central reason” for persecution). We lack jurisdiction to consider Lopez-Orde-nas’ contentions regarding membership in a particular social group, as he did not exhaust them before the
367	(3) inability to plan for the future; (4) inability to develop useful skills necessary to retain employment; (5) inability to develop personal relationships; (6) inability to feel or show remorse; (7) lack of concern for others; (8) a tendency to derive pleasure from hurting others; (9) inability to learn from experience or punishment; (10) the ability to manipulate others; and (11) the development of extremely strong sex drives with a tendency toward sexual deviancy. He also testified that petitioner’s behavior was becoming increasingly violent and that he would continue to pose a threat to the safety of others even if he were to be incarcerated. . See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). . United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); Woods v. Johnson, 75 F.3d 1017 (5th Cir.), cert. denied, — U.S. -, 117 S.Ct. 150, 136 L.Ed.2d 96 (1996). . Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). . 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). . Chapman, 386 U.S. at 24, 87 S.Ct. at 828. . 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). . Brecht, 507 U.S. at 623, 113 S.Ct. at 1714. . The Texas Court of Criminal Appeals was silent as to which standard it applied. . The district court applied the standard espoused in Brecht
3389	of supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Schomer contends that the district court violated Fed.R.Crim.P. 32.1(b)(2)(B) and his right to due process by engaging in an ex parte conversation with a probation officer who confirmed the allegations against him. We need not reach the issue whether the district court committed error because any alleged error would be harmless in light of the fact that Schomer admitted the violations. See United States v. Daniel, 209 F.3d 1091, 1094 (9th Cir.2000). Schomer’s contention that the imposition of a sentence upon supervised release based on judicial findings violates United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) is foreclosed by AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
1417	remains to be proved, but at this stage the evidence shows a genuine issue of material fact sufficient to survive defendants’ motion for summary judgment. See Fed. R.Civ.P. 56. Defendants also argue that plaintiffs claim for punitive damages in connection with the cause of action for fraud should be stricken. The motion is granted. Where the parties are in a contractual relationship, courts have allowed punitive damages for fraud only where the additional damages are “necessary to vindicate a public right:” New York Univ. v. Cont’l. Ins. Co., 87 N.Y.2d 308, 639 N.Y.S.2d 283, 662 N.E.2d 763, 767 (1995) (citing Rocanova v. Equitable Life Assur. Soc. of U.S., 83 N.Y.2d 603, 612 N.Y.S.2d 339, 634 N.E.2d 940, 943 (1994)); accord This “public harm” requirement ensures that such damages are limited to those necessary to redress wrongs committed under the contract, id.; punitive damages are available where the fraud is an independently actionable tort (i.e., as in this case, where the essence of the allegation is fraudulent inducement), involves a high degree of moral culpability, or “such wanton dishonesty as to imply a criminal indifference to civil obligations.” However, the fraud must be directed at the general population. Rocanova, supra., 634 N.E.2d at 943 (citing Walker v. Sheldon, 10 N.Y.2d 401, 223 N.Y.S.2d 488, 179 N.E.2d 497, 499 (1961)). In the Walker case, 179 N.E.2d at 498, the New York Court of Appeals allowed punitive damages where the defendant’s misrepresentations fraudulently
2379	"Cf. also Windsor Mt. Joy Mut. Ins. Co. v. Pozzi, 832 F.Supp. 138, 140 (E.D.Pa.1993) (""Where ... there is an absence of a controlling federal statute or an established rule of general maritime law, state law governs the scope and validity of contracts of marine insurance.”). . A party is a ""prevailing party” for purposes of awarding costs when the Court has, after considering the merits of the case, awarded that party some relief ""on any issue that is fundamental to the action.” Hygienics Direct Co. v. Medline Indus., 33 Fed.Appx. 621, 625 (3d Cir.2002) (citing County of Morris v. Nationalist Movement, 273 F.3d 527, 536 (3d Cir.2001)) (quoting Delaware River Tow is clearly a prevailing party because the Court entered judgment in its favor after a bench trial. . Indeed, other circuits to have considered the issue have held that a court may not award attorneys' fees in an admiralty case absent a finding that the non-prevailing party acted in bad faith. See Madeja v. Olympic Packers, 310 F.3d 628, 635 (9th Cir.2002) (""The equitable grant of attorneys' fees is appropriate in admiralty only when the shipowner acted arbitrarily, recalcitrantly, or unreasonably.”) (citing Vaughan v. Atkinson, 369 U.S. 527, 531-32, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962)); Galveston County Navigation List. No. 1 v. Hopson Towing Co., 92 F.3d 353, 357 (5th Cir.1996)"
736	(1965). II. The accusations of burglary and grand larceny against appellant Downey were pleaded in a two-count indictment for offenses laid at the Chuck Wagon, a Lynchburg restaurant. Appellant contends that his conduct did not comprise two distinct crimes, albeit they involved separate items of property. It was, he says, but an uninterrupted, continuous act, touching but a single possession — a shop with a cash register and money within — all of a single ownership. Consequently, the contention is that to split his indivisible act into parts, each constituting a crime, is to put him in jeopardy twice for the same wrongdoing, which is proscribed by the Fourteenth Amendment’s embrace of the Fifth. As late as 1970 we held, in  a case arising in Virginia, that the Double Jeopardy Clause does not bar conviction and sentence at one trial for multiple offenses arising from a unitary criminal transaction where each offense rests on different necessary elements. It was declared, relying on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and McGann v. United States, 261 F.2d 956 (4 Cir. 1958), cert. denied, 359 U.S. 974, 79 S.Ct. 891, 3 L.Ed.2d 841 (1959), that the clause is infringed only if all the components of a crime defined under one statute must also be proved to convict under another. “[T]he test to be applied * * * is whether each provision requires proof of an additional
2996	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  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 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
553	"in the absence of ""clear evidence” that Congress so intended. As the Supreme Court held in United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922), the presumption against extraterritoriality ""should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents.” 260 U.S. at 98, 43 S.Ct. 39 (emphasis added). With respect to such statutes, the Supreme Court reasoned, Congress’s intent to regulate conduct abroad may ""be inferred from the nature of the offense.” Id.; see also In the present case, the Government understandably makes no argument that the Bowman rule applies since Gatlin committed a crime against a private individual. Indeed, the Bowman Court explicitly stated that the presumption against extraterritoriality does apply to ""[c]rimes against» private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement and frauds of all kinds.” Bowman, 260 U.S. at 98, 43 S.Ct. 39; see also Kollias v. D & G Marine Maintenance, 29 F.3d 67, 71. (2d Cir.1994) (holding that ""Bowman should be read narrowly,” such that ""only criminal statutes, and perhaps only those relating to the government’s power to prosecute wrongs committed against it, are exempt from the presumption [against extraterritoriality]”)."
4918	"methods by which [the] plaintiffs propose to use the evidence to prove"" those elements. Marcus , 687 F.3d at 600 (citing In re DVI, Inc. Sec. Litig. , 639 F.3d 623, 630 (3d Cir. 2011) ). ""If proof of the essential elements of the [claim] requires individual treatment, then class certification is unsuitable."" Newton v. Merrill Lynch, Pierce, Fenner & Smith Inc. , 259 F.3d 154, 172 (3d Cir. 2001) (citation omitted). To satisfy their wage-and-hour claims, Plaintiffs must show that: (1) pursuant to Citizens' unwritten ""policy-to-violate-the-policy,"" the class MLOs performed overtime work for which they were not properly compensated; and (2) Citizens had actual or constructive knowledge of that policy and of the resulting uncompensated work. See Dep't of Conservation & Natural Res. , 28 F.3d 1076, 1082 (11th Cir. 1994) ); see generally Davis v. Abington Memorial Hosp. , 765 F.3d 236, 240-41 (3d Cir. 2014). Thus, to satisfy the predominance inquiry, Plaintiffs must demonstrate (1) that Citizens' conduct was common as to all of the class members, i.e. , that Plaintiffs' managers were carrying out a ""common mode"" of conduct vis-à-vis the company's internal ""policy-to-violate-the-policy,"" and (2) that Citizens had actual or constructive knowledge of this conduct. See Sullivan , 667 F.3d at 299 ; Dukes , 564 U.S. at 358, 131 S.Ct. 2541 ; see also Tyson Foods, Inc. , 136 S.Ct. at 1046 (explaining that, although a plaintiff's suit"
3668	to have had with the foreign distributors by which he ostensibly served as a mere bailee of their “profits,” the unrebutted evidence in the record demonstrates that he appropriated the funds in question to his own use, expending them on real estate, boats, automobiles and other things. The use of this money, which was subject to Pollock’s sole control unrestricted by any understanding establishing the interest of the distributors in it, is entirely inconsistent with his claimed bailment theory. On the basis of the evidence, the jury was entitled to conclude that the money in question, treated by Pollock as his own, constituted income to him which he should have reported and on which he should have paid taxes. See Pollock’s remaining contention is without merit. Fed.R.Crim.P. 23. The judgment of conviction is affirmed. . The indictment contained five counts, one for each year. . Pollock testified that he did not disclose that he was Manufacturers Export because it was “very difficult to manage the issuance of credit when they knew the individual back of it.” He also testified that he never informed anyone at Vilter (with the exception of a deceased credit manager) of his connection with Manufacturers Export because “the. subject never came up.” . Vilter, in turn, credited some of these funds to an account on its books in the name of Manufacturers Export. The money thus credited by Vilter apparently represented the return of funds which
3968	"and cites the deposition testimony of John Sheahin— senior vice president of employee relations and administration — in support. Neither the deposition testimony nor the plain-language of the FMLA policy supports such a statement. Indeed, the policy states that the company ""has 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.”  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"
919	"7. . Docs. 96-2, 96-5. . Doc. 99 at 4. . Id. at 4, 7. . Id. at 20. . Doc. 79 at 21-22. . Tex. Fam.Code Ann. § 1.101. . Id. (""[EJvery marriage entered into in this state is presumed valid unless expressly made void by Chapter 6 or unless expressly made voidable by Chapter 6 and annulled as provided by that chapter”). . Id. § 6.108. . Doc. 86-15 ¶ 2. . Tex. Fam.Code Ann. § 2.302. . Id. § 1.101; Doc. 79 at 20. . Doc. 54-1 at 4-5. . Doc. 99 at 24. . 29 U.S.C. § 1132(a)(3). . Arocho v. Goodyear Tire & Rubber Co., 88 F.Supp.2d 1175, 1185 (D.Kan.2000). . Id. at 1185 (quoting . Id. (citing cases). . Id. (alteration omitted) (quoting Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610 (5th Cir.1998)). . See id at 1186. (""Goodyear fulfilled its fiduciary obligation of discharging its duties ‘in accordance with the documents and instruments governing the plan.' ”); see also Averhart v. U.S. WEST Management Pension Plan, 46 F.3d 1480, 1489 n. 6 (10th Cir.1994) (""as a matter of law, benefits committee did not breach fiduciary duties by denying benefits to employees who were not entitled to such benefits under the terms of the plan”)."
4343	process for filing claims packages. In addition, it provided telephone numbers for the facilitator and for class counsel to the extent that anyone had any questions. Third, the Court gave objectors ample opportunity to present their objections to the Consent Decree. As noted above, the Court considered all of the written objections that were filed and provided objectors with an opportunity to present their objections orally at the fairness hearing. While the Court denied a request for an evidentiary hearing made by one group of objectors, see Order of March 11, 1999, the Court is not obligated to hold an evidentiary hearing, especially in view of the fact that it accepted apd considered affidavits in place of testimony. See Weinberger v. Kendrick, 698 F.2d 61, 79 (2nd Cir.1982), cert. denied sub nom, Coyne v. Weinberger, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); cf. United States v. Cannons Engineering Corp., 899 F.2d 79, 93-94 (1st Cir.1990). Finally, because the Court has received a number of objections, it is clear that class members do not unanimously support the settlement. It is significant, however, that there are relatively few objections to the settlement in comparison with the size of the class. See Thomas v. Albright, 139 F.3d at 232. This is a large class. As of March 26, 1999, 16,559 farmers had requested claims packages from the facilitator, and the facilitator already has received 1686 completed claim packages. By
4277	above credibility findings are justified. Although 29 U.S.C. § 158(a)(5) does not, on a per se basis, preclude an employer from communicating, in non-coercive terms, with employees during collective bargaining negotiations, Proctor & Gamble Mfg. Co., 160 N.L.R.B. 334, 340 (1966), our review of the record convinces us that Buffalo’s actions in going directly to the employees were designed to achieve contract changes shortly after agreeing to sign a negotiated contract with the Union and, hence, resulted in an unfair labor act. See NLRB v. Goodyear Aerospace Corp., 497 F.2d 747, 752 (6th Cir. 1974). As this court has stated: The National Labor Relations Act does not countenance negotiating with individual employees when they have bargaining representatives. . 678, 683-685, 64 S.Ct. 830, 88 L.Ed. 1007; N.L.R.B. v. Lightner Pub. Corp., 7 Cir., 1940, 113 F.2d 621, 625; N.L.R.B. v. Acme Air Appliance Co., 2 Cir., 1941, 117 F.2d 417, 420. It requires that representatives designated by the majority of employees shall be the exclusive collective bargaining representatives in respect to rates of pay, wages, hours of employment or other conditions of employment. Lion Oil Co. v. NLRB, 245 F.2d 376, 378-79 (8th Cir. 1957). The Board’s findings on this issue are supported by substantial evidence on the record considered as a whole. It follows that the Board properly concluded that Buffalo violated 29 U.S.C. § 158(a)(5) and (1) by bypassing the Union and dealing directly with the employees. The petition for
4211	and [was] subject to further modification after an appropriate amount of time has passed to allow evaluation of [the State’s] modified staffing plan.” (JA at 24.) The district court specifically concluded that Plaintiffs were the prevailing party in the December action and provided for the submission of affidavits for an award of attorney’s fees for the staffing issue and monitoring activities since the January 1995 order. The State contends that Plaintiffs were not a prevailing party, but merely a catalyst which encouraged the State to adopt an increased staffing plan. This Court has clearly rejected the “catalyst theory” as a means of acquiring prevailing party status for the purposes of 42 U.S.CA § 1988. See State Bd. of Ed., 21 F.3d 49, 51 (4th Cir.1994) (en banc)). To acquire prevailing party status, Plaintiffs must “succeed on[a] significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.” Arvinger, 31 F.3d at 200 (quotation omitted). Moreover, “[t]he 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. “In short, a plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Id.
373	"silent as to which standard it applied. . The district court applied the standard espoused in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (Whether the error ""had substantial and injtirious effect or influence on the jury’s verdict""). . 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (""harmless beyond a reasonable doubt”). . Some courts have held that the Brecht standard is applicable only when the state appellate court previously has applied the more stringent Chapman standard. See Starr v. Lockhart, 23 F.3d 1280 (8th Cir.1994) (applying the Chapman harmless error standard on habeas review where state courts had not found constitutional error on direct review, and thus, had not performed harmless error analysis); Other courts have held that the language of Brecht applies to all federal habeas proceedings. See Davis v. Executive Director of Dep't of Corrections, 100 F.3d 750 (10th Cir.1996) (Brecht standard applies to all federal habeas proceedings); Sherman v. Smith, 89 F.3d 1134 (4th Cir.1996) (same); Horsley v. Alabama, 45 F.3d 1486 (11th Cir.1995); Tyson v. Trigg, 50 F.3d 436 (7th Cir.1995) (federal habeas corpus courts should apply the Kotteakos standard even if state courts have not conducted a Chapman analysis.) . 131 F.3d 466 (5th Cir.1997). . 131 F.3d at 499; see Davis v. Executive Director of Dep’t of Corrections, 100 F.3d 750 (10th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1703, 137 L.Ed.2d 828 (1997); Sherman v."
1016	Sections 8(b)(1)(B) and 8(b)(3). We are thus asked to decide whether employer trustees of a Section 302(c) Taft-Hartley Trust are collective bargaining representatives within the meaning of Section 8(b)(1)(B). The Board, relying on its decision in Central Florida Sheet Metal Contractors Assoc., Inc., 234 N.L.R.B. No. 162 (1978), held that the trust fund’s management trustee is not a collective bargaining representative within the meaning of Section 8(b)(1)(B). In Central Florida, the Board concluded that the trustees of a jointly administered, multi-employer trust fund are solely fiduciaries, owing undivided loyalty to the beneficiaries of such a plan, and are not, therefore, collective bargaining representatives. The Board expressly referred to and rejected this Court’s decision in 234 NLRB at 1247 n.31. In Associated Contractors, this Court considered whether the Taft-Hartley Act’s 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
4670	Opinion of the Court Pee Cueiam: This is the second time this case has been before us. The accused was initially convicted of the unpremeditated murder of a fellow American seaman in Yokohama, Japan. Upon our initial review, we gave exhaustive consideration to the facts, and concluded that the accused was amenable to court-martial jurisdiction under Article 2(11), Uniform Code of Military Justice, 50 USC § 552, as a person serving with, or accompanying the armed forces outside the territorial limits of the United States and its possessions. We also held that an issue of involuntary manslaughter had been raised at the trial, and reversed, for the law officer had failed to treat this subject in his instructions. At that time we did not consider the constitutionality of Article 2(11) of the Code, supra, and the constitutional question was not
2439	"FERC's domain. See Oneok, Inc. v. Learjet, Inc., 575 U.S. ----, ----, 135 S.Ct. 1591, 1599, 191 L.Ed.2d 511 (2015) (whether the Natural Gas Act (NGA) preempts a particular state law turns on ""the target at which the state law aims ""). But States may not seek to achieve ends, however legitimate, through regulatory means that intrude on FERC's authority over interstate wholesale rates, as Maryland has done here. See ibid. (distinguishing between ""measures aimed directly at interstate purchasers and wholesalers for resale, and those aimed at subjects left to the States to regulate"" (internal quotation marks omitted)). The problem we have identified with Maryland's program mirrors the problems we identified in Mississippi Power & Light and In each of those cases, a State determined that FERC had failed to ensure the reasonableness of a wholesale rate, and the State therefore prevented a utility from recovering-through retail rates-the full cost of wholesale purchases. See Mississippi Power & Light, 487 U.S., at 360-364, 108 S.Ct. 2428 ; Nantahala, 476 U.S., at 956-962, 106 S.Ct. 2349. This Court invalidated the States' attempts to second-guess the reasonableness of interstate wholesale rates. "" 'Once FERC sets such a rate,' "" we observed in Mississippi Power & Light, "" 'a State may not conclude in setting retail rates that the FERC-approved wholesale rates are unreasonable. A State must rather give effect to Congress' desire to give FERC plenary"
1486	a January 15, 1999 decision of the Immigration Judge (“IJ”). In its 1999 decision, the IJ found, among other things, that Sam sundar was ineligible for adjustment of status because she had entered into her first marriage for the sole purpose of obtaining an immigration benefit. In her original petition for review to our Court, Samsundar argued that the BIA abused its discretion in denying the motion to reconsider the remand. Following the close of briefing, she also filed a motion 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. 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
4119	the Restatement-(Second) of Contracts. The relators argue that because the subcontracts are null and unenforceable, any claims for payment made by the Contractors to FEMA were “false” under the FCA. The relators point to Article 2030 of the Louisiana Civil Code, which states: A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. A contract that is absolutely null may not be confirmed. Absolute nullity may be invoked by any person or may be declared by the court on its own initiative. La. Civ. Code Ann. art. 2030. To support their contract nullity argument, the relators during oral argument pointed to two cases from within this circuit:  and United States v. Fontenot, 665 F.3d 640 (5th Cir. 2011). In Davis, an attorney entered into a business transaction with his client in violation of Rule 5-104(A) of the Louisiana Code of Professional Responsibility, Davis, 58 F.3d at 189-90. Under this rule, before an attorney may enter into a business transaction with a client, the attorney has a fiduciary obligation to “fully disclose” all relevant information and inform the client that the client should contact outside counsel. Anything less than full disclosure may constitute a breach of fiduciary duty by the attorney. Although the case was primarily focused on the relevant statute of limitations rather than the issue of nullity, this court in Davis accepted the client’s classification of
4045	is discretionary. See Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005); see also Luna v. Holder, 637 F.3d 85, 95-96 (2d Cir.2011) (noting the different treatment this Court has accorded to statutory motions to reopen versus regulatory motions to reopen, the latter of which are discretionary). Here, the BIA did not abuse its discretion, as it provided a rational explanation for denying the motion — the 12-year delay in filing. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001); see also, e.g., Zhao Quan Chen v. Gonzales, 492 F.3d 153, 155 (2d Cir.2007) (three-year delay suggested lack of diligence); Cekic v. INS, 435 F.3d 167, 171-72 (2d Cir.2006) (two-year delay suggested lack of diligence); For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
1156	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); 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,
2878	request identification of persons to whom alleged false representations concerning defendant’s acts were made by the plaintiff. This amounts to a request for the names of witnesses. It should not be granted: Midwest Manufacturing Co., Inc., v. Staynew Filter Corporation, D.C., 11 F. Supp. 705. Moreover, if the plaintiff never made any such statements, all it has to do is enter a denial: if it did make the statements, it knows to whom they were made. Consequently, the facts concerning which information are sought are more within the knowledge of the party here seeking the information than of the adverse party, and it would be futile and illogical to grant such a request. The case of This completes the list of requests for information in the motion. The defendant in opposing the motion argues, inter alia, that some of the matters, such as prior publication, etc., concerning which information is sought, are matters of record in suits in other jurisdictions where the plaintiff is a party, and therefore are matters of public record; wherefore the plaintiff should be relegated to the records and not be granted the information requested
1328	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. 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. It said that based on the Bankruptcy Appellate Panel’s holding, projected disposable income is the disposable income from Form B22C, “regardless of whether the debtor would appear to be capable of paying more, as in Frederickson, or alleges she is incapable of paying such amount, as here.” Id. at 242. In so ruling, the Riding court suggested that the result of the Frederickson decision was that an above median income debtor who is unable to pay the amount required by Form B22C is left with two difficult choices. First, the
4104	the advice of his staff judge advocate. We commend such corrective action by the staff judge advocate and the convening authority taken during the initial review of the appellant's conviction. . Based on this incident, the appellant was charged with indecent assault. Although he was acquitted of that offense, he admitted pulling off her pajama top. Prosecution Exhibits 3 and 9. . In light of clear precedent contrary to appellant’s position, and the fact he did not cite these cases to this court, coupled with the fact that the appellant has cited no authority which supports his position, the appellant's third assignment of error is disingenuous at best. Noting also that this assignment of error was not raised pursuant to  we remind counsel of their ethical obligation to cite authority to this court which is contrary to the position they are advancing. Judge Advocate General Instruction 5803.1A, Rule 3-3 (Ch-3, 20 May 1996). . IV. THE CONVENING AUTHORITY ERRED BY APPROVING A PUNISHMENT GREATER THAN THAT WHICH COULD BE IMPOSED AT A NON-BCD SPECIAL COURT-MARTIAL, BECAUSE THE ARTICLE 32 INVESTIGATION IS MISSING FROM THE RECORD. V. THIS COURT, BY REQUIRING ONLY ONE JUDGE OF THE PANEL TO READ THE RECORD OF TRIAL BEFORE THE PANEL ISSUES A DECISION, VIOLATES ITS OBLIGATIONS UNDER ARTICLE 66, UNIFORM CODE OF MILITARY JUSTICE. . Although this assignment of error was not raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), appellant cites language
4280	the Union and, hence, resulted in an unfair labor act. See NLRB v. Goodyear Aerospace Corp., 497 F.2d 747, 752 (6th Cir. 1974). As this court has stated: The National Labor Relations Act does not countenance negotiating with individual employees when they have bargaining representatives. Medo Photo Supply Corp. v. N.L.R.B., 1944, 321 U.S. 678, 683-685, 64 S.Ct. 830, 88 L.Ed. 1007; N.L.R.B. v. Lightner Pub. Corp., 7 Cir., 1940, 113 F.2d 621, 625; N.L.R.B. v. Acme Air Appliance Co., 2 Cir., 1941, 117 F.2d 417, 420. It requires that representatives designated by the majority of employees shall be the exclusive collective bargaining representatives in respect to rates of pay, wages, hours of employment or other conditions of employment. The Board’s findings on this issue are supported by substantial evidence on the record considered as a whole. It follows that the Board properly concluded that Buffalo violated 29 U.S.C. § 158(a)(5) and (1) by bypassing the Union and dealing directly with the employees. The petition for review is denied and the Board’s order will be enforced. . The Board’s decision and order are reported at 227 N.L.R.B. No. 20. . The administrative law judge found that the general counsel “has not established that the Respondent made threats of economic reprisals violative of Section 8(a)(1) of the Act.” . Member Peter D. Walther, in his dissent, found that the administrative law judge’s findings and credibility resolutions were implausible. Accordingly,
1125	"file a brief in support of her contention that the allocation of the costs of arbitration called for by the Letter Agreement is unconscionable. Defendants shall file any brief in response no later than June 6, 2016. . As quoted above, the arbitration clause provides that ""THE ARBITRATOR SHALL NOT AWARD ANY PARTY PUNITIVE OR EXEMPLARY DAMAGES, AND EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO SEEK SUCH DAMAGES,” . A Title VII plaintiff may recover punitive damages for intentional discrimination where ""the complaining party demonstrates that the respondent engaged in ... discriminatory practices with malice or with reckless indifference to ... federally protected rights.” 42 U.S.C. § 1981a(b)(1). Likewise, punitive damages are available under § 1981. See . 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."
2291	documents from the premises, and a firm employee photocopied the files during office hours while Mr. Center chatted with firm members. Therefore, we agree with the district court’s finding that Mr. Center had implicit permission from the firm to copy documents. Finally, Mr. White alleges that outrageous conduct by the government justifies reversal of his conviction. We have previously noted that there is doubt as to the validity of the outrageous governmental conduct doctrine. United States v. D’Antoni, 874 F.2d 1214, 1219 (7th Cir.1989); United States v. Bontkowski, 865 F.2d 129, 131 (7th Cir.1989); but see United States v. Miller, 891 F.2d 1265, 1267 n. 2 (7th Cir.1989). In any event we have never reversed a conviction on this ground. United States v. Sababu, 891 F.2d 1308, 1326 (7th Cir.1989). In the initial opinion in this case, we suggested that: [i]f, however, the government, having the kind of hold over an attorney that it had over Center—for when it approached him he had been convicted but not yet sentenced—extracts from him client secrets that it then uses in a criminal trial of the client to the latter’s substantial prejudice, this might be the kind of serious governmental misconduct that would violate a criminal defendant’s rights under the due process clause of the Fifth Amendment. 879 F.2d at 1513. Of course, based on our earlier conclusions in this case, there were no actions which could be claimed to constitute outrageous conduct.
3828	present offenses, age is generally not a relevant factor in sentencing, and Balleza has not shown why his sentence was unreasonable simply because of his relative youth. See United States v. Simmons, 470 F.3d 1115, 1130-31 (5th Cir.2006). Finally, while Balleza maintains that his background and role in the offense did not justify the sentence he received, the facts set forth in the PSR that were adopted by the district court showed that Balleza significantly participated in a major drug conspiracy for a substantial amount of time. Given the facts of the case and the deference given to district court sentencing decisions, Balleza has not shown that the district court abused its discretion or that the sentence was unreasonable. See AFFIRMED. . We take this opportunity to clarify this court's jurisprudence on whether an overt act in furtherance of the conspiracy is an element of the offense of conspiracy to launder money in violation of 18 U.S.C. § 1956(h). It is not. Overruling United States v. Wilson, 249 F.3d 366, 379 (5th Cir.2001), the Supreme Court held that an overt act is not an element of conspiracy to launder money. Whitfield v. United States, 543 U.S. 209, 214, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005). After Whitfield, this court mistakenly recited in dicta that an overt act is an element of the offense. United States v. Bueno, 585 F.3d 847, 850 (5th Cir. 2009); United States v. Armstrong, 550 F.3d
2303	course of business are examples of possible fraudulent intention.” Credit Union of Amer., 234 Kan. at 780, 676 P.2d 99. The bankruptcy court further noted that the parties introduced no evidence regarding the second and fourth badges of fraud — the transferee’s knowledge of pending litigation and the transferee’s belief that the assets were the last assets subject to a Kansas execution. However, as dot’s sole shareholder, officer and director, as well as the one performing the liquidation, Gaddis knew at the time he was making transfers to himself that dot’s assets were rapidly diminishing, leaving no funds to pay the creditors. The circumstances surrounding the transfers from dot to Gaddis are similar to those in In Dwyer, the trustee sought to recover funds the defendants had transferred to themselves prior to the corporation’s bankruptcy. Id. at 3. The defendants were the sole officers, stockholders and directors of the corporate debtor. Id. They withdrew all of the funds in the corporation’s bank account to finance a trip to Las Vegas, hoping to win enough money to pay the corporation’s creditors. Id. The trustee claimed the transfers to the defendants constituted fraudulent transfers. Id. Like Gaddis, the defendants claimed they were entitled to the money as payment for their salaries. Id. Apparently, they had not drawn salaries for an extended period of time, and they claimed they were justified in making the withdrawals. Id. The court found that transactions
2412	discharging petitioner for a period of ten days. Subsequent orders of this Court have extended that restraining order during the processing of this suit. II. Respondent’s alternative motion is based upon a theory of exhaustion of remedies. Under 10 United States Code § 1552(a), the Army Board for Correction of Military Records (ABCMR) is empowered to review and correct petitioner’s military records, including the findings made by the Physical Review Council. Cf. Hendrick v. United States, 150 Ct.Cl. 437 (1963). As petitioner concedes, he has made no application for relief to the ABCMR and has therefore not exhausted his military remedies. But petitioner’s failure to exhaust his military remedies does not automatically require that this Court dismiss the pending action. In d 537 (9th Cir. 1965) , an Army enlisted man sought to enjoin the Army from dishonorably discharging him pursuant to an allegedly unconstitutional Board of Officers inquiry. The defendants moved to dismiss on the ground that, since no application for relief was made to the ABCMR, plaintiff had failed to exhaust available military remedies. The district court, while agreeing that plaintiff had not exhausted, refused to dismiss the action. Instead, the Court noted that under 5 U.S.C. § 1009(d), it could stay the discharge pending completion of the military’s administrative processes. More importantly, it found that plaintiff had fulfilled all of the conditions traditionally required for the .granting of such a stay: (1) A likelihood that petitioner
4892	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 verdict in favor of the municipal defendant, the Town of Brookline, was against the weight of the evidence. The decision to grant or deny a motion under Rule 59 or 60 is committed to the wide discretion of the district court and must be respected absent abuse. United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 660 (1st Cir.1990); 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
1826	"inquiry is whether the person seeking suppression in fact possesses enough of a connection to the home to trigger the protections of the Fourth Amendment. If the search of the curtilage had turned up something belonging to another resident of the home, such as illegal drugs or child pornography, that other resident would be entitled to contest that search and seek to suppress the evidence. That would be so even though the police had never given any thought to the possibility of another resident or her connection to the property. Here, Richmond does have a Fourth Amendment interest in the home, giving him the necessary interest to contest the search and the right to seek suppression of illegally collected evidence. The government might point to United States v. Santana , 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), as support for its position, but nothing in that case is in tension with the later decisions in Jardines and Collins . The only common element is the fact that a person's front porch featured in the facts. Otherwise, everything that is missing here was present there. First, the district court found, and the Supreme Court confirmed, that the police had ""strong probable cause"" that defendant Santana had just participated in an illegal sale of narcotics. Id. at 41-42, 96 S.Ct. 2406. Second, it found that Santana herself was in a public place as she"
2978	to the person, but also to any particular offense which, under the facts and circumstances of its commission, actually posed such a risk. Under this view, the particular instance of storehouse breaking at issue here might qualify as a violent felony, for it involved the heaving of a brick through the plate glass window of a jewelry store. While the case is indeed a close one, 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); 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
1734	(2005). Accord Broder v. Cablevision Sys. Corp., 418 F.3d 187 (2d Cir.2005). . Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Two exceptions to the well-pleaded complaint rule permit removal of state law actions: when the claims are completely preempted by federal law and 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). . 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
3224	a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount except to the extent that— (1) such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or un-matured; ... As noted in In re Continental Airlines Corp., 57 B.R. 845, 849 (Bankr.S.D.Tex. 1985): The Bankruptcy Court must determine the allowability of claims for both summary judgment and estimation purposes by applying the appropriate substantive law which would be applied in the non-bankruptcy context. See, e.g., Vanston Bondholders Protective Comm. v. Green, 329 U.S. 156, 161, 67 S.Ct. 237, 239, 91 L.Ed. 162 (1946). See also Mazirow v. Grigsby, {In re White Motor Corp.), 44 B.R. 563 (ND.Ohio 1984). 3 Collier on Bankruptcy ¶ 502.02 at 502-27 to 29 (15th ed. 1987); Bordewieck & Countryman, The Rejection of Collective Bargaining Agreements by Chapter 11 Debtors, 57 Am.Bankr.L.J. 293, 330-31 (1983). Note, The Bankruptcy Law’s Effect on Collective Bargaining Agreements, 81 Colum.L.Rev. 391 (1981). In this case, the Committee’s claim for breach of the collective bargaining agreement is determined by reference to the federal common law of labor contracts which has developed under 29 U.S.C. § 185 (Labor Management Relations Act, § 301). Textile Workers
2345	WINTER, Circuit Judge: Once again we address an appeal from a denial of Social Security disability benefits by the Secretary of Health and Human Services on a factual record that implicates the so-called “treating physician” rule. Notwithstanding assurances that the Secretary adheres to this rule as his national policy, see  Schisler v. Heckler, 787 F.2d 76, 83 (2d Cir.1986), the record in the instant case discloses no awareness of that rule among the relevant Social Security Administration adjudicators. We therefore reverse and remand. Dan Havas injured his back on January 17, 1983, while operating a snow blower in the course of his employment as supervisor of a work crew for the New York State Department of Environmental Conservation. He was then 57 years old. Havas sought treatment for back pain from Dr. Edwin G. Mulbury, his general physician, who referred him to Dr. Brian O’M. Quinn, an orthopedist. Dr. Quinn determined that Havas was suffering from acute “L4-5 disc disease on the left side” as well as from chronic “degenerative
3905	behavior is tantamount to a secretion or improper disposition of assets. Additionally, plaintiffs assert that attachment is warranted under either § 6201(5) or (8) because the underlying contract was fraudulently induced by defendants’ false financial statements and because Premium, after having secured credit from the plaintiffs, pledged virtually all its assets to its bank (The United Americas Bank) in exchange for additional financing which would create the appearance that it was a feasible operation, thereby luring unsecured trade creditors such as plaintiffs into dealing with them. There has been, it is fair to say, a good deal of confusion concerning the question of what burden must be borne by a party seeking to vacate a writ of attachment. In  a three judge statutory court found that New York’s statutory scheme provided for vacation only when defendant could prove that the provisional remedy was unnecessary to the security of the plaintiff (i. e., defendant’s assets were substantial and permanent enough to insure plaintiff of payment in the event of a judgment favorable to him), or else that the plaintiff’s underlying cause of action could not ultimately prevail. The court in Sugar held that these requirements placed a burden so heavy upon the party seeking to dissolve the writ that it rendered the necessary post-seizure hearing meaningless, and thus violated the defendant’s 14th Amendment right to due process. Upon review by the Supreme Court, sub nom. Carey v. Sugar, 425 U.S. 73, 96
1381	and/or implementation of the policies and procedures, the training practices which implement the policies and procedures and/or the versions of various policies and procedures which were in effect in February 2015.” (Doc. 36-5 at 4 ¶ 18) When asked why she believed Young-blood to be a better source for this information than those who develop and implement these policies, she reported only that she did not believe that Youngblood didn’t have more knowledge than the employees who develop, administer and train on these policies. The Court may refuse to allow the deposition of the apex employee before the party makes effort to take the deposition of lower level employees who are more closely tied to the issues to be addressed. See Thus, the Court will GRANT the protective order. In the event that plaintiffs take the depositions of, or propound other discovery to, those actually involved in the development and implementation of the relevant policies and plaintiffs make a showing that they made reasonable efforts to obtain the needed evidence but cannot do so except via a deposition of Youngblood, the Court will consider lifting the protective order at that time. VI. Conclusion and Order Based upon the foregoing, the Court ORDERS: Defendants’ motion for a protective order is GRANTED. IT IS SO ORDERED. . The Court has found no allegation in the complaint that the Plaintiffs assert that the decedent was under the influence of any substances or that
4844	Tennessee shareholders only. See CTS, 107 S.Ct. at 1651 (a state “has no interest in protecting nonresident shareholders of nonresident corporations.”) The IPA provides little help to shareholders to the extent it duplicates the disclosure requirements of the Williams Act. But to the extent the IPA diverges from federal law its protections are speculative. MITE found unconstitutional an Illinois statute similar to the IPA. The MITE Court agreed with the court below that “the disclosures required by the Illinois Act which go beyond those mandated by the Williams Act and the regulations pursuant to it may not substantially enhance the shareholders’ ability to make informed decisions.” Id. 457 U.S. at 645, 102 S.Ct. at 2642. See also Cf. L.P. Acquisition Co. v. Tyson, 772 F.2d 201, 207 (6th Cir.1985) (distinguishing MITE and Martin-Marietta Corp. v. Bendix Corp. in partially upholding Michigan takeover statute because § 14(d) of the Williams Act did not apply to tender offer at issue and “in the absence of the federal disclosure requirements, the state’s interest in protecting resident shareholders is enhanced.”) This Court, like the MITE majority, is unconvinced that the statute at issue “substantially enhances the shareholders’ position.” MITE, 457 U.S. at 644, 102 S.Ct. at 2642. This Court in fact suspects that shareholder protection may not be the primary purpose of the IPA. The IPA, like the other Tennessee
625	JOHN P. MOORE, Circuit Judge. In this petition for review St. Anthony Hospital Systems, Inc. (Hospital) challenges a National Labor Relations Board decision ordering the Hospital to bargain with the St. Anthony Federation of Nurses and Health Professionals, AFT/FNHP, CFT, AFL-CIO (Union). Specifically, the Hospital claims the Board’s all technical bargaining unit does not satisfy the “disparity of interests” test adopted by this court in Luke’s), modified, Beth Israel Hosp. and Geriatric Center v. NLRB, 688 F.2d 697 (10th Cir.) (en banc), cert. dismissed, 459 U.S. 1025, 103 S.Ct. 433, 74 L.Ed.2d 522 (1982). In addition, the Hospital contends a new election is necessary because the radiologic technologists and registered respiratory therapist I and II positions included in the technical unit more appropriately belong in the professional unit. We do not accept either of the Hospital’s claims; consequently, the Hospital’s petition for review is denied and the Board’s cross-petition for enforcement is granted. St. Anthony Hospital Systems, Inc. operates two hospital facilities within a ten mile radius in the Denver metropolitan area. In December 1979, the Union petitioned the Board to represent a bargaining unit
2247	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); 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 Defendants “abused their discretion” in not maintaining copies of particular documents in his Central File and by categorizing those documents as exempt from the Freedom of Information Act. In response, the Defendants have requested the disposition of this case for primarily two reasons. First, it is argued that the entire complaint is vexatious in nature and “falls squarely within the definition of ‘immaterial,
447	Superintendent timely filed a motion to dismiss Castillo’s amended complaint, which stayed the deadline for them to file a responsive pleading. See Fed.R.Civ.P. 12(a)(4)(A). The district court did not err in dismissing Castillo’s amended complaint that asserted the educational rights of a disabled child: she — never asserting futility or inadequacy — failed to exhaust her administrative remedies under the IDEA before bringing her suit. See 20 U.S.C. §1415(1); M.T.V. v. DeKalb Cty. Sch. Dist., 446 F.3d 1153, 1157-59 (11th Cir.2006). We decline to consider Castillo’s assertion (without specifics) that the district court judge acted improperly and the allegations on docket entry errors and delayed service: she raised these arguments for the first time on appeal. See AFFIRMED. Castillo identifies 13 issues in her statement of the issues, several of which address or restate the same fundamental concepts. We address those issues into four broad issues.
2913	"to 19 U.S.C. § 1677(16)(A). D. The Department’s Claimed Reliance on a Practice Not to Alter a Model-Match Methodology Absent Compelling Reasons Does Not Suffice to Sustain the Remand Redetermination The Remand Redetermination relies on a claimed ""practice ... not to alter a model-match methodology developed at an earlier stage of a proceeding absent `compelling reasons’ for the modification."" Remand Redetermination 4. In support of this reliance, the Remand Redetermination cites various decisions of the Court of International Trade for the proposition that the practice is grounded in a reasonable construction of the antidumping statute. Id. (citing Fagersta Stainless AB v. United States, 32 CIT —, 577 F.Supp.2d 1270 (2008); v. United States, 31 CIT 1395 (2007)). After making various factual findings, the Remand Redetermination states as follows: ""[t]he Department finds on remand that the record evidence does not support the assertion that meaningful physical and commercial differences between laminated and other painted CORE products justify a departure from its previous model match methodology."" Id. at 10. The prior decisions of the Court of International Trade cited in the Remand Re-determination are not binding on the court in this case. More important, however, is that those prior decisions do not state a principle under which the court may affirm the Remand Redetermination. None of the cited cases hold that the Department is free to do what it"
3878	Ladder Co., 183 F.3d 339, 342 (5th Cir.1999) (stating that this court will not allow a party to raise a claim for the first time on appeal). Bonneville’s appeal is without arguable merit and, therefore, frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.1983). Accordingly, the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. In light of the foregoing and because Bonneville has not shown the existence of exceptional circumstances warranting the appointment of counsel, his motion is denied. See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir.1982). The district court’s dismissal of Bonneville’s complaint as frivolous and this court’s dismissal of his appeal as frivolous count as two strikes for purposes of § 1915(g). See Bonneville is hereby cautioned that if he accumulates three strikes he will no longer be allowed to proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he “is under imminent danger of serious physical injury.” § 1915(g). APPEAL DISMISSED; MOTION FOR THE APPOINTMENT OF COUNSEL DENIED; SANCTION WARNING ISSUED. 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.
1720	"Line in Limestone Township, Illinois. Id. ¶¶ 23-26. . See id. ¶ 12. . See Plaintiffs' Motion for Remand and Objections to Removal (""Motion for Remand”) at 1. . See, e.g., Complaint III ¶ 63 (""Before introducing MTBE into gasoline, Shell Oil knew or reasonably should have known, ... that MTBE released into the environment would mix easily with ground water, resist biodegradation and/or bioremediation, render drinking 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 . 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"
2217	determined solely by the means employed to transfer legal title. Rather, the transaction must be viewed as a whole, and each step, from the commencement of negotiations to the consummation of the sale, 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 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
3903	December rent total-ling $4,766 plus two payments of $718.23 each) and is confident that it will be able to make another payment of some $3,101 on January 1, the Debtor may then utilize this money to move to a new location. Accordingly, the Debtor will not be irreparably harmed. Second, the court finds this offer is too little, too late and indeed may harm R & J. Section 365(b)(1)(A) of the Bankruptcy Code speaks of a “prompt cure” or “adequate assurance of a prompt cure.” As Congress has failed to define what “prompt” means, that time frame can vary according to the circumstances of a given case. In at least one case “prompt” cure meant an immediate payment. In this case, commencing to pay the prepetition arrear-age in monthly installments some six months after the order for relief does not comport with the requirements of § 365(b)(1)(A). Finally, based on this Debtor’s financial condition, the court believes that, as in Cybernetics, this arrangement will only leave R & J with an unpaid administrative claim for some or all of the pre-petition arrearage. As to the third element, R & J also argues that based on past rental payment history, if the Debtor is allowed to continue in possession, R & J will likely be harmed. Apparently the Debtor’s rent payment is the sole income of R & J’s owner who is ill and has been unable to work for the
1937	by the United States Attorney's Office, agreed to a severance of the “bankruptcy” counts (Counts XVI — XXI) from the “hazardous waste” counts (Counts I — XV) of the Indictment, reiterated its previous position that it did not intend to introduce Rule 404(b) evidence, and acknowledged its responsibilities under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and the Jencks Act. On November 15, 1993, Richard I. Johnson, Sr. submitted a Reply Memorandum and a Reply Affirmation of his attorney. In it, he argued that Counts II and III and parts of Count I are facially insufficient, in reliance on the Report and Recommendation of Magistrate Judge Robert P. Murrian in Oral argument was heard before the undersigned on November 18, 1993, at which time the court scheduled the filing of any additional papers. On November 30, 1993, the Government filed a Statement as to Allegation of Hazardous Waste in the Indictment. In it, the Government outlined the anticipated proof as to the hazardous wastes in the challenged counts, acknowledged the invalidation of the “mixture” and “derived-from” rules, and stated that neither rule was used in the charge to the Grand Jury nor would be requested to be included in a charge to the jury at trial. See Government’s Statement, filed November 30, 1993, at 10. On December 29, 1993, Richard I. Johnson, Sr. filed a motion and Memorandum of Law seeking the
2289	The evidence is that a partner of the firm knew that Mr. Center was at the firm to review documents, Mr. Center openly reviewed the files in the firm’s library and did not remove the original documents from the premises, and a firm employee photocopied the files during office hours while Mr. Center chatted with firm members. Therefore, we agree with the district court’s finding that Mr. Center had implicit permission from the firm to copy documents. Finally, Mr. White alleges that outrageous conduct by the government justifies reversal of his conviction. We have previously noted that there is doubt as to the validity of the outrageous governmental conduct doctrine. United States v. D’Antoni, 874 F.2d 1214, 1219 (7th Cir.1989); but see United States v. Miller, 891 F.2d 1265, 1267 n. 2 (7th Cir.1989). In any event we have never reversed a conviction on this ground. United States v. Duncan, 896 F.2d 271, 275 (7th Cir.1990); United States v. Sababu, 891 F.2d 1308, 1326 (7th Cir.1989). In the initial opinion in this case, we suggested that: [i]f, however, the government, having the kind of hold over an attorney that it had over Center—for when it approached him he had been convicted but not yet sentenced—extracts from him client secrets that it then uses in a criminal trial of the client to the latter’s substantial prejudice, this might be the kind of serious governmental misconduct that would violate a criminal defendant’s
2892	13, a plan should not be confirmed if the property to be distributed under the plan is less than the amount each allowed unsecured creditor would be paid if the debtor’s estate were liquidated under Chapter 7. 11 U.S.C. § 1325(a)(4). EAC argues that because a student loan is not dischargeable under Chapter 7, EAC would have been entitled to payment in full, thus, the loan should not be discharged under Chapter 13. The simple fact that a loan that is nondischargeable under Chapter 7 does not make it nondischargeable under Chapter 13. The district court correctly rejected this argument. See In re Estus, 695 F.2d 311, 314 n. 5 (8th Cir.1982); In re Johnson, 787 F.2d 1179, 1181 (7th Cir.1986); In re Akin, 54 B.R. 700, 702 (Bkrtcy.D.Neb.1985). The relevant issue is whether a creditor would in fact receive more in a Chapter 7 liquidation than it will under the proposed Chapter 13 plan. To determine this, the bankruptcy court mus. value the estate property, taking into account those assets that would be beyond the reach of the creditors in a Chapter 7 liquidation. If any creditor would receive more in a liquidation, the plan may not be confirmed. Thus, even if the loan could not have been discharged under Chapter 7, that does not mean that EAC would actually have been paid in a liquidation. If a debtor has little or no non-exempt assets in his
4438	costs, does not exceed ten percent of the current assets of the company and its subsidiaries on a consolidated basis. The defendants argue that because the potential AIG suit would not satisfy this disclosure requirement, which is more directly on point for litigation, Item 303 should not be held to apply. It is unnecessary to reach this argument. . Although the plaintiffs originally argued that the defendants had a motive to conceal the AIG suit in order to raise capital, (SAC ¶ 212), the plaintiffs have abandoned that argument. (See Plaintiffs’ Opposition at 29-40.) The decision to do so is unsurprising because the alleged motive to raise capital is a generic one insufficient to support scienter. See, e.g., . While the defendants also allege that the plaintiffs have failed to allege loss causation, it is unnecessary to reach that argument.
3774	litigate its own rights and interests and not those of a third party. See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1251-52 (5th Cir.1995). A party may assert a third party’s rights if they share a close relationship, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (school and parents); Craig v. Boren, 429 U.S. 190, 195, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (bartender and customers); if the third party is unlikely or unable to defend his or her rights in court, Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953); 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
791	was entered thereon on July 20, 1984. The motion for recusal was filed on August 28, 1984, subsequent to this Court’s order of August 22, 1984, scheduling a hearing on defendant’s application for attorneys’ fees. In order to disqualify a judge, a timely objection must be made, otherwise the objection is waived. U.S. v. Hall, 424 F.Supp. 508, affmd., 536 F.2d 313, cert. den., 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285; Andrews, Mosburg, Davis, Elam, Legg & Bixter, Inc. v. General Ins. Co. of America, 418 F.Supp. 304 (D.C.Okl.1976). Accordingly, a motion for disqualification is untimely and becomes moot when filed after judgment. Kent v. Regional Office of Am. Friends Service Committee, 497 F.2d 1325, 1330 (9th Cir. 1974); U.S. v. Hall, 424 F.Supp. 508, affmd., 536 F.2d 313; Davis v. Cities Service Oil Co., 420 F.2d 1278 (10th Cir.1970). Plaintiffs motion filed 19 days after entry of Judgment is clearly untimely. B. SUFFICIENCY OF AFFIDAVIT. Plaintiff’s affidavit is a mixture of conclusory allegations, legal arguments, hearsay speculations, non sequiteurs, and irrelevant matters. Plaintiff asserts that attorney Harvey Nachman, a former law partner of the undersigned judge, is at present counsel for the undersigned judge. Plaintiff further alleges that: “Attorney William Estrella, representing defendants in the above captioned case, and Attorney Harvey Nachman, have been law partners for many years, and they too enjoy an ongoing professional relationship, jointly litigating cases in the Federal District Court. Attorney William Estrella,
799	S.Ct. 1181, 51 L.Ed.2d 585; Blizard v. Frechette, 601 F.2d 1217, 1220 (1st Cir.1979). “... appellant argues that the Judge’s recitation of record support for all of his less-than-complimentary findings of fact demonstrates a subjective, self-justifying approach to the section 455(a) issue where an objective evaluation of the appearance created by his prior words and acts was called for. We disagree. As a finder of fact ..., a trial judge must give his candid evaluation of plaintiff’s case. If a case is weak to the point of frivolousness, it is appropriate to say so. (Emphasis added.) Id., at 1220. Accordingly, disqualification is not required if an allegation that a judge might not be impartial is only speculative, conclusory, spurious, or vague. Mavis v. Commercial Carriers, 408 F.Supp. 55 (C.D.Cal. 1975); Wounded Knee Legal Defense Offense Committee v. F.B.I., 507 F.2d 1281 (1974). In short, when an affidavit of prejudice does not meet the requirements imposed by 28 U.S.C. § 144 or 28 U.S.C. § 455, the Judge has no obligation to disqualify himself. U.S. v. Anderson, 433 F.2d 856 (8th Cir.1970). As a matter of law, the trial judge is equally obligated not to recuse himself when the facts do not give support to a charge of prejudgment. U.S. v. Dioro, 451 F.2d 21 (2nd Cir.1971), cert. den. 405 U.S. 955, 92 S.Ct. 1173, 31 L.Ed.2d 232; U.S. v. Devlin, 284 F.Supp. 477 (1968). Plaintiff, a disgruntled and pertinacious litigant, seeks a review
3571	area of the law is from Michigan. See Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627 (1959) (ear manufacturer had duty to warn purchasers of defective brakes that it discovered after sale). Unfortunately, the parties have not cited, nor has the court discovered, any Michigan cases that deal with the specific issue at hand. To escape the contractual stipulation against consequential and special damages, the plaintiffs argue that the duty to warn is independent from any contractual obligation. They insist that the focus should be on the defendant’s post-sale tortious behavior, not the defective product. Although the plaintiffs did not cite this case, perhaps the most eloquent rendition of their argument can be found in In this maritime case, the plaintiffs’ commercial fishing expedition was delayed by a faulty boat engine manufactured by Caterpillar. Although the plaintiffs suffered great economic loss, the engine’s warranty limited recovery to repair costs. Id. at 815-17. In discussing the plaintiffs’ claim that Caterpillar failed to warn of defects it discovered after sale, the court stated that: [w]hatever the merits of adopting a rule that views defects in a product as part of the parties’ bargain and thus within the law of sales, it is much less tenable to presume that the buyer has bargained away the manufacturer’s obligation to warn of defects that later come to the manufacturer’s attention. A duty to warn of a product’s defects of which the
2937	its scrutiny to the 1972 trial, when the allegedly unconstitutional acts complained of occurred.) An analysis of petitioner’s claim reveals that it can be divided into two issues for consideration: (i) whether a conflict of interest existed, which compromised defense counsel’s representation of petitioner and (ii) whether defense counsel’s representation was so lacking as to be ineffective assistance of counsel. In resolving this controversy, it is important to keep two basic principles in view. First, federal habeas corpus is not mere appellate review, and relief is granted only for violation of federal constitutional rights. Second, habea's corpus is a civil action in which petitioner carries the burden of proof in withstanding the strong presumption of the constitutionality of state judicial proceedings. To obtain relief, petitioner must prove by a preponderance of the evidence that his constitutional rights were denied. Post v. Boles, 332 F.2d 738 (4th Cir. 1964), cert. den., 380 U.S. 981, 85 S.Ct. 1346, 14 L.Ed.2d 274 (1965). A. Conflict of Interest Petitioner Durham alleges that David G. Simpson, one of the attorneys who conducted his 1972 trial, labored under a loyalty to another person, which caused Simpson to compromise his representation of petitioner. Attorney Simpson had originally been appointed in 1964 to defend Otha Howard, who on the basis of petitioner’s confession had been indicted along with petitioner for the Double Toll Gate slayings. The charges against Howard were nolle prossed, apparently because the Commonwealth’s Attor ney became convinced that
664	properly owner’s expectations — limits recovery to owners who can demonstrate that they bought their property in reliance on the nonexistence of the challenged regulation. One who buys with knowledge of a restraint assumes the risk of economic loss. Concrete Pipe & Prods., Inc. v. Construction Laborers Pension Trust for S. Cal., — U.S. -, ---, 113 S.Ct. 2264, 2291-92, 124 L.Ed.2d 539 (1993); Golden Pacific Bancorp v. United States, 15 F.3d 1066 (Fed.Cir.1994). In such a case, the owner presumably paid a discounted price for the property. Compensating him for a “taking” would confer a windfall. Finally, the Constitution recognizes a distinction between a temporary and a permanent taking. U.S. Const., amend. V; Simply declaring a regulation that takes property invalid does not grant a constitutionally sufficient remedy. First English, 482 U.S. at 319, 107 S.Ct. at 2388; Yuba Natural Resources, Inc. v. United States, 821 F.2d 638, 641-42 (Fed.Cir.1987). Thus, property owners cannot sue for a temporary taking until the regulatory process that began it has ended. This is because they would not know the extent of their damages until the Government completes the “temporary” taking. Only then may property owners seek compensation. First English, 482 U.S. at 321-22, 107 S.Ct. at 2389-90. II. This case features allegations of both temporary and permanent takings. First, the temporary taking claim. On November 16, 1976, General Wilson ordered a halt
4542	"not premised on the form of relief sought, but rather on the bases for “policymaker” liability. See Flanders v. Maricopa Cnty., 203 Ariz. 368, 378, 54 P.3d 837 (Ariz.Ct.App.2002). As will be discussed at greater length in Part III(B)(i), infra, the logic of “policymaker” liability under § 1983 applies to produce institutional liability under Title VI and its sister statute, Title IX, as well. See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (holding that a successful showing of a Title VI violation rests on the actions of a decisionmaker). The Court’s previous order relied on numerous state court decisions identifying the sheriff as a policymaker for Maricopa County,  (Doc. 56), and that determination is the law of this case. See United States v. Jingles, 702 F.3d 494, 499 (9th Cir.2012). Regarding Maricopa County’s argument that its inability to “cure the alleged violations” destroys "" the United States’ standing, the United States is correct that it need only show the potential for partial redress. See Meese v. Keene, 481 U.S. 465, 476, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987). The sheriff is independently elected. Ariz. Const, art.. XII, § 3. And his duties are statutorily required. A.R.S. § 11-441. Those duties range from “[p]reserve[ing] the peace” to “[a]rrest[ing] ... persons who attempt to commit or who have committed a public .offense” to “[t]ak[ing] charge of and keeping] the county jail.”"
4066	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., State Farm Fire & Cas. Co. v. Edie (In re Edie), 314 B.R. 6, 17 (Bankr.D.Utah 2004) (discussing destruction of property by fire cases under § 523(a)(6) and concluding that where the defendant intended to cause injury to property by fire, then willful and malicious intent to injure is proven under § 523(a)(6)). .Doc.31.
3713	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 substance, claims to correct inven-torship under 35 U.S.C. § 256. Larson v. Correct Craft, Inc., 569 F.3d 1319, 1325 (Fed.Cir.2009). Defendant asserts that Plaintiff does not have standing because it has no ownership interest in any of. the patents-in-suit. MTD at 3-5. Constitutional standing requires that a plaintiff has suffered an injury-in-fact, that the injury is traceable to the conduct complained of, and that the injury is redressable by a favorable decision. U.S. Const, art. Ill, § 2; To have standing to under Section 256, the Federal Circuit holds that a plaintiff must have a concrete financial interest in the patents at issue. Chou v. Univ. of Chicago, 254 F.3d 1347, 1359 (Fed.Cir.2001). This does not mean that the plaintiff must have an ownership interest in the patent. Id. A plaintiffs financial interest however, cannot be contingent upon on relief outside the scope of remedies available to the court. Larson, 569 F.3d at 1326-27 (dismissing case because Plaintiffs financial interests depended on his obtaining rescission of his patent assignments). For example, in Chou the Plaintiff had assigned her intellectual property interests to her university employer. 254 F.3d at 1359. However, because the university
3013	the property at the time of taking, not the value at some later date. Similarly, interest on the award runs from that date. Most importantly for our purposes today, it is the person who owned the property at the time of the taking that is entitled to the recovery. See, e. g., Danforth v. United States, 808 U. S. 271, 284 (1939) (“For the reason that compensation is due. at the time of taking, the owner at that time, not the owner 'at an earlier or later date, receives the payment”). The rationale behind that rule is true whether the transfer of ownership is the result of an arm’s-length negotiation, an inheritance, or the dissolution of a bankrupt debtor. Cf. hH Much of the difficulty of this case stems from genuine confusion as to when the taking Palazzolo alleges actually occurred. According to Palazzolo’s theory of the case, the owners of his Westerly, Rhode Island, property possessed the right to fill the wetland portion of the property at some point in the not-too-distant past. In 1971, the State of Rhode Island passed a statute creating the Rhode Island Coastal Resources Management Council (Council) and delegating the Council the authority to promulgate regulations restricting the usage of coastal land. See 1971 R. I. Pub. Laws, ch. 279, §1 et seq. The Council promptly adopted regulations that, inter alia, effectively foreclosed petitioner from filling his wetlands. See ante, at 614; cf. App.
2131	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 may do no more than reflect variations in modes of expression, ought not to be accorded undue significance. The bricks of the house may well be the same; only the mortar may be different. See K. Davis, Administrative Law of the Seventies, pp. 646-654 (1976). Although the decided cases are not always clear as to whether there is any difference between “arbitrary” and “unreasonable,” it seems to me that they are simply two sides of the same coin. See 
1947	of the Indictment are defective as based on an invalid regulation, the Government has maintained such reliance did not take place. The Government’s position is consistent with the statute, which permits criminal prosecution only for the unlawful treatment, storage and disposal of hazardous wastes that are “identified or listed” under RCRA. See 42 U.S.C. § 6928(d)(2). To the extent that the Defendants challenge the sufficiency of the anticipated evidence against them, specifically the factual bases upon which the Government intends to prove that the substances at issue are indeed “hazardous” within the meaning of RCRA and applicable regulations, that argument must be directed to the trial court after the close of the Government’s affirmative case, and is therefore premature. See As noted, the Government has represented that these invalidated rules were not referred to in the Grand Jury. On its face, the Indictment properly asserts violations of § 6928(d). Moreover, the court may not look beyond a facially valid indictment to determine if the evidence upon which it was based is sufficient. See Bank of Nova Scotia v. United States, 487 U.S. 250, 261, 108 S.Ct. 2369, 2377, 101 L.Ed.2d 228 (1988). Even if it should appear that the “mixture” or “derived-from” rules had in some way been referred to before the Grand Jury, such reference would not
3492	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); 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, 1315 (9th Cir.1981). 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.)
1777	patent and counterclaims for declaratory relief. Defendant seeks a declaration that the '326 patent is invalid, void, and unenforceable and that it has not infringed the patent. This matter is before the court on defendant’s motion for summary judgment. Summary judgment is appropriate if the pleadings and affidavits “show that there is no genuine issue as to any material 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. 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
1358	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 at 362. On a factual challenge, the party opposing the motion must produce affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction. Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). Under a factual attack, the court need not presume the plaintiffs allegations are true. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000); accord In the absence of a full-fledged evidentiary hearing, however, disputed facts pertinent to subject matter jurisdiction are viewed in the light most favorable to the nonmoving party. Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1996). Federal courts are courts of limited jurisdiction, adjudicating only cases which the Constitution and Congress authorize. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). An Article III federal court must ask whether a plaintiff has suffered sufficient injury to satisfy the “ease or controversy” 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
3830	conspiracy for a substantial amount of time. Given the facts of the case and the deference given to district court sentencing decisions, Balleza has not shown that the district court abused its discretion or that the sentence was unreasonable. See United States v. Rodriguez-Rodriguez, 530 F.3d 381, 384-87 (5th Cir.2008). AFFIRMED. . We take this opportunity to clarify this court's jurisprudence on whether an overt act in furtherance of the conspiracy is an element of the offense of conspiracy to launder money in violation of 18 U.S.C. § 1956(h). It is not. Overruling United States v. Wilson, 249 F.3d 366, 379 (5th Cir.2001), the Supreme Court held that an overt act is not an element of conspiracy to launder money. After Whitfield, this court mistakenly recited in dicta that an overt act is an element of the offense. United States v. Bueno, 585 F.3d 847, 850 (5th Cir. 2009); United States v. Armstrong, 550 F.3d 382, 403 (5th Cir.2008). In conformity with Whitfield, we recognize that an overt act is not an element of the offense of conspiracy to launder money.
3687	MEMORANDUM Plaintiffs-Appellants Rosemary and Randy Jensen (“the Jensens”) appeal the district court’s grant of summary judgment to the County of Sonoma (“the County”) on the Jensens’ 42 U.S.C. § 1983 claims asserting various constitutional violations. The claims arise from a hearing held by the County to abate various of the Jensens’ uses of 50 Sonoma Mountain Road, a “Diverse Agricultural” zoned property that the County had determined to be in violation of county zoning ordinances. Because the history of the case is familiar to the parties, we need not recount it in its entirety here. As an initial matter, the County’s claims were not barred by the doctrine of res judicata or claim preclusion under the holding in  because the Appellants, unlike the appellant in Miller, sought a writ of mandate under California Code of Civil Procedure § 1094.5. The Court affirms the district court’s ruling that the county ordinance at issue in this case is not unconstitutionally vague. Section 26-08-020 of the Sonoma County Code sets forth permitted uses for land zoned as “Diverse Agricultural.” The code section is amply detailed and, when viewed in the context 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
1789	"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. 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,"
906	F.3d at 670 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir.2010). . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Spaulding, 279 F.3d at 904. . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). . d at 670-71); see Kannady, 590 F.3d at 1169. . City of Herriman, 590 F.3d at 1181. . Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006). . Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). . Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). . Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). . Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). . Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991). . Calia v. Werholtz, 426 F.Supp.2d 1210, 1214 (D.Kan.2006) (citing Northington v. Jackson, 973 F.2d
3069	251 F.3d at 239. Instead, the ADA defines the term disability as: (A) “a physical or mental impairment that substantially limits one or more of the major life activities of [an] ... individual,” (B) “a record of such an impairment,” or (C) “being regarded as having such an impairment.” 42 U.S.C.A. § 12102(2)(A)-(C). Plaintiff claims that she falls within category (A) of section 12102(2). In making the argument that she qualifies for protection under the ADA, Plaintiff contends that her lifting restriction substantially limits her in the major life activity of working. In determining whether a condition is an impairment that substantially limits an individual’s major life activity, the Court performs a three-part test. Lebron-Torres, 251 F.3d at 239; see also First, the Court must determine whether Plaintiff’s back impairment constitutes a physical impairment under the Act. Second, the Court must decide whether the life activity which Plaintiff claims is affected-working meets the definition of a major life activity within the ADA. Finally, combining these statutory phrases, the Court asks whether the impairment substantially limits the activity found to be a major life activity. See Lebron-Torres, 251 F.3d at 239-40. Interpreting the facts most favorably to Plaintiff, the evidence establishes the first two elements of the analysis. First, her back condition, para-lumbar muscular spasms with pain upon palpitation, is a “physiological disorder or condition” affecting the “musculoskeletal” system. See 29 C.F.R. § 1630.2(h)(1). Moreover, the activity
2684	has accepted, or has rejected the plan. (b) Except as otherwise provided in the plan or the order confirming the plan, the confirmation of a plan vests all of the property of the estate in the debtor. (c) Except as otherwise provided in the plan or in the order confirming the plan, the property vesting in the debtor under subsection (b) of this section is free and clear of any claim or interest of any creditor provided for by the plan. 11 U.S.C. § 1327. It is well established that principles of res judicata and finality, as partly codified in Section 1327, can make even “illegal” provisions of a Chapter 13 plan binding. See Multnomah County v. Ivory (In re Ivory), 70 F.3d 73 (9th Cir.1995) (res judicata precluded collateral attack on confirmation order, despite possible jurisdictional error). This general proposition is subject to some major limitations. The starting point is that a debtor asserting res judica-ta “has the burden of proof on all elements and bears the risk of non-persuasion.” Repp, 307 B.R. at 148 n. 3 (citations omitted). Next, a plan should clearly state its intended effect on a given issue. Where it fails to do so it may have no res judicata effect for a variety of reasons: any ambiguity is interpreted against
2429	"incumbent generators in the Maryland region who objected to Maryland's program (and the similar New Jersey program), FERC eliminated this exemption. PJM, 135 FERC ¶ 61,022 (2011). See also 137 FERC ¶ 61,145 (2011) (order on petition for rehearing) (""Our intent is not to pass judgment on state and local policies and objectives with regard to the development of new capacity resources, or unreasonably interfere with those objectives. We are forced to act, however, when subsidized entry supported by one state's or locality's policies has the effect of disrupting the competitive price signals that PJM's [capacity auction] is designed to produce, and that PJM as a whole, including other states, rely on to attract sufficient capacity.""); In the first year CPV bid capacity from its new plant into the PJM capacity auction, that capacity cleared the auction at the MOPR rate, so CPV was thereafter eligible to function as a price taker. In addition to seeking the elimination of the state-supported generation exemption, incumbent generators-respondents here-brought suit in the District of Maryland against members of the Maryland Public Service Commission in their official capacities. The incumbent generators sought a declaratory judgment that Maryland's program violates the Supremacy Clause by setting a wholesale rate for electricity and by interfering with FERC's capacity-auction policies. CPV intervened as a defendant. After a six-day bench trial, the District Court issued a declaratory"
4930	"557, 580-81 (3d Cir. 2007) (citations omitted) ). ""[T]he existence of an ... appealable order [does not] confer pendent appellate jurisdiction over an otherwise unappealable order just because the two orders arise out of the same factual matrix ..."" even if considering the orders together may be encouraged under ""considerations of efficiency."" Hoxworth v. Blinder, Robinson & Co. , 903 F.2d 186, 209 (3d Cir. 1990). ""[T]he pendent appellate jurisdiction standard is not satisfied when we are confronted with two similar, but independent, issues, and resolution of the non-appealable order would require us to conduct an inquiry that is distinct from and 'broader' than the inquiry required to resolve solely the issue over which we properly have appellate jurisdiction."" Thus, if the appealable order may be properly ""dispose[d] of ... without venturing into otherwise nonreviewable matters[,]"" Kershner v. Mazurkiewicz , 670 F.2d 440, 449 (3d Cir. 1982) (en banc), we ""have no need-and therefore no power-to examine the [nonreviewable] order,"" Hoxworth , 903 F.2d at 208. Here, we must determine, as a matter of first impression, whether an order granting certification under Rule 23 is ""inextricably intertwined"" with an order granting final collective action certification under the FLSA. Citizens claims that we may do so because review of the FLSA certification order is necessary to ensure meaningful review of the Rule 23 order. Plaintiffs maintain that, although we have jurisdiction to review the class certification order,"
2705	to Debtors. They argue on this appeal that Ventura was bound to appeal this alleged ruling within ten days. See Fed. R. Bankr.P. 8002(a). We reject Debtors’ argument. Even if we were to assume that the bankruptcy court intended to grant affirmative relief to Debtors (and without suggesting that the bankruptcy court intended to do so or properly could do so), such a ruling would not be final because an accounting and a determination of damages remained for trial. See generally Jensen Elec. Co. v. Moore, Caldwell, Rowland & Dodd, Inc., 873 F.2d 1327, 1329 (9th Cir.1989) (order awarding attorney's fees which does not fully dispose of amount of fees is not a final, appealable order). See also . We dismissed debtors’ appeal for lack of prosecution. . Ventura argued before the bankruptcy court that there is no jurisdiction under Section 362(h) to award damages in this Second Case for a stay violation in the First Case. Ventura has not raised that argument on this appeal, and although we have an independent obligation to determine if we lack jurisdiction we are satisfied that the bankruptcy court did have jurisdiction to award such damages and therefore we have jurisdiction to review that award on appeal. This is not a case in which there are concurrent bankruptcy proceedings involving different
2707	no jurisdiction under Section 362(h) to award damages in this Second Case for a stay violation in the First Case. Ventura has not raised that argument on this appeal, and although we have an independent obligation to determine if we lack jurisdiction we are satisfied that the bankruptcy court did have jurisdiction to award such damages and therefore we have jurisdiction to review that award on appeal. This is not a case in which there are concurrent bankruptcy proceedings involving different debtors, where the actions of one bankruptcy court might impinge on the jurisdiction of the other, or violate principles of comity. See, e.g., Snavely v. Miller (In re Miller), 397 F.3d 726 (9th Cir.2005) (citing inter alia Rather, there is only one pending bankruptcy case involving the Debtors, who have asked the bankruptcy court to determine the res judica-ta effect of an order in a different case. Courts do this all the time. See Valley Nat. Bank of Arizona v. A.E. Rouse & Co., 121 F.3d 1332, 1335-36 (9th Cir.1997) (proper remedy if second court erred in not giving res judica-ta effect to first court’s judgment is to appeal second court’s determination, not collateral attack in third court). Moreover, these Debtors returned to the very same bankruptcy court (although a different bankruptcy judge). We have no difficulty in concluding that the bankruptcy court in the Second Case had jurisdiction to determine the res judicata issues and decide whether to
4819	was in violation of his Fifth Amendment rights to be indicted by a grand jury and to due process of law, and his Sixth Amendment right to confront the witnesses against him. It is established that no minutes of the grand jury proceedings were kept. Thus acceptance of this argument would require dismissal of the indictment. This court has consistently, and recently, held that the recording of grand jury proceedings, at least in the absence of a prior request therefor, is permissive and not mandatory. See United States v. Ybarra, 430 F.2d 1230, 1233 (9th Cir. 1970); United States v. Thore-sen, 428 F.2d 654, 666 (9th Cir. 1970); Jack v. United States, 409 F.2d 522, 524 (9th Cir. 1969); and We decline to re-examine these decisions. Affirmed. . All of those witnesses had previously inspected groups of photographs in an effort to identify the robbers, but with little success. Defendants raise no question here concerning the validity of the photo-identification procedures. There had been no lineup, although the three defendants had all been available for at least a month. . See also, United States v. Wade, 388 U.S. 218, 241-243, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ; Gilbert v. California, 388 U.S. 263, 269-274, 87 S.Ct. 1951, 18 L.Ed. 2d 1178 (1967). . It should be noted that in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) the Supreme Court gave no indication
2137	this issue adversely to plaintiffs. It is well settled that courts must scrutinize the “claim” as allowed by the Patent Office to determine the nature of the invention, which should be read in light of the specification and drawings, and that courts have no right to enlarge a patent beyond the scope of its claim. Keystone Bridge Co. v. Phoenix Iron Co., 95 U.S. 274, 279, 24 L.Ed. 344; National Machine Corp. v. Benthall Machine Co., 4 Cir., 241 F. 72; Wire Wheel Corp., etc. v. Budd Wheel Co., 4 Cir., 288 F. 308; Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 37 S.Ct. 416, 67 L.Ed. 871; The “claim” must also be 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.
3602	of property for CERCLA past and future response costs is not disallowed by 11 U.S.C. § 502(e)(1)(B). In re Harvard Industries, Inc., 138 B.R. 10 (Bankr.D.Del.1992). In the instant case, the Board does not seek to recover sums owed under CERCLA to a third party, such as the EPA, but instead seeks to recover sums it has expended and will expend in the future to remedy the hazardous waste conditions on the property acquired from the debtor. Therefore, 11 U.S.C. § 502(e)(1)(B) will not bar the Board’s proposed contingent claim because there does not appear to be any multiple liability on the debtor’s part for the contingent claim asserted by the Board. Dant & Russell, 951 F.2d at 248;  aff'd without opinion, 950 F.2d 721 (3d Cir.1991); Harvard Industries, 138 B.R. at 13. Standing It has been argued that the Board does not have standing to assert a response claim against the debtor because the Board is neither the federal nor the state agency charged with enforcing environmental laws. This point overlooks the fact that the Board is the governing municipality in control of the property through the District, which it created for the purpose of acquiring assets such as the property in question. Having undertaken to arrange for the remediation of the potential hazardous condition, the Board has “arranger” liability for the disposition of the hazardous waste pursuant to 42 U.S.C. § 9607(a)(3), which provides: § 9607. Liability (a) Covered
2545	It contends that the district court failed to consider the parties’ relative ability to pay. Yet, as in prior cases, Bridgeport failed to present any reliable evidence to support its argument. Sony Music, 114 Fed.Appx. at 652-53 (explaining that a district court can consider the parties' relative abilities to pay attorneys’ fees and costs, but that Bridgeport had failed to present any evidence on this point beyond its owner's conclusory affidavit). Bridgeport also argues that UPIP was required to assert below that Bridgeport was collaterally estopped by the decision in the companion case. There are at least two problems with this argument. First, Bridgeport raised it for the first time in its reply brief and therefore has waived the argument. Second, the district court did not find that Bridgeport was legally estopped from pursuing its royalty-receipt theory against UPIP, only that it was futile to do so as a matter of litigation strategy and common sense.
4295	was the primary forum in which to try — not only because it was first, but because of the number of substantial parties before the court, and the time and effort which had been spent in preparation. See Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 3 Cir., 1951, 189 F.2d 31, 34-35, affirmed 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200; Northern Ins. Co. of New York v. Grone, D.C.M.D.Pa.1954, 126 F.Supp. 457, 458; cf. Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 1952, 342 U.S. 180, 183-184, 72 S.Ct. 219, 96 L.Ed. 200. Indeed, quite possibly the North Carolina court could have enjoined Burlington’s affirmative pressing of the Massachusetts case for trial. See d 202, 203-205; Barber-Greene Co. v. Blaw-Knox Co., 6 Cir., 1957, 239 F.2d 774, 778; cf. Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., supra, 342 U.S. at pages 184-185, 72 S.Ct. at pages 221, 222; Dwinell-Wright Co. v. National Fruit Product Co., 1 Cir., 1942, 129 F.2d 848, 852. The North Carolina action was proceeding with all diligence. Nothing was to be gained by an additional trial in Massachusetts which could have been entirely obviated by the stipulation proposed by Alamance. Nor, as we have already said, was there any public interest furthered by some principle of punishing Alamance for having brought other suits. If, in fact, the court made any attempt to weigh the competing private interest of the parties, it was equally
756	liver tablets are not an effective remedy or cure for all diseases involving a dog’s liver; that the ingredients of the kidney tablet have a therapeutic effect in the treatment of kidney troubles; and that the constituent elements of the absorbent are such as are used beneficially in relieving congestion and inflammation, it being his opinion that the absorbent had a remedial effect such as was described on the carton. Neither Dr. Roberts nor Dr. Akin, testified that their opinions were in accord with the consensus of veterinary opinion. The point is made that a man should not be .convicted because he advocates- a theory of medicine which has not received the endorsement of the medical profession, and That case is of no help, to the defendants. There it was said, page 106: “The broad distinction between, things which are frauds and things which are not frauds 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
1082	State cannot regulate that procedure without including a health exception”). Thus, the Government’s interest-based, medically based, and institutional competency arguments all fail to meaningfully distinguish the evidentiary circumstances present here from those that Stenberg held required a health exception to a ban on partial-birth abortion. The lack of a health exception also renders this Act unconstitutional. See, e.g., Planned Parenthood, 320 F.Supp.2d at 1033-34; Planned Parenthood v. Owens, 287 F.3d 910, 917-18 (10th Cir.2002); Hope Clinic v. Ryan, 249 F.3d 603, 604 (7th Cir.2001); Eubanks v. Stengel, 224 F.3d 576, 577 (6th Cir.2000); Causeway Med. Suite v. Foster, 221 F.3d 811, 812 (5th Cir.2000); Planned Parenthood v. Farmer, 220 F.3d 127, 152 (3d Cir.2000) (Alito, J., concurring); IV. CONCLUSION While Congress and lower courts may disagree with the Supreme Court’s constitutional decisions, that does not free them from their constitutional duty to obey the Supreme Court’s rulings. As Judge J. Michael Luttig of the Court of Appeals for the Fourth Circuit stated in a concurring opinion soon after the Supreme Court decided Stenberg: As a court of law, ours is neither to devise ways in which to circumvent the opinions of the Supreme Court nor to indulge delay in the full implementation of the Court’s opinions. Rather, our responsibility is to follow faithfully its opinions, because that court is, by constitutional design, vested with the ultimate authority to interpret the Constitution. Richmond Med. Ctr. for Women v.
410	"adjudicate their applications before the fiscal year ends. They may also petition Congress for a private bill of relief. See, e.g., H.R. 509, 108th Cong. (2003) (""For the relief of Lindita Idrizi Heath”); H.R. 392, 108th Cong. (2003) (""For the relief of Natasha Oligovna Russo and Anya Oligov-na”). BARKETT, Circuit Judge, dissenting: I would affirm the district court’s grant of mandamus ordering the Immigration and Naturalization Service (“INS”) to do that which was required of it by Congress: process Nyaga’s application for a diversity immigrant visa. See Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1378 (11th Cir.1998) (en banc) (recognizing that the writ of mandamus is an appropriate remedy to correct the failure to carry out a ministerial task) (citing The INS takes the position that it is free to completely disregard a Congressional directive. This view is problematic in the abstract, to say the least, but in this case the INS’ stance renders nugatory an entire section of the Immigration and Nationality Act (“INA”). See 8 U.S.C. § 1153(c). Section 1153(c) of the INA is comprised of three subsections that, together, establish the diversity immigrant visa program. As the majority notes, the diversity visa program is designed to provide permanent residence visas to individuals from countries with historically low rates of immigration to the United States. In the first subsection of § 1153(c), entitled “In General,” Congress details the bulk of the program. See id. In the introductory paragraph"
1339	gun inside the car beyond the sight of officer Cowan, the request to get out of the car seems reasonable in light of the circumstances. See Wilson v. Porter, 9 Cir., 361 F.2d 412. The last aspect of the problem of the scope of the seizure of Carpenter is whether the police were reasonable in taking him to the police station after they saw what appeared to them to be burglary tools in the petitioner’s auto. It has always been held that it is reasonable to “seize” a person and take him into custody if there is probable cause to arrest for a public offense. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Klingler v. United States, 8 Cir., 409 F.2d 299. The question becomes was there probable cause for arrest. We hold that probable cause did exist for an arrest for possession of burglary tools under § 28-534 R.S. Nebraska. The probable cause was supplied by the hour of the encounter, the absence of explanation of why the tools were in the petitioner’s possession, the location of the tools in the front of the auto under the seat rather than in a tool box in a more conventional place, and the series of burglaries which had taken place in Blair prior to the morning in question. Once it has been shown that the police conduct was reasonable up until the car was searched incident to
196	"Andrew Kallen instructed American Factors to remit a fixed amount of money to plaintiff from advances based on goods shipped by plaintiff. However, plaintiff asserts that “without the consent or knowledge of the plaintiff, codefendant American Factors intentionally and/or negligently failed to forward said money to plaintiff, and instead sent the money to Mr. Kallen who improperly used it to solve his own personal problems.” (docket 5, p. 4) . Where the injury involved in the case arises directly out of the non-resident's activities in the forum, a state may assert personal jurisdiction over a non-resident defendant through “Specific jurisdiction”. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), and . See Hanson v. Denckla, 357 U.S. 235, 237-255, 78 S.Ct. 1228, 1229-1240, 2 L.Ed.2d 1283 (1958). Defendants maintain that their only contact with Puerto Rico is the location of the plaintiff, and that in itself is insufficient contacts for the plaintiff to maintain this action in Puerto Rico, (docket 9, p. 5) . See Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 915 F.2d 7, 11 (1st Cir.1990). . See Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940); Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927). . Rule 4.7 of the Civil Rules of the Commonwealth of Puerto Rico prays as follows: ""(a) when the"
3161	sentence, so Petitioner received a mandatory life sentence. Petitioner pursued a direct appeal and a post-conviction application in the state courts. He now seeks federal habeas relief on several issues. This court originally denied relief on all of the several claims Petitioner asserted. Among them were (1) an equal protection and due process challenge under Campbell v. Louisiana, 523 U.S. 392, 118 S.Ct. 1419, 140 L.Ed.2d 551 (1998)(white defendant has standing to challenge exclusion of blacks from grand jury foreman post) and (2) a claim that defense counsel were ineffective for failing to move to quash the indictment on that basis. The court reasoned that Campbell, not decided until after Petitioner’s conviction was final, was a “new rule” for purposes of The Fifth Circuit later held that Campbell was not a newly recognized and retroactive rule that would delay commencement of the limitations period for the claim under 28 U.S.C. § 2244(d)(1)(C). Peterson v. Cain, 302 F.3d 508 (5th Cir.2002), cert. denied, 537 U.S. 1118, 123 S.Ct. 886, 154 L.Ed.2d 796 (2003). The rationale that doomed the prisoner in Peterson to untimeliness was welcome news for this Petitioner who had filed a timely petition. Given the analysis in Peterson, the Fifth Circuit had little choice but to vacate the portions of this court’s judgment on the foreman-related issues noted above. It denied COA as to all
281	"judgment on plaintiffs claims is GRANTED. The City’s motion for judgment on the pleadings on the claim for municipal liability under § 1983 is GRANTED. The Clerk of Court is directed to close this case. SO ORDERED. . To the extent that plaintiff alleges separate claims of false imprisonment and false arrest, the court treats the claims together as one. See Weyant v. Okst, 101 F.3d 845, 853 (2d Cir. 1996) (""'The common law tort of false arrest is a species of false imprisonment. ...' ”). ""False arrest is simply an unlawful detention or confinement brought about by means of an arrest rather than in some other way and is in all other respects synonymous with false imprisonment.”  dissenting) . Courts have found that similar denials, absent other evidence, do not constitute a sufficient factual issue for trial in the context of malicious prosecution claims. See Cotto v. Pabon, 2008 WL 4962986, *15 (S.D.N.Y.2008) (""The fact that Cotto's version of the incident contradicts that of the officers is not enough to present an issue of fact as to the probable cause element of Cotto’s malicious prosecution claim.”); Brazeau v. Zon, 2007 WL 2903617, *12 (W.D.N.Y.2007) (""conflicting testimony between the malicious prosecution claimant and the police defendants and other prosecution witnesses is insufficient to rebut the presumption of probable cause”). . Nor has plaintiff proffered any of the testimony that was presented to the grand jury. See"
3214	"for court of appeals review of ""any order issued by the Administrator following a public hearing""). . The Department of Justice described the EPA's suspension procedure in this case in a letter to the court: There is no separate order that constitutes a ""final suspension"". Rather, as recited in the October 7 Emergency Suspension Order, see 51 Fed.Reg. at 36648, the failure to request an expedited hearing on the order means that the suspension becomes final, by operation of law. Since the requests that had been made were withdrawn ..., the order automatically became final on October 30, 1986. Letter from Peter R, Steenland, Jr. to Betty Parshall (Aug. 7, 1987) (emphasis original). . As the court held in  the EPA should examine: ""(1) The seriousness of the threatened harm; (2) The immediacy of the threatened harm; (3) The probability that the threatened harm would result; (4) Benefits to the public of the continued use of the pesticides in question during the suspension process; and (5) The nature and extent of the information before the Administrator at the time he made his decision."" . For instance, it listed paraquat as an alternative for dinoseb as a desiccant on caneberries. But paraquat is not registered for “cane burning"" and therefore may not be so applied. Letter from Mike Schwisow, State of Washington Department of Agriculture, to Donald R. Stubbs, EPA, at 2 (March 11, 1987) (Plaintiffs' Exh. 43); 1 RT at"
438	"of the Bankruptcy Code, and it is in this section that bankruptcy courts find their genera] equitable powers. See Omni Mfg., Inc. v. Smith (In re Smith), 21 F.3d 660, 665 (5 th Cir. 1994). Those powers, however, ""have their limits,” id., and ""can only be exercised within the confines of the Bankruptcy Code.” Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988); see Southmark Corp. v. Grosz (In re Southmark Corp.), 49 F.3d 1111, 1116 (5th Cir.1995) (stating that § 105(a) ""does not authorize the bankruptcy courts to create substantive rights that are otherwise unavailable under applicable law,” or ""to act as roving commissions to do equity”) (internal quotation marks omitted); By the same token, when a specific Code section addresses an issue, a court may not employ its equitable powers to achieve a result not contemplated by the Code.”) (citations omitted). . We emphasize that our determination that the bankruptcy court abused its discretion is necessarily limited to the circumstances presented in this appeal. At least one bankruptcy court has, in effect, intervened in a public utility commission’s action with respect to rates charged by a debtor. See, e.g., In re Jal Gas Co., 44 B.R. 91, 93-95 (Bankr.D.N.M. 1984) (enjoining a rate commission’s order that reduced the debtor's"
3025	is supported by substantial evidence and therefore the Union's making of the “will not handle” agreement was not a violation of § 8(e). Similarly, the Union’s maintenance of the provision was not a violation of § 8(b)(4)(B). The Union refused to hang prefabricated doors whether or not they bore a union label, and even refused to install prefabricated doors manufactured off the jobsite by members of the Union. This and other substantial evidence supported the finding that the conduct of the Union on the Frouge jobsite related solely to preservation of the traditional tasks of the jobsite carpenters. 386 U.S. at 644-46, 87 S.Ct. at 1268. However, National Woodwork left some problems unresolved. In distinguishing  which held certain agreements to violate the anti-trust laws, the Court noted that: * * * [T]he fact is that the boycott in Allen Bradley was carried on, not as a shield to preserve the jobs of Local 3 members, traditionally a primary labor activity, but as a sword, to reach out and monopolize all the manufacturing job tasks for Local 3 members. It is arguable that Congress may have viewed the use of the boycott as a sword as different from labor’s traditional concerns with wages, hours, and working conditions. But the boycott in the present cases was not used as a sword; it was a shield carried solely to preserve the members’ jobs. We
3959	remaining claims in turn. A. The ADA the ADEA, and the ERISA Kariotis, admittedly, has no direct evidence that unlawful discrimination of any form played a role in Navistar’s decision to terminate her. Accordingly, she proceeds under the indirect method of proof or three-step model enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to establish her claim of discrimination under the ADA, the ADEA, and/or the ERISA at the summary judgment stage. See DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir.1995) {McDonnell Douglas test used in ADA case); Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993) {McDonnell Douglas test used in ADEA 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
3544	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 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
3420	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.,  petition for cert, filed, (No. 04-9034) (Mar. 7, 2005). Under these facts, Terrell cannot show substantial prejudice. C. Booker When a defendant fails to object to an error before the district court, we review the argument for plain error. United States v. Rodriguez, 398 F.3d 1291, 1300-01 (11th Cir.), petition for cert. filed, (No.04-1148) (Feb. 23, 2005). In Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621, the Supreme Court held that the Sixth Amendment required that any fact that increased a defendant’s sentence beyond the maximum sentence authorized by the facts established by a plea or a jury verdict must be admitted by the defendant or proven to a jury beyond a reasonable doubt. — U.S. -, 125
1076	at the Stenberg trial and overwhelming evidence presented and compiled at extensive congressional hearings ... not included in the Stenberg trial record [established that the district court’s findings were incorrect].” Act § 2(4)-(5), 117 Stat. at 1202. The Supreme Court has struck down congressional legislation passed in response to a controversial judicial decision. See City of Boerne v. Flores, 521 U.S. 507, 535, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (striking down Religious Freedom Restoration Act (“RFRA”) as an unconstitutional attempt by Congress to “alter the meaning of the Free Exercise Clause,” as interpreted by the Supreme Court). The Court in City of Boeme considered a slightly different, though analogous, issue — congressional legislation disagreeing with a constitutional interpretation. See As the Supreme Court in City ofBoeme put it: When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed. 521 U.S. at 536, 117 S.Ct. 2157. After Smith, Congress passed the RFRA with the finding that the Supreme Court “virtually eliminated the requirement that the government justify burdens on religious exercise,” and sought to
3791	Doc. 113 at 10-11; Doc. 117.) The mootness doctrine demands that Article Ill’s case or controversy requirement be satisfied throughout a case’s judicial proceedings because the federal courts are prohibited from issuing advisory opinions. United States v. Orrega, 363 F.3d 1093, 1095 (11th Cir.2004). If a case is rendered moot because it lacks an active controversy, the case must be dismissed unless the case falls within one of the recognized exceptions to the mootness doctrine. Id. One such exception is that a case will not be dismissed following the defendant’s voluntary cessation of the offending conduct, for a dismissal on such grounds may serve as the defendant’s license to return to that conduct. When a plaintiff challenges the constitutionality of an ordinance and that ordinance is subsequently repealed or amended, the repeal or amendment may be viewed as a form of voluntary cessation by the governmental entity of the “offending conduct.” Despite the exception for voluntary cessation, however, the constitutional challenge is usually still rendered moot in the event of a repeal or amendment because the law presumes that governmental entities will not enact unconstitutional laws. Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1310 (11th Cir.2000); Troiano v. Supervisor of Elections, 382 F.3d 1276, 1283 (11th Cir.2004). If there is a substantial likelihood that the law will be reenacted, however, the
3447	fifth-grade education and a limited command of the English language. Id. at 1268. In comparison, Lister attended four years of high school and studied business management at a technical college. His reluctance to answer in a straightforward manner at trial may be 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 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
1099	has been expressly decided in Quintana v. Vigil, 46 N.M. 200, 125 P.2d 711 that in the absence of the waiver, the defendant in possession of the premises is entitled as a matter of right, to a jury trial. In other words, ejectment would be the proper remedy to be invoked in such a situation. In the case at bar, the first attorneys for the defendants raised this question and demanded a jury trial. One of the Judges of this court directed that the defendants file an answer in the suit to quiet title. By virtue of having early invoked the right to trial by jury, and in view of the philosophy expressed by Mr. Justice Black in s to an action of ejectment. In passing, it may be said that the remaining tracts so fenced as above stated, probably have not the statutory value upon which to predicate a suit in this court, so it will be assumed that full and complete justice will be accorded the plaintiff, Payne Land & Livestock Company, in the District Court of Rio Arriba County, New Mexico. The Tierra Amarilla Land Grant, a grant from the Republic of Mexico, has received the careful and detailed attention of the U. S. District Court of this district, the State District courts
1749	"to the time must, when necessary to carry out the purpose of the statute, yield to the principal enactment as to the right” and that the statute permits and requires ""the defendant to file a petition for removal as soon as the action assumes the shape of a removable case in the court in which it was brought”); H. Rep. 352, 81st Cong. (1st Sess. 1949) reprinted in 1949 U.S.Code & Cong. Serv. at 1254, 1268 (explaining that the addition of the provision allowing removal when the initial pleading does not state a removable case was meant to codify the finding in Powers, 169 U.S. 92, 18 S.Ct. 264, to allow removal of an action whenever removability is disclosed). . See . 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). ."
2554	of Costs 1. Standard of Review Pursuant to Rule 54(d) a prevailing party may recover costs “as a matter of course.” Fed.R,Civ.P. 54(d). The prevailing party’s entitlement to costs, however, is subject to the ultimate discretion of the district court in determining whether and to what extent costs may be awarded. M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404, 1409 (7th Cir.1991). 2. Discussion Infinity objects to the Clerk’s Bill of Costs entered on November 24, 2000. Specifically, the Bill of Costs includes costs associated with the first trial which resulted in a hung jury. However, this Court finds Plaintiffs were the “prevailing party” in this case. Fed.R.Civ.P. 54(d)(1). Accordingly, the Clerk’s Bill of Costs should be upheld. See Conclusion For all of the above reasons, the Court HEREBY ORDERS as follows: 1. Defendant Infinity Insurance Company’s Combined Renewed Motion for Judgment as a Matter of Law and Motion for a New Trial is DENIED; 2. Plaintiffs’ Motion for Award of Attorneys’ Fees is DENIED; 3. Defendant Infinity Insurance’s Motion to Review Entry of the Clerk’s Bill of Costs Pursuant to Rule 54(D) is DENIED. . Jury Instruction No. 23.
4187	particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” 483 U.S. at 640, 107 S.Ct. 3034. The relevant, dispos-itive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Id. at 202. The Plaintiffs respond to Officers Zotz’s and Ross’ claim to qualified immunity by asserting that “in an obvious case” the general objective standards of reasonableness outlined in Tennessee v. Garner and Graham v. Connor can “clearly establish” violation of the Fourth Amendment, even without a body of relevant case law.” There is no dispute that it is unreasonable for police officers to use excessive force to detain an individual or to seize an “unarmed, nondangerous suspect by shooting him dead.” Tennessee, 471 U.S. at 11, 105 S.Ct. 1694. The Plaintiffs previously relied on several United States Supreme Court cases when arguing that they were clearly seized under the Fourth Amendment. The Plaintiffs argue that they were not armed and dangerous and they complied with the officers’ orders. The Plaintiffs further contend that Morris did not have a gun, Morris did not point a gun at the officers, nor did Officer Zotz struggle with Morris over a gun before Officers Zotz and Ross fired rounds
3890	pending appeal, the moving party must establish substantially all the elements required to obtain a preliminary injunction. All of the following factors must be considered: 1. A likelihood that the parties seeking the stay will prevail on the merits of the appeal; 2. The movant will suffer irreparable injury unless the stay is granted; 3. Other parties will suffer no substantial harm if the stay is granted; 4. The public interest will not be harmed if the stay is granted. In re Baldwin United Corp., 45 B.R. 385, 386 (Bkrtcy.S.D.Ohio 1984); accord, In re White Motor Corp., 25 B.R. 293, 297 (N.D.Ohio 1982); In re Great Barrington Fair and Amusement, Inc., 53 B.R. 237, 239 (Bkrtcy.D.Mass.1985); In re Hotel Associates, Inc., 7 B.R. 130, 131-32 (Bkrtcy.E.D.Pa.1980); Cf. Unsecured Creditors’ Committee v. DeLorean (In re DeLorean Motor Co.), 755 F.2d 1223, 1228 (6th Cir.1985) (four factors regarding grant or denial of preliminary injunction); Hamlin Testing Laboratories, Inc. v. United States Atomic Energy Comm’n, 337 F.2d 221, 222 (6th Cir.1964) (factors to be considered respecting motion to stay administrative order pending judicial review). Based upon this Court’s decision on the merits of the appealed orders, including a reconsideration of the governing statutory provisions and applicable bankruptcy rules discussed in this and the court’s earlier bench opinion, it appears extremely' unlikely that the debtor will prevail on the merits of its appeal. Finally, the issue of the necessity of
798	support the allegation that the undersigned judge is personally biased or prejudiced, or that the undersigned judge’s impartiality might reasonably and objectively be questioned. In Re United States, 666 F.2d 690 (1st Cir.1981); Brody v. Pres, of Fellows of Harvard College, 664 F.2d 10 (1st Cir.1981); Home Placement Service, Inc. v. Providence Journal Company, 739 F.2d 671 (1st Cir.1984). Thus, a party cannot subjectively say that a judge is prejudiced and thereby, ipso facto, disqualify a judge. Instead, facts must be presented that, assuming their truth, would lead a reasonable person to believe that the judge’s impartiality or fairness may be questioned. U.S. v. Cowden, 545 F.2d 257 (1st Cir.1976); cert. den. 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585; “... appellant argues that the Judge’s recitation of record support for all of his less-than-complimentary findings of fact demonstrates a subjective, self-justifying approach to the section 455(a) issue where an objective evaluation of the appearance created by his prior words and acts was called for. We disagree. As a finder of fact ..., a trial judge must give his candid evaluation of plaintiff’s case. If a case is weak to the point of frivolousness, it is appropriate to say so. (Emphasis added.) Id., at 1220. Accordingly, disqualification is not required if an allegation that a judge might not be impartial is only speculative, conclusory, spurious, or vague. Smith v. Pepsico, 434 F.Supp. 524 (S.D.Fla.1977); Mavis v. Commercial Carriers, 408 F.Supp.
1599	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 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,
269	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 that police knew of perjured grand jury testimony insufficient to proceed to trial). Plaintiff argues that, because plaintiff and defendant give markedly different accounts of the events that led up to plaintiffs arrest, the issue of probable cause must be decided by the jury. The cases plaintiff relies on for the argument uniformly involve arrests without warrants. See, e.g., Murphy v. Lynn, 118 F.3d 938, 945 (2d Cir.1997); Richardson v. City of New York, 2006 WL 2792768 (E.D.N.Y.2006); Taylor v. City of New York, 2006 WL 1699606 (S.D.N.Y.2006); Kirk v. Metropolitan Transp. Authority, 2001 WL 258605 (S.D.N.Y.2001); La-Grange v. Ryan, 142 F.Supp.2d 287 (N.D.N.Y.2001); Naccarato v. Scarselli, 124 F.Supp.2d 36 (N.D.N.Y.2000). These cases are inapplicable here because plaintiff was arrested subsequent to an indictment and pursuant to an arrest warrant, which presumptively establishes probable cause for the arrest. Not only is there a presumption of probable cause arising from the indictment and arrest warrant, but also the undisputed facts in this case as to the information known to the arresting officers established ample probable cause. UC # 3159 identified plaintiff from a compilation of mug shots as the
2936	following a three-day trial, a Frederick County jury found petitioner Durham guilty of first degree murder in the death of Annie Snow and imposed a life sentence. The Virginia Supreme Court denied petitioner’s writ of error, Durham v. Virginia, 207 Va. lxxxiii (1966), and the United States Supreme Court denied his petition for a writ of certiorari. Durham v. Virginia, 387 U.S. 910, 87 S.Ct. 1694, 18 L.Ed.2d 629 (1967). Simp son represented petitioner through both of these appeals. Several years later, represented by two other attorneys, petitioner sought federal habeas corpus relief. On July 16, 1971, this court granted petitioner relief on the grounds that the Frederick County Circuit Court unconstitutionally allowed a biased juror to sit at petitioner’s trial. Represented this time by Simpson and another court-appointed attorney, Billie Joe Tisinger, petitioner was retried in Frederick County Circuit Court and was again found guilty and again sentenced to life imprisonment. It is the validity of this conviction that petitioner challenges here before this court on the grounds of ineffective assistance of counsel. After his second conviction in state court, petitioner Durham, represented by Simpson and Tisinger, applied for and was granted a writ of error to the Virginia Supreme Court, which subsequently affirmed the 1972 trial court. Durham v. Commonwealth, 214 Va. 166, 198 S.E.2d 603 (1973). Petitioner, then represented by still another attorney, sought state habeas corpus relief from the Frederick County Circuit Court on the grounds that Simpson’s and
4822	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. 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
2700	"the decision that its lien for pre-petition taxes was erroneously deemed to have been discharged. The Bankruptcy Appellate Panel goes to some length to avoid the res judicata impact of the confirmation of the plan in the first bankruptcy. This strikes me as problematic, because “[a]n order confirming a Chapter 13 plan is res judicata as to all justiciable issues which were or could have been decided at the confirmation hearing.” But I do not think the res judicata issue need even be reached, since the County subsequently stipulated to the amount. The Bankruptcy Appellate Panel’s decision ought to be vacated because the case was moot when it was issued. . We review de novo decisions of the BAP. See We independently review the bankruptcy court’s rulings on appeal from the BAP, reviewing the bankruptcy court’s con-elusions of law de novo and its factual findings for clear error. See id. . We note that the dissent agrees with us and with the BAP that the confirmed Plan affected only the Brawders’ personal liability, not the County's lien for the pre-petition taxes owed, secured against the property. Dissent at 875; see also Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991) (""Even after the debtor's personal obligations have been extinguished, the mortgage holder still retains a 'right to payment' in the form of its right to the proceeds from the sale of the debtor's"
411	"is clear from the statute that Congress expected the INS to perform the ministerial duties required by the program (i.e. to assure the distribution of the allotted visas) and, thus, under § 1153(c), Nyaga was entitled to have the INS adjudicate his timely-filed diversity visa application. See Iddir v. INS, 301 F.3d 492, 500 (7th Cir.2002); Paunescu v. INS, 76 F.Supp.2d 896, 900 (N.D.Ill.1999). Because, in my view, § 1153(c) of the INA requires the INS to act on diversity visa applications, I believe the district court properly found that mandamus is the appropriate remedy to compel the INS to perform its ministerial role under the INA and adjudicate Nyaga’s application. See Armstrong, 138 F.3d at 1378. . In  the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September 30, 1981. . The other two subsections of § 1153 are short, and of little relevance to Nyaga’s claims. Specifically, § 1153(c)(2) is an eligibility provision that dictates aliens must have at least a high school education and two years of work experience ""in an occupation which requires at least two years of training” in order to receive avisa. § 1153(c)(2). Section 1153(c)(3) dictates that the Secretary of State maintain information on all immigrants issued visas. See § 1153(c)(3). . An ""adjustment of status” is a procedure for becoming an ""alien lawfully admitted for permanent residence.” See"
4760	evidence on the one felony necessary to prove the crime charged,” id. at 28. Although we stand by and reaffirm the proposition central in Collamore, that a defendant may not use a stipulation or any other procedural device, including bifurcation, to remove from his felon-in-possession prosecution the fact of his prior conviction, we now realize upon reconsideration that our dictum rested on a shaky foundation. In Collamore, we relied on three cases, two from the Sixth Circuit, United States v. Blackburn, 592 F.2d 300, 301 (6th Cir.1979); and United States v. Burkhart, 545 F.2d 14, 15 (6th Cir.1976); and one from the Eighth Circuit, United States v. Bruton, 647 F.2d 818, 825 (8th Cir.1981), which in turn ultimately relied upon 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
2671	Arthur, 684 F.2d 558, 561 n. 3 (8th Cir.1982); Bern v. Evans, 349 F.2d 282, 291 (8th Cir.1965); McQueen v. Navajo Freight Lines, Inc., 293 F.2d 590, 594 (8th Cir.1961). The standard of review of jury determination of a factual question is narrow. An appellate court may not substitute its view of the facts for that of the trier of fact unless it is in a position to hold that reasonable minds, viewing the evidence in the light most favorable to the prevailing party, could only have found otherwise than the trier of fact. McIntyre v. Everest & Jennings, Inc., 575 F.2d 155, 158 (8th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed.2d 173 (1978). See also Since we believe reasonable minds could differ on this evidence, we will not disturb the jury verdict. Mrs. Giesbrecht would have been negligent as a matter of law if the left turn was made between intersections without signaling. Keller v. Wellensiek, 181 N.W.2d at 857; Petersen v. Schneider, 46 N.W.2d at 358. There was a great deal of conflicting testimony on the question of whether Mrs. Giesbrecht’s turn signals were working. The jury was instructed on the defense of contributory negligence. The general verdict in favor of Mrs. Giesbrecht is consistent with a finding that the jury did not find her contributorily negligent. For these reasons, we affirm the opinion of the district court. . The Honorable C. Arlen Beam,
4524	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. 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
179	is validly accomplished. But the parties do not agree on the proper interim allocation of this gas. The controversy arises because the Commission’s abandonment order took effect pending our consideration of No. 14975. Panhandle has thus terminated its deliveries to Michigan Consolidated and is currently delivering the abandonment gas to its resale customers pursuant to the order here under review. Michigan Consolidated asks us to direct the Commission to require Panhandle to resume delivery to Michigan Consolidated forthwith. The Commis sion opposes this request, without stating its reasons, while Panhandle contends that, even though the instant order is set aside, the Commission should be free to maintain the status quo. Cf. . App.D.C. 298, 307, 191 F.2d 492, 502; Greensboro-High Point Airport Authority v. Civil Aeronautics Board, 1956, 97 U.S.App.D.C. 358, 363, 231 F.2d 517, 522. Ordinarily, Michigan Consolidated would be entitled to retain the gas until it is abandoned by a valid order of the Commission. In allowing the abandonment to take effect, we cautioned the parties that they “acted at their own risk.” There is no reason apparent to us why the gas should not be returned to Michigan Consolidated pending final approval of an abandonment. But, as a court we are not equipped to allocate gas between competing parties. We are not aware, for instance, of all the physical, financial and equitable considerations which may affect the interest of those the Act was intended to protect — the
555	"of international relations the word 'state” is sometimes used in reference to a foreign nation, it is apparent from the statute's text (i.e., ""by consent of the legislature of the State "") as well as its history (i.e., its derivation from Article I, § 8, Clause 17 of the Constitution, see supra note 12), that Congress was referring in the second part of the 1909 Act to states of the Union. This conclusion is reinforced by the available legislative history. See, e.g., 42 Cong. Rec. 586 (1908) (statement of Rep. Moon, Chairman of the House Committee on the Revision of the Laws). . Both the House and Senate Reports indicate that the 1940 Act was enacted in response to In Dravo, the Supreme Court had held for the first time that a state could retain concurrent jurisdiction over lands acquired by the United States with the consent of the state pursuant to Article I, § 8, Clause 17 of the Constitution. Since the 1909 Act applied only to lands over which the United States had exclusive jurisdiction, the 1940 Act was needed ""simply [to] restore[ ] to the Federal Government the jurisdiction it was recognized as having until the Dravo decision was handed down.” H.R. Rep. No 76-1623, at 1; accord S. Rep. No. 76-1708, at 1. . See, e.g., Talbott v. United States ex rel. Toth, 215 F.2d 22, 27-28 (D.C.Cir.1954), rev’d on other"
3921	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 that there exists no genuine issue as to a material fact and that the evidence together with all inferences to be drawn therefrom must be considered in the light most favorable to the party opposing the motion. The mov-ant’s papers are to be closely scrutinized while those of the opponent are to be viewed indulgently. Watkins v. Northwestern Ohio Tractor Pullers Assn., 630 F.2d 1155, 1158 (6th Cir.1980) (citations omitted); see also,  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
1414	in the record admits but one interpretation: a representative of Milea knowingly and intentionally altered the odometer by more than 100,000 miles. Mi-lea’s knowledge of the actual mileage on the truck is established by Lin’s testimony and the service records. The fact that the truck’s actual mileage did not change from the time Milea acquired the truck in May 2005 until just before the truck was sold to plaintiff (when it was mysteriously reduced by over 100,000 miles) renders it impossible to conclude that anyone except a Milea representative altered the odometer. Mi-lea has not offered any evidence showing that it suffered any break-ins, or that any persons other than its staff had access to There is, therefore, no evidence whatever to support a conclusion that anyone else altered the odometer. The only issue, then, is the issue of damages. Defendant claims that the First Cause of Action should be dismissed because plaintiff suffered no actual damages. But this is a silly argument; one can never have no damages for violation of a statute that provides for statutory damages. Plaintiffs damages, by statute, are limited to three times actual damages or $1,500, whichever is greater. Defendant insists that plaintiff paid less for the truck ($3,000) than Jimmy Huang, plaintiffs “expert” and friend, says the truck is worth ($4,000), so it suffered no actual damages.
4047	PER CURIAM: Jabar Eugene Currenee appeals the sentence imposed following his plea of guilty to one count of assaulting a correctional officer. Finding no error, we affirm. Currenee first complains that the district court erred in denying him an adjustment for acceptance of responsibility. We review the district court’s determination under a highly-deferential standard. See United States v. Cano-Guel, 167 F.3d 900, 906 (5th Cir.1999). Given Currence’s improper, disrespectful and unlawful behavior during the presentence interview with the probation officer, the district court committed no error in denying the adjustment. Currence also argues that the district court violated his Sixth Amendment rights in light of  by applying an adjustment for physical contact under U.S.S.G. § 2A2.4(b)(l), and for his status as a career offender under U.S.S.G. § 4B1.1. As Currence was sentenced after the decision in Booker was rendered, the district court was free to make all findings relevant to sentencing by a preponderance of the evidence. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). Currence concedes that Mares is controlling, but he argues that it was incorrectly decided. We disagree and, in any event, we are bound by our precedent. See United States v. Stone, 306 F.3d 241, 243 (5th Cir.2002). The judgment of the
3367	after the 1958 acquisition and expansion. An objection was then lodged, and upon refusal of Neosho to discontinue the use of its brand name this 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. 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
451	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. Commonwealth Improvement Co., 287 U. S. 415; New Colonial Ice Co. v. Helvering, 292 U. S. 435. Petitioner quotes Moline Properties, Inc. v. Commissioner, 319 U. S. 436, in which it is said: * * * In general, in matters relating to the revenue, the corporate form may be disregarded where it is a sham or unreal. In such situations the form is a bald and mischievous fiction. Looking to the record, it is to us abundantly clear that the corporation should not be characterized a sham or unreal, nor should it be described as a bald and mischievous fiction. The corporation was formed in 1926 for the purpose of acquiring title to two pieces of property. It received deed
3837	[I]f a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. Id. at 539, 99 S.Ct. at 1874. (footnote omitted). In his complaint Van Cleave alleged that he was denied medical attention for twenty-four 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. 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
2499	exclusive tribal court jurisdiction within the tribal lands). . A similar letter, sent in 2001, expressly includes only those doing business with the tribe, see Pl.Ex. 18. This letter appears consistent with defendants’ sworn statements. See Twait Dec. at 2; Big Bear Aff. at 1-2. . Similarly, 11 M.L.B.S.A. § 9(e), which provides jurisdiction to enforce environmental regulations, is limited to the extent of United States law. As federal law largely proscribes the broad assertion of tribal jurisdiction over non-Indians, Nevada v. Hicks, 533 U.S. at 388-92, 121 S.Ct. 2304, the Court will not construe this provision beyond both actual enforcement and its terms. . The cases cited by the County cannot be read to stand for this proposition. See, e.g., Atchison, Topeka & Sante Fe Railway Co. v. O'Connor, 223 U.S. 280, 285-87, 32 S.Ct. 216, 56 L.Ed. 436 (1912) (action to recover taxes paid under protest). Neither case is premised on a defendant’s actual compliance with a law. . Plaintiffs support this contention by pointing to Justice Souter’s concurrence in Nevada v. Hides, 533 U.S. 353, 383, 121 S.Ct. 2304, 150 L.Ed.2d 398 (1995). That case involved a tribal court’s assertion of jurisdiction over state actors in a § 1983 case. The language plaintiffs quote, however, comes from a portion of Justice Souter’s opinion which urges ending any linkage of tribal jurisdiction from status. He argues
4255	these sacrifices, the exigencies of litigation are ordinarily scarcely more than trifling inconveniences. . Dumbauld, The Constitution of the United States (1964) 154. Similarly, in civil rights cases and cases under the Federal Employers Liability Act the majority of the Supreme Court often regards as a constitutional issue the procedural ques tion whether there was sufficient evidence to go to the jury. Thompson v. City of Louisville, 362 U.S. 199, 204, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Garner v. State of Louisiana, 368 U.S. 157, 163, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961). Justice Frankfurter protested that consideration of such cases diverted the energies of the Court from the important problems suitable for consideration by the nation’s highest tribunal. See also Dick v. New York Life Ins. Co., 359 U.S. 437, 456-459, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959); Ex parte Republic of Peru, 318 U.S. 578, 602-603, 63 S.Ct. 793, 87 L.Ed. 1014 (1943). . Clean hands is a good defense in a patent infringement suit, as Judge. Maris points out in De-Raef Corp. v. Horner Sales Corp., 10 F.R.D. 28 (W.D.Pa. 1950). See also Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245-247, 54 S.Ct. 146, 78 L.Ed. 293 (1933); Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 684, 64 S.Ct. 268, 88 L.Ed. 376 (1944). . For that Court, as Professor Wechsler observes, “above all others
1920	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  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 that section 1500
323	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); 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 the former. 440 F.2d at 915-16. Now we are again confronted by similar alternatives. Since the occurrence of the facts supporting the claims in Turner, Sackett, and Hecht, supra, the California legislature has enacted a statute of limitations for actions brought pursuant to a state statute similar to section 10(b). The defendants urge this court to reject our previous
3220	the debtor constitutes a breach of such contract or lease— (1) if such contract or lease has not been assumed under this section or under a plan confirmed under chapter 9, 11, 12, or 13 of this title, immediately before the date of the filing of the petition; ... See also NLRB v. Bildisco and Bildisco, 465 U.S. 513, 530, 104 S.Ct. 1188, 1198, 79 L.Ed.2d 482 (Rehnquist, J., for the majority), 465 U.S. at 539 n. 8, 104 S.Ct. at 1203 n. 8 (Brennan, J., concurring in part and dissenting in part) (1984); Hall v. Perry, (In re Cochise College Park, Inc.), 703 F.2d 1339, 1352 (9th Cir.1983); Bohack  aff'd, 567 F.2d 237 (2d Cir.1977), cert. denied, 439 U.S. 825, 99 S.Ct. 95, 58 L.Ed.2d 117 (1978); General Drivers, Warehousemen and Helpers Local 89 v. Midwest Emery Freight System, Inc., 48 B.R. 566, 568 (Bankr.N.D.Ill.1985). 11 U.S.C. § 502(b)(1) provides: (b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount except to the extent that— (1) such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law
1540	Control (“ATC”) clearance, even when in controlled airspace. When an ATC clearance has been obtained, no pilot in command may deviate from that clearance, except in an emergency, unless he obtains an amended clearance____ 14 C.F.R. § 91.75(a). Except in an emergency no person may, in an area in which air traffic control is exercised, operate an aircraft contrary to an ATC instruction. 14 C.F.R. § 91.75(b). 37. Such deviation authority includes refusing to comply with an ATC clearance if complying with that clearance would endanger the safety of the aircraft. In re N-500L Cases, 691 F.2d 15 (1st Cir. 1982); New Hampshire Ins. Co. v. U.S., 641 F.Supp. 642 (D.P.R.1986), aff'd, 838 F.2d 595 (1st Cir.1988);  cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978). 38. Air traffic controllers are required to comply with the mandatory provisions of the Air Traffic Control Manual FAA 7110.-65D to provide for the safe, orderly, and expeditious flow of traffic. 14 C.F.R. § 65.45(a). An emergency may be declared by either the pilot or by personnel of a Federal Aviation Administration facility. Air Traffic Control Manual, FAA 7110.65D, Section 9-15. 39. In the “forced handoff”, the Radar Controller never advised the local controller that the plane was returning to the field, nor that communications had deteriorated to the point of being unintelligible. Although the deterioration of radio transmission does not by itself put a reasonable controller on
4473	147, 149 (Bankr.D.Mass.2002); and Virden, 279 B.R. 401. The Panel then implicitly adopted the totality of the circumstances test to determine lack of good faith by affirming a bankruptcy court’s decision granting a Chapter 7 trustee’s motion to reconvert a Chapter 13 to Chapter 7, for cause, based on the totality of circumstances test. See Cabral, 285 B.R. at 573-74. Thus, the majority of the bankruptcy judges in this circuit have followed the totality of the circumstances approach. We explicitly adopt the totality of the circumstances test and conclude that the obligation of good faith is imposed on the debtor at two stages of a Chapter 13 proceeding. First, a debtor must file the Chapter 13 petition in good faith. See Dicey, 312 B.R. at 458; Fleury, 294 B.R. at 5; and Virden, 279 B.R. at 407. Second, the debtor must file the Chapter 13 plan in good faith. See id.; see also 11 U.S.C. § 1325(a)(3). The only distinction is that under § 1307(c), the objecting creditor has the burden of proof, while under § 1325(a)(3), it is the debtor’s burden. See Dicey, 312 B.R. at 458; and Virden, 279 B.R. at 407. Both inquiries advance one of the primary purposes of bankruptcy, which is to relieve the honest but unfortunate debtor from the weight of oppressive indebtedness, allowing the debtor to start afresh. Local Loan Co. v. Hunt, 292 U.S. 234, 244, 54 S.Ct. 695, 78 L.Ed. 1230 (1934).
1769	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 .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 subsequent argument about the nature of the threat. See United States v. Newman, 148 F.3d 871, 876 (7th Cir.1998) (defendant’s stipulation to conduct in plea agreement conclusively admitted facts and waived subsequent challenge to them). Accordingly, Siegler’s argument that the letter did not contain a “true threat” is irrelevant to his
1836	(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” in Rwanda because of changed country conditions. Because Murangwa’s claims that he suffered past persecution, is eligible for humanitarian asylum relief and was deprived of due process were not exhausted, we lack jurisdiction. 8 U.S.C. § 1252(d)(1); see Camposeco-Montejo v. Ashcroft, 384 F.3d 814, 821 (9th Cir.2004) (discussing exhaustion generally); II Murangwa argues that his family’s sufferings, the warning from his sister Marie Grace and the conditions in Rwanda, both past and present, compel the conclusion that his fear of future persecution is well-founded. We disagree. The claim that individuals with whom Murangwa’s father did business may want to silence him to prevent him from reporting their criminal acts is largely speculation and does not arise from a protected ground. Moreover, the conditions in Rwanda have changed markedly since the early and mid-1990’s. The new Rwandan government is Tutsi-controlled and, with the United Nations, has been actively seeking to prosecute those responsible for the 1994 genocide and related crimes. Indeed,
828	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  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 necessary in its promotion of Liquid Glass products. While it is certainly true that to advertise a car cleaner or polish,- one may wish to demonstrate its use on an automobile, nothing mandates that Liquid Glass use an automobile with a protectable trade dress, or prominently display Porsche’s trademarks in the ads. The reason that Liquid Glass chose to use a Porsche, instead of the vast array of other cars, and chose to clearly display the trademark PORSCHE, was not, in this court’s opinion, because it needed
4826	December 23, 1993, and could not perform his past work. (R. 20). However, she found the Commissioner had met its burden of proving that there were other jobs in existence which he could perform. (Id). She reached this conclusion by applying the grid in rule 201.28 of the Medical-Vocational Guidelines, Appendix 2, Subpart P, Social Security Regulations No. 4.(Id). This was based on the Claimant being 35 years old, completing two years of college and performing skilled work in the past. The ALJ did not base her decision upon the testimony of a vocational expert. IV. ESTABLISHING A DISABILITY In order to be entitled to DIB under Title II of the SSA, the claimant must establish a “disability” under the SSA. To establish a “disability” the claimant must show he is suffering from a “medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last” for at least 12 months. 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations provide a five-step process to determine whether the claimant has established a “disability.” 20 C.F.R. § 404.1520(a). The process is sequential; if the ALJ finds the claimant is disabled or is not disabled at any step in the process, the analysis ends. Id. In the first step, the ALJ considers whether the claimant is working and whether such work is “substantial gainful activity.” Id. at § 404.1520(b). If the claimant
4940	"failure to properly define the class and claims to be certified under Rule 23(c) and to conduct a sufficiently rigorous analysis as to Rule 23(a) and (b)(3). In Wachtel , we provided explicit guidance regarding best practices for drafting class certification orders. See 453 F.3d at 187 n.10 (stating that ""the appearance within a certification order of a concise paragraph-similar to paragraphs often drafted to define the class itself and fully listing the claims, issues or defenses to be treated on a class basis-would come well within the parameters of the 'readily discernible' requirement""). The predominance requirement also provides that ""class resolution must be superior to other available methods for the fair and efficient adjudication of the controversy."" v. Windsor , 521 U.S. 591, 615, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) ). We will not discuss this particular facet of the requirement as the crux of Citizens' argument, and, in turn, the bulk of Plaintiffs' discussion, deals with whether the District Court, based on the representative evidence before it, could have found the class sufficiently cohesive so as to warrant a class action."
3297	for procedural error and substantive reasonableness), cert. denied, — U.S. —, 129 S.Ct. 998, 173 L.Ed.2d 297 (2009); see also United States v. Rojas-Coria, 401 F.3d 871, 874 n. 4 (8th Cir.2005) (Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), has no impact on case involving sentence imposed as result of statutory minimum). Alarcon’s pro se argument that his guilty plea was not knowing or voluntary is not cognizable in this appeal, see United States v. Villareal-Amarillas, 454 F.3d 925, 932 (8th Cir.2006) (claim that guilty plea was not knowing and intelligent was not cognizable on direct appeal where defendant did not attempt to withdraw guilty plea in district court); and his claim that his counsel was ineffective is more properly raised in a motion under 28 U.S.C. § 2255, see United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir.2006). By his guilty plea, Alarcon has waived any non-jurisdictional challenge to his prosecution, see Smith v. United States, 876 F.2d 655, 657 (8th Cir.1989) (per curiam), and he cannot challenge the drug quantity used for sentencing because he stipulated to the amount in his plea agreement, cf. United States v. Nguyen, 46 F.3d 781, 783 (8th Cir.1995) (defendant who explicitly and voluntarily exposes himself to specific sentence may not
1723	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)). . 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. 1, 13/103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). . Grable & Sons Metal Prods., Inc., v. Darue Eng’g
1470	conditions thereof. That right has been established since the decision of the Supreme Court in Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Neither does the case involve the right of an inmate to have the assistance of another inmate in gaining access to the courts for the redress of grievances where those who have the former inmate in charge have not otherwise provided him with legal assistance or made more conventional legal assistance available to' him.. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Finally, the case presents no question as to constitutional deprivations, if any, that the plaintiff, Dee, may have sustained while confined in ISMF or thereafter. All that we are concerned with here is whether the individual plaintiff, Watts, suffered a personal deprivation of federally protected rights which entitles him to an award of monetary damages against any of the defendants. In resisting the claim of Watts the defendants advance the basic contention that while an inmate of a prison who has no other access to legal assistance has a constitutional right to the services of an inmate writ writer, Johnson v. Avery, supra, the writ writer has no reciprocal constitutional right to provide the service. That
3913	case does not fall within the “continuing violation” exception to the statute of limitations because the execution of the loan in question was a one-time act. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (describing a continuing violation as a number of related incidents). Nor does Silvas identify facts that would suggest her FHA claim should be equitably tolled. See Garcia v. Brockway, 526 F.3d 456, 465-66 & n. 9 (9th Cir.2008). Thus, the district court did not abuse its discretion in denying a preliminary injunction based on Silvas’s FHA 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); 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
2793	was made and implemented long ago. Rather, the decision which plaintiffs seek to enjoin is the Army’s decision to operate the incinerator during the approximately one year before a final trial on the merits. During this period, the Army will be conducting the remaining trial burns, carried out with live agent. The court finds that, pending final resolution of this case, such injury will occur during only a small portion of the expected operating lifetime of TOCDF, and is therefore relatively minimal. Balancing of Harms 6. Even if the court assumes that the risks cited by plaintiffs are sufficiently likely so as to qualify as irreparable harm, the court must balance those risks against the risks and harms asserted by defendants. In 1987, the Army completed a comprehensive quantitative risk analysis that evaluated the risks of accidents and catastrophic events as they relate to the proposed alternatives. The report concluded that the risk of continued storage was greater than the risk of processing. In 1995, the quantitative risk assessment was updated to address information specific to TOCDF. The updated analysis confirmed the Army’s earlier conclusion that the risks of fatalities associated with one estimate of the entire period of TOCDF operations (6.2 years) were equaled by the same risks associated with only eleven days of storage. For individuals living closest to TOCDF, the risks resulting from continued storage are one-hundred times greater than the risks
1753	"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 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 a double design.”); Pack v. AC & S, 838 F.Supp. 1099, 1102 (D.Md.1993) (finding that removal pursuant to section 1442(a) was timely when filed within thirty days of date when plaintiffs served defendant with information that specific ""steam turbine generators manufactured at the Baltimore Shipyards were the subject of the litigation” providing defendant ""with sufficient information ... to determine that the turbines were made according to"
4521	481, 487, 232 P.3d 1263 (Ariz.Ct.App.2010). The remaining parties proceeded with discovery. The United States and Arpaio now each move for partial summary judgment. (Doc. 332, 345). Maricopa County moves for summary judgment on all claims. (Doc. 334). ANALYSIS I. Legal Standard Under Rule 56, summary judgment is appropriate when the moving party demonstrates the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when, under governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); A dispute is genuine if a reasonable jury could return a 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
2933	petition for a writ of habeas corpus against respondent W. D. Blankenship, Superintendent at Bland. Petitioner, on the grounds that his constitutional right to the effective assistance of counsel was denied, challenges the validity of his conviction for first degree murder in the Circuit Court of Frederick County, Virginia. This court has appointed an attorney to assist petitioner, and the case is currently before the court on petitioner’s motion for summary judgment pursuant to Fed.R.Civ.P. 56. Both petitioner and respondent have submitted briefs on this motion. The matter is properly before the court on a motion for summary judgment. A plenary hearing on the merits is unnecessary when the state court records are adequate for determining the validity of petitioner’s claims.  aff’d per curiam 542 F.2d 1250 (4th Cir. 1976). Petitioner Durham has had a full and fair hearing on the record in a state court habeas corpus proceeding on the grounds of ineffective assistance of counsel, and this court is able to dispose of the case by examining the state records and transcripts. See 28 U.S.C. § 2254(d); Rule 8, Rules Governing Section 2254 Cases in the United States District Court. Petitioner has exhausted his state remedies as required by 28 U.S.C. § 2254(b). I. Statement of Facts Mrs. Waltine Hoover and her mother, Mrs. Annie Snow, were stabbed to death on February 23, 1963, in their home near Double Toll Gate in Frederick County, Virginia. On June 23, 1964, while in
3385	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, that defendant was on notice of plaintiffs claim that the city zoning scheme violated the familial status protection of the FHA. B. Handicap Discrimination Claims Finally, defendant asserts that the Court erred in finding that the potential residents were entitled to “handicapped” protection under the FHA. The City points to recent Supreme Court cases which require courts to make an individual inquiry to determine whether specific individuals are entitled to handicapped status protections under the ADA. See Sutton v. United Airlines, — U.S. -, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). As plaintiff points out, however, this Court’s ruling is based on a finding that at least some of the potential residents will be handicapped. Recent Supreme Court cases under the ADA do not alter the Court’s analysis on this point. The record is clear that at least some potential residents will be learning disabled, and entitled to FHA handicapped protection. IT IS THEREFORE ORDERED that the Motion For Reconsideration of Defendant City of Olathe (Doc. # 57) filed June 30, 1999, be and hereby is OVERRULED, except for the following two modifications: 1. The Court modifies the first sentence in the first full paragraph of
1347	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.”' 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
432	"467-68 (5th Cir. 1982) (per curiam), the LPSC argues that ""the Johnson Act is a limitation on bankruptcy jurisdiction” and that therefore the bankruptcy court’s order was improper. In Gulf Water Benefaction, we affirmed the lower courts’ determination that the Johnson Act deprived them of jurisdiction to consider a regulated utility’s claim that the rates set by a public utility commission violated the federal constitution as a taking of property without just compensation and without affording the utility due process. See id. at 465. Because our jurisdiction in this case is based on neither diversity of citizenship nor a constitutional claim, the Johnson Act does not apply to the claims we consider here. See ); see also Public Serv. Co. v. Patch, 167 F.3d 15, 25 (1st Cir. 1998) (""The statute does not apply to claims based upon a congressional statute or federal administrative rulings....”). . The debtor in In re Wabash Valley Power Ass’n, a generation and transmission cooperative serving rural electric membership cooperatives, contested its obligation (and its right under rate regulations) to continue to make payments in service of its debt during the pendency of its bankruptcy proceeding, and made these payments into an escrow account. See 72 F.3d at 1308, 1322. The case did"
3439	attributed to the defendant in that statement.” Sentencing Hr’g Tr. 13, Dec. 16,. 2004. He reiterated that “[t]he Court has relied primarily on the defendant’s statement to investigators in making the determination of reliable conduct which it considers in sentencing and [uses] the other witnesses to corroborate the facts that defendant was involved in drug dealing activities from at least January 2000 to January 7, 2002.” Id. at 14. This finding on relevant conduct reaffirmed the offense level of 35. Additionally, the district court held that the objections made by Lister’s attorney were frivolous, and denied any reduction in the sentence for acceptance of responsibility. This finding came after a series of questions in line with this Court’s decision in  when the district judge attempted to determine if Lister understood and adopted the challenges made by his attorney, Mr. Kelly: THE COURT: And are you in agreement with those challenges which have been made on your behalf? LISTER: Basically I rely on my lawyer for that, Your Honor. THE COURT: Then you don’t agree with him, is that what you’re saying? LISTER: Yeah. I basically just rely on him for it. THE COURT: Are you accepting the challenges as offered by your lawyer? LISTER: I basically just rely on him to just— THE COURT: Did he tell you that you should not accept his recommendations? MR. KELLY: Well, Your Honor, I’m not going to let my client answer a ■ question
4067	(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) (concluding that debt was nondischargeable when a broker deprived a customer of his property by deliberately disposing of it); .Doc.31.
611	little data from which to draw such a conclusion. . Similarly, problems of competitive advantage, relevant to intra-industry standards, are ordinarily inoperative at the inter-industry level. Cf. International Harvester Co. v. Ruckelshaus, note 25 supra. . It is possible that the Secretary failed to pursue this point because he interpreted the statute to require a single uniform standard for reasons of practical administration. If-so, we disagree. The statutory scheme is generally calculated to give the Secretary broad responsibility for determining when standards are required and what those standards should be. If the Secretary determines that meaningful distinctions between the compliance capabilities of various industries can be defined, he is authorized to structure the standards accordingly. . . 29 U.S.C. § 655(b)(7) requires that the standards where appropriate shall provide for monitoring or measuring employee exposure at such locations and intervals, and in such manner as may be necessary for the protection of employees. . See, e. g„ 29 C.F.R. 1910.93a (c), (f)(1). . Bee, e. g., App. at 356-60. . The standards recognize these problems and attempt to deal with part of them by establishing limits for peak periods: (3) Ceiling concentration. No employee shall be exposed at any time to airborne concentrations of asbestos fibers in excess of 10 fibers, longer than 5 micrometers, per cubic centimeter of air. 29 C.F.R. § 1910.93(b)(3). . Employees may report to the Secretary conditions that they believe to be
3801	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 simulating any specified sexual activity with any other person at the adult entertainment establishment, including with another worker.” AEC § 3-129(6). Both the Seventh and Ninth Circuit Courts of Appeal have held similar sex act ordinances unconstitutional. See Schultz, 228 F.3d at 847 (Seventh Circuit); Dream Palace, 384 F.3d at 1017-22 (Ninth Circuit); see also Fly Fish, 337 F.3d at 1306-07 (Eleventh Circuit) (acknowledging Schultz’s invalidation of an ordinance banning certain movements and gestures by an adult entertainer). But see Giovani Carandola, 470 F.3d 1074 (4th Cir.2006). In Schultz and Dream Palace, the laws defined adult entertainment establishments by the depiction or simulation of sexual activities and also banned those sexual activities within adult establishments. The laws, therefore, effectively banned nude dancing in sexually oriented businesses, thus justifying the application of strict scrutiny. Orange County’s AEC is not as clear in that it does not define an “adult performance establishment” by the very conduct that the Code also prohibits, as in Schultz and Dream Palace.
2709	"Debtors, who have asked the bankruptcy court to determine the res judica-ta effect of an order in a different case. Courts do this all the time. See Valley Nat. Bank of Arizona v. A.E. Rouse & Co., 121 F.3d 1332, 1335-36 (9th Cir.1997) (proper remedy if second court erred in not giving res judica-ta effect to first court’s judgment is to appeal second court’s determination, not collateral attack in third court). Moreover, these Debtors returned to the very same bankruptcy court (although a different bankruptcy judge). We have no difficulty in concluding that the bankruptcy court in the Second Case had jurisdiction to determine the res judicata issues and decide whether to award damages under Section 362(h). See 28 U.S.C. § 1367 (codification of supplemental jurisdiction). . Debtors argue that this appeal is moot and frivolous because Ventura stipulated to what it owes Debtors in tax assessment overpay-ments (the “Tax Stipulation”). Debtors did not provide us with a copy of the Tax Stipulation until their motion to augment the record filed one week prior to oral argument before us, but the excerpts of record do include an order approving the Tax Stipulation and the Judgment does incorporate approximately the amount stipulated ($12,905.00, whereas the Tax Stipulation amount is $12,905.86). Nevertheless, having reviewed the Tax Stipulation we agree with Ventura that it resolves only the ""accounting”"
3673	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 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 is unable to meet certain procedural requirements, such as the one-year period of limitation or the stringent gatekeeping requirements for filing a second or successive petition. Cradle, 290 F.3d at 539. We agree with the district court that “to allow Black to file a habeas petition in the district of confinement asserting the same Bousley claim raised in 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
2850	a two-family dwelling, were nevertheless being used as a single, two-story unit, and that there was thus no need to identify either unit in the search warrant. The evidence, however, indicates that while there is some question as to who, if anyone, was actually renting the first floor unit in which the defendants were arrested, the second floor was rented to and was occupied by Mr. and Mrs. Maurice Phillips. Even though it was admitted that Mr. Phillips was and is related to the defendant Gladys Harris, it cannot be concluded that the entire structure was being occupied or used as a single unit. The exception to the general rule, therefore, has no application here. The Government further contends that  fully supports its position that the search warrant at issue here was valid. This reliance, however, is misplaced. In Steele, the warrant described the place to be searched as a building located at 611 West 46th Street, Manhattan, New York. The building actually searched had two street addresses, 609 and 611. The situation in Steele is distinguishable on its facts from those presented here in two most significant respects: (1) the entire building was under lease to the defendant; and (2) “there was no real division in fact or in use of the building into separate halves.” Id. at 502-503, 45 S.Ct. at 416. The Supreme Court held: “It is enough if the description is such
4254	S.Ct. 100, 72 L.Ed. 177 (1927). Military service is another burden which Leviathan does not shrink from imposing upon its constituents. Holmes, cited in Dumbauld, The Declaration of Independence and What It Means Today (1950) 61. Compared with the magnitude of these sacrifices, the exigencies of litigation are ordinarily scarcely more than trifling inconveniences. . Dumbauld, The Constitution of the United States (1964) 154. Similarly, in civil rights cases and cases under the Federal Employers Liability Act the majority of the Supreme Court often regards as a constitutional issue the procedural ques tion whether there was sufficient evidence to go to the jury. Thompson v. City of Louisville, 362 U.S. 199, 204, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Justice Frankfurter protested that consideration of such cases diverted the energies of the Court from the important problems suitable for consideration by the nation’s highest tribunal. Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 525, 540, 547, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957). See also Dick v. New York Life Ins. Co., 359 U.S. 437, 456-459, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959); Ex parte Republic of Peru, 318 U.S. 578, 602-603, 63 S.Ct. 793, 87 L.Ed. 1014 (1943). . Clean hands is a good defense in a patent infringement suit, as Judge. Maris points out in De-Raef Corp. v. Horner Sales Corp., 10 F.R.D. 28 (W.D.Pa. 1950). See also Keystone Driller Co. v. General
2961	does not deprive a criminal defendant of his right to effective assistance of counsel. Petitioner contends that his attorneys allowed improper jurors to sit at his trial, in that several of the jurors were biased because they knew the deceased. However, a review of the voir dire examination exposes no shortcomings on the part of the attorneys’ competence or vigor. Where there is no indication in the state court records that any juror who sat on the case was biased in such a way that would make it more difficult for him to return an impartial verdict, it is not error to hold a trial in and select jurors from the rural county where petitioner and the deceased were well known. This is especially true where more than seven years had elapsed between the crime and the trial. Petitioner argues that his attorneys did not insure that the jury took only the proper exhibits with them into the jury room. The court finds this allegation to be the merest speculation, and there is certainly no evidence in the record sufficient to grant petitioner habeas corpus relief. III. Conclusion The constitutional standard for effective representation is not errorless repre sentation, and counsel’s effectiveness is not measured by retrospectively considering whether his advice and judgment was right or wrong. To obtain habeas corpus relief, a state prisoner must show that any errors counsel made were,so flagrant as to result from neglect or ignorance rather than
2586	of the three groups of defendants. A. The CIS Defendants The CIS defendants (which the Court will refer to collectively as CIS for the sake of convenience) include CIS itself, Phoenix Investment Counsel of Boston, Inc., W Corporation, and thirteen individual defendants associated with those corporations. These defendants’ liability or no to the class depends on basically the same considerations, so they will be treated as a group. Some of the individual defendants contend that the class should not be certified against them because plaintiffs have not produced sufficient evidence of liability, but none of them has filed a motion to dismiss or for summary judgment. A motion for class certification is not a proper vehicle to determine liability. 1. Performance Chart No. 1 During at least some portions of the class period, CIS distributed through its own agents and various brokerage houses a chart which purported to described the performance of “All Growth Oriented Accounts” relative to the performance of “Leading Market Averages” between March 1967 and March 1971, and which included several explanatory paragraphs. Plaintiffs allege that this Performance Chart No. 1 was false and fraudulent in various material respects. a. Numerosity Rule 23(a)(1) establishes as a prerequisite of certification that “the class is so numerous that joinder of all members is impracticable * * *.” Approximately 1541 investors opened accounts with CIS between April 1971 and
2833	Surveillance Interrogatories. Plaintiff seeks in these requests information regarding any surveillance of her Davne may have undertaken. Davne objects to these requests on the ground that they seek impeachment and rebuttal evidence as well as attorney work product. Davne’s first argument is similar to one already addressed, namely, that Federal Rule of Civil Procedure 26(a)(3) does not permit discovery of impeachment evidence. For the same reasons discussed above, this argument is not persuasive. Rule 26(a)(3) simply governs Required Disclosures. Here, Plaintiff has exercised her right to use discovery to gain additional information. Accordingly, without an objection, Davne must produce any responsive materials. However, Davne further objects on the ground that the requests seek attorney work product. He cites Davne’s reliance on this case is misplaced, however. Fisher actually held that “[a]lmost uniformly, [ ] courts have held that evidentiary films or videotapes must be provided to the opposing party prior to trial.” 152 F.R.D. at 150 (citing cases). Fisher went on to explore the issue of materials that would not be used at trial. It held that when tapes or other materials would 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,
776	petitioner eligibility for good conduct time. In contrast, in this case, the TDCJ-ID conducted a hearing and imposed punishment. Thus, according to Wadsworth, we should view the latter as a state court conviction and sentence. We disagree. Our finding in Story that the TDCJ-ID was not a state court was not predicated upon the action taken by the TDCJ-ID but simply upon the fact that it was not a state court. See Story, 920 F.2d at 1251. Even if the TDCJ-ID cannot be considered a state court, Wadsworth argues that a district court needs only the capacity to serve process on the custodian in order to assert jurisdiction. In tendering this argument, Wadsworth relies principally upon In Braden, the Supreme Court addressed whether a district court in one state could have jurisdiction over a prisoner in custody in another state where that prisoner challenged a detainer issued in the first state. In reaching its conclusion that the prisoner could attack the interstate detainer in a district court located within the state issuing the detainer, though the prisoner was confined in another state, the Supreme Court looked to the text of 28 U.S.C. § 2241(a). The Court noted that on its face, § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court
1030	a higher rate given that its own experts acknowledge that 6% is too low; the real problem is that there is still a gap between what the bank thinks is minimally necessary and the debtor’s maximum ability to pay such a rate. Moreover, from day one it has been obvious that the cramdown rate of interest would be the primary issue in this case, so the bank cannot argue that it has been mislead or that, in the end, the Court would have to make hard decisions. Further, debtor cites cases where just such an approach has been embraced by bankruptcy courts as a practical solution to this dilemma. See, e.g., In re Good, 413 B.R. 552, 558 (Bankr.E.D..Tex.2009); Since there is no statutory obstacle, and the bank cites no cases either, the Court is persuaded that there is nothing fundamentally wrong with a plan that provides such an elastic provision concerning a proposed cramdown interest rate. 3. Does § 1129(b)(2)(A)(i) apply? Similarly, the bank argues that § 1129(b)(2)(A)© cannot apply because, as originally written, debtor proposed in the plan that future sales of the undeveloped pads on the property be free of liens, with portions of the proceeds remitted to the bank a function of a release price formula somewhat vaguely described at page 5 of the plan. The bank correctly argues that such a provision would be, absent an ability to credit bid, inconsistent with the requirement found
1837	Thus, the evidence does not compel the conclusion that Murangwa is eligible for asylum based upon a well-founded fear of future persecution. PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN PART. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. . Like the BIA, we assume that Murangwa’s testimony before the IJ was credible. Accordingly, we do not address Murangwa's argument as it relates to the propriety of the IJ's adverse credibility determination and the BIA's adjudication of his appeal without reviewing this credibility determination. . Because Murangwa has not established eligibility for asylum, his claims for withholding of removal and for protection under the Convention Against Torture also fail. see Zheng v. Ashcroft, 332 F.3d 1186, 1194 (9th Cir.2003) (discussing the standard for relief under the Convention Against Torture).
4986	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 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. 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
4071	victim received a letter from McLane, in care of Lanier, requesting that the loan papers be signed again. An FBI agent also testified that Lanier claimed to have sent one victim’s check to McLane. This evidence permits a reasonable inference that the mails were used for the purpose of carrying out the loan scheme. 2. Fraud in Interstate Commerce To establish a violation of 18 U.S.C. § 2314, the government must prove that the accused devised a scheme or artifice to defraud or obtain money by false pretenses or representations and caused or induced an intended victim to travel in interstate commerce with the intent to defraud that person of money or property having a value of $5,000 or more. The first elements of sections 2314 and 1341 are identical, and the same evidence discussed above, supra p. 284, supports the jury’s finding that Lanier intentionally engaged in a scheme to defraud under section 2314. With regard to the second element of section 2314, Lanier maintains that the evidence demonstrates only that each victim used interstate commerce voluntarily. However, Lanier traveled with several of the victims to Ohio in order to introduce them to McLane. The evidence is sufficient to support an inference that Lanier induced others to travel in interstate commerce in order to further the loan scheme. 3. Aiding and Abetting The elements of aiding and abetting are (1) that the defendant associated himself with the unlawful venture;
1673	McClaughry, 183 U.S. 365, 22 S.Ct. 181, 48 L.Ed. 236; Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640; Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225; French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692. Contra Sanford v. Robbins, 5 Cir., 115 F.2d 435. See, e. g. Ex parte Bigdow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005. Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436; Ex parte Hans Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; 16 S.Ct. 1192, 41 L.Ed. 300. Cf. Rosborough v. Rossell, 1 Cir., 150 F.2d 809; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; and Amrine v. Tines, 10 Cir., 131 F.2d 827. Title 30 U.S.C.A. § 1511. “As to number (article 40). No person shall, without his consent, be tried a second time for the same offense; but no proceeding in which an accused has been found guilty by a court-martial upon any charge or specification shall be held to be a trial in the sense of this article until the reviewing and, if there be one, the confirming authority shall have taken final action upon the
2650	administration to hold the hearing now because if it is not held now, it must be held later. The court’s decision on remand should be supported by appropriate findings of fact and conclusions of law. The stay of execution will remain until determination of the matter. Reversed as to the denial of the motions to dismiss the indictment and to challenge the array of the petit jury only, and remanded for further hearing in accordance with this opinion. . See Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34; Jackson v. United States, 5 Cir., 1966, 366 F.2d 34; Brooks v. Beto, 5 Cir., 1966, 366 F.2d 1; Labat v. Bennett, 5 Cir., 1966, 365 F.2d 698; d 770; Billingsley v. Clayton, 5 Cir., 1966, 359 F.2d 13; and Scott v. Walker, 5 Cir., 1966, 358 F.2d 561. . The Rabinowitz case originated in the United States District Court for the Middle District of Georgia, as did the present case. The district court denied the motions to dismiss the indictment and to challenge the array of the petit jury in January 1966, followed by a written opinion on February 4, 1966 by the trial judge amplifying his reasons for denying the motions. Rabinowitz was not decided until later in the same year by the Fifth Circuit, i. e., on July 20, 1966. In the present case, also from the Middle District of Georgia, those in charge of jury selection were the Jury
4109	guests. However, we conclude that neither of these assertions satisfies their burden under the “reasonable communicativeness” test. The record demonstrates that the Feg-gestads first received notice of the forum selection clause via the email confirmation of their reservation. Even though the clause was contained in a hyperlink in the body of the email, there was nothing that prevented them from clicking on the link to read the terms and conditions that would apply to their stay at the Atlantis. The Feggestads actually stated that they did not try to access the hyperlink. Thus, because they cannot demonstrate how they were prevented from reading the terms and conditions, this email provided sufficient notice of the forum selection clause. See e.g., Vanderham v. Kerzner Int’l Bahamas Ltd., et al., No. 13-24147-civ, 2014 WL 4285271, at *2 (S.D. Fla. Aug. 29, 2014) (ruling that the forum selection clause was enforceable because Kerzner sent plaintiffs a confirmation of registration email that contained the terms and conditions including the forum selection clause) (identical facts to present case). We also conclude from the record that the Feggestads received notice for a second time when they registered at the Atlantis. They claim that the reservation personnel impeded their ability to read, fully understand, and
912	1017 (10th Cir.2001). . Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir.2000) (quoting Adler, 144 F.3d at 670-71); see Kannady, 590 F.3d at 1169. . City of Herriman, 590 F.3d at 1181. . Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006). . Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). . Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). . Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). . Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). . Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991). . Jackson, 973 F.2d 1518, 1521 (10th Cir.1992)). . 29 U.S.C. § 1132(a)(1)(B). . Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). . Kimber v. Thiokol Corp., 196 F.3d 1092, 1097 (10th Cir.1999). . Doc. 86 at 8. . 29 U.S.C. § 1132(a)(1). . 29 U.S.C. § 1002(8). . Doc. 54-1 at 4-5. . See Restatement (Second) of Conflict of Laws § 283 (1971); see also Grabois v. Jones, 77 F.3d 574, 576 (2d Cir.1996) (explaining that federal courts ordinarily apply state law to determine who is the rightful beneficiary of an ERISA-regulated benefit plan); Doc. 79 at 19. . Doc. 79 at 19. . Texas law acknowledges that
2699	whereas here the Plan does not purport to affect Ventura’s lien or determine the proper amount of Ventura’s assessments under applicable law. As stated by the Ninth Circuit in a Chapter 11 case: If [the debtor] intended [the amount of the creditor’s claim stated in a Chapter 11 plan] as a means of challenging the amount of [the creditor’s] claim, he picked a peculiar way of going about it, hardly consistent with his fiduciary obligations to a creditor of the estate. While the debtor may challenge any claim he believes in good faith should not be allowed, he must do so by raising the issue squarely with the court and giving the affected creditor an opportunity to respond. In this case, if Debtors intended the Plan to reduce the amount of Ventura’s tax assessments or affect its rights to enforce the full amount of its lien, they needed to raise these issues squarely with the court and Ventura. The need for clear notice is especially high in cases like this because a plan can be confirmed very quickly in a Chapter 13 case — as little as 30 days in local practice, according to Ventura. See Fed. R. Bankr.P. 3015(b) (Chapter 13 plan may be filed with petition) and 2002(b) (25 days’ notice by mail of time fixed for filing objections and hearing to consider confirmation of Chapter 13 plan). No strained reading of
453	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; Petitioner quotes Moline Properties, Inc. v. Commissioner, 319 U. S. 436, in which it is said: * * * In general, in matters relating to the revenue, the corporate form may be disregarded where it is a sham or unreal. In such situations the form is a bald and mischievous fiction. Looking to the record, it is to us abundantly clear that the corporation should not be characterized a sham or unreal, nor should it be described as a bald and mischievous fiction. The corporation was formed in 1926 for the purpose of acquiring title to two pieces of property. It received deed to those properties and thereafter, until 1943, held the title as actual owner thereof. It filed its income tax
1880	followed. Deferring to the Commission’s reasonable construction of Opinion 595, and to its discretion in considering the equities of a refund order, we affirm the Commission’s decision. Area Rates Opinions No. 595, 45 F.P.C. 674 (1971), and No. 595-A, 46 F.P.C. 827 (1971), affirmed, Public Service Commission v. FPC, 170 U.S.App.D.C. 153, 516 F.2d 746 (1975), had their genesis in the Supreme Court’s landmark decision, Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954). In that case the Court, by finding that the Commission had a statutory duty to regulate the rates of some 3,000 independent producers of natural gas, thrust on the Commission a task it was then unequipped to handle. See To expedite its docket, the Commission largely abandoned individual ratemaking, and began setting prices according to geographical areas. In 1968, the Supreme Court upheld the first area rate case to reach it. Permian, supra. The contract involved in this dispute came into existence in 1948. After the Phillips decision, Gillring filed the contract as a rate schedule under § 4 of the Act, now 15 U.S.C.A. § 717e (1976). In 1959, the contract rates went into effect under § 4(e) subject to refund if the Commission should eventually find they were above the just and reasonable price. Gillring’s contract then became part of the Texas Gulf Coast Area rate proceeding, which the Commission completed in
3123	while being used in violation of Internal Revenue laws relating to liquor violations. For the purpose of this trial the parties assumed that the previous arrest and indictment of Blizzard constituted a “record,” as contemplated in the Act. Upon claim being filed by appellee, the trial was had and the court remitted the truck to its owner, holding that the third subsection of Title 18 U.S.C.A. § 3617(b) did not include a claimant in the position of the Rent-A-Car Company here. The Government here attacks, and the appellee defends, this holding and reasoning by the trial court. The latter is supported by a case involving the identical facts decided by the Court of Appeals for the Fourth Circuit. In that case the court held, one judge dissenting, that although the parties to a car rental agreement come within the letter of the statute it was the duty of the court to determine whether such inclusion would also come within the spirit of the law. The court said: “Manifestly, then, the case comes within the letter of 18 U.S.C.A. § 3617(b) (3), for claimant’s interest is ‘subject to any contract or agreement under which any person having a record or reputation for violating laws of the United States or of any State relating to liquor has a right with respect to such vehicle’. And the statutory inquiry must be made ‘before such claimant acquired his interest, or such other person acquired his
620	"Guarantor and 2) Applicability of Colorado Law (Docket No. 314). . In re Richter, 478 B.R. 30, 40 (Bankr.D.Colo.2012). . Id. (quoting Wilson v. Broadband Wireless Int’l Corp. (In re Broadband Wireless Int’l Corp.), 295 B.R. 140, 145 (10th Cir. BAP 2003)). . See Debtors' Objection. . See Bank’s Response. . Richter, 478 B.R. at 40; see also In re Lenz, 110 B.R. 523, 525 (D.Colo.1990). . Id. at 40-41 (internal citations omitted). . See Security Service Federal Credit Union v. First American Mortg. Funding, LLC, 861 F.Supp.2d 1256, 1264 (D.Colo.2012)(""[A] court need not choose which body of law to apply unless there is an outcome determinative conflict between the potentially applicable bodies of law.”). . Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc., 532 F.3d 1063, 1077 n. 12 (10th Cir.2008). . Haggard v. Spine, 2009 WL 1655030, at *3 (D. Colo. June 12, 2009) (not reported in F.Supp.2d); see also Wood Bros. Homes, Inc. v. Walker Adjustment Bureau, 198 Colo. 444, 601 P.2d 1369 (1979). In full, Restatement (Second) of Conflict of Laws § 187 states: (1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue. (2) The law of the state chosen by the parties"
363	for appellate review. Barber’s request for a certificate of probable cause is DENIED. . Barber requests a Certificate of Appealability (COA); however, because his petition was filed prior to the effective date of the AEDPA his application must be construed as a request for a certificate of probable cause (CPC). Lindh v. Murphy, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The standards for issuing a CPC and the AEDPA-required COA are identical. See Lucas v. Johnson, 132 F.3d 1069 (5th Cir.1998); Muniz v. Johnson, 132 F.3d 214 (5th Cir.1998). . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Hogue v. Johnson, 131 F.3d 466 (5th Cir.1997). . Dr. Lett otherwise concluded. . Barber v. State, 737 S.W.2d 824 (Tex.Crim.App.1987). . Barber v. State, 757 S.W.2d 359 (Tex.Crim.App.1988), cert. denied, Barber v. Texas, 489 U.S. 1091, 109 S.Ct. 1559, 103 L.Ed.2d 861 (1989). . Dr. Griffith, permitted to testify about Barber's ■ future dangerousness during the punishment phase, testified that Barber did not suffer from any form of mental illness, but he did have a sociopathic anti-social personality disorder. He testified that a sociopathic personality was characterized by: (1) repeated confrontations with authority; (2) mental laziness preventing success in
1440	is without merit. The INS did not instruct Westover that if she intended to stay permanently in the United States, she should apply for a new visa. Instead, the INS instructed Westover that she could leave the country and apply for a new six-month visa. She did this. Nothing in the record suggests that the INS knew, at the time it gave her this advice, that she was intending to violate immigration laws or that she had previously violated immigration laws. Later she was charged with obtaining this visa with the intent to stay indefinitely. Estoppel requires showing that the government engaged in “affirmative misconduct” that caused the petitioning individual to act in a way she otherwise would not have. See Westover has failed to meet either of these requirements. There is no evidence of government misconduct. D. Failure to Adjudicate Form 1-601 Westover claims that the BIA erred in not adjudicating her form 1-601 (waiver of grounds of excludability). Form 1-601 allows an alien who would otherwise be ineligible for adjustment of status to have the grounds of her ineligibility waived. See 8 C.F.R. § 212.7(a)(l)(ii). Since the IJ denied Westover’s application for adjustment of status as a matter of discretion, there was no need to adjudicate the form 1-601. E. The Overstay Charge Westover’s visa (which the INS considers to have been fraudulently obtained) was valid when the show cause order was issued but lapsed during her removal proceedings.
1253	"its parent,” such as when the subsidiary is an agent or instrumentality of the parent). Notably, in the context of holding nonsignatories to arbitration agreements, the assumption theory, which arises out of ""ordinary principles of contract,” is distinct from the veilpiercing/alter ego theory. See Thomson-CSF, 64 F.3d at 776. As with the alter-ego doctrine, courts applying the assumption theory have held nonsignatories that were not the parent corporation of the signatory to be bound by the arbitration agreement. See Gvozdenovic v. United Air Lines, Inc., 933 F.2d 1100, 1105-07 (2d Cir.1991) (finding that nonsignatory employees who were not members of the union signatory were bound by arbitration agreement because their conduct manifested a clear intent to arbitrate); . Because the Court finds that remand is appropriate based on Plaintiffs properly naming a non-diverse Defendant in the breach of contract claim, the Court need not, and therefore will not, consider Plaintiffs' promissory estoppel and fraud claims alleged in the Proposed Complaint."
4031	following standards warranting class certification: (1) members must constitute a large but manageable class; (2) there is a question of law common to the whole class; (3) a common legal issue oven-ides separate factual issues affecting individual members; (4) claims of the party plaintiff are typical of claims of the class; (5) the Government must have acted on grounds generally applicable to the whole class; (6) the claims of many claimants must be so small that it is doubtful they would be otherwise pursued; (7) the party plaintiffs must adequately and fairly protect the interests of the class without conflicts of interest; and (8) the prosecution of individual lawsuits must create a risk of inconsistent or varying adjudications. Buchan, et l. at 140-41, 453 F.2d 1272). The court also weighs whether certifying the group as a class action would serve the interest of justice. See Moore v. United States, 41 Fed.Cl. 394, 397 (1998) (citing Kominers v. United States, 3 Cl.Ct. 684, 686 (1983)). The total number of colonel selectees equal 198 members. Although it is a relatively small group when compared to other groups seeking class certification, the court is satisfied that such a class would be manageable yet large enough to justify certification. The court finds no compelling reason why each category of selectees, i.e., colonels in the 1967 and 1969 year groups, and colonels serving as chaplains, cannot be combined into one group for class
2668	at, right angles * * *.” NEB.REV.STAT. § 39-602(37) (1978) (emphasis added). The definition of a highway is: “the entire width between the boundary limits of any street, road, avenue, boulevard, or way which is publicly-maintained when any part thereof is open to the use of the public for the purposes of vehicular traffic.” NEB. REV.STAT. § 39-602(32) (1978). Ben Gay, Inc. argued that County Road # 38 was not publicly maintained and is therefore not a highway. The testimony at trial was in conflict on this point and the issue was correctly submitted to the jury. See Arthur v. Arthur, 684 F.2d 558, 561 n. 3 (8th Cir.1982); Bern v. Evans, 349 F.2d 282, 291 (8th Cir.1965); The standard of review of jury determination of a factual question is narrow. An appellate court may not substitute its view of the facts for that of the trier of fact unless it is in a position to hold that reasonable minds, viewing the evidence in the light most favorable to the prevailing party, could only have found otherwise than the trier of fact. McIntyre v. Everest & Jennings, Inc., 575 F.2d 155, 158 (8th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed.2d 173 (1978). See also Mizell v. United States, 663 F.2d 772, 776 (8th Cir.1981). Since we believe reasonable minds could differ on this evidence, we will not disturb the jury verdict. Mrs. Giesbrecht would
4293	trials, the court could be regarded as making special reference to patent litigation, see, e. g., Bresnick v. United States Vitamin Corp., 2 Cir., 1943, 139 F.2d 239, 242; Mercoid Corp. v. Mid-Continent Investment Co., 1944, 320 U.S. 661, 665, 64 S.Ct. 268, 88 L.Ed. 376, that interest was centered in North Carolina. A trial there was inevitable in any event. That suit was the principal one, and North Carolina was the primary forum in which to try — not only because it was first, but because of the number of substantial parties before the court, and the time and effort which had been spent in preparation. See . 180, 183-184, 72 S.Ct. 219, 96 L.Ed. 200. Indeed, quite possibly the North Carolina court could have enjoined Burlington’s affirmative pressing of the Massachusetts case for trial. See Martin v. Graybar Electric Co., 7 Cir., 1959, 266 F.2d 202, 203-205; Barber-Greene Co. v. Blaw-Knox Co., 6 Cir., 1957, 239 F.2d 774, 778; cf. Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., supra, 342 U.S. at pages 184-185, 72 S.Ct. at pages 221, 222; Dwinell-Wright Co. v. National Fruit Product Co., 1 Cir., 1942, 129 F.2d 848, 852. The North Carolina action was
90	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. While perhaps not the sole cause, the alleged improper conduct of the INS plainly constituted a primary factor in the harm that plaintiffs contend they have suffered and will continue to suffer. Finally, the injury alleged is “likely to be redressed by a favorable decision.” Id. at 38, 96 S.Ct. at 1924. Requiring the INS to provide adequate temporary documentation of lawful alien status and employment authorization to LPRs will to a large extent avoid repetition of the harm that plaintiffs allege they have suffered. Plaintiffs assert that due to INS policies and the inadequacy of the INS’s temporary documentation process they are either not being provided with evidence of their lawful alien status
1447	of her arrest, INS agents had no reason to believe she intended to remain in the United States indefinitely. However, by the time Boocock arrested Westover, he had probable cause to believe that she was involved in the marijuana growing operation, which could have ultimately rendered her removable. See 8 U.S.C. § 1227(a)(2)(B)(i) (rendering removable an alien convicted of a drug related offense); cf. 8 U.S.C. § 1182(a)(2)(C) (rendering inadmissible an alien who an immigration officer has reason to believe has aided in drug trafficking). . The real danger of this practice is that it could be used to remove an alien on weak or even false original charges as long as the alien’s visa will expire during removal proceedings. Cf. The question is difficult and highly fact dependent. INS hearing officers are badly overburdened; the eight years of proceedings here are not the result of agency ineptitude, and there are frequently delays, which usually work to the benefit of the alien. . IRRIRA’s permanent rules governing judicial review, codified at 8 U.S.C. § 1252, apply to cases in which removal proceedings commenced on or after April 1, 1997. See Prado, 198 F.3d at 288 n. 2.
3516	bank fraud and other offenses, in violation of 18 U.S.C. §§ 371, 1349, and bank fraud, in violation of 18 U.S.C. § 1344. At sentencing, the district court determined that Wainwright’s advisory Guidelines imprisonment range was 41-51 months, noted its consideration of the 18 U.S.C. § 3553(a) factors, and sentenced Wainwright to concurrent 46-month prison terms, to be followed by 5 years of supervised release. Wainwright appeals, and in a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel raises issues concerning the reasonableness of Wainwright’s prison sentence. We review a sentence for reasonableness, affording a presumption of reasonableness if the sentence is within a correctly calculated Guidelines range. See Upon careful review of the record, we conclude that the district court correctly calculated Wainwright’s advisory Guidelines imprisonment range and reasonably sentenced him within that range. See United States v. Two Shields, 497 F.3d 789, 795-96 (8th Cir.2007) (defendant overcomes presumption of reasonableness if district court failed to consider relevant factor that should have received significant weight, gave significant weight to improper or irrelevant factor, or weighed appropriate factors in clearly erroneous way). After reviewing the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no non-frivolous issues for appeal. Accordingly, we affirm, and we grant counsel leave
927	the limitations period, nor does it in any way suggest that § 6325 is a procedural prerequisite to the running of the statute of limitations under § 6511. The taxpayer cites no authority — nor have we been able to find any — in support of this argument. The limitations period for administrative refund claims for the taxpayer’s 1983 taxes began to run on the various dates those taxes were paid, the last of which occurred on December 5, 1988. Because the taxpayer filed his administrative claim for refund on December 12,1990, seven days after the two-year limitations period expired as to the last payment he made for -1983, the district court properly dismissed his complaint for lack of jurisdiction. 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
391	adjudicate Nyaga’s application but it could not mandate a certain outcome in that adjudication. Id. at 1253, 1256. The Defendants appeal. III. ISSUES ON APPEAL We are presented with three issues on appeal: (1) whether the Plaintiffs’ claim is moot; (2) whether the district court had subject matter jurisdiction to consider Plaintiffs’ claim; and (3) whether the district court properly concluded that there were no genuine issues of material fact and that the Plaintiffs were entitled to judgment as a matter of law. Because we conclude that the Plaintiffs’ claim is moot, however, we do not address any other issues. IV. STANDARD OF REVIEW We review questions of mootness under a plenary standard of review. V. CONTENTIONS OF THE PARTIES The Defendants contend that the district court erred when it concluded that the court was capable of providing meaningful relief to the Plaintiffs. The Defendants argue that the plain language of 8 U.S.C. § 1154(a)(l)(I)(ii)(II), when read in conjunction with 8 U.S.C. § 1255(a), compels the conclusion that Nyaga is no longer eligible to receive a diversity visa because fiscal year 1998 has ended, and thus he cannot satisfy the statutory requirements for adjustment of status under § 1255(a). The Defendants further contend that congressional intent, reflected in Congress’s prior efforts in passing ameliorative legislation related to the diversity visa program, evinces the clear understanding that Nyaga is no longer eligible to receive a diversity
2607	can assume (at least in the absence of proof to the contrary) that plaintiffs’ portfolios would have done no worse than indexes of securities of risk and return consistent with plaintiffs’ investment objectives, it cannot assume that they would have done better than those indexes. Defendants’ preferred damage formula, return of the investment advisory fee, seems equally inappropriate. If because of CIS’s fraud its clients entrusted their money to CIS instead of another investment adviser, they were cheated of the opportunity to put their money in the hands of someone who might have managed it better. Although the damages for which a defendant who commits securities fraud is liable may be his profits if they are greater than the victim’s damages,  the defendant is liable for the victim’s actual damages if they exceed his profits. It may well be that CIS’s liability may greatly exceed its profits during the class period, but in those circumstances, “the proper measure of damages is what the [clients] lost as a result of the defendant’s wrong, not what the defendant gained.” Green v. Occidental Petroleum Corp., supra, 541 F.2d at 1341-1342 (Sneed, J., concurring). The Court’s selection of a damage formula is only tentative because the parties have focused on class versus individual measures 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.
2139	Co., 243 U.S. 502, 37 S.Ct. 416, 67 L.Ed. 871; Victor Cooler Door Co. v. Jamison Cold Storage Door Co., 4 Cir., 44 F.2d 288. The “claim” must also be 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. 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
1315	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 that duty to a defendant-employee; (3) and the defen dant-employee breached the duty through his own fault and lack of ordinary care. However, a defendant-employee’s “general administrative responsibility” is insufficient to impose personal liability. Canter, 283 So.2d at 721. In rejecting Moore’s proposed amendment, the district court found that Moore’s allegations were general in nature, he had offered no evidence of personal fault on behalf of the PPG employees, and, therefore, his amendment served only to destroy diversity. Cf. Tillman v. CSX Transp., Inc., 929 F.2d 1023, 1029 (5th Cir.1991) (determining that an amendment’s principal purpose was not to defeat jurisdiction where a valid cause of action existed). We agree that Moore’s proffered amendment relied on the proposed
1556	a voting age majority of the minority group. In the absence of sufficient votes to effectively compete, clearly it is not the existence of the multimember district that deprives the minority group of the opportunity to elect its preferred candidates. In this case the defendants’ expert, Dr. Weber, had accurate voter registration data available. In drawing subdistricts he attempted to form black voter registration majorities. Although it may not be appropriate to use registration figures in every vote dilution case, it strikes this court that, when such information is available, it provides valuable assistance in determining whether there is a violation of Section 2 in a judicial district, as well as in fashioning a remedy which will actually work. Relying upon  aff'd, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973), plaintiffs, in both the liability trial and the remedy phase, have frequently ignored “one-man, one-vote” principles. As' the Fifth Circuit pointed out in Chisom v. Edwards, 839 F.2d 1056, 1060 (5th Cir.1988), such equal representation principles do not apply per se to judicial elections, but Wells clearly has no application to claims of racial discrimination in judicial elections. This court certainly accepts the notion that there is no federal requirement that judicial districts must contain approximately equal numbers of people. Indeed, judicial districts are jurisdiction specific, not population oriented. Many times the limits of a judicial district are historical and tied directly to a unit of local government. However, where one
1757	"can be proven by a preponderance of the evidence through a simple and short statement of the facts. In short, a bright-line rule should create a fairer environment for plaintiffs and defendants.”). . While a ""federal court is bound to consider the stage of the state court litigation in ruling on a motion to remand” the mere fact that an action has progressed in state court does not require remand absent some other basis. Zbranek, 727 F.Supp. at 326 (citations omitted) (noting that remand was appropriate because state court litigation had advanced considerably; but resting remand decision on finding that defendants had failed to show that another paper pursuant to section 1446(b) had allowed defendants to ascertain removability). See also n the state court, taken before the case became removable or before the defendant was able to determine that the case was removable, cannot be taken as a waiver of the right to remove.”). . Potter v. Carvel Stores of New York, Inc., 203 F.Supp. 462, 467 (D.Md.1962), aff’d, 314 F.2d 45 (4th Cir.1963) (citations omitted). . Objections (quoting Complaint II ¶¶ 8, 10, 37, 41). . See Compl. ¶¶ 10, 37, 41; Complaint I ¶¶ 10, 37, 41; Complaint II ¶¶ 8, 10, 37, 41. . See Complaint III ¶ 248. . Shell Oil does not claim its right"
2971	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 cf. United States v. Woods, 812 F.2d 1483, 1487-88 (4th Cir.1987) (not error to refuse to define “reasonable doubt” in charge to jury). Here the trial court properly instructed the jury that the government bore, throughout the trial, the burden of proving its case beyond a reason able doubt, and its failure to supplement this instruction with a definition of reasonable doubt is not grounds for reversal. Headspeth also argues that the district court erred in refusing to allow his counsel to define the term reasonable doubt in closing argument. This argument is flatly refuted by our decision in United, States v. Crockett, 813 F.2d 1310 (4th Cir.1987), which held that it was not an abuse of discretion to limit
3141	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 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 434. In addition, the court also considered that there were other sources of the same product available to the debtor. Id. The court noted that the “necessity of payment” doctrine should only be applied under “extraordinary circumstances” and only to be used in “rare cases”. Id. at 433-434, citing inter alia, the cases of Kmart, supra, and In re CoServ, supra. The other
738	register and money within — all of a single ownership. Consequently, the contention is that to split his indivisible act into parts, each constituting a crime, is to put him in jeopardy twice for the same wrongdoing, which is proscribed by the Fourteenth Amendment’s embrace of the Fifth. As late as 1970 we held, in Smith v. Cox, 435 F.2d 453 (4 Cir. 1970), a case arising in Virginia, that the Double Jeopardy Clause does not bar conviction and sentence at one trial for multiple offenses arising from a unitary criminal transaction where each offense rests on different necessary elements. It was declared, relying on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and  cert. denied, 359 U.S. 974, 79 S.Ct. 891, 3 L.Ed.2d 841 (1959), that the clause is infringed only if all the components of a crime defined under one statute must also be proved to convict under another. “[T]he test to be applied * * * is whether each provision requires proof of an additional fact which the other does not.” Blockburger v. United States, supra, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Statutory burglary is the breaking and entering of a shop “with intent to commit larceny”. Va.Code Ann. § 18.1-89 (Supp.1971). Grand larceny occurs when a person unlawfully steals, takes and carries away goods and chattels of the value of $50.00 or more. Id.
119	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 within the discretionary function exception to the FTCA; and/or (2) a private person would not be liable in like circumstances under Massachusetts law. Citing  and Kelly v. United States, 924 F.2d 355, 362 (1st Cir.1991), the Federal Defendants argue that investigative functions and decisions, including whether, when and how to investigate or apprehend fugitives, are subject to the discretionary function exception. They contend that the United States has not waived its sovereign immunity for claims based on the FBI’s exercise of its discretion to determine whether, when, and how to investigate or apprehend individuals like Sampson. See 28 U.S.C. § 2680(a). They add that the Plaintiffs’ negligence claim, arising out of the FBI’s failure to use specific technology to reconnect or trace calls, is also subject to the discretionary function exception, because it implicates budgetary and policy-making decisions. The Federal Defendants rely on Limar
2163	in opposition. Attached to the brief are highlighted copies of Attorney Hernandez’s billing records indicating some of the disputed entries, 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., 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,
2467	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 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 appellate court’s decision on the lower court when the matter is remanded. This case is entirely different. If the Bank’s argument
3795	proceed despite the amendment. Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1328-29 (11th Cir.2004); cf. Deja Vu, 274 F.3d at 387. And, if a plaintiffs constitutional challenges to an ordinance remain valid despite an amendment to the ordinance challenged, there is no reason to find the claim moot. “[T]he ‘superseding statute or regulation moots a case only to the extent that it removes challenged features of the prior law. To the extent that those features remain in place, and changes in the law have not so fundamentally altered the statutory framework as to render the original controversy a mere abstraction, the case [is] not moot.’ ” Coalition for Abolition, 219 F.3d at 1310 (quoting Orange County argues that the replacement of “or other erotic touching” with “stroking or rubbing,” and the deletion of “pubic region, buttock, ... [and] female breast” from the definition of SSA have mooted at least one of Plaintiffs claims. With the deletion of “erotic touching,” the definition no longer expressly emphasizes the erotic nature of the dancer’s activity. See Brownell, 190 F.Supp.2d at 486, 488-92 (holding unconstitutional under O’Brien a provision virtually identical to the AEC’s pre-amendment fondling provision, in part because it regulated “erotic” and non-obscene touching). Though the Brownell court placed heavy emphasis on the ordinance’s “erotic” descriptor, it held the fondling ordinance violated two parts of the four-part O’Brien test because the provision was related to the
3033	finding of an unfair labor practice, the Board was also entitled to exercise its discretion in shaping a remedy. May-Department Stores v. N.L.R.B., 326 U.S. 376, 392, 66 S.Ct. 203, 90 L.Ed. 145 (1945). Ortiz, Sr. told MTM that deliveries to San Juan, Sea Freight or International would result in a work stoppage. The order involved no parties which were unaffected by the secondary boycott; it lies within the parameters of the proper exercise of discretion. N.L.R.B. v. Springfield Bldg. & Construction Trades Council, 262 F.2d 494, 498-99 (1st Cir. 1959). See also Communications Workers of America v. N.L.R.B., 362 U.S. 479, 80 S.Ct. 838, 4 L.Ed.2d 896 (1960) (per curiam); Highway Truck Drivers and Helpers Local The order is entitled to enforcement. ENFORCEMENT GRANTED. . “(b) It shall be an unfair labor practice for a labor organization or its agents— ■ (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is— (B) forcing or requiring any person to cease using, selling, handling,
3844	PER CURIAM: The Federal Public Defender appointed to represent Luis Tinoco Gonzalez (Tinoco) has moved for leave to withdraw and has filed a brief in accordance with Tinoco has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. 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.
1034	.0903553 or 9.035%. Boulders, 164 B.R. at 106, n. 5 Although Boulders involved only two tranches, and was decided in a different business era with different prevailing rates and percentages of loan to value, there is no conceptual obstacle to further blending the rate comprised not only of standard and mezzanine rates, but perhaps of a third equity return rate as well, as necessary, where it becomes unrealistic to believe that any lender will loan up to a very high percentage or even 100% of value. See Reehl and Milner, Cram Down Interest Rates: The Quest Continues, 30 Cal. Bankr. J. at 22, 26, citing Boulders, In re Villa Diablo Assoc., 156 B.R. 650 (Bankr. N.D.Cal.1993) and Both the debtor and the bank in their briefs accept the blended rate approach in concept. The parties differ primarily in their percentage allocation between a “market rate” initial tranche, inclusion of a second “mezzanine” rate and the proportion at an equity rate, and upon where those lines should be drawn and/or the rates assigned to each tranche. Of course, whether a “market” rate is given for the initial 65% or only up to 50%, whether three tranches are used or only two, and the respective rates adopted for each element and valuations of collateral, will affect profoundly the resulting “blended” rate. In the end, everything depends on the evidence available to support the respective expert’s assumptions based on current data and
1251	"so dictated by the ordinary principles of contract and agency.” Thomson-CSF, S.A. v. Am. Arbitration Assoc., 64 F.3d 773, 776 (2d Cir.1995) (internal quotation marks and citation omitted). The court has recognized five theories, ""aris[ing] out of common law principles of contract and agency law ... for binding non-signatories to arbitration agreements: 1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter ego; and 5) estoppel.” Id..; sec also Merrill Lynch Inv. Managers v. Optibase, Ltd., 337 F.3d 125, 129 (2d Cir.2003). Under the alter ego theory, courts have found, or have left open the possibility of finding, a nonsignatory bound to the arbitration agreement when it was not the parent of the signatory corporation. See Notably, in the context of holding nonsignatories to arbitration agreements, the assumption theory, which arises out of ""ordinary principles of contract,” is distinct from the veilpiercing/alter ego theory. See Thomson-CSF, 64 F.3d at 776. As with the alter-ego doctrine, courts applying the assumption theory have held nonsignatories that were not the parent corporation of the signatory to be bound by the arbitration agreement. See Gvozdenovic v. United Air Lines, Inc., 933 F.2d 1100, 1105-07 (2d Cir.1991) (finding that nonsignatory"
4966	the “increasing” limitation, under NetApp’s construction, the '720 patent claims read on the prior art WAFL system of the '292 patent in the related case, Network Appliance Inc. v. Sun Microsystems Inc., C-07-6053 EDL. See Brandt Reply Decl. ¶¶ 23-25. Sun concludes that because the patent fails to explain what “increase” is sufficient to distinguish the purported invention from the prior art, this claim phrase is indefinite. Amgen, 927 F.2d at 1218 (“When the meaning of claims is in doubt, especially when, as is the case here, there is close prior art, they are properly declared invalid.”); Halliburton, 514 F.3d at 1252-53. NetApp responds that the term is not indefinite because it can, if necessary, be construed. See There, the court reasoned as follows: “ ‘The test for indefiniteness does not depend on a potential infringer’s ability to ascertain the nature of its own accused product to determine infringement, but instead on whether the claim delineates to a skilled artisan the bounds of the invention.’ SmithKline Beecham Corp. v. Apotex Corp., 403 F.3d 1331, 1341 (Fed.Cir.2005). This court’s and the district court’s constructions of the claim showed that it contained no material ambiguities, and therefore was not invalid for indefiniteness.” Invitrogen, 424 F.3d at 1384. NetApp contends that should the Court deem it necessary to interpret this term, the construction “to provide/providing more than a
3144	because one of the convictions used for enhancement was not available for that purpose, thereby rendering his life sentence void. More specifically, petitioner alleges that he was never formally sentenced under one of the prior convictions that was used for enhancement. Indeed, he states, that only after he began serving his life sentence as a habitual criminal did the convicting court pass sentence and issue its mandate sentencing him to 10 years in the penitentiary and ordering this sentence to run concurrently with the life sentence. At most, this raises a question of State law, not a federal question over which this Court has jurisdiction. Compare Beto v. Sykes, 360 F.2d 411 (5th Cir. 1966). See also Elwood v. Smith, 164 F.2d 449 (9th Cir. 1947); United States ex rel. Nersesian v. Fay, 239 F.Supp. 142 (S.D.N.Y.1965). If petitioner’s allegations are true, however, he should be entitled to relief in the State courts as a matter of State law. In White v. State of Texas, 171 Tex.Cr.R. 683, 353 S.W.2d 229 (1962), the defendant was convicted of burglary, with two prior convictions alleged for enhancement, and sentenced to life imprisonment. To prove the two prior convictions, the State introduced certified copies of the judgments for each prior conviction. On appeal, the Court of Criminal Appeals reversed, holding that the judgments were not sufficient to show the two prior convictions. The Court stated: “There, is no evidence in
1395	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. 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 case, however, Mr. Ashagre has failed to introduce any evidence that he was discharged under circumstances that give rise to an inference of unlawful discrimination. Even assuming that Mr. Ashagre has made a prima facie showing of discrimination on the basis of
1801	"(7th Cir. 2005). Reasonable suspicion exists when an officer can point to "" 'specific and articulable facts which, taken together with rational inferences from those facts[,] reasonably warrant that intrusion.' "" Baskin , 401 F.3d at 791 (quoting Terry , 392 U.S. at 21, 88 S.Ct. 1868 ). When making reasonable suspicion determinations, we ""must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing."" United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotations omitted). Reasonable suspicion requires more than a hunch but less than probable cause and ""considerably less than preponderance of the evidence."" With these standards in mind, we examine the facts on which the officers formed their suspicions, and whether the district court erred in its reasonableness assessment. Four categories of facts created a suspicion that Richmond was illegally carrying a gun or was otherwise engaged in unlawful activity: (1) Richmond was walking down the street near midnight in a neighborhood plagued by drug trafficking and gun violence; (2) there was a significant bulge in Richmond's front T-shirt pocket as he walked down the street; (3) in the officers' over 25 combined years' of police training and experiences, a protrusion like this was more often than not a gun; and (4) after the officers passed Richmond in"
4164	"Reg. § 404.953(b) allows an AU to send the case to Council with a recommended decision when appropriate. But the tentative nature of the AU’s final decision does not make the standard for review of Council’s decision more lenient. Council remains responsible for explaining its rejection of AU Doyle's subsidiary findings, which he did not state in tentative or qualified terms. . Council should also reconsider its conclusion that Paige’s complaints of severe pain are not supported by the medical record. To accept a claimant’s complaints of pain, Section 423(d)(5)(A) requires “medical signs and findings ... which show the existence of a medical impairment ... which could reasonably be expected to produce the pain or other symptoms alleged ..."" (see also Clearly Paige has shown the existence of medical impairments in the area of both osteoarthritis and hypertensive heart disease. What remains for decision is whether those impairments ""could reasonably be expected to produce” the degree of pain Paige alleges. To be sure, Dr. Fintel testified at the Hearing that Paige’s complaints of chest pain did not appear substantiated by the medical evidence (R. 92). But in doing so she incorrectly stressed the lack of medical evidence to document Paige’s pain (R. 92-93). Paige R. Mem. 8-9 correctly states he is not required to submit medical evidence to document the pain itself, rather than a condition that could reasonably account for such pain. Moreover, neither Dr. Fintel nor any other medical"
2944	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  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. See also Annot., “Circumstances Giving Rise to Conflict of Interest Between or Among Criminal Codefendants Precluding Representation by Same Counsel,” 34 A.L. R.3d 470 (1970). Petitioner has the burden of proving by a preponderance of the evidence that his constitutional rights were abridged in the state court, Post v. Boles, supra, and in reviewing the state
3772	avoid ... [sanctions].”) The County does argue, however, that Plaintiff lacks third-party standing to litigate the rights of its danc ers by challenging the substantive criminal provisions of the AEC. (Def.’s Mem. at 8-9.) Third-party standing is an exception to the prudential requirement that a party must litigate its own rights and interests and not those of a third party. See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1251-52 (5th Cir.1995). A party may assert a third party’s rights if they share a close relationship, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (school and parents); if the third party is unlikely or unable to defend his or her rights in court, Barrows v. Jackson, 346 U.S. 249, 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
480	determination unless it is found to be “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516(b)(1)(B) (1982). See Seattle Marine Fishing Supply Co. v. U.S., — CIT-, 679 F.Supp. 1119, 1125 (1988). Substantial evidence has been held to be more than a “mere scintilla”, but sufficient to reasonably support a conclusion. Ceramica Regiomontana, S.A. v. U.S., — CIT-, 636 F.Supp. 961, 966 (1986), aff'd, 810 F.2d 1137 (Fed.Cir.1987); See Also Smith-Corona Group v. U.S., 713 F.2d 1568, 1571 (Fed.Cir.1983). Because a reviewing court must accord due weight to an agency’s interpretation of a statute it administers, this Court will defer to the agency’s interpretation, provided it is “sufficiently reasonable”. See Furthermore, so long as the agency’s methodology and procedures are reasonable means of effectuating the statutory purpose, and the agency’s conclusions are supported by substantial evidence on the record, the Court will accept the sufficiency of the agency’s investigation and will not question its methodology. Ceramica Regiomontana, supra, 636 F.Supp. at 966. At the same time, the Court will not permit the agency to contravene or ignore the intent of Congress under the guise of lawful discretion. Id. , DISCUSSION Whether ITA’s decision to base its determination on best information available is supported by substantial evidence on the record or otherwise in accordance with law? On September 9, 1983 ITA issued the final results of its administrative review based upon the
1279	"persuasive indicia of reliability.” Callaway, 2004 U.S. Dist. LEXIS 15498, at *7 n. 1. . Nichols’s other evidentiary objection is that the District Court erred by considering evidence that Bennett had previously transferred two other employees — a black male and a white male — at Allen’s request, because such evidence constituted prohibited “evidence of prior acts ... ‘to prove the character of a person to show action in conformity therewith.’ ” (quoting Fed.R.Evid. 404(b)). The evidence in question was cited by defendants in support of summary judgment, see ER 256, but Nichols failed to raise the 404(b) issue before the District Court. We decline to address the merits of this issue raised for the first time on appeal. See ). . As to some of the claims, the District Court also found that Nichols could not establish a prima facie case. See supra Part I.B. However, ""we assume arguendo that the [first two] steps have been satisfied and proceed to step three of the [McDonnell-Douglas] analysis.” Simpson v. Kay Jewelers, 142 F.3d 639, 644 (3d Cir.1998)."
1202	binding precedent in this circuit. PER CURIAM: John Lewis Wray, Jr., seeks to appeal the district court’s order dismissing as successive his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Wray has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED
2449	to use denatured alcohol was ended at the expiration or the duration of each permit, and this included the 1923 permit. The application for the 1830 permit was disapproved, for the reason that the appellant had manufactured during 1929 substandard and redistillable violet toilet water, and he had diverted, during that year, denatured alcohol allotted to him, and had made false records purporting to show that it had been manufactured into a product and that this product had been sold to the Mohank Sales Company. Although appellant was advised that he might have a hearing after this denial, none was requested. In the absence of such a request, there is no provision requiring a hearing before refusing a permit. 46 S. Ct. 544, 70 L. Ed. 1046; Fox v. Blair, 20 F.(2d) 235 (D. C. E. D. Pa.); Halpern v. Andrews, 21 F.(2d) 969 (D. C. 3); Chicago Grain Products Co. v. Mellon, 14 F.(2d) 362 (C. C. A. 7). The administrator’s investigation of the conduct of the appellant’s business in 1929 revealed, by the analysis of the government chemist, that the appellant’s product—violet toilet water—contained 7.1.30 per cent, alcohol by volume, and examination showed this product to be a substandard toilet preparation which yields potable alcohol upon simple manipulation and distillation. Moreover, it was shown that the appellant sold in bulk practically its entire product to the Mohank Sales Company, except one shipment of 665 gallons, which was made to
2505	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 an injunction would impact the public interest. Nutrition M v. United States, 930 F.2d 867, 869, 18 USPQ2d 1347, 1348-49 (Fed.Cir.1991); A. Likelihood of Success: In order to demonstrate likelihood of success, Bell & Howell must show that, in light of the presumptions and burdens that will inhere at trial, it will likely prove that Keystone infringes its patents. See New England Braiding Co. v. AW. Chesterton Co., 970 F.2d 878, 882-83, 23 USPQ2d 1622, 1625-26 (Fed.Cir.1992). If Bell & Howell clearly established a likelihood of success, it was entitled to a rebuttable presumption that it would be irreparably harmed if a preliminary injunction were not to issue. Polymer Techs., 103 F.3d at 973, 41 USPQ2d at 1188. Literal infringement involves a two-step determination: the proper construction of the asserted claim and a determination whether the claim as
3249	awarded reinstatement with back pay. The employers were given an opportunity to prove that, due to the seasonal nature of the work, or due to layoffs which affected employees situated similarly to the discrimina-tee, (e.g. similar job classification and seniority), the discriminatee would not have been actively employed for the entire period of the back pay award, even absent the unlawful discharge. If the employer succeeded in its burden to prove this limitation, the back pay award was tolled for the relevant period. See also the NLRB’s Woolworth formula, described in 48A Am. Jur.2d, Labor and Labor Relations § 1593 (2d ed. 1979); F.W. Woolworth Co. and Retail Clerks International Assoc., 90 N.L.R.B. 280 (1050), 26 Similarly, where an employer in an unfair labor practice action succeeds on its burden to prove that the discriminatee’s job has been properly eliminated, absent an applicable job security right such as bumping or transfer, the employer is not required to reinstate the discriminatee. These determinations are made ex ante, using the employer’s actual conduct of labor relations in the interim as a factual record. Here, U.S. Truck invites the Court to construct a speculative scenario of what would have happened to the laid off employees’ jobs, assuming it had been required to continue complying with the rejected agreement, given its financial condition. Such an inquiry would be fundamentally different from the inquiry undertaken in the
2327	broader claim. Westinghouse Electric & Mfg. Co. v. Condit Electrical Mfg. Co., 2 Cir., 194 F. 427, 430; Smith v. Snow, 294 U.S. 1, 16, 55 S.Ct. 279, 79 L.Ed. 721; See and compare, National Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co., 8 Cir., 106 F. 693, 714. The defendant also contends that Claim 4 must be read in the light of the specification and drawings, and that, when so read, it is apparent that the accused device does not infringe, because the dispensing element attached to the plunger of that device is different. The particular forms of devices described in specifications are to be considered as the forms which are preferred by the inventor. 
984	the parties.”  an independent ground for discretionary appellate jurisdiction exists for a district court under 28 U.S.C. § 158. See Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) (lack of ground for discretionary jurisdiction of Court of Appeals over nonfinal order of district court sitting as appellate tribunal in bankruptcy under 28 U.S.C. § 158 does not mean that Court of Appeals cannot exercise discretionary jurisdiction under 28 U.S.C. § 1292 as long as the conditions under this provision are met). Is any order of the bankruptcy court, under consideration in this consolidated proceeding in this court, a “final” order? Does it conclusively determine any discrete and definable claim? If not, does the attempt
4811	complain of the search of that room and the seizure of an item from a trash can therein. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); United States v. Kress, 446 F.2d 358 (9th Cir. 1971). The other items seized at the motel and later received in evidence were taken from a trash can outside Rooms 19 and 20. What a person knowingly exposes to the public is not a subject of Fourth Amendment protection. Katz v. United States, 389 U.S. 347, 351, 88 5. Ct. 507, 19 L.Ed.2d 576 (1967). When defendants placed articles in this public trash can outside the room, they surrendered their privacy with regard to those articles. See See also, Wattenburg v. United States, 388 F.2d 853, 857 (9th Cir. 1968). After being arrested at the motel on April 28, 1970, for failure to register as an ex-felon, defendant Jackson was transported to the Phoenix Police Department. An officer then removed several strands of hair from Jackson’s head for the purpose of expert comparison with hair samples found in the stocking remnants seized at the motel and in a stocking mask found in the alley adjacent to the bank. Jackson moved to suppress any evidence concerning the hair samples on the ground that they were taken at a time when Jackson had requested, but did not have, the assistance of counsel, and that they were taken without
3427	United States v. Fields, 408 F.3d 1356 (11th Cir.2004) (holding that sentencing at the low end of the guideline range, without more, will not meet the plain error test). But see United States v. Henderson, 409 F.3d 1293 (11th Cir.2005) (vacating and remanding when district court sentenced defendant to the low end of the guidelines range and indicated that the sentence was “a little high” but that it was obligated to follow the guidelines); United States v. Martinez, 407 F.3d 1170 (11th Cir.2005) (vacating and remanding under plain error test because the court expressed its frustration at the guidelines sentence). D. Consecutive Sentences The district court’s application of § 5G1.3 is a question of law that we review de novo. The district court properly imposed consecutive sentences. Terrell faced two undischarged state sentences — one for the burglary that formed the basis for the federal § 922(g) offense, and one for parole revocation. As the guidelines explain, the undischarged burglary sentence would qualify as relevant conduct because it formed the basis for the instant § 922(g) offense, and, therefore, any burglary sentence should run concurrently with the § 922(g) sentence under § 5G1.3(b). See U.S.S.G. § 5G1.3(b). The parole revocation sentence, however, would fall under § 5G1.3(c), and the court had discretion to impose consecutive sentences. United States v. Morales-Castillo, 314 F.3d 561, 563-64 (11th Cir.2002). Moreover, the court explained that consecutive sentences were appropriate because the court found the
4441	for interlocutory appeals in a specified group of cases. Subsection 1292(a)(3) vests jurisdiction in the courts of appeals to hear [ijnterlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. 28 U.S.C. § 1292(a)(3). It is upon this provision that appeal in the instant case is premised. As noted, § 1292(a)(3) is an exception to the general rule of finality stated in § 1291, and as such, it is to be construed narrowly. City of Fort Madison v. EMERALD LADY, 990 F.2d 1086, 1088 (8th Cir.1993); Seattle-First Nat’l Bank v. Bluewater Partnership, 772 F.2d 565, 568 (9th Cir.1985); The provision was enacted in 1926, well before the merger of the rules of law and admiralty, and with a specific set of circumstances animating Congress’ concern to provide an interlocutory appeal. In admiralty, trials were traditionally bifurcated. First, there would be a trial before the court on the issue of liability. If there was a finding of liability, there would then be a separate hearing before a special master to ascertain damages. These damages hearings were often both lengthy and costly. Congress intended 28 U.S.C. § 1292(a)(3) to permit parties to appeal the finding of liability on the merits, before undergoing the long, burdensome, and perhaps unnecessary damages proceeding. Section 1292(a)(3) was not intended to clutter the federal
766	PER CURIAM: Ivan Aquiles Rivas-Banos, a native and citizen of El Salvador, petitions this court for review of an order from the Board of Immigration Appeals (BIA) dismissing his appeal of the immigration judge’s (IJ) denial of his application for cancellation of removal. Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), this court is statutorily barred from reviewing the BIA’s purely discretionary denial of cancellation of removal. Sung v. Keisler, 505 F.3d 372, 377 (5th Cir.2007); However, this court is not precluded from reviewing claims raising constitutional or purely legal questions. See 8 U.S.C. § 1252(a)(2)(D); Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir.2006). Rivas-Banos challenges the BIA’s decision on the grounds that: (1) the BIA failed to consider the hardship issue; (2) if an alien meets the petty offense exception, that alien may still qualify for cancellation of removal despite a conviction for a crime involving moral turpitude (CIMT); (3) a conviction for a CIMT that meets the petty offense exception does not stop the accrual of time for purposes of meeting the requirement for continuous physical presence; (4) the BIA should have granted him voluntary departure; and (5) the BIA violated his procedural
865	statements were testified to, the court, following Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), which was in effect when this case was tried, instructed the jury that Conroy’s admissions were received only as against him and were to be disregarded in determining Butler’s guilt or innocence. The instruction was repeated in the court’s charge. . See 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) ; United States ex rel. Siegel v. Lennox, 460 F.2d 690 (3d Cir. 1972) ; United States ex rel. Ross v. La Vallee, 448 F.2d 552 (2d Cir. 1971) ; United States ex rel. Joseph v. LaVallee, 415 F.2d 150 (2d Cir. 1969), cert. denied, 397 U.S. 951, 90 S.Ct. 976, 25 L.Ed.2d 133 (1970) ; United States ex rel. Dukes v. Wallack, 414 F.2d 246 (2d Cir. 1969). . Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972) ; see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). . Cf. United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973) ; United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972) ; United States ex rel. Sloan v. McMann,
126	duty of care. They cite Leidy v. Borough of Glenolden, 277 F.Supp.2d 547, 569-70 (E.D.Pa.2003), in support of the proposition that there is no general duty to protect victims of crimes. For their part, the Plaintiffs assert that, in the context of a motion to dismiss, it is not proper for this court to determine whether a purely “discretionary act” is involved here. They assert that further discovery is needed to determine whether, in disconnecting Sampson’s call and failing to inform his supervisors of the call, Anderson violated any applicable policy, rule, or regulation. Relying on Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988); Mulloy v. United States, 884 F.Supp. 622, 631-32 (D.Mass.1995); and  the Plaintiffs also argue that 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
2917	to determine whether, as a matter of judicial policy, the sentencing judge, in this or any case, should be required to announce his reasons for handing down a particular sentence. To be sure, a statement of reasons might aid us, in a given case, in determining whether the district court abused its discretion in performing the sentencing function. However, the record in this case conclusively establishes that the sentencing judge acted well within his discretion. The appellant was given full access to the presentence report; he was given a chance to correct or augment it; he received every right to be heard; and his sentence fell within the statutory authorization. Accordingly, the judgment of the district court is AFFIRMED. See, 
1074	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” that black is white or freedom, slavery, judicial review would be an elaborate farce. At least since Marbury v. Madison ... that has not been the law. And this is not a case in which Congress has found facts on a clean slate. Instead, Congress’s findings were an expression of disagreement with an Article III court’s findings. Congress stated, “In reaching [its] conclusion, the Supreme Court deferred to the Federal district court’s factual findings .... However, substantial evidence presented at the Stenberg trial and overwhelming evidence presented and compiled at extensive congressional hearings ... not included in the Stenberg trial record [established that the district court’s findings were incorrect].” Act § 2(4)-(5), 117 Stat. at 1202. The Supreme Court has struck down congressional legislation passed in response to a controversial judicial decision. See City of Boerne v. Flores, 521 U.S. 507, 535, 117 S.Ct. 2157, 138 L.Ed.2d 624
883	286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). . Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), subsequently codified in 18 U.S.C. § 3500. . But cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), holding that a statement that would support impeachment for bias and interest “relates” to the witness’ testimony under 18 U.S.C. § 3500. See also Rosenberg v. United States, 360 U.S. 367, 370, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959). . See United States v. Crisona, 416 F.2d 107, 112-114 (2d Cir. 1969), cert. denied, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970); cf. United States v. Birnbaum, 337 F.2d 490, 497-498 (2d Cir. 1964). . People v. Butler, 33 A.D.2d 675-676, 305 N.Y.S.2d 367, 369 (1969). The New York Court of Appeals affirmed without opinion, 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587 (1971). . Similarly, Jenohs was decided under the Supreme Court’s rule-making powers for the administration of justice in the federal courts rather than as a matter of federal constitutional law. See Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). . Cf. People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 236, 299 N.Y.S.2d 617, 619, 247 N.E.2d 492,
2294	sentence of forty-one months in prison. On appeal LaFrombois argues that the prior convictions should have been excluded because he did not knowingly and intelligently waive counsel, he was not advised of the possible penalties, and he was not advised he was giving up his right to a jury trial and his right to remain silent. A sentencing court’s finding under U.S.S.G. § 4A1.2 that a conviction used to enhance a defendant’s sentence was not constitutionally invalid is reviewed for clear error and for application of the proper legal standards. See United States v. Dickens, 879 F.2d 410 (8th Cir.1989). A criminal defendant may waive his right to counsel as long as the waiver is voluntary, and intelligently and knowingly made. Whether the defendant was made sufficiently aware of his right to have counsel and the possible consequences of foregoing assistance of counsel turns on the particular facts and circumstances of the case, including the defendant’s background, experience and conduct. Bumgarner v. Lockhart, 920 F.2d 510, 512 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991). Here, the district court’s determination that La-Frombois’s waiver was voluntary and knowing was not clearly erroneous: the transcript shows that the state court thoroughly explained the right to have counsel, and LaFrombois’s prior experience and conduct at the hearing indicate he was aware of the possible consequences. LaFrombois’s other arguments are not properly before this court as they are raised
1423	stated by the United States Supreme Court in Edelman v. Jordan, 415 U.S. 651, 662-663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1973): While the Amendment by its terms does not bar suits against a State by its own citizens, this Court has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State. The rule that has evolved is that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment. Id. at 665, 94 S.Ct. 1347. The Court has reiterated the propriety of this rule most recently in Here the Court did not waiver from the rule laid down in Edelman that in an action brought under 42 U.S.C. § 1983 a federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief, and may not include a retroactive award which requires the payment of funds from the state treasury. Id. at 338, 99 S.Ct. 1139. The instant action, as were Edelman and Quern, is an action brought under 42 U.S.C. § 1983. Plaintiff herein does not seek prospective injunctive relief; rather he seeks to recover $600,000 in damages (roughly the fair market value of his property) for the alleged deprivation of all use and enjoyment of his property.
2307	decision, which found Mr. Griffin could not do past relevant work and which the ALJ in the 2010 decision did not even mention, should have res judicata effect. Those are the same three issues presented to this Court. II. STANDARD OF REVIEW The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). This Court may not reweigh evidence and decide facts anew, and must defer to the ALJ’s decision if it is supported by substantial evidence. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.2005). Substantial evidence must do more than create a suspicion of the existence of a fact; it is evidence that a reasonable person would accept as adequate to support the conclusion. If the Commissioner’s decision is supported by substantial evidence it should be affirmed, even if this Court would have reached a contrary result. Phillips v. Barnhart, 357 F.3d 1232, 1240 n. 8 (11th Cir.2004). III. SEVERE IMPAIRMENT Mr. Griffin first contends that substantial evidence does not support the ALJ’s failure to find that his tinnitus constituted a severe impairment. In order to determine whether a claimant is disabled, the Social Security Administration (SSA) applies a five-step sequential analysis. 20 C.F.R. § 404.1520(a). This process includes a determination of whether the claimant: (1) is presently engaged in substantial gainful activity; (2) has a severe and medically determinable physical or mental impairment; (3) has such an impairment that meets or equals one
1418	was grossly improper. The court found the standard met because the fraud was deliberately done for profit and was part of the general business practice whereby defendants “were engaged in carrying on a ‘virtually larcenous scheme to trap generally the unwary.’ ” Id. at 490, 223 N.Y.S.2d 488, 179 N.E.2d 497 (internal citations omitted). Since Walker, New York courts have refused to award punitive damages where plaintiff did not meet the “public harm” requirement, no matter how improper the defendant’s activity. To the extent that some courts have found meeting the “public harm” requirement unnecessary, the Second Circuit (whose rulings bind this court) has concluded that they are against the weight of authority on the issue. In Ventus Networks, LLC v. Answerthink, Inc., No. 05 Civ. 10316, 2007 WL 582736, at *3 (S.D.N.Y. Feb. 22, 2007), a case where the plaintiff was fraudulently induced to purchase a software system because of misrepresentations made by defendant, the court declined to award punitive damages because, “Defendant’s allegedly fraudulent conduct was ‘an isolated transaction incident to an otherwise legitimate business.’ ” Id. (quoting Walker, 179 N.E.2d at 500). Similarly, in TVT Records, where defendant’s breach of contract prevented plaintiffs artwork from being distributed to the public, the court denied punitive damages because the harm was not felt by, nor directed at, the public generally, and plaintiff failed to allege any other entity was subject to defendants
4574	other grounds by Johnson v. Cont’l Airlines Corp., 964 F.2d 1059 (10th Cir. 1992) (plaintiffs wére aware of, testified in, and were represented by the same counsel as plaintiffs in earlier suit). The timing issues discussed above, as well as the differences between the federal government joining litigation'versus an individual plaintiff doing so, indicate the difficulty that would have been involved in consolidating these two cases. Because the United States did not “purposefully] elude[ ] the binding force of an initial resolution of a simple issue” nor improperly interfere in the initial proceeding such that this case would represent its second bite of the; apple, non-mutual, offensive issue preclusion would not be unfair and, therefore,-should be granted in this case. Indeed, employing the doctrine here will promote judicial economy and all parties’ interest in expeditious resolution. Therefore, summary judgment on this issue will be granted, and the- United States will be permitted to offer the factual findings and rulings 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
2018	to the Board’s summary rejection of the diagnoses of PTSD appearing in the three medical reports in this case, the Board failed to discuss each medical report and give an adequate statement of reasons or bases under 38 U.S.C. § 7104(d)(1) for accepting or rejecting each one. However, the BVA decision contains another defect, discussed below, that supersedes the reason-or-bases error with respect to the PTSD diagnoses. Because it is clear that the Board doubted the adequacy of the PTSD diagnoses in this case, specifically, the sufficiency of the claimed stressors, the Board was required to comply with the retum-for-clarification requirement in applicable VA regulatory provisions discussed in part II.B.1.a., above. The Board is not free to disregard VA regulations. See Ruiz, 415 U.S. 199, 232, 94 S.Ct. 1055, 1073, 39 L.Ed.2d 270 (1974), Vitarelli v. Seaton, 359 U.S. 535, 538, 539-40, 79 S.Ct. 968, 971-72, 972-73, 3 L.Ed.2d 1012 (1959), and Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957)). In any event, because the sufficiency of the stressors to support a PTSD diagnosis and the adequacy of the veteran’s symptomatology are medical questions, the Board was not free to reject uncontradicted, unequivocal medical diagnoses of record — by Dr. Singh, Dr. Robinson, or Mr. Young — that are presumed to have found the veteran’s stressors and symptoms to be sufficient to support the PTSD diagnosis and in this case did specifically find the
2934	against respondent W. D. Blankenship, Superintendent at Bland. Petitioner, on the grounds that his constitutional right to the effective assistance of counsel was denied, challenges the validity of his conviction for first degree murder in the Circuit Court of Frederick County, Virginia. This court has appointed an attorney to assist petitioner, and the case is currently before the court on petitioner’s motion for summary judgment pursuant to Fed.R.Civ.P. 56. Both petitioner and respondent have submitted briefs on this motion. The matter is properly before the court on a motion for summary judgment. A plenary hearing on the merits is unnecessary when the state court records are adequate for determining the validity of petitioner’s claims. Petitioner Durham has had a full and fair hearing on the record in a state court habeas corpus proceeding on the grounds of ineffective assistance of counsel, and this court is able to dispose of the case by examining the state records and transcripts. See 28 U.S.C. § 2254(d); Rule 8, Rules Governing Section 2254 Cases in the United States District Court. Petitioner has exhausted his state remedies as required by 28 U.S.C. § 2254(b). I. Statement of Facts Mrs. Waltine Hoover and her mother, Mrs. Annie Snow, were stabbed to death on February 23, 1963, in their home near Double Toll Gate in Frederick County, Virginia. On June 23, 1964, while in the Virginia State Penitentiary for the commission
1044	Hawaii Inc., 761 F.2d 1374, 1382 (9th Cir. 1985). But, possibility of failure is not fatal. Hobson v. Travelstead (In re Travelstead), 227 B.R. 638, 651 (D.Md.1998). The issue is primarily one of fact so long as the debtor presents evidence that it can reasonably accomplish what is promised in the plan. The Code does not require debt- or to prove that success is inevitable or assured, and a relatively low threshold of proof will satisfy § 1129(a)(11) so long as adequate evidence supports a finding of feasibility. Computer Task Group, Inc. v. Brotby (In re Brotby), 303 B.R. 177, 191 (9th Cir. BAP 2003), citing In re WCI Cable, Inc., 282 B.R. 457, 486 (Bankr.D.Or. 2002) and General Elec. Credit Equities, Inc. v. Brice Road Dev. LLC (In re Brice Road Dev. LLC), 392 B.R. 274, 283 (6th Cir. BAP 2008). The Court finds that the plan more likely than not can be performed as promised and that it is therefore feasible and complies with § 1129(a)(ll). 6. Conclusion The debtor’s Second Amended Plan complies with all of the applicable provisions of §§ 1129(a) and 1129(b)(2)(A). The objection will be overruled and the plan will therefore be confirmed, as modified. The interest rate payable to the bank shall be not less than 8.5% per annum, fixed, and the non-material amendment offered in the debtor’s Closing Brief at page 23 concerning payment of all proceeds to the bank
4329	remedies individually either before the USDA or by separate court action. The Court already has determined that a class exists and that the class meets the four criteria of Rule 23(a) of the Federal Rules of Civil Procedure. See Pigford v. Glickman, 182 F.R.D. at 346-50. Because the Court has certified the class under Rule 23(b)(3) of the Federal Rules of Civil Procedure, it also must ensure that the separate and additional requirements of (b)(3) are satisfied before approving the proposed settlement. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 622, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (court’s fairness analysis for settlement purposes under Rule 23(e) cannot substitute for determination whether class is appropriately certified in the first place); Rule 23(b)(3) requires the Court to find (1) that questions of law or fact common to members of the class predominate over questions affecting only individual members, and (2) that a class action is “superior to other available methods for the fair and efficient adjudication of the controversy.” Rule 23(b)(3), Fed.R.Civ.P. It is designed to cover cases in which a class action would promote “ ‘uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.’ The Advisory Committee had dominantly
2321	as agreed upon, through July 1989, but appellant stopped paying on the loan in 1989. Payments due for January 1989 through July 1989 were never transmitted to the credit union, resulting in a total of $1,400.00 received by appellant, from which no loan payments were made. The car, which had been sold to a third party, was ultimately repossessed because of appellant’s failure to make those payments. During the providence inquiry, appellant acknowledged that he had appropriated that money to his own personal use and that it should have been applied on the car loan. He expressly agreed that the total amount misappropriated to his own use was $1,400.00. Record of Trial at 52, 53 and 54. Before this Court,  U.S. v. Borner, 25 MJ 551 (AFCMR 1986) and U.S. v. McCanless, 29 MJ 985 (AFCMR 1990), appellant now contends that these facts will not support the offense of wrongful appropriation of the other Coast Guardsman’s money because this was a mere creditor/debtor relationship, not the proper subject of larceny or wrongful appropriation. Furthermore, he asserts that any debt owed by appellant was to the credit union which took appropriate remedial action through the mechanism of repossession of the automobile. We disagree with his conclusion that these facts do not constitute the offense of wrongful appropriation. In Part IV of the Manual for Courts-Martial, 1984, the various punitive articles of the Uniform Code of Military Justice are discussed. Paragraph 46 deals
1270	other beneficiaries of the Moses Agreement. The contention of the appellant that Long Jim had a title in fee at the time of the making of the warranty deed in the year 1900 must therefore receive a negative response. As to thé effect of-the warranty upon the after-acquired title, while the- general rule is that a. conveyance with warranty estops the grantor, when he afterwards becomes the. owner of the land assumed to be granted, to deny the grantee’s title (Bigelow Estop., 2d ed., p. 324, etc.), it is well settled that the doctrine does not apply to the case of a conveyance made by one non sui juris, or that is contrary to public policy or statutory prohibition. Doe v. Ford, 3 Ad. & El. 649; Den ex dem. Wooden v. Shotwell, 24 N. J. L. 789; Connor v. McMurray, 2 Allen (Mass.), 202, 204; Doyle v. Coburn, 6 Allen, 71, 72; Merriam v. Boston &c. Railroad Co., 117 Massachusetts, 241, 244; Brick v. Campbell, 122 N. Y. 337, 346; Kennedy v. McCartney, 4 Porter (Ala.), 141, 158. Since it is entirely plain, in the case before us, that the title to the lands in question was retained by the United States for reasons of public policy, and in order to protect the Indians against their own improvidence, it follows as matter of course that a conveyance made by one of them, before the title was vested in him
830	of time defendant has used the mark without actual confusion arising; (5) the intent of the defendant in adopting the mark; (6) the evidence of actual confusion; (7) whether the goods, though not competitive, are marketed through the same channels of trade and advertised through the same media; (8) the extent to which the targets of the parties’ sale efforts are the same; (9) the relationship of the goods in the minds of the public because of the similarity of function; (10) other facts suggesting that the consuming public might expect the prior owner to manufacture a product in the defendant’s market. Ford Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 293 (3d Cir.)(citing  cert. denied, 502 U.S. 939, 112 S.Ct. 373, 116 L.Ed.2d 324 (1991). No single factor is determinative and not all are appropriate in every case. Versa Products Co., Inc. v. Bifold Co. (Mfg.) Ltd., 50 F.3d 189, 202 (3d Cir.1995), cert. denied, 516 U.S. 808, 116 S.Ct. 54, 133 L.Ed.2d 19 (1995). In terms of strength and similarity, Liquid Glass concedes that it used Porsche’s trademarks and trade dress in its advertisements, knowing full well that those marks are “strong” and have developed “distinct recognition.” PI. Opp. Br. at 21. The relative inexpensiveness of car cleaning products also weighs in Porsche’s favor because consumers would not be likely to use much care or pay much attention before purchasing them. In
2954	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 (1976). A federal habeas corpus petitioner seeking relief on the grounds of court-appointed counsel’s incompetence has the burden of proving a constitutional defect, Day v. Peyton, 303 F.Supp. 221 (W.D.Va.1969), and petitioner in the instant case has substantially failed to convince this court that Simpson and Tisinger were incompetent. Petitioner challenges the adequacy of Simpson’s opening statement, and respondent maintains that the opening statement is a matter of trial tactics. This court agrees with respondent. The matter of trial tactics and the attorney’s judgments are beyond this court’s review. Tompa v. Commonwealth, 331 F.2d 552 (4th Cir. 1964);  aff’d 546 F.2d 579 (4th Cir. 1976). Petitioner attacks his attorneys’ failure to put on a defense in that no witnesses were called to testify on petitioner’s behalf. However, based on a professional judgment, counsel’s decision not to call witnesses does not deprive a defendant of his constitutional right to effective assistance. Ingram v. Cox, 339 F.Supp. 891 (W.D.Va.1972). Since petitioner’s voluntary confession placing him at the crime scene had been admitted into evidence, Simpson and Tisinger might have feared disastrous results in introducing witnesses who petitioner said would provide him with an alibi, especially where the alibi witnesses might be of questionable character and credibility. Furthermore, the evidence is not clear whether petitioner even wanted these witnesses at his trial.
3316	the subpoenaed evidence would be presented to a grand jury. Walasek, 527 F.2d at 678. If a decision has been made to present the matter to the grand jury, it makes no difference whether the ultimate presentation includes all, some or none of the materials actually received in response to the subpoena alleged to have commenced the grand jury investigation. Of course, if those materials are not presented to a grand jury, that may be relevant circumstantial evidence as to whether the requisite present intention existed at the time the subpoena was issued. Because the appellants’ inquiry on cross-examination into Weisenbeck’s intentions in securing the subpoenas was unreasonably limited, we find that the trial judge’s ruling constituted reversible error. See The appellants, therefore, must be granted a new trial on counts 5 and 6. D. Appellants urge that the evidence at trial was insufficient to support their convictions for obstruction of justice and thus their motions for acquittal should have been granted. We disagree. It is undisputed that there was an investigation, at least by the United States Attorney and the FBI, into the property purchase and that a grand jury was sitting. Appellants knew of the investigation. The evidence supported a finding that appellants caused documents to be fabricated or modified to make it appear that the proceeds of the sale due Malouf had been legitimately disbursed. Further, while the matter was not presented to a grand jury during
4146	motions are denied and this action is remanded to Secretary for further proceedings consistent with this opinion. Procedural History On November 10, 1983 Paige applied for benefits under the Act. When his application was denied, both initially and on reconsideration, Paige requested and was granted a hearing. On July 10, 1984 that hearing, at which Paige appeared without counsel, was held before AU Mark Haase. On September 27,1985 (not a misprint — over a year later!) the AU issued his decision (R. 247-53). AU Haase denied Paige benefits because he concluded Paige’s impairments were insufficiently severe to satisfy step 2 of the sequential disability determination process detailed later in this opinion. When our Court of Appeals then invalidated step 2 in  Council remanded the case for a second administrative hearing and decision. On remand the case was assigned to AU Doyle, who conducted the April 15, 1986 hearing (the “Hearing”) at which Paige appeared, this time represented by counsel. AU Doyle also heard evidence from medical advisor Dr. Robin Fintel and vocational expert Thomas Grezik (“Grezik”). As already stated, Paige won before AU Doyle, only to lose on review by Council — the decision that represents Secretary’s final word on the matter. Statutory Framework To establish entitlement to disability and SSI benefits, a claimant must show he or she is “disabled.” Sections 416(i)(l) and 423(d) define “disability” as: inability to engage in any substantial gainful activity by reason of any medically determinable
1607	method of proof. The prosecution will thus undertake to establish that the records and returns prepared and allegedly controlled by Pitkin were false in material respects. Karp, on the other hand, in the affidavits now presented and in her grand jury testimony, has pleaded essentially her ignorance concerning those records and her reliance upon Pitkin — all with a view to establishing, as her counsel states, “the central defense * * *. that the women taxpayers did not have any guilty knowledge or criminal intent.” For the foregoing reasons, Karp says, it is essential that she be able to call Pitkin as a witness for her defense. Since she cannot do this if they are tried together,  or comment on his failure to testify in a joint trial, De Luna v. United States, 308 F.2d 140, 1 A.L.R.2d 969 (5th Cir. 1962), she urges that a severance be granted. In response to the motion, the Government agrees that Karp will be unable to call Pitkin or comment on his silence if they are tried together. It opposes the motion, however, 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.
762	has a right to give his views regarding the effect of his drugs, Seven Cases v. United States, supra, but he must be mindful that the statute condemns every statement which may mislead or deceive. If an article is not the identical thing that the statement indicates it to be, it is misbranded, United States v. Ninety-Five Barrels, etc., of Vinegar, 265 U.S. 438, 44 S.Ct. 529, 68 L.Ed. 1094, and if the drugs are worthless, he cannot escape by hiding behind the phrase the “doctors say”, United States v. John J. Fulton Co., 9 Cir., 33 F.2d 506. Moreover, proof of the false and fraudulent character of any one of the various claims is sufficient, Goodwin et There can be no doubt that enough was proved to justify an inference that the defendants knew the articles did not possess the curative or therapeutic qualities claimed for them in the statements appearing on the containers and labels, and that the court was justified in holding that they were made with a fraudulent purpose. See Simpson v. United States, 6 Cir., 241 F. 841. Defendants assigned as further grounds for error rulings on the admission and exclusion of evidence. Counsel has failed to quote the evidence alleged to have been improperly admitted or excluded, or to present any argument or reason in support of this assignment. We have therefore assumed that it has been waived and we refrain from any special consideration
4053	"Complete Construction for $5000 that Complete Construction informed Jacobson was a mistaken bill that should not be paid. . Corbels are decorative brackets that are placed under the eaves of homes. The corbels Plaintiffs hired Jacobson to build were custom made and designed only for Plaintiffs’ home. . Fed.R.Civ.P. 56(a). Rule 56 is applicable to bankruptcy adversary proceedings via Federal Rule of Bankruptcy Procedure 7056. . LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir.2004). . Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir.2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . Id. (citing . Id. (citing Federal Rule of Civil Procedure 56). . Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 674 (10th Cir.2002) (internal quotations omitted). . Celotex Corp., 477 U.S. at 327, 106 S.Ct. 2548. .Doc. 36 at 1. . Id. at 1-2. . Id. at 2. . Fed.R.Civ.P. 56(c); see also Diaz, 289 F.3d at 674 (""[T]he non-movant- must either establish the existence of a triable issue of fact under Fed.R.Civ.P. 56[ (c) ] or explain why he cannot ... under Rule 56[ (d) ].”). . Fed.R.Civ.P. 56(e)(2). . Fed.R.Civ.P. 56(e)(3). . See, e.g., Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) (""Although a pro se litigant’s pleadings"
2365	expenses, and costs of special interpretation services under section 1828 of this title [28 USCS § 1828]. 28 U.S.C. § 1920. Delaware Tow has requested that it be awarded the following costs: (1) fees of the Clerk ($150), (2) printing fees ($44.41) (3) deposition costs ($632.26), and (4) fee of process-serving company ($180.00). Under 28 U.S.C. § 1920, however, plaintiff would be entitled to only (1) fees of the Clerk ($150), (2) printing fees ($44.41), and (3) deposition costs ($632.26) because only those three items are listed in the statute. As the 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. 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.
3040	cleanout efforts from 1986 to 1997, the amount of contamination should have decreased, yet the levels of contamination in the sediment in the 60-Inch drain -appeared to increase from 2002 to 2005. The 60-Inch drain collects runoff from the broadest area .of the storm system. PCB- contaminated source material from across the Site would therefore most likely end up in the 60-Inch storm drain. It is a reasonable inference that the general deterioration and lack of maintenance of the property after TDY returned it to the Port District was a likely.new source of PCB contamination, as TOY’S expert opined. D. Equitable Allocation under CERCLA Congress enacted CERCLA in response .to the serious environmental and health risks posed by industrial pollution. The statute was designed to promote the timely cleanup of hazardous waste,sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination. Burlington N. & Santa Fe Ry. Co. v. United States, 556 U.S. 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
288	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 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 not address this issue because W3i raised the argument for the
95	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. Moreover, the party seeking to have the case dismissed bears the burden of demonstrating mootness and that burden “is a heavy one.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (citation omitted). The INS asserts that the case is moot because members of the plaintiff class have obtained replacement documentation since the initiation of the suit and the policy announced in the McNary Memorandum regarding the lifting of green cards is now utilized in deportation proceedings. First, while some members of the class have received replacement documentation, nothing ensures that other members of the class will continue to receive adequate documentation in the future. See, e.g., Allende v.
1018	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 the parties who appoint them. Insofar as it is consistent with their fiduciary obligations, employer trustees are expected to advance the interests of the employer while employee trustees are expected to further the concerns of the union in the ongoing collective bargaining process between them. See Toensing v. Brown, 374 F.Supp. 191 (N.D.Cal.1974), aff’d, 528 F.2d 69 (9th Cir. 1975); Goetz, Developing Federal Labor Law of Welfare and Pension Plans, 55 Cornell L.Rev. 901, 921 et seq. (1970). The trustees’ efforts to improve the position of the parties they represent are completely legitimate — indeed, they are essential to the operation of section 302(e)(5). Congress envisioned the conflict of views of employer and employee as a distilling process which would provide safeguards against trust fund corruption. 559 F.2d at 227-28. The logic and holding of this court’s opinion in Associated Contractors are equally applicable to the facts of this case. Accordingly, we hold that the Union’s conduct in insisting to impasse and striking to obtain Amax’s participation
892	L.Ed.2d 1287 (1959). . Cf. People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 236, 299 N.Y.S.2d 617, 619, 247 N.E.2d 492, 493 (1969). . United States ex rel. Sadowy v. Fay, 284 F.2d 426, 427 (2d Cir. 1960), cert. denied, 365 U.S. 850, 81 S.Ct. 814, 5 L.Ed.2d 814 (1961) ; United States ex rel. Murphy v. Denno, 234 F.Supp. 692, 695 (S.D.N.Y.1964) ; United States ex rel. Birch v. Fay, 190 F.Supp. 105, 107 (S.D.N.Y.1961) ; see Buchalter v. New York, 319 U.S. 427, 429-430, 63 S.Ct. 1129, 87 L.Ed. 1492 (1943). . Cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). . . In an affidavit to the Appellate Division the Assistant District Attorney who prosecuted the case swore he was on vacation when the wiretapping occurred and that when he was told by a subordinate there was nothing of evidentiary value on the tapes he did not waste time listening to them. Brief for Respondent at 23-24, People v. Butler, 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587 (1971). . 33 A.D.2d at 676, 305 N.Y.S.2d at 369. . “Now, the story seems to be here from the defense concerning Lynn Richardson that Miss Richardson is testifying to bury Butler because Butler had her arrested one time in March for prostitution. And yet in his own summation this morning,
4027	a condition of employment with the government. Before grappling with this First Amendment issue, however, we would like to see how the Coast Guard responds to our remand order on appellant’s APA claim. Conceivably, this question will be mooted. Finally, appellant’s Fifth Amendment due process claim raises quite troublesome issues. It rests on the proposition that Menkes had a property interest in his Coast Guard registration, and also in his appointment as an independent pilot. The district court, as we observed, rejected that notion out of hand, asserting that the Act did not confer such an interest. But the Supreme Court has recognized that a property interest in employment can be created through informal understandings between an institution and its employee. By analogy, it might be thought that appellant’s registration as a pilot carried an entitlement to certain appointments. After all, Director Flyntz’s March 2001 letter explicitly referred to Menkes’s “property right in his registration certificate” and suggested that right gave him “an opportunity to continue to earn his livelihood.” And Flyntz never suggested that Menkes’s appointment was year-to-year. Whether appellant had an entitlement to a pro rata share of all pilotage assignments — or even such assignments as the pool could not adequately meet — would depend on the nature of the understandings reached between the Coast Guard and the pilots. And if it were shown that appellant had a property interest in such assignments
78	on which the agency reasonably relied. See Xiao Ji Chen, 471 F.3d at 339. Thus, the agency’s denial of Uddin’s application for asylum was proper. See 8 U.S.C. § 1158(b)(l)(B)(iii). Moreover, because Uddin based his claims for withholding of removal and CAT relief on the same factual predicate as his asylum claim, those claims necessarily fail. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t. of Justice, 426 F.3d 520, 523 (2d Cir.2005). Finally, Uddin argues that the IJ erred in finding that he failed to provide evidence that he qualified for voluntary departure; however, because this argument merely quarrels with the IJ’s fact-finding, we lack jurisdiction to review it. See .C. §§ 1229c(f), 1252(a)(2)(B)©). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). . The asylum application in this case is governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005. Pub.L. No. 109-13. 119 Stat. 231 (2005). See Title I, § 101(a)(3) of the Act, 119
2288	claim. The firm has not raised any allegations of theft. The evidence is that a partner of the firm knew that Mr. Center was at the firm to review documents, Mr. Center openly reviewed the files in the firm’s library and did not remove the original documents from the premises, and a firm employee photocopied the files during office hours while Mr. Center chatted with firm members. Therefore, we agree with the district court’s finding that Mr. Center had implicit permission from the firm to copy documents. Finally, Mr. White alleges that outrageous conduct by the government justifies reversal of his conviction. We have previously noted that there is doubt as to the validity of the outrageous governmental conduct doctrine. United States v. Bontkowski, 865 F.2d 129, 131 (7th Cir.1989); but see United States v. Miller, 891 F.2d 1265, 1267 n. 2 (7th Cir.1989). In any event we have never reversed a conviction on this ground. United States v. Duncan, 896 F.2d 271, 275 (7th Cir.1990); United States v. Sababu, 891 F.2d 1308, 1326 (7th Cir.1989). In the initial opinion in this case, we suggested that: [i]f, however, the government, having the kind of hold over an attorney that it had over Center—for when it approached him he had been convicted but not yet sentenced—extracts from him client secrets that it then uses in a criminal trial of the client to the latter’s substantial prejudice, this might be the kind
1362	America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). An Article III federal court must ask whether a plaintiff has suffered sufficient injury to satisfy the “ease or controversy” 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); 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
2354	he should not engage in “heavy lifting” or “bending activities,” hardly constitutes substantial evidence that Havas could perform the activities required by his former job. Indeed, because these doctors knew that Havas was already retired at the time of their examinations and was no longer driving for prolonged periods, there was no reason to include such a restriction in their reports. The record also contains the reports of two other physicians, Dr. Ralph S. Brown and Dr. Judith Bodnar, neither of whom examined Havas or specializes in orthopedic medicine. They opined that Havas was capable of returning to work. However, the opinions of nonexamining medical personnel cannot in themselves constitute substantial evidence overriding the opinions of examining physicians. See Landess v. Weinberger, 490 F.2d 1187, 1190 (8th Cir.1974); Mefford v. Gardner, 383 F.2d 748, 759 (6th Cir.1967); Ehrenreich v. Weinberger, 397 F.Supp. 693, 697 (W.D.N.Y.1975). Furthermore, the AU did not refer to those reports. In sum, there is no substantial evidence in the record creating a “genuine conflict[],” Schisler, 787 F.2d at 81, with Dr. Mulbury’s opinion that Havas can no longer perform his past work. We therefore remand to the Secretary for a determination as to whether Havas “cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A) (1982 & Supp. Ill 1985). This case underlines the need for our recent
77	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 the agency reasonably relied. See Xiao Ji Chen, 471 F.3d at 339. Thus, the agency’s denial of Uddin’s application for asylum was proper. See 8 U.S.C. § 1158(b)(l)(B)(iii). Moreover, because Uddin based his claims for withholding of removal and CAT relief on the same factual predicate as his asylum claim, those claims necessarily fail. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Finally, Uddin argues that the IJ erred in finding that he failed to provide evidence that he qualified for voluntary departure; however, because this argument merely quarrels with the IJ’s fact-finding, we lack jurisdiction to review it. See Carcamo v. U.S. Dep’t of Justice, 498 F.3d 94, 97 (2d Cir.2007) (citing 8 U.S.C. §§ 1229c(f), 1252(a)(2)(B)©). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate
1190	"vested months, the last six months must be consecutive without a conviction for either a Class A or B violation. . Defendants’ earlier Motion to Dismiss the appeals for lack of jurisdiction was granted in part, denied in part, and denied in part as moot in our order of January 25, 1995. We determined then that no final merits judgment has been entered in this case as plaintiffs' claims for damages remained unresolved. Accordingly, we do not have appellate jurisdiction under 28 U.S.C. § 1291. . See, e.g., Gottlieb v. Wiles, 11 F.3d 1004 (10th Cir. 1993); Croyden Associates v. Alleco, Inc., 969 F.2d 675 (8th Cir.1992), cert. denied, 507 U.S. 908, 113 S.Ct. 1251, 122 L.Ed.2d 650 (1993); Guthrie v. Evans, 815 F.2d 626 (11th Cir. 1987). .The agreed entry does not refer to the MCC as either a ‘'supermaximum"" security institution or a ""disciplinary segregation institution.” The agreed entry does provide that once a prisoner has been assigned to the MCC, the prisoner will be assigned a Security Classification Designation of Level 5. The significance of this classification is not clear from the record. Even assuming arguendo that this is a ""supermaximum” classification, objecting members fail to cite any Indiana authority that would render such a classification unlawfiil. . In fact, the agreed entry provides that upon transfer to the MCC a prisoner’s segregation status, if any, be it “administrative” or ''disciplinary, "" is rescinded. . Objecting members"
3071	of a major life activity within the ADA. Finally, combining these statutory phrases, the Court asks whether the impairment substantially limits the activity found to be a major life activity. See Lebron-Torres, 251 F.3d at 239-40. Interpreting the facts most favorably to Plaintiff, the evidence establishes the first two elements of the analysis. First, her back condition, para-lumbar muscular spasms with pain upon palpitation, is a “physiological disorder or condition” affecting the “musculoskeletal” system. See 29 C.F.R. § 1630.2(h)(1). Moreover, the activity claimed to be impaired-working-has been recognized as a “major life activity” under the applicable EEOC regulations. See id.; see also Gelabert-Ladenheim v. American Airlines, Inc., 252 F.3d 54, 58 (1st Cir.2001); Lebron-Torres, 251 F.3d at 240; Where Plaintiff has failed to meet her burden is at the third stage of the Court’s analysis: she has not shown that her back condition and lifting restriction substantially limits her ability to work. In meeting this burden, “[a]n ADA claimant assumes a more fact-specific burden of proof in attempting to demonstrate that her impairment ‘substantially limits’ the major life activity of ‘working.’ ” Quint, 172 F.3d at 11. As such, the issue of whether “the plaintiffs impairment substantially limits the major life activity of working involves a multi-level analysis, starting with the skills of the plaintiff herself and moving to the nature of the jobs she was prevented from performing as well as those she was not.” Gelabert-Ladenheim, 252
4022	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”); 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 standards for determining what level of service is adequate without explanation. Also dubious would be a refusal to appoint a pilot for reasons not mentioned in the regulations, such as an effort
3607	equity — 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 employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance. Id. Since the decision in Boys Markets, there have been cases where reverse situations have arisen. In a “reverse Boys Markets ” case, an employer makes changes in areas which are subject to the grievance-arbitration procedure, and the union seeks to enjoin the employer from making the changes until the grievance is resolved through arbitration. Citing Amalgamated Transit  reversed on remand, 550 F.2d 1237 (9th Cir.) (“Greyhound II ”), cert. denied, 434 U.S. 837, 98 S.Ct. 127, 54 L.Ed.2d 99 (1977), the Union argues that prevailing in the underlying arbitration is irrelevant to the recovery of a bond in a reverse Boys Markets case. In Greyhound I, the employer, Greyhound, attempted to implement changes in the work cycles of bus drivers. The union objected, arguing that Greyhound could not, under the terms of the collective bargaining agreement, unilaterally make such changes. Consequently, the union sought an injunction to prevent Greyhound from implementing the changes pending resolution of the matter through arbitration. In opposition to the request for injunction, Greyhound argued that under the ordinary
4739	471 for an alleged violation of the statute. Because Section 471 does not contain any remedy or enforcement provision, the question is whether a private cause of action was implied by Congress. In determining whether a private cause of action is implicit in a federal statute, the Supreme Court has explained that the ultimate question is whether Congress intended to create a private right of action when enacting the statute. Virginia Bankshares, Inc. v. Sandberg, — U.S. —, 111 S.Ct. 2749, 2763-64, 115 L.Ed.2d 929 (1991); Karahalios v. National Fed’n of Fed. Employees, 489 U.S. 527, 109 S.Ct. 1282, 1286, 103 L.Ed.2d 539 (1989); Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Middlesex County Sewage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981); Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981); California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981); Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 91, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979); Cannon v. University
1046	impermissible non-debt- or discharge as well. . At its footnote 14, the Till court notes that in Chapter 11, in contrast to Chapter 13, there might exist a true market by reference to various lenders specializing in DIP loans. But the kinds of loans referenced are usually ones bankable early in the case using some traditional criteria concerning collateral value and demonstrated payment ability, not so much on the kind of issues confronting us in this cramdown. In the context at bench, we are asked to make sense of present value and interest rate concepts at the extreme, well beyond what any sensible lender would do on a consensual basis. . See e.g. Till, 541 U.S. at 479, 124 S.Ct. 1951; In re Camino Real, 818 F.2d 1503, 1508 (9th Cir.1987). . How the resulting blended rates may differ depending on the assumptions used is demonstrated by comparing footnotes 5 and 6 in Boulders, 164 B.R. at 106 where the only assumption differing was the value of the collateral. .The Court was interested by, but not persuaded by, the very able testimony of Mr. J. Michael Issa. While a few workout arrangements from a variety of troubled loans of only passing similarity to this one might have some bearing on the interest rate calculation, the resulting average stated in his declaration is based on too small a sampling and is influenced by far too many extraneous, ad hoc and hard-to-quantify influences
1994	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 injury) or a medical diagnosis (such as with respect to a current disability), competent medical evidence is generally required to fulfill the well-grounded-claim requirement of section 5107(a) that the claim be “possible” or “plausible”. see Caluza, supra. Where the determinative issue does not require medical expertise, lay testimony may suffice by itself (such as in the recounting of symptoms or, in certain circumstances, attesting to in-service incurrence or aggravation of a disease or injury). See Caluza, supra; Heuer v. Brown, 7 Vet.App. 379, 384 (1995) (citing Grottveit, supra). A Board determination whether a claim is well grounded is a conclusion of law subject to de novo review by the Court under 38 U.S.C. § 7261(a)(1). See Grivois v. Brown, 6 Vet.App. 136, 139 (1994); Grottveit, supra. Based on the facts of this case, the Court holds that the appellant satisfied his initial burden of submitting a well-grounded PTSD claim because he has submitted medical evidence
1713	"plaintiffs’ objections are denied. The Clerk of the Court is directed to close this motion (docket # 771). A conference is scheduled for November 15, 2005, at 4:80 p.m. in Courtroom 15C. SO ORDERED. . See Magistrate Judge David G. Bernthal’s Report & Recommendation, Quick, et al. v. Shell Oil Co., et al., No. 05-2072 (C.D.Ill. Aug. 3, 2005) (""R & R”), Ex. 1 to Plaintiffs’ Objections to Magistrate Judge's Report and Recommendation re Plaintiffs’ Motion to Remand and Memorandum of Law in Support Thereof (""Objections”). . Objections ¶¶ 1-3 (quoting R & R at 2, 8). . 28 U.S.C. § 636(b)(1). . For a full recitation of plaintiffs' fact allegations in this MDL see In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 209 F.R.D. 323 (S.D.N.Y.2002) (""MTBE II”) (denying class certification); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 342 F.Supp.2d 147 (S.D.N.Y.2004) (""MTBE III"") (federal agent jurisdiction); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 341 F.Supp.2d 351 (S.D.N.Y.2004) (""MTBE IV"") (declining to abstain); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 341 F.Supp.2d 386 (S.D.N.Y.2004) (""MTBE V”) (bankruptcy jurisdiction); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 361 F.Supp.2d 137 (S.D.N.Y.2004) (""MTBE VI”) (sovereign immunity); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 364 F.Supp.2d 329 (S.D.N.Y.2004) (""MTBE VII”) (preemption constitutes a colorable federal defense for purposes of the"
3880	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 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,
47	"La.Rev.Stat. Ann. §§ 22:757, et seq. Obviously, state legislatures can withhold jurisdiction from their own state courts but cannot control the jurisdiction of the federal courts. . See, e.g., Clark v. Fitzgibbons, 105 F.3d 1049, 1051-52 (5th Cir.1997); Barnhardt Marine Ins., Inc. v. New England Int’l Surety of Amer., Inc., 961 F.2d 529, 531-32 (5th Cir.1992); Martin Insurance Agency, Inc. v. Prudential Reinsurance Co., 910 F.2d 249, 255 (5th Cir.1990); Gonzalez v. Media Elements, Inc., 946 F.2d 157 (1st Cir.1991); Law Enforcement Insurance Co. v. Corcoran, 807 F.2d 38 (2d Cir.1986); Lac D’Amiante du Quebec Ltee v. American Home Assurance Co., 864 F.2d 1033 (3d Cir.1988); Hartford Casualty Insurance Co. v. Borg-Warner Corp., 913 F.2d 419 (7th Cir.1990); .Only one federal court has given traction to the Superintendent’s argument that the New York rehabilitation proceedings left the district court without jurisdiction to rule on Gallon’s summary judgment motion. In Insurance Affiliates, Inc. v. O'Connor, the district court held that the UILA divested Colorado courts of jurisdiction ""to hear actions involving controverted claims involving out-of-state insurers unless ancillary proceedings have been commenced in Colorado.” 522 F.Supp. 703, 706 (D.Colo.1981). But in Martin, we squarely refused to adopt that position stating, ""[ajlthough we agree with the district court that this case should be dismissed, we do not think dismissal should be based on lack of subject matter jurisdiction in federal courts.” 910 F.2d at 254-55 (concluding that dismissal under the Burford"
2075	Colón, had invited her for a ride, but rejected her husband’s contention that they were going to the Hawaiian Hut. Furthermore, she acknowledged that all of the defendants — Rodriguez Colón, Fernandez Santana, Mauricio Guerrero and herself — were together ,in the car. This statement belies the allegation that she was an innocent bystander, completely unaware of the drug transaction. The Supreme Court has clearly stated that probable cause must exist with respect to each person arrested, and a person’s mere proximity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979). See also Consequently, defendant Berrocal may also plausibly argue that mere familiarity or kinship with other people for whom there is probable cause to arrest is not sufficient to establish probable cause against her. We must assess not only her mere proximity to the other defendants, but her relationship to them at the time of the arrest. In the present case, the agent was armed with the collective knowledge of his fellow officers that several people would be waiting near the Black Angus area for the cocaine shipment recently seized from the Eagle Caribe. Agent Andaluz had specific knowledge that Mauricio Guerrero, Miguel Rodriguez Colón and Luis Fernandez Santana were linked to a greater or lesser degree to the cocaine shipment from the
2685	of the estate in the debtor. (c) Except as otherwise provided in the plan or in the order confirming the plan, the property vesting in the debtor under subsection (b) of this section is free and clear of any claim or interest of any creditor provided for by the plan. 11 U.S.C. § 1327. It is well established that principles of res judicata and finality, as partly codified in Section 1327, can make even “illegal” provisions of a Chapter 13 plan binding. See Great Lakes Higher Educ. Corp. v. Pardee (In re Pardee), 193 F.3d 1083 (9th Cir.1999) (student loan debt discharged by confirmation of Chapter 13 plan so providing, even though debt may have been nondischargeable); This general proposition is subject to some major limitations. The starting point is that a debtor asserting res judica-ta “has the burden of proof on all elements and bears the risk of non-persuasion.” Repp, 307 B.R. at 148 n. 3 (citations omitted). Next, a plan should clearly state its intended effect on a given issue. Where it fails to do so it may have no res judicata effect for a variety of reasons: any ambiguity is interpreted against the debtor, any ambiguity may also reflect that the court that originally confirmed the plan did not make any final determination of the matter at issue, and claim preclusion generally does
477	accordance with law? Second, whether ITA’s decision to base the margin of dumping on the rate determined in the fair value investigation as the best information available is supported by substantial evidence in the record and is otherwise in accordance with law? STANDARD OF REVIEW In reviewing challenges to administrative reviews this Court must sustain the ITA’s determination unless it is found to be “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516(b)(1)(B) (1982). See Seattle Marine Fishing Supply Co. v. U.S., — CIT-, 679 F.Supp. 1119, 1125 (1988). Substantial evidence has been held to be more than a “mere scintilla”, but sufficient to reasonably support a conclusion.  aff'd, 810 F.2d 1137 (Fed.Cir.1987); See Also Smith-Corona Group v. U.S., 713 F.2d 1568, 1571 (Fed.Cir.1983). Because a reviewing court must accord due weight to an agency’s interpretation of a statute it administers, this Court will defer to the agency’s interpretation, provided it is “sufficiently reasonable”. See American Lamb Co. v. U.S., 785 F.2d 994, 1001 (Fed.Cir.1986). Furthermore, so long as the agency’s methodology and procedures are reasonable means of effectuating the statutory purpose, and the agency’s conclusions are supported by substantial evidence on the record, the Court will accept the sufficiency of the agency’s investigation and will not question its methodology. Ceramica Regiomontana, supra, 636 F.Supp. at 966. At the same time, the Court will not permit the agency to
4457	As the careful eye will note, some circuits appear in both lists (neither of which is exhaustive), and these circuits have addressed this matter and developed fairly detailed rules to explain the dis tinctions between the various procedural postures presented and the applicability of § 1292(a)(3) to each. . Since we recognize that both parties believed jurisdiction to lie for this appeal, and we understand that the circuits have not provided helpful guidance in this area over time, we think it appropriate that each side bear its own costs.
1330	because of Form B22C’s required computation of disposable income, this Court believes that conversion to chapter 7 remains viable. Any scrutiny for presumption of abuse would need to be based on § 707(b), the only subsection that references “abuse” in relation to the filing of a case. But, the test for abuse under § 707(b), whether based on a presumption as defined in § 707(b)(2), or on either bad faith or the totality of the circumstances of the debt- or’s financial situation as recognized in § 707(b)(3), relates specifically to a case filed by an individual debtor under chapter 7, not to a case filed under chapter 13 and later converted. See In re Fox, 370 B.R. 639 (Bankr.D.N.J.2007); but see In re Perfetto, 361 B.R. 27 (Bankr.D.R.I.2007). Therefore, § 707(b) may not even apply to a debtor who files a case under chapter 13 in good faith but is unable to propose a feasible plan based on Congress’s mandated means test for above income debtors. It is incongruous to require the debtor to follow a code mandated formula to determine disposable income in a chapter 13 case, and then not allow the same debtor relief under another chapter when the debtor cannot propose a feasible plan because of that code mandated formula. Restricting the presumption of abuse test to cases filed under chapter 7 still allows the unfortunate chapter 13 debtor who is precluded from confirming a chapter 13 plan access to
3431	"error. III. Conclusion For the foregoing reasons, we AFFIRM Terrell’s conviction and sentence. . Although defense counsel objected to the admission of the guilty plea, counsel did not oppose the admissibility of a redacted certified copy of the burglary conviction. . Terrell also asserts that the court erred by denying his motion for a mistrial because the government failed to prove the interstate nexus element of the offense and that § 922(g) is unconstitutional. Because this court has rejected these arguments, we need not discuss them further. See United States v. Clay, 355 F.3d 1281, 1286 (11th Cir.), cert. denied, - U.S. -, 125 S.Ct. 626, 160 L.Ed.2d 456 (2004); United States v. Nichols, 124 F.3d 1265, 1266 (11th Cir.1997); . The prior conduct was proven sufficiently, as the government proffered a certified copy of the guilty plea, and Terrell does not dispute the validity of the evidence. . Rule 403 states: ""[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.Evid. 403. Rule 403 is ""an extraordinary remedy which the district court should invoke sparingly, and [t]he balance ... should be struck in favor of admissibility.” United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003) (citation and internal quotation marks omitted). . Terrell’s"
638	"technologists to vote under challenged voting procedures in the all professional unit election inconsistent with its ruling affirming their technical status. Finally, we believe any changes, subsequent to the original election, in the job responsibilities of the radiologic technologists and respiratory therapists are more appropriately addressed in a unit clarification proceeding authorized under 29 C.F.R. § 102.60 (1988). See NLRB v. Magna Corp., 734 F.2d 1057, 1061 (5th Cir.1984) (unit clarification appropriate when job responsibilities have changed). To hold otherwise would allow employers to nullify unfavorable elections simply by modifying the job responsibilities of a particular position. The more principled approach is to review the status of a job classification as it existed before the election. Cf. In the case before us, the Regional Director’s initial determination that the ra-diologic technologist and respiratory therapist positions were, at that time, technical is supported by substantial evidence in the record. Therefore, the Hospital’s petition for review is denied and the Board’s cross-petition for enforcement is granted. IT IS SO ORDERED. . The ""community of interests"" test has been traditionally applied by the Board to bargaining unit determinations outside the health care field for over 40 years. St. Vincent’s Hosp., 285 N.L. R.B. No. 64, 1986-87 NLRB Dec. (CCH) ¶ 18,891 at 32,347 (Aug. 19, 1987). The ""community of interests” test focuses on the similarities of"
1817	"argues his close proximity to a gun does not, by itself, give rise to a reasonable suspicion he was dangerous. He also contends the officers could not reasonably have been alarmed at any point during the encounter because he maintained a calm and cooperative demeanor, he did not run away from the officers, he stepped away from the door where the gun was located, he did not insist on going into his home but stayed and spoke with officers, and Milone stood between him and the suspected gun, impeding Richmond's access to it. But Richmond's arguments focus on whether the officers subjectively believed he was dangerous. Reasonable suspicion is measured against the totality of the circumstances, an objective test. see also Brigham City, Utah v. Stuart , 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (explaining an officer's subjective motivation to intrude within a home ""is irrelevant"" under the Fourth Amendment; what matters is whether ""the circumstances, viewed objectively , justify the action."") (emphasis in original, internal brackets omitted). In determining whether a suspect is ""presently dangerous,"" ""[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger."" Terry , 392 U.S. at 27, 88 S.Ct. 1868 ; Cady , 467 F.3d at 1061-62 (holding same)."
2371	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. 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’
4044	decision regarding whether to rescind an in absentia exclusion order under 8 C.F.R. § 1003.23 is discretionary. See Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005); see also Luna v. Holder, 637 F.3d 85, 95-96 (2d Cir.2011) (noting the different treatment this Court has accorded to statutory motions to reopen versus regulatory motions to reopen, the latter of which are discretionary). Here, the BIA did not abuse its discretion, as it provided a rational explanation for denying the motion — the 12-year delay in filing. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001); see also, e.g., Zhao Quan Chen v. Gonzales, 492 F.3d 153, 155 (2d Cir.2007) (three-year delay suggested lack of diligence); Ali v. Gonzales, 448 F.3d 515, 516-17 & n. 2 (2d Cir.2006) (eleven-year delay suggested lack of diligence). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
3804	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 on a stage in front of an audience. See  concurring in opinion and judgment), rev’d by Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). Stanglin is inapposite and the County cites no cases treating a similar restriction that seeks to regulate the movements dancers may make based on the number of dancers then performing (two or more). The “other person” requirement is not 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.
4816	(9th Cir. 1967). There was substantive evidence connecting Jackson with the actual robbery. The requested instruction was properly rejected. Defendant Willis contends that the failure of the Government to transcribe the grand jury proceedings was in violation of his Fifth Amendment rights to be indicted by a grand jury and to due process of law, and his Sixth Amendment right to confront the witnesses against him. It is established that no minutes of the grand jury proceedings were kept. Thus acceptance of this argument would require dismissal of the indictment. This court has consistently, and recently, held that the recording of grand jury proceedings, at least in the absence of a prior request therefor, is permissive and not mandatory. See United States v. Thore-sen, 428 F.2d 654, 666 (9th Cir. 1970); Jack v. United States, 409 F.2d 522, 524 (9th Cir. 1969); and Loux v. United States, 389 F.2d 911, 916 (9th Cir. 1968). We decline to re-examine these decisions. Affirmed. . All of those witnesses had previously inspected groups of photographs in an effort to identify the robbers, but with little success. Defendants raise no question here concerning the validity of the photo-identification procedures. There had been no lineup, although the three defendants had all been available for at least a month. . See also, United States v. Wade, 388 U.S. 218, 241-243, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ; Gilbert v. California, 388 U.S. 263, 269-274,
2030	claimed stressor is related to the combat experience, further development to document the occurrence of the claimed stressor i[s] unnecessary” (emphasis added)); 58 Fed.Reg. 29,109 (final rule May 19, 1993) (noting in the supplementary information that § 3.304(f) is “fully consistent” with “the provisions of 38 U.S.C. § 1154(b)”). This specific application of section 1154(b) is a significant omission from the VA regulations governing PTSD cases, and that omission needs to be corrected by the Secretary. See Zang v. Brown, 8 Vet.App. 246, 255-56 (1995) (Steinberg, J., separate views). Of course, section 1154(b) does not require the acceptance of a veteran’s assertion that he was engaged in combat with the enemy; it would be tautological to conclude that it did. See The determination of combat status is a question to be decided on the basis of the evidence of record in each case. See West, 7 Vet.App. at 76 (whether veteran was engaged in combat with enemy is determined through receipt of certain recognized military citations or other supportive evidence); 57 Fed. Reg. 34,536. Thus, in this case, if the veteran was engaged in combat in connection with any of the asserted stressors that might be construed as combat related (that is, mortar fire while on convoys and guard duty, or being fired on when returning from R & R), then, under section
4258	624, 4 L.Ed.2d 654 (1960); Garner v. State of Louisiana, 368 U.S. 157, 163, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961). Justice Frankfurter protested that consideration of such cases diverted the energies of the Court from the important problems suitable for consideration by the nation’s highest tribunal. Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 525, 540, 547, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957). See also Dick v. New York Life Ins. Co., 359 U.S. 437, 456-459, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959); Ex parte Republic of Peru, 318 U.S. 578, 602-603, 63 S.Ct. 793, 87 L.Ed. 1014 (1943). . Clean hands is a good defense in a patent infringement suit, as Judge. Maris points out in See also Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245-247, 54 S.Ct. 146, 78 L.Ed. 293 (1933); Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 684, 64 S.Ct. 268, 88 L.Ed. 376 (1944). . For that Court, as Professor Wechsler observes, “above all others has the faculty of rendering decisions that accord a quality of rapid obsolescence to the learning we law teachers [and practicing lawyers] claim to have.” Herbert Wechsler, “The Courts and the Constitution,” 65 Col.L.R. (No. 6, June, 1965) 1001. A beautiful performance by one of the most outstanding gamesmen in this field is Philip B. Kurland, “Foreword: ‘Equal in Origin and Equal in Title to the Legislative and Executive Branches of the Government’
520	"are eligible with the result of unnecessarily segregating them in sheltered workshops. ORDER For the reasons stated above, defendants’ Motion to Dismiss (docket # 29) is GRANTED. Plaintiffs’ claims are dismissed WITHOUT PREJUDICE and WITH LEAVE TO AMEND. Plaintiffs shall file their First Amended Complaint to cure the problems identified in this Opinion and Order on or before May 29, 2012. . Plaintiffs define supported employment services as ""vocational training services that prepare and allow people with intellectual and developmental disabilities to participate in integrated employment.” Complaint, ¶ 4. . See Radaszewski v. Maram, 383 F.3d 599 (7th Cir.2004) (at-home private-duty nursing services); Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175 (10th Cir.2003) (cessation of unlimited medically-necessary prescription benefits); Hiltibran v. Levy, 793 F.Supp.2d 1108 (W.D.Mo.2011) (risk of forcing institutionalization in order to obtain Medicaid coverage of medically necessary incontinence briefs); Peter B. v. Sanford, 2010 WL 5912259 (Report and Recommendation, Nov. 24, 2010), adopted, 2011 WL 824584 (D.S.C. Mar. 7, 2011) (risk of forcing institutionalization due to reduction or termination of medical and personal-care services); Pitts v. Green stein, 2011 WL 2193398 (M.D.La. June 6, 2011) (reduction in maximum number of home and community-based health service hours); Cruz v. Dudek, 2010 WL 4284955 (S.D.Fla. Oct. 12, 2010) (risk of forcing"
3073	not utilize similar knowledge, training, skills or abilities, id. § 1630.2(j)(3)(ii)(C). Id. In meeting the burden of showing a disqualification from a class of jobs or a broad range of jobs in various classes, the plaintiff may proceed in several manners. In some cases, it is often helpful, but not required, for a plaintiff to seek the advice of a vocational expert. See Gelabert-Ladenheim, 252 F.3d at 60. While in other cases the seriousness of plaintiffs impairment is so obvious that no additional evidence will be required. See EEOC v. Rockwell Int’l Corp., 243 F.3d 1012, 1019-20 (7th Cir.2001). Finally, the plaintiff may make reference to publicly available labor market statistics, like simple government job statistics. See Applying this framework to the facts of this case, it is the Court’s opinion that no reasonable jury could find that Plaintiff was disabled. The evidence Plaintiff uses to support her contention that she is impaired in the major life activity of working is: (1) the SIF finding of para-lumbar muscular spasms with pain upon palpitation, which limit her ability to lift and move weights over 20 pounds, and (2) the Declaration of Madeline Figueroa, an “expert” in Human Resources. (Docket # 42, Ex. 21). The Declaration states: UNSWORN STATEMENT UNDER PENALTY OF PERJURY I,Madeline Figueroa, MA, of legal age, single, senior human resources and administrative consultant, and resident of Trujillo Alto, make the following un-sworn statement under penalty of perjury:
414	11 U.S.C. § 362 and requiring regulatory approval of rates in a reorganization plan in 11 U.S.C. § 1129(a)(6). As further evidence that the bankruptcy court exceeded its authority under 11 U.S.C. § 105(a), the LPSC points to the requirement that a bankruptcy trustee “shall manage and operate the property in his possession ... according to the requirements of the valid laws of the State in which such property is situated, in the same manner that the owner or possessor thereof would be bound to do if in possession thereof,” 28 U.S.C. § 959(b), and the Johnson Act, 28 U.S.C. § 1342. Finally, the LPSC argues that the Seventh Circuit’s treatment of a bankrupt public utility cooperative in  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
3916	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 sought rescission, nor is she able to repay the loan at this time. It was not an abuse of discretion to deny the request for a preliminary injunction under these circumstances. See 2. No. 10-16526 The district court denied Silvas’s request for a preliminary injunction as to her contention that neither Countrywide Home Loans, Inc., nor Recontrust Co., has the authority to foreclose on her home. While this appeal was pending, the district court dismissed the underlying complaint. Because the operative complaint has been dismissed, we dismiss this interlocutory appeal as moot. See Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th Cir.1992). AFFIRMED as to No. 10-16525; DISMISSED AS MOOT as to No. 10-16526. This disposition is not appropriate for publication and is
962	rises to the level of an insider relationship. See In re Huizar, 71 B.R. 826 (Bankr.W.D.Tex.1987) (Despite defendant bank’s president having been a close personal friend of debtor, having solicited debtor’s business, having become debtor’s primary lender, and having taken at least one vacation with debtor, bank was not an insider given lack of evidence indicating that the transactions between the parties were anything other than properly negotiated loan transactions, nor that the bank held any form of actual or unreasonable control over the debtor); In re Hartley, 52 B.R. 679 (Bankr.N.D. Ohio1985) (trustee could not avoid as insider preference stock pledge made to bank despite the fact that bank frequently advanced monies to purchase the stocks); and A common basis for these rulings was the perception that, while a creditor may be in a strong bargaining position in dealing with the debtor, so long as the parties transact their business at arm’s length, such circumstances do not necessarily give rise to insider status even though there was some degree of personal relationship with the debtor. It is unlikely that Congress intended that complex business relationships existing over a period of time, attended by some personal involvement but without control by the creditor over the debtor’s business, would subject such creditor to insider status. Here the
1756	"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 a double design.”); Pack v. AC & S, 838 F.Supp. 1099, 1102 (D.Md.1993) (finding that removal pursuant to section 1442(a) was timely when filed within thirty days of date when plaintiffs served defendant with information that specific ""steam turbine generators manufactured at the Baltimore Shipyards were the subject of the litigation” providing defendant ""with sufficient information ... to determine that the turbines were made according to government specifications and that removal was available based on the government contractor defense”). . Soto, 111 F.Supp.2d at 224. Accord Akin, 156 F.3d at 1036; This clearer threshold promotes judicial economy. It should reduce ‘protective’ removals by defendants faced with an equivocal record. It should also discourage removals before their factual basis can be proven by a preponderance of the evidence through a simple and short statement of the facts. In short, a bright-line rule should create a fairer environment for plaintiffs and defendants.”). . While a ""federal court is bound to consider the stage of the state court litigation in ruling on"
4355	of the original named plaintiffs, including both Mr. Timothy Pigford and Mr. Cecil Brewington, have objected to the terms of the settlement. The Court has carefully considered their objections but nonetheless concludes that the settlement is fair, adequate and reasonable. See Thomas v. Albright, 139 F.3d at 232 (fact that named class representatives object to proposed settlement does not preclude court from finding that settlement is fair). . With one exception, see Order of March 11, 1999, the Court has considered all objections and comments that it received by April 2, 1999. Some of those who have submitted objections do not appear to be members of the class and therefore lack standing to challenge the fairness of the Consent Decree, see  but the Court has considered their objections anyway. . For those class members who allege only discrimination in a benefit transaction, Track B is not an option. . In fact, several objectors contend that the Track B mechanism, even with the shortened discovery period, takes too long to resolve claims. It is clear from the tensions between these two sets of objections that class counsel had to strike a delicate balance between resolving Track B claims expeditiously and obtaining the necessary discovery, and the balance finally struck appears eminently reasonable to the Court. . The Court also notes that it is not unprecedented to conduct hearings in this way, even in trials in federal court. See Transcript at 51; Charles R. Richey,
2127	to act; that is, Congress contemplated that his action would be sustained by the courts unless he acted arbitrarily or unreasonably. For example, section 166(c) provides that there shall be allowed, in the discretion of the Commissioner, a deduction for a reasonable addition to a reserve for bad debts. Because of the discretionary authority specifically granted in the allowance of deductions under the reserve method, the Commissioner’s determinations regarding the reasonableness of additions to bad debt reserves carry more than the usual presumptive correctness, and the taxpayer’s burden of proof is greater than merely overcoming such presumption. Thor Power Tool Co. v. Commissioner, 439 U.S. 522 (1979); Roth Steel Tube Co. v. Commissioner, 68 T.C. 213, 218 (1977); Thus, the taxpayer must not only demonstrate that its addition to its reserve for bad debts was reasonable, but also that the Commissioner’s disallowance of such addition amounted to an abuse of discretion. Similarly, section 446(b) authorizes the Commissioner to change the method of accounting used by a taxpayer when he finds that such method does not clearly reflect income. In Thor Power Tool Co. v. Commissioner, supra, the Supreme Court held that when the Commissioner changes a taxpayer’s method of accounting, the Court should accept the Commissioner’s action unless the Court finds that he has abused his discretion. And section 482 allows the Commissioner to distribute, apportion, or allocate income if he finds that such distribution, apportionment, or allocation is necessary
2535	McKEAGUE, Circuit Judge. Plaintiff-Appellant Bridgeport Music, Inc. (“Bridgeport”) appeals from the district court’s order awarding attorneys’ fees and costs to Defendant-Appellee Universal-Polygram International Publishing, Inc. (“UPIP”) as a prevailing party under 17 U.S.C. § 505. This court had vacated an earlier award of fees and costs to UPIP and remanded to the district court for further consideration. On remand, the district court awarded the same amount of fees and costs to UPIP. Bridgeport argues that the district court abused its discretion. For the reasons set forth below, we affirm. I This is one of a large number of cases brought by Bridgeport and three sister companies (collectively referred to as “Bridgeport”) against various defendants in the music-publishing industry. In the original complaint, Bridgeport alleged nearly 500 counts against approximately 800 defendants for copyright infringement and other state-law claims arising from music sampling. The amended complaint in this case, filed after the district court severed the original case into 476 separate actions, was based on the allegation that the rap song “99 Problems” sampled the opening three-note chord from
616	"at ¶ 21. . During the course of the evidentiary hearing, the Court admitted the following into evidence: Bank’s Exhibit A, B, C, D, E, F, G, H, I, O, Q, R, S, T, U, V, W, X, AA, BB, CC, DD, EE, FF and GG; Debtors’ Exhibits A, B, C, E and F; Glasser’s Exhibits G-l, G-2, G-5, G-6, G-7, G-9, G-10, G-ll, G-12, G-13 and G-14; and the Stipulated Facts. . Order for Additional Briefs (Docket No. 308). . Debtors’ Supplemental Hearing Brief (Docket No. 313); Bank of the West’s Additional Brief Regarding 1) Legal Authority Supporting the Validity of a Waiver of California Anti-Deficiency Statutes by a Guarantor and 2) Applicability of Colorado Law (Docket No. 314). . . Id. (quoting Wilson v. Broadband Wireless Int’l Corp. (In re Broadband Wireless Int’l Corp.), 295 B.R. 140, 145 (10th Cir. BAP 2003)). . See Debtors' Objection. . See Bank’s Response. . Richter, 478 B.R. at 40; see also In re Lenz, 110 B.R. 523, 525 (D.Colo.1990). . Id. at 40-41 (internal citations omitted). . See Security Service Federal Credit Union v. First American Mortg. Funding, LLC, 861 F.Supp.2d 1256, 1264 (D.Colo.2012)(""[A] court need not choose which body of law to apply unless there is an outcome determinative conflict between the potentially applicable bodies of law.”). . Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Morrison Knudsen Corp. v. Ground"
4471	(1st Cir. BAP 2002); Leavitt, 171 F.3d at 1224; Ho, 274 B.R. at 877; In re Dicey, 312 B.R. 456, 458 (Bankr.D.N.H.2004); Fleury, 294 B.R. at 5; and In re Virden, 279 B.R. 401, 407 (Bankr.D.Mass.2002). Courts differ in their approach to determining a debtor’s good faith, but the majority favor a totality of the circumstances test to determine whether a debtor lacked good faith in filing a Chapter 13 petition for purposes of § 1307(c). The United States Bankruptcy Appellate Panel for the First Circuit originally did not adopt a totality of the circumstances approach to determine lack of good faith, but instead advocated an examination of only the circumstances relevant to the debtor’s proposed plan and post-filing conduct. See However, in the five years since the Panel’s decision in Keach, the bankruptcy courts in this circuit have expanded Keach’s examination of the debtor’s lack of good faith to include both pre-petition and post-petition conduct of the debtor. See Dicey, 312 B.R. 456; Fleury, 294 B.R. 1; In re Scotten, 281 B.R. 147, 149 (Bankr.D.Mass.2002); and Virden, 279 B.R. 401. The Panel then implicitly adopted the totality of the circumstances test to determine lack of good faith by affirming a bankruptcy court’s decision granting a Chapter 7 trustee’s motion to reconvert a Chapter 13 to Chapter 7, for cause, based on the totality of circumstances test. See Cabral, 285 B.R. at 573-74. Thus, the majority of the bankruptcy
4486	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; 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 (1989). In order to satisfy the “strong inference” test without direct knowledge of the defendant’s state of mind, the Second Circuit has indicated two approaches by which scienter may be adequately pled. “The first approach is to allege facts establishing a motive to commit fraud and an opportunity to do so.” In re Time Warner, 9 F.3d at 269. “The second approach is to allege facts constituting circumstantial evidence of either
615	necessary because, if California law applies, the Bank’s claim against the Debtors may be unenforceable under California anti-deficiency statutes. However, if Colorado law applies, the Bank’s claim against the Debtors’ estate will stand because Colorado has not enacted any antideficiency statute. A federal court applies the choice of law rules of the state in which the district court sits. With respect to choice of law provisions appearing in contracts, the United States District Court for the District of Colorado has noted: Colorado has adopted the Restatement (Second) of Conflict of Laws § 187 approach to contractual choice of law provisions. See Hansen v. GAB Bus. Servs., Inc., 876 P.2d 112, 113 (Colo.Ct.App.1994); see also ADT Sec. Servs., Inc. v. Apex Alarm, LLC, 2006 WL 650166, *5 (D.Colo. Mar. 13, 2006). Section 187 states in relevant part: The law of the state chosen by the parties to govern their contractual rights and duties will be applied ... unless ... (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties.... In other words, Colorado courts will enforce contractual choice of law provisions
3558	a religious recipient only has the effect of furthering that secular purpose.”). Here, not only was the City neutral toward the BRM in its lease terms when compared to CHI’s lease, the BRM actually got the worse deal. Where the BRM would have been required to pay market rent after five years, CHI was guaranteed that — • throughout the entire fifty-year term of its lease — its rent would never exceed $1 per year. If charging below-market rent to a nonprofit religious organization on the same or worse terms than those received by a previous secular non-profit tenant would constitute government indoctrination, that was not clearly established in 2005. In  as amended, 792 F.2d 124 (9th Cir.1986), we held that leasing public property to a religious organization does not violate the Establishment Clause, as least where the lease was on the same terms as leases offered to commercial tenants. That case did not address whether it would violate the Establishment Clause if such a lease were offered on the same terms as those received by other non-profit tenants. When pressed during oral argument for their best case on this issue, plaintiffs’ counsel cited this case. It does not help them. At least one court has decided such a case. In Fairfax Covenant Church v. Fairfax County Sch. Bd., 17 F.3d 703 (4th Cir.), cert. denied, 511 U.S. 1143, 114 S.Ct.
1872	drug use. Knowledge is an element of the offense charged. See United States v. Freeze, 707 F.2d 132, 135-36 (5th Cir.1983). In addition, evidence of knowledge is one of the express exceptions to the general prohibition of bad acts evidence. Fed.R.Evid. 404(b). Eaton’s testimony addressed the knowledge element. The Government had a right to rebut that evidence through cross-examination. The Government's inquiry cannot be unfairly prejudicial, because the defendant himself is responsible for bringing the subject into evidence. Moreover, the balancing of probative value and prejudicial effect is left to the sound discretion of the trial court. We agree with the district court that the prejudicial impact of Eaton’s prior drug use did not substantially outweigh its probative value. See VI. CONCLUSION We hold that (1) the court’s jury instruction on constructive possession, taken as a whole, did not mislead the jury so as to warrant reversal; and (2) the court correctly found that the defendant “opened the door,” permitting the prosecution to admit evidence of the circumstances of his prior guilty plea and evidence of his prior drug use. Affirmed. . A police officer had made an undercover purchase of cocaine from McCollum for $45.00 in pre-recorded police funds. Following the sale, McCollum was observed in front of the residence. As the officers approached her, she backed into the open doorway. . Co-defendant McCollum entered a plea of guilty prior to trial. Co-defendant Brown was acquitted on all counts, and
1444	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); Under this standard, we will reverse the BIA’s decision only if the evidence presented would compel us to find for the petitioner. See Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812. As the recitation of the facts earlier in this opinion shows, the evidence in this case was sufficient for the BIA to uphold the findings of the IJ. G. Denial of Discretionary Relief Westover also claims that the BIA erred in denying her application for adjustment of status. Because she was placed into removal proceedings before April 1,1997, and her final order of removal came after October 30, 1996, Westover’s appeal is governed by § 309(c)(4)(E) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L.
1463	or that appellant did not have the requisite service or character of discharge. As there is no exception under either 38 U.S.C. § 110 or § 1159 for “administrative error,” service connection for the right thigh was, therefore, improperly severed, and appellant is entitled to service connection for gunshot wounds to both thighs. However, a conclusion that appellant is entitled to be service connected for both thighs does not mean that he is entitled to a rating above 10%. Appellant has only a single disability to the left thigh, even though he has been improperly, but non-severably, service connected and rated for the right thigh. As a consequence, under the principles enunciated in Brady v. Brown, 4 Vet.App. 203 (1993), and  appellant cannot be awarded a separate rating for his left thigh because to do so would award him duplicate ratings for the “same symptomatology” (residuals of a gunshot wound to the left thigh) and thereby violate the prohibition against pyramiding. See 38 C.F.R. § 4.14 (1993). Unlike severance, limiting appellant here to a single 10% disability where he is service connected for both thighs is not precluded by our statutes, and is supported by ease law and regulation.
2491	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.,  those cases involved a clear injury in the absence of judicial action. See id. (wherein regulation restricted access to jury trial). Here, any overlapping jurisdictional claims are highly conjectural, and a decision on these abstracted claims is unwarranted. See Cass County, 570 F.2d at 741-42 (connecting boundary decisions to disputes over taxing authority, criminal jurisdiction, and fishing and hunting rights cases). Plaintiffs cite a number of cases where courts have resolved land disputes through declaratory judgment, but none of them are analogous to this case. In each of the cited cases, there were concrete and specific incidents involving reservation boundaries and sovereignty. See id.; Yankton Sioux Tribe v. South Dakota, 796 F.2d 241 (8th Cir.1986)
1084	"evi-dentiary circumstances.” See Stenberg, 530 U.S. at 937, 120 S.Ct. 2597. In addition, the Court relied on amici submissions not before the district court as well as the factual conclusions of other district courts considering partial-birth abortion statutes. See, e.g., id. at 923, 120 S.Ct. 2597 (""drawing upon the findings of the trial court, underlying testimony, and related medical texts” to describe abortion methods); id. at 932, 934-36, 120 S.Ct. 2597 (considering arguments of amici for and against Nebraska’s ban); id. at 932-33, 120 S.Ct. 2597 (citing findings of seven other district courts). The district court’s findings did not represent adjudicatory facts, those that relate only to the current parties, but legislative facts, those that apply generally and universally. See ). Whether D & X is ever necessary to protect women’s health is not a fact that will differ from trial to trial, but must be found by courts as a matter of legislative fact. See A Woman's Choice-E. Side Women’s Clinic v. Newman, 305 F.3d 684, 688 (7th Cir.2002) (""[Cjonstitu-tionality [of partial-birth abortion statutes] must be assessed at the level of legislative fact, rather than adjudicative fact determined by more than 650 district judges. Only treating the matter as one of legislative fact produces the nationally uniform approach that Stenberg demands.”);"
2940	conflict of interest argument. Petitioner makes several other charges, and the court considers these several points below in discussing the ineffective assistance of counsel issue. Arguing for the state, respondent contends that petitioner has failed to show the existence of a conflict of interest on the part of Simpson. In addition, respondent emphasizes that petitioner was represented by two attorneys, Simpson and Tisinger, and that petitioner has failed to allege or show that Tisinger was influenced by a conflict of interest. Therefore, respondent avers that petitioner was not denied the effective assistance of counsel. The Sixth Amendment’s guarantee of the right to counsel is a fundamental constitutional safeguard which is vital in protecting the criminal defendant’s right to a fair trial. The right to counsel was explicitly extended to state proceedings in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (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
4754	"Financial will suffer irreparable injury for which there is no adequate remedy at law.” Even if the court had found that a private cause of action exists under Section 471, MountainWest Financial would need to have established that an injunction is the appropriate form of relief for Visa’s alleged violation of Section 471, which it has failed to do. MountainWest Financial limited its motion to Count VI on the basis that injunctive relief would somehow be easier to establish as a result of a violation of a federal statute as opposed to a breach of contract. However, establishing the existence of an irreparable injury for which money damages are inadequate is required for an injunction under both claims. Cf. Furthermore, the scope of an implied remedy to a federal statute also requires a determination of congressional intent, which has not been established here. See Virginia Bankshares, Inc. v. Sandberg, — U.S. —, 111 S.Ct. 2749, 2763-64, 115 L.Ed.2d 929 (1991). . Visa also asserts that MountainWest Financial violated other Visa bylaws and operating regulations including Visa Bylaw 2.08. Visa Bylaw 2.08 prohibits the transfer of a Visa membership except as provided in the bylaws. MountainWest argues that FIRREA renders Bylaw 2.08 inoperable. FIRREA allows the RTC to ""transfer"
1865	that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint. Mere presence in the vicinity of a piece of property or mere knowledge of its physical location does 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. 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
3988	and look to their liens for satisfaction of the debt. Brawders v. Cnty. of Ventura (In re Brawders), 503 F.3d 856, 872 (9th Cir.2007). Secured liens pass through bankruptcy unaffected. Long v. Bullard, 117 U.S. 617, 620-21, 6 S.Ct. 917, 29 L.Ed. 1004 (1886); Dewsnup v. Timm, 502 U.S. 410, 418, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992); In re Brawders, 503 F.3d at 872. However, if the lien is avoided and the formerly secured creditor failed to file a secured claim prior to the claims bar date, the creditor' may file a proof of claim within 30 days after the order avoiding the lien becomes final. See Rule 3002(c)(3); Zebley v. First Horizon Home Loans (In re Ong), 469 B.R. 599, 601 (Bankr.W.D.Pa.2012). The exception under Rule 3002(c)(3) permits a creditor like CitiMortgage, whose unsecured claim arises as the result of an order invalidating its secured claim, to file a proof of claim within 30 days after entry of the order regardless of expiration of the 90-day limitation in Rule 3002(a). As explained in the Advisory Committee Notes to Rule 3002(c): Although the claim of a secured creditor may have arisen before the petition, a judgment avoiding the security interest may not have been entered until after the time for filing claims has expired. Under Rule 3002(c)(3), the creditor who did not file a secured claim may nevertheless file
4872	Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009); United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel has evaluated whether Eom could challenge the reasonableness of the 51-month sentence he asked the district court to impose. Counsel notes, however, that the court correctly calculated the imprisonment range and that Eom’s sentence at the bottom of that range is entitled to a presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Jackson, 598 F.3d 340, 345 (7th Cir.2010). And counsel concludes that this presumption could not be overcome by arguing that the district court failed to adequately consider the sentencing factors under 18 U.S.C. § 3553(a). See The court acknowledged Eom’s arguments in mitigation: that he is well educated and, until this offense, had an impressive work history and no criminal record. But the court emphasized that Eom’s professional training made him computer savvy, and the transcripts of his online conversations with the undercover officer demonstrate that Eom knew his actions were illegal because he asked the girl about the legal age for consensual sex, expressed his concerns about going to jail, and implored the girl to keep their relationship secret. And though the district court acknowledged that Eom, a South Korean citizen, faces the prospect of removal after incarceration, the court concluded that a term at the bottom of the guidelines range was necessary to protect
2898	from a section 1328 discharge. Section 1322(b)(5) permits a Chapter 13 plan to provide for curing any default on a debt that has its last payment due after the due date of the final payment under the plan by allowing the debtor to extend the length of the repayment period beyond the amount of time allowed under a Chapter 13 plan. A debtor may, but is not required to, provide for his long-term debts by using this provision. Zellner’s plan did not provide for curing a default on his student loan, but instead provided for a percentage repayment and a partial discharge. Thus, the debt does not fall within section 1322(b)(5) and is not precluded from discharge under section 1328(a)(1). See 5 Collier on Bankruptcy 111328.01[l][d][ii]. III. 11 U.S.C. § 1325(b)(1) (1982 & Supp. II 1984), provides that if the creditor objects to the plan’s confirmation and the plan proposes less than full payment of the 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
1653	MEMORANDUM Darrell Garrett, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 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); 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....
3971	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 
1812	"activity."" Id . All the same, the search remains a serious intrusion so it ""must 'be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs or other hidden instruments for the assault of the police officer.' "" Jackson , 300 F.3d at 746 (quoting Terry , 392 U.S. at 29, 88 S.Ct. 1868 ); see also Minnesota v. Dickerson , 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (holding a Terry search ""must be strictly limited to that which is necessary for the discovery of weapons""). ""The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence ...."" We have similarly held that, under Terry , an officer may conduct a protective search for weapons of an individual's person, ""and area within his control,"" if "" 'a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.' "" Cady v. Sheahan , 467 F.3d 1057, 1061-62 (7th Cir. 2006) (quoting Terry , 392 U.S. at 27, 88 S.Ct. 1868 ). A protective search for weapons ""is a vital tool to serve the 'immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly"
902	. Doc. 54-1 at 4-5. .Id. at 5. . Doc. 79 at 20-28. . Id. at 20-21. . Fed.R.Civ.P. 56(a). . City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir.2010). . Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). . Adler, 144 F.3d at 670 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002) (citing . Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir.2010). . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Spaulding, 279 F.3d at 904. . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). . Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir.2000) (quoting Adler, 144 F.3d at 670-71); see Kannady, 590 F.3d at 1169. . City of Herriman, 590 F.3d at 1181. . Fed.R.Civ.P. 56(e); Argo v.
4999	remove the notices. He had a locksmith install new locks on the building. About ten days later NCB’s tax arrearage was paid in full, and the IRS formally released its levy. As stated in defendant’s brief, “Now charged with violation of 26 U.S.C. § 7212(b) , Mr. Johnson freely acknowledges that he violated the letter of that statute with full knowledge of the possible consequences.” CONSTITUTIONALITY OF SUMMARY SEIZURE The defense is that the statutory authority for the seizure of the NCB property, 26 U.S.C. § 6331 , violates due process in that it permits the IRS to levy upon property of delinquent taxpayers without prior notice and hearing. The Supreme Court upheld the summary seizure power of the IRS in The Court has never questioned the continued vitality of that decision. Defendant argues, however, that principles of due process announced in recent cases limiting the availability of prejudgment attachment and garnishment by private creditors should be extended to the tax collector. Sniadach v. Family Finance, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); North Georgia Finishing Company v. Di-Chem, 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Cf. Mitchell v. W. T. Grant, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974). The defendant acknowledges that Fuentes specifically approves the “summary seizure of property to collect the internal
2382	"have held that a court may not award attorneys' fees in an admiralty case absent a finding that the non-prevailing party acted in bad faith. See Madeja v. Olympic Packers, 310 F.3d 628, 635 (9th Cir.2002) (""The equitable grant of attorneys' fees is appropriate in admiralty only when the shipowner acted arbitrarily, recalcitrantly, or unreasonably.”) (citing An exception is made to this general rule when the losing party has acted in bad faith.”) (internal citation omitted); Templeman v. Chris Craft Corp., 770 F.2d 245, 250 (1st Cir.1985) (""Under admiralty law, a court has inherent power to assess attorneys' fees when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.”) (internal quotation marks omitted); Interpool Ltd. v. Bernuth Agencies, 129 F.3d 113, 1997 WL 716115 (2d Cir.1997) (not precendential) (""The award of fees and expenses in admiralty actions is discretionary with the district judge upon a showing of bad faith.”). . Plaintiff also emphasizes the public policy in favor encouraging salvor's to undergo salvage"
4596	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 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 not necessarily -extend to the area of retaliatory arrests. Reichle v. Howards, — U.S.-, 132 S.Ct. 2088, 2095-96, 182 L.Ed.2d 985 (2012). But the Court, specially noted, unlike in a claim for retaliatory prosecution, “in many retaliatory arrest cases, it is the officer bearing the alleged animus who makes the injurious arrest.” Id. at 2096. Nevertheless, the Court stopped short of providing a definitive answer as to whether proving lack of probable cause was
3855	use of the Commerce mark in the insurance services industry. V. We now turn to the merits of CIA’s claim against CNIS. The non-existent rights of CBI can no longer serve to shield its wholly-owned subsidiary, CNIS, from liability. CIA contends that CNIS’s use of the Commerce mark infringes CIA’s rights in the mark because CNIS’s use of the mark results in reverse confusion. CIA is entitled to a remand on this claim only if the record contains sufficient evidence from which the District Court could reasonably conclude that: (1) CIA’s Commerce mark is valid and legally protecta-ble; (2) CIA owns the Commerce mark; and (3) CNIS’s use of the Commerce mark results in reverse confusion. See Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234, 239 (3d Cir.1979) (noting that a remand is unnecessary where evidence of record would not support a finding in favor of party seeking remand). We address each of these issues in turn. A. Although CIA has registered the Commerce mark with the United States Patent and Trademark Office, the mark has yet to achieve incontestability. Therefore, to demonstrate that the Commerce mark is valid and legally protectable, CIA must demonstrate that it had established secondary meaning in the Commerce mark as of 1996, the year in which CNIS began use of the mark. See Ford Motor Co., 930 F.2d at 292. Although CIA’s
1325	and the means test. Coop v. Frederickson (In re Frederickson), 375 B.R. 829, 833 (8th Cir. BAP 2007). First, some courts continue to calculate projected disposable income from the debtor’s schedules I and J. Id. (citing In re Hardacre, 338 B.R. 718 (Bankr.N.D.Tex.2006) as an example of this approach). The Hardacre court believed that the term “projected disposable income” must be based upon “the debtor’s anticipated income during the term of the plan, not merely an average of her prepetition income.” Hardacre, 338 B.R. at 722. Second, some courts calculate projected disposable income from either Form B22C or the debtor’s schedules I and J, whichever more accurately reflects the debtor’s current ability to pay creditors. Frederickson, 375 B.R. at 833 (recognizing 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
4378	an affidavit or a verified complaint that they will suffer “immediate and irreparable injury, loss, or damage.” Fed. R. Civ. P. 65(b)(1)(A). A party seeking to obtain a temporary restraining order must demonstrate (1) that its case has some likelihood of success on the merits; (2) that no adequate remedy at law exists; and (3) that it will suffer irreparable harm if the injunction is not granted. Caterpillar Inc. v. Walt Disney Co., 287 F.Supp.2d 913, 916 (C.D.Ill.2003). If Plaintiff meets those first three requirements, the Court balances the relative harms of the parties and the public. Ty, Inc. v. Jones Group, 237 F.3d 891, 895 (7th Cir.2001). The court weighs all factors using a sliding-scale approach. Discussion Plaintiff seeks a temporary restraining order that would grant four separate types of injunctive relief. First, it seeks to enjoin Defendant Olson from working, either directly or indirectly, in media sales for Defendant Alpha or any other direct competitor of Plaintiff, within a 60 mile area, for a period of 6 months following the entry of a TRO. Second, it seeks to enjoin Defendant Olson from soliciting, either directly or indirectly, any customers of Plaintiffs he contacted on behalf of Plaintiff during his employment at Plaintiff for a period of 12 months following the entry of a TRO. Third, it seeks to enjoy Defendant Olson from disclosing Plaintiffs confi dential information for 12 months following the entry of a
4162	"group of jobs formerly held by Paige, looking instead to his final work. It is therefore unnecessary to go into any further detail about those earlier jobs and their physical demands. . That evidence, summarized in the Appendix, should not be misinterpreted as reflecting all the proof on the subject. On the contrary, the record also contains some evidence downgrading the severity of Paige’s impairments. But it is important to recognize the abundance of clinical evidence supporting Paige’s claims. Before Secretary can validly conclude a claimant is not disabled, he ""must articulate his analysis of 'considerable evidence [which] is presented to counter the agency's position,’ at least at a minimum level” (Ray v. Bowen, 843 F.2d 998, 1002 (7th Cir.1988), quoting  in turn quoting Orlando v. Heckler, 776 F.2d 209, 213 (7th Cir. 1985)). .Because parts of the tape of the Hearing were inaudible and could not be transcribed, the incomplete transcript has limited this Court’s review to a minor degree. . Dr. Fintel’s only comment as to Paige’s arthritis-related complaints came in response to a question from Paige’s attorney as to whether she was basing her opinion solely on Paige’s heart problems. She responded (R. 94): A. Yes, I have taken his other complaints into my decision. In regard to his back discomfort, I go to the last exam from 1983, the neurological exam shows good coordination, his gait is satisfactory, he’s not requiring any aids, really there are no"
1329	a chapter 13 debtor cannot propose a feasible plan because of Form B22C’s required computation of disposable income, this Court believes that conversion to chapter 7 remains viable. Any scrutiny for presumption of abuse would need to be based on § 707(b), the only subsection that references “abuse” in relation to the filing of a case. But, the test for abuse under § 707(b), whether based on a presumption as defined in § 707(b)(2), or on either bad faith or the totality of the circumstances of the debt- or’s financial situation as recognized in § 707(b)(3), relates specifically to a case filed by an individual debtor under chapter 7, not to a case filed under chapter 13 and later converted. See but see In re Kellett, 379 B.R. 332 (Bankr.D.Or.2007); In re Perfetto, 361 B.R. 27 (Bankr.D.R.I.2007). Therefore, § 707(b) may not even apply to a debtor who files a case under chapter 13 in good faith but is unable to propose a feasible plan based on Congress’s mandated means test for above income debtors. It is incongruous to require the debtor to follow a code mandated formula to determine disposable income in a chapter 13 case, and then not allow the same debtor relief under another chapter when the debtor cannot propose a feasible plan because of that code mandated formula. Restricting the presumption of abuse test to cases filed under chapter 7 still allows the unfortunate chapter 13 debtor who is
3189	addresses would be a dead giveaway to the race of many people. This is true in any community, but especially in a small and largely segregated area. See Castaneda, 97 S.Ct. at 1280 (selection procedure not racially neutral with respect to Mexican-Americans because Spanish surnames were easily identifiable.) Obviously, black surnames are not as easily identifiable as Spanish surnames, but in small areas like Bossier Parish certain names (and addresses) are easily identifiable as belonging to a particular white or black family. Judge Kitchens testified that, as a Webster native, he was not familiar enough with Bossier Parish to guess race based on addresses. Ms. Ma-bry, on the other hand, was very familiar with the area and its residents. . See . Petitioner faced the death penalty at his first trial. He received a mandatory life sentence from the court because the jury could not unanimously agree on a penalty. By asking for a new trial in this habeas petition, Petitioner exposes himself to the risk of a death sentence at a second trial. Federal law principles of Double Jeopardy or Due Process will not prevent the State from obtaining a death sentence when the original jury was hung on the sentencing issue. Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). The Supreme Court of Louisiana has, however, held that giving the prosecution another chance at the death penalty in these circumstances would unduly
1829	"unrestrained within a couple strides from where he concealed"" what hindsight proved to be a gun. The majority lists this fact as evidence substantiating the officers' concern for their safety. Does this mean that large, physically fit men can be searched at will, in the name of officer safety? I hope not. Yet the government cites Richmond's appearance as one of ""at least five articulable facts [that] support[ed] their suspicion."" It does not. And even if this thin set of facts were enough to justify a working assumption that Richmond had a gun, so what? Generally speaking, to justify an investigatory stop, the police must have ""a particularized and objective basis for suspecting the particular person stopped of criminal activity.""  citing United States v. Cortez , 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Mere possession of a firearm in a high-crime area-assuming for a moment that the police had an adequate basis for even this conclusion-is not good enough. See United States v. Watson , 900 F.3d 892, 896-97 (7th Cir. 2018). As we pointed out in Watson , ""[p]eople who live in rough neighborhoods may want and, in many situations, may carry guns for protection. They should not be subject to more intrusive police practices than are those from wealthy neighborhoods."" Id. at 897. The police did not have the necessary reasonable suspicion to frisk Richmond, had they accosted him"
3598	Northern Railroad Co. (In re Dant & Russell, Inc.), 951 F.2d 246, 248 (9th Cir.1991); Syntex Corp. v. The Charter Company (In re Charter Co.), 862 F.2d 1500, 1503 (11th Cir.1989). Whether or not a contingent response claim is allowable in bankruptcy depends, in part, on a finding that it is not a claim for reimbursement or contribution which is dis-allowable under 11 U.S.C. § 502(e)(1)(B). A contingent CERCLA claim that is not a direct claim between the parties but depends upon the co-liability of the parties, as to a third party or to the Environmental Protection Agency (“EPA”), is a disallowa-ble claim for reimbursement or contribution. Dant & Russell, 951 F.2d at 249; Charter., 862 F.2d at 1503; In re Hemingway Transport, Inc., 105 B.R. 171, 174 (Bankr.D.Mass.1989). See In re Cottonwood Canyon Land Co., 146 B.R. 992 (Bankr.D.Colo.1992) (disallowable claim for contribution or reimbursement existed even though EPA not involved). On the other hand, when reimbursement or contribution is not a factor, a direct contingent claim by the current owner of property for CERCLA past and future response costs is not disallowed by 11 U.S.C. § 502(e)(1)(B). In re Harvard Industries, Inc., 138 B.R. 10 (Bankr.D.Del.1992). In the instant case, the Board does not seek to recover sums owed under CERCLA to a third party, such as the EPA, but instead seeks to recover sums it has expended and will expend in the future to remedy the
1184	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); 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 that plaintiffs might not have obtained all the relief provided
2442	"complementary administrative framework, and in the pursuit of common purposes, the case for federal pre-emption becomes a less persuasive one."" New York State Dept. of Social Servs. v. Dublino, 413 U.S. 405, 421, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973). That is not to say that pre-emption has no role in such programs, but courts must be careful not to confuse the ""congressionally designed interplay between state and federal regulation,"" Northwest Central Pipeline Corp. v. State Corporation, Comm'n of Kan., 489 U.S. 493, 518, 109 S.Ct. 1262, 103 L.Ed.2d 509 (1989), for impermissible tension that requires pre-emption under the Supremacy Clause. In this context, therefore, our general exhortation not to rely on a talismanic pre-emption vocabulary applies with special force. See . has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick"" (footnote omitted)). I understand today's opinion to reflect these principles. Using the purpose of the Federal Power Act as the ""ultimate touchstone"" of its pre-emption inquiry, Altria Group, Inc. v. Good, 555 U.S. 70, 76, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008), rather than resting on generic pre-emption frameworks unrelated to the Federal Power Act, the Court holds that Maryland has impermissibly impeded the performance of one of FERC's core regulatory duties. Ensuring ""just and reasonable"""
2355	activities,” hardly constitutes substantial evidence that Havas could perform the activities required by his former job. Indeed, because these doctors knew that Havas was already retired at the time of their examinations and was no longer driving for prolonged periods, there was no reason to include such a restriction in their reports. The record also contains the reports of two other physicians, Dr. Ralph S. Brown and Dr. Judith Bodnar, neither of whom examined Havas or specializes in orthopedic medicine. They opined that Havas was capable of returning to work. However, the opinions of nonexamining medical personnel cannot in themselves constitute substantial evidence overriding the opinions of examining physicians. See Martin v. Secretary of HEW, 492 F.2d 905, 907-08 (4th Cir.1974); Mefford v. Gardner, 383 F.2d 748, 759 (6th Cir.1967); Ehrenreich v. Weinberger, 397 F.Supp. 693, 697 (W.D.N.Y.1975). Furthermore, the AU did not refer to those reports. In sum, there is no substantial evidence in the record creating a “genuine conflict[],” Schisler, 787 F.2d at 81, with Dr. Mulbury’s opinion that Havas can no longer perform his past work. We therefore remand to the Secretary for a determination as to whether Havas “cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A) (1982 & Supp. Ill 1985). This case underlines the need for our recent order in Schisler requiring the Secretary to “state in
215	to some extent Lie [v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) (finding that Petitioner had failed to show a pattern or practice of persecution of Chinese Christians in Indonesia) ] and other similar cases 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. 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.
3865	societal indignation over the effect of perjury on the judicial process, indignation which often enacted harsh penalties disproportionate to the materiality of the falsity, are cited as reasons for requiring numerosity of witnesses or corroboration. See generally 7 Wigmore On Evidence §§ 2040-2042 (Chadbourn, Rev. 1978). While we share the inherent concern of earlier courts, we believe the better approach is one which seeks no higher threshold for the evidence presented by the government in a penury or false swearing case than that standard necessary for conviction of all other offenses under the Code: such evidence, whether direct or circumstantial, must establish proof of the falsity beyond reasonable doubt. United States v. Collins, 272 F.2d 650 (2d Cir. 1959). Cf. In this case, from our examination of the trial record we find credible testimony of a government witness, Corporal Pringle, who conclusively identified appellant as the person seen in the vicinity of the larceny victim’s cubicle, empty-handed, in a barracks deserted of personnel over an extended liberty period. Moments later, Corporal Pringle, after noting that appellant was an obvious stranger in the barracks, saw appellant running from the direction of the victim’s cubicle with a stereo unit under his arm, saw appellant exiting the barracks, and then observed appellant running into an adjacent building, Barracks 214, with the stereo unit still in his possession. Further trial testimony by a Private Garcia who lived next door to appellant in Barracks 214,
2649	could be established which he asserts would show that the proportion of Negroes on the jury lists is so sub stantially below the percentage of Negroes actually residing in the counties which compose the two divisions of the Georgia Middle District as to justify a holding of systematic exclusion of Negroes on account of race. Though we held in Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34, that the “key man” system of juror selection, coupled with an impermissible departure from the federal statutory scheme, produced a “poisoned” basic jury list, and that “the fruits of that list were also infected” (Id. at 60), we did not thus declare the “key man” selection system illegal as such. See We felt that the facts in Rabinowitz warranted a holding that the jury list was improperly constituted because the jury selectors applied “wrong standards” and used “grossly inadequate sources.” That is the inquiry here, and we must have all the facts in order to make an intelligent determination. We believe the district judge erred, therefore, in not permitting inspection of the questionnaires. This evidence, designed to show the ratio of Negroes to white on the jury lists, is pertinent to an inquiry into the question of whether there has been - a systematic exclusion of Negroes because of race. While this proof is not necessarily controlling, it is, nevertheless, an important factor of substantial value
1031	willing buyer and a willing seller. But by definition cramdown implies an wit-willing seller who is compelled by the court to make a loan to the debtor under the plan; also implied is debtor’s inability to refinance elsewhere (else that would be the plan approach). But not every Chapter 11 plan involving a non-consenting secured creditor is doomed to failure just because the debtor cannot refinance. So, more appropriately, markets such as they exist are but one reference point among many in an attempt to find a suitable proxy where no real market exists. That is why most of the case law in this area involves some kind of “formula” approach as discussed by the U.S. Supreme Court in In Till, the court searched for a “proxy” in lieu of a market by starting with a risk-free or nearly risk free rate, such as U.S. Treasuries or the prime rate, and then built up a rate by adding basis points to account for the unique issues of risk present in the subject transaction. Till endorsed the formula approach but did not specifically decide the appropriate “scale for the risk adjustment” beyond noting that some courts had adopted a 1-3% over prime adjustment. Id. at 480, 124 S.Ct. 1951. Till held that the court is to attempt to fashion a rate that compensates for the risks both of the cost of money and of
695	BIA and filed a motion to remand the case to the IJ with instructions that the decision be reconsidered. The BIA refused to do so. Instead, it affirmed the IJ’s decision and denied the motion to remand. It found no due process violation based on Ramos’s lack of personal attendance at the three hearings. It said nothing about any equal protection claim. It did, however, find that Ramos had not met his burden under Matter of hozada, 19 I & N Dec. 637 (BIA 1988), of showing that his counsel was ineffective; and it concluded that the conviction, even with the extra language about rehabilitation, sufficed for immigration purposes. On the last point, the BIA relied on this court’s decision in  which upheld the rule of Matter of Roldan-San-toyo. Ramos then petitioned for review in this court. II Before this court, Ramos has presented two constitutional arguments for relief: first, that the manner in which the government conducted the proceedings before the IJ violated his due process rights, and second, that it violates equal protection principles to remove him based on his now-expunged, minor state court conviction, when the government could not remove him on that basis had he been convicted under the analogous Federal First Offender Act (FFOA), 18 U.S.C. § 3607. Our ability to reach these arguments was limited before the passage of the REAL ID Act. At this point, however, as we noted at the outset of this
3590	indicates that Armstead provided, did Dr. Present have an opinion, with a reasonable degree of medical certainty, as to whether under the circumstances surrounding plaintiff’s incarceration he received care up to the standard of the community? Tr. at 94-95. Dr. Present responded that Isaac did not receive adequate care on February 3. He stated that the examining doctor should have ascertained the extent of the bleeding; taken a blood count to see if the patient was anemic; and performed a stool test to see if there was blood in his stool. The United States may be held liable for damages sustained by a prisoner under its control for the negligent failure to provide the prisoner with reasonable medical care. See  aff’d, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). The Court concludes that Isaac is entitled to damages in the amount of $1,000 to compensate him for the discomfort and anxiety he endured as a result of the lack of adequate care from Sunday, February 2, until he was examined by Dr. Ruggiero on Tuesday, February 4. Settle judgment order on notice. SO ORDERED. . The Bureau of Prisons is not a proper party defendant under the Federal Tort Claims Act. See 28 U.S.C. § 2679(a). . Defendant moves to strike Isaac’s testimony concerning the metal scrapings on the ground that it was outside the perimeters of the lawsuit: that the complaint makes no allegation concerning such conduct
3980	allowed claims been limited to those scheduled by the debtors, the $2,300 monthly payments would have been sufficient to provide the proposed 65% return to creditors within three years. However, the amounts for filed claims substantially exceeded debtors’ scheduled debts and debtors had not filed any objections to the claims. As a result, the plan failed to pay the 65% dividend by about $15,000. Id. The trustee moved to dismiss debtors’ case under § 1307(c)(6) for a material default in the plan. Debtors responded with a motion for discharge under § 1328(a). The issue before the Rivera court involved which plan provision takes precedence — the percentage dividend to unsecured creditors or the monthly plan payments. Persuaded by the reasoning of . 534 (Bankr.N.D.Ill.1993), the Rivera court found that debtors’ payment of less than the percentage dividend required in the plan precluded a discharge. Id. at 334-335. By failing to pay their unsecured creditors the promised 65% dividend, the debtors had not completed their payments under the plan within the meaning of § 1328(a). Id. at 335. In In re Hill, 374 B.R. 745 (Bankr. S.D.Cal.2007), the bankruptcy court considered two separate cases in one decision involving a husband and wife in one and an individual woman in the other. In each case, the debtors or debtor had a confirmed plan providing for monthly payments and a 100% dividend plus 10% interest to unsecured creditors. Id. at 746-48.
2437	"is guided by the rule that the purpose of Congress is the ultimate touchstone in every pre-emption case."" Altria Group, Inc. v. Good, 555 U.S. 70, 76, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008) (internal quotation marks omitted). A state law is preempted where ""Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law,"" Northwest Central Pipeline Corp. v. State Corporation Comm'n of Kan., 489 U.S. 493, 509, 109 S.Ct. 1262, 103 L.Ed.2d 509 (1989), as well as ""where, under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,"" We agree with the Fourth Circuit's judgment that Maryland's program sets an interstate wholesale rate, contravening the FPA's division of authority between state and federal regulators. As earlier recounted, see supra, at 1292, the FPA allocates to FERC exclusive jurisdiction over ""rates and charges ... received ... for or in connection with"" interstate wholesale sales. § 824d(a). Exercising this authority, FERC has approved the PJM capacity auction as the sole ratesetting mechanism for sales of capacity to PJM, and has deemed the clearing price per se just and reasonable. Doubting FERC's judgment, Maryland-through the contract for differences-requires CPV to participate in the PJM capacity auction, but guarantees CPV a"
854	"or endorsement is likely and, therefore, Porsche will likely prevail on its claims for infringement and false designation. See Dr. Ing. h.c.F. Porsche AG v. Universal Brass, Inc., 34 U.S.P.Q.2d 1593, 1595-96 (W.D.Wash.1995)(finding that even if no confusion as to source, party entitled to summary judgment as to trademark infringement and false designation of origin if confusion as to sponsorship established). . Liquid Glass asserts that affixing a disclaimer that Porsche is not affiliated with Liquid Glass products to all advertisements with any reference to Porsche would eradicate any likelihood of confusion. PI. Opp. Br. at 18. Disclaimers have frequently been found to be insufficient to avoid consumer confusion in the marketplace. See, e.g., United States Jaycees v. Philadelphia Jaycees, 639 F.2d 134, 142 (3d Cir.1981). Indeed, courts are so skeptical about the effectiveness of disclaimers that the burden has been shifted from the mark owner to show how a disclaimer would not prevent confusion, to the infringer to show that the disclaimer would prevent confusion. Home Box Office, Inc. v. Showtime/Movie Channel, Inc., 832 F.2d 1311, 1315-16 (2d Cir.1987)(noting that disclaimers using brief negator words such as ""no” or ""not” are not generally effective in preventing confusion). Furthermore, disclaimers will never remedy dilution because consumer confusion is irrelevant in establishing"
3444	district court’s finding that he failed to accept responsibility for his crimes, see U.S.S.G. § 3E1.1. This denial of credit, he argues, led to an erroneous application of the guidelines. In seeking credit for accepting responsibility for his crimes, the defendant bears the burden of proving this acceptance by a preponderance of the evidence. United States v. Travis, 294 F.3d 837, 840 (7th Cir.2002); United States v. Ewing, 129 F.3d 430, 435 (7th Cir.1997). We review the district court’s decision on this fact-based finding for clear error. United States v. Hicks, 368 F.3d 801, 808 (7th Cir.2004); United States v. Mayberry, 272 F.3d 945, 948 (7th Cir.2001). Normally, a defendant’s plea of guilty is evidence of his having accepted responsibility. .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
605	clear thinking about the scope of the review to be afforded by the judicial member. Professor Schotiand’s useful peroeptions are many, but none more so than his reminder that the concept of scope of review defies generalized application, and demands, instead, close attention to the nature of the particular problem faced by the agency. . For a comparison of tliis aspect of OSHA with the National Labor Relations Act, which defines specifically prohibited practices, see Cohen, supra note 1, at 798-800. . Where existing methodology or research in 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. . 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
4614	"the Arizona Court of Appeals ruling in Braillard. v. Maricopa County, 224 Ariz. 481, 487, 232 P.3d 1263 (Ariz.Ct.App.2010) (establishing MCSO as a non-jural entity). , An “identity of issues” exists where: (1) There is substantial overlap between the evidence or argument to be , advanced in the second proceeding and that advanced in the first, (2) The new evidence or argument involves the application of the same rule of law as that involved in the prior proceeding, (3) Pretrial preparatipn and .discovery related to the matter presented in the first action can reasonably be expected to have embraced the matter sought to be presented in the second, (4) The claims involved in the two proceedings are closely related. 19,95) opinion amended on reh'g sub nom. Kamilche v. United States, 75 F.3d 1391 (9th Cir. 1996). "" . '‘Qualifying relationships include, but are not limited to, preceding and succeeding owners of property, bailee and bailor, and assignee and assignor.” Id. at 894, 128 S.Ct. 2161, . E.g. Class actions. . I.e. Bankruptcy proceedings. .Sturgell does not make clear whether the three additional factors articulated, as the re- . quirements of ""adequate representation” apply to all of the categories for proper non-party issue preclusion or just the one for “adequate representation.” . The Supreme Court rejected the concept of ""virtual representation,” which it described as a more ""expansive” basis for,,-nonparty preclusion. ""Virtual representation” had var-ions definitions in the fewer courts."
1316	lack of ordinary care. Canter v. Koehring Co., 283 So.2d 716, 721 (La.1973), superseded on other grounds by statute, La.Rev.Stat. Ann. § 23.1032 (1998). See also In re 1994 Exxon Chem. Fire, 558 F.3d 378, 385-86 (5th Cir.2009) (noting that Canter’s multi-part test is used to determine whether an employee is individually liable to third persons, even if they are not co-employees). However, a defendant-employee’s “general administrative responsibility” is insufficient to impose personal liability. Canter, 283 So.2d at 721. In rejecting Moore’s proposed amendment, the district court found that Moore’s allegations were general in nature, he had offered no evidence of personal fault on behalf of the PPG employees, and, therefore, his amendment served only to destroy diversity. Cf. We agree that Moore’s proffered amendment relied on the proposed parties’ general responsibilities to oversee safety rather than on evidence of personal fault, as required to trigger individual liability under Louisiana law. See Canter, 283 So.2d at 721-22. Furthermore, we concur with the district court’s conclusion that the amendment only served to defeat diversity jurisdiction. Although the district court did not expressly examine the other Hensgens factors — Moore’s timing; whether he would be significantly injured if the additional parties were not added; and additional equitable considerations — we cannot conclude, upon review of the briefs and record, that any of those
3838	or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. Id. at 539, 99 S.Ct. at 1874. (footnote omitted). In his complaint Van Cleave alleged that he was denied medical attention for twenty-four 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 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
524	"Peter B. v. Sanford, 2010 WL 5912259 (Report and Recommendation, Nov. 24, 2010), adopted, 2011 WL 824584 (D.S.C. Mar. 7, 2011) (risk of forcing institutionalization due to reduction or termination of medical and personal-care services); Pitts v. Green stein, 2011 WL 2193398 (M.D.La. June 6, 2011) (reduction in maximum number of home and community-based health service hours); Cruz v. Dudek, 2010 WL 4284955 (S.D.Fla. Oct. 12, 2010) (risk of forcing institutionalization of quadriplegics due to inadequate in-home health services); Brantley v. Maxwell-Jolly, 656 F.Supp.2d 1161 (N.D.Cal. 2009) (funding cuts in adult health day-care program); Mental Disability Law Clinic v. Hogan, 2008 WL 4104460 (E.D.N.Y. Aug. 28, 2008) (requiring hospitalization for receipt of outpatient mental health services). . See  quoting Yeskey v. Pa. Dep’t of Corr., 118 F.3d 168, 171 & n. 5 (3rd Cir. 1997), aff’d, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (""Quite simply, the ADA’s broad language brings within its scope `anything a public entity does.’""); Hason v. Med. Bd. of Cal., 279 F.3d 1167, 1172 (9th Cir.2002), quoting Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 861 (1st Cir.1998) (""Courts must construe the language of the ADA broadly in order to effectively implement the ADA’s fundamental purpose of `providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’""). . Plaintiffs also allege that OURS administers its federal funds in a manner that favors individuals with"
1636	unconstitutional though the statute exempted those whose parents requested such exemption. The evil faced by our forefathers and prohibited by the Constitution is that “whenever government * * * allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs.” Engel v. Vitale, supra, 370 U.S. at 431, 82 S.Ct. at 1267. The Supreme Court has again and again condemned exactly the practice which the named officials of Alabama now seek to effect. School District of Abington v. Schempp, supra; Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711; Engel v. Vitale, supra ; Cantwell v. Connecticut, supra; 63 S.Ct. 870, 87 L.Ed. 1292; People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649; McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982; West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. In People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. at 227, 68 S.Ct. at 473, the Court stated, “the Constitution * * * prohibited the Government common to all from becoming embroiled, however innocently, in the destructive religious conflicts of which the history of even this country records some dark
2473	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, standing requires more than an “imaginary or speculative” fear of prosecution. Babbitt v. United Farm Workers Nat’l  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
1685	New York. At all times relevant to this action, defendant Carl Corley (“Corley”) was a Senior Account Executive and Registered Options Principal in the New York office of May Davis. Defendant Thomas Baribeau (“Bari-beau”) is a resident of California who founded the Nevada corporation, Aid for Humanity and Benevolence Foundation, Inc. (“the Foundation”), in 1999. Defendant S.G. Cowen Securities Corp. (“SG Cowen”) is a New York securities broker-dealer that acted as the clearing broker for May Davis at all times relevant to the complaint. Facts As required in a motion to dismiss pursuant to Rule 12(b)(6), the facts alleged in the complaint are presumed to be true, and all factual inferences will be drawn in the plaintiffs favor. See The complaint alleges that in late 1999, Baribeau induced Rozsa to wire $5 million to a sub-account at the Foundation and represented that Rozsa would be the sole signatory of the account, and that the money would be invested only in money market funds unless Rozsa otherwise directed. Baribeau represented that Rozsa’s funds would be deposited at SG Cowen, and would be used only as “proof of funds” for the other Foundation’s depositors’ low-risk, high-yield “program trading” in foreign bank instruments, and that Rozsa would receive a share of the profits from each trade. On December 10, 1999, Rozsa signed a disclosure election and taxpayer identifica tion form to open the account. (Compl.Ex. A.) After Baribeau informed Rozsa that May
1616	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 prejudicial error. United States v. Echeles, 352 F.2d 892 (7th Cir. 1965). Here, as in the cited decision, this course seems especially warranted in light of the relatively small dimensions of the case; the severance should not entail heavy burdens of added time and expense. See id. at-899; Cf. United States v. Berman, 24 F.R.D. 26 (S.D.N.Y.1959). Something more has been argued on the question of timing. Defendant Karp urges that Pitkin ought to be tried first to enhance her chances of calling him in her defense. It has been said in somewhat comparable circumstances that it would not be “egregious” if “the trial judge, after granting the motion for separate trial, also directed the Government to proceed first with the case against” a defendant positioned roughly like Pitkin. United States v. Echeles, supra, 352 F.2d at 898. Apart from the thought that avoiding egregiousness is a somewhat minimal standard, I find good reason to refrain from prescribing now the order of the separate trials. Pitkin is not
3278	matter of direct and peculiar concern to a labor organization and is within the jurisdiction of the federal courts. United Mine Workers of America, District 22 v. Roncco, 314 F.2d 186 (10th Cir.1963). Where a local union has developed a reliance on the dues checkoff, the checkoff mechanism can effectively be its financial lifeline. Accordingly, federal courts have enforced legal dues checkoffs under 29 U.S.C. § 185. See, e.g., International Brotherhood of Electrical Workers Local No. 12 v. A-1 Electric Service, Inc., 535 F.2d 1 (10th Cir.1976), cert. denied, 429 U.S. 832, 97 S.Ct. 94, 50 L.Ed.2d 96 (1976); Food Handlers Loc. 425 v. Valmac Industries, Inc., 528 F.2d 217 (8th Cir.1975); Bugher v. Consolidated X-Ray Service Corp., 515 F.Supp. 1180 (N.D.Tex.1981), aff'd, 705 F.2d 1426 (5th Cir.1983), cert. denied, 473 U.S. 904, 105 S.Ct. 3524, 87 L.Ed.2d 650 (1985). A review of the union security and checkoff provisions of the collective bargaining agreement indicates that they are clear and mandatory, and the Court con- eludes that the dues checkoff obligation is enforceable. See Finding of Fact 52. The Committee claims damages in an amount equal to the full amount of dues which U.S. Truck did not deduct for union member employees who were actively working. The Committee’s records provide a monthly measure of these lost dues for the duration of the rejected agreement. The Court concludes that this measure of damages is
2561	at liberty to waive this right. Harris v. Avery Brundage Co., 305 U.S. 160, 164, 59 S.Ct. 131, 83 L.Ed. 100, rehear. den., 305 U.S. 674, 59 S.Ct. 247, 83 L.Ed. 437, aff’g. In re Tax Service Association v. Avery Brundage Co., 95 F.2d 373 (7th Cir. 1938); MacDonald v. Plymouth County Trust Co., 286 U.S. 263, 267, 52 S.Ct. 505, 76 L.Ed. 1093 (1932). The waiver was effective to permit the exercise of summary jurisdiction by the court even though the escrow fund had been attached in the state action. See Taubel-Scott-Kitzmiller Co. v. Fox, 264 U.S. 426, 433, 434, 44 S.Ct. 396, 68 L.Ed. 770 (1924); Carney v. Sanders, 381 F.2d 300, 302 n. 3 (5th Cir. 1967); cf. Schumacher v. Beeler, 293 U.S. 367, 55 S.Ct. 230, 79 L.Ed. 433 (1934); 5 Remington on Bankruptcy (5th ed. 1953) § 2200. The appellants rely upon In re Consolidated Container Carriers, Inc., 385 F.2d 362 (3rd Cir. 1967). In that case the court sustained an objection to the summary jurisdiction of the bankruptcy court over a fund that had been attached in a state action. The court pointed out, however, that at least one and possibly both of the objecting parties had “steadfastly refused to consent to the bankruptcy court’s summary jurisdiction”. 385 F.2d at 365. The ease is therefore distinguishable from the one before us, in which there was consent. The appellants rely on the statement
375	"18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (""harmless beyond a reasonable doubt”). . Some courts have held that the Brecht standard is applicable only when the state appellate court previously has applied the more stringent Chapman standard. See Starr v. Lockhart, 23 F.3d 1280 (8th Cir.1994) (applying the Chapman harmless error standard on habeas review where state courts had not found constitutional error on direct review, and thus, had not performed harmless error analysis); Orndorff v. Lockhart, 998 F.2d 1426 (8th Cir.1993) (same); Other courts have held that the language of Brecht applies to all federal habeas proceedings. See Davis v. Executive Director of Dep't of Corrections, 100 F.3d 750 (10th Cir.1996) (Brecht standard applies to all federal habeas proceedings); Horsley v. Alabama, 45 F.3d 1486 (11th Cir.1995); Tyson v. Trigg, 50 F.3d 436 (7th Cir.1995) (federal habeas corpus courts should apply the Kotteakos standard even if state courts have not conducted a Chapman analysis.) . 131 F.3d 466 (5th Cir.1997). . 131 F.3d at 499; see Davis v. Executive Director of Dep’t of Corrections, 100 F.3d 750 (10th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1703, 137 L.Ed.2d 828 (1997); Sherman v. Smith, 89 F.3d 1134 (4th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 765, 136 L.Ed.2d 712 (1997); Tyson v. Trigg, 50 F.3d 436 (7th Cir.1995), cert. denied, 516 U.S. 1041, 116 S.Ct. 697, 133 L.Ed.2d 655 (1996); Horsley v. State of Alabama, 45 F.3d 1486"
4789	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 d 622, 626, 627, the leading cases are cited to this effect. The court goes on to point out that in Title 28 U.S.C.A. § 1331, the phrase “all civil actions” does not enlarge the jurisdiction of the district courts to vest in them general original jurisdiction in cases of mandamus. We hold, except as otherwise specifically provided by statute, that there is no original jurisdiction in the federal district court to entertain an information in the nature of quo warranto. This makes it unnecessary for us to pass upon the other questions raised in this appeal. It follows that the district court in this case should have dismissed the action for want of jurisdiction instead of determining it upon the merits. The judgment dismissing
1438	by the time they took her into custody, there is no evidence that Westover was likely to escape before a warrant could be obtained for her arrest. We do not condone the agents’ conduct, which appears from the record to be in direct violation of the statute. Given that Fourth Amendment violations do not constitute grounds for invalidating removal proceedings, though, this mere statutory argument on similar grounds cannot give Westover a basis for relief. See Katris v. INS, 562 F.2d 866, 869 (2d Cir.1977) (arrest in violation of 8 U.S.C. § 1357(a)(2) does not void subsequent deportation hearing). Whether evidence obtained from a statutorily invalid arrest should be admitted in an alien’s removal hearing is a more difficult question, cf. .C. § 1357(a)(2) or the effect any such violation might have), but the BIA did not consider any evidence from the time of Westover’s arrest. B. Effect of 8 U.S.C. § 1255(i) Aliens who, inter alia, have worked in the United States without authorization, are in unlawful immigration status, have failed to maintain lawful status, or have violated the terms of a non-immigrant visa are not eligible for adjustment of status. See 8 U.S.C. § 1255(c). Under 8 U.S.C. § 1255(i), however, aliens ineligible for adjustment of status by virtue of § 1255(c) because they have committed certain transgressions can still apply for adjustment of
783	1984, plaintiff filed a motion to disqualify the undersigned judge on the grounds of personal bias and prejudice against plaintiff “or in favor of any adverse party.” I. TIMELINESS AND SUFFICIENCY OF AFFIDAVIT. We start with the proposition that it is the primary duty of the judge against whom an affidavit of bias or prejudice is filed to pass on the legal sufficiency of the facts alleged in the affidavit, and its timeliness. Action Realty Co. v. Well, 427 F.2d 843 (7th Cir.1970). To safeguard the judiciary from frivolous attacks on its dignity and integrity, affidavits of disqualification for bias are to be strictly construed for form, timeliness and sufficiency. Radamacher v. City of Phoenix, 442 F.Supp. 27 (D.C.Ariz.1977); Town of East Haven v. Eastern Air Lines, Inc., 304 F.Supp. 1223 (D.C.Conn.1969); U.S. v. Moore, 405 F.Supp. 771 (D.C.W.Va.1976). A. TIMELINESS. The motion to recuse comes after judgment was entered and post trial motions were denied. The Opinion and Order dismissing the complaint was filed on July 10, 1984, and judgment was entered thereon on July 20, 1984. The motion for recusal was filed on August 28, 1984, subsequent to this Court’s order of August 22, 1984, scheduling a hearing on defendant’s application for attorneys’ fees. In order to disqualify a judge, a timely objection must be made, otherwise the objection is waived. U.S. v. Hall, 424 F.Supp. 508, affmd., 536 F.2d 313, cert. den., 429 U.S. 919, 97 S.Ct. 313,
3481	viewed in context of all the evidence, both new and old, would change the outcome. Colvin, 1 Vet.App. at 174. In finding no “reasonable possibility” that the new evidence would change the outcome in this case, the Board determined the new evidence not to be material and refused to reopen the case. The Court agrees. The evidence of Mr. Ezell is not material. This statement by a lay witness as to the medical condition of the feet of a fellow soldier some 45 years before is simply not of sufficient weight to establish a reasonable possibility that the outcome of the case would change, given the negative physical examinations noted above. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992); cf. cf. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). This is not to imply that Mr. Ezell is not being truthful. However, even after according full credibility to Mr. Ezell’s statement, it is nonetheless not of sufficient weight or significance to qualify as “material” evidence. The Board’s January 10, 1992, decision is AFFIRMED.
2258	ahead of all other unsecured claims. The burden is upon the claimant to establish that its claim qualifies for allowance as an administrative expense. In re Hemingway Transport Inc., 954 F.2d 1, 5 (1st Cir.1992). To determine whether a claim should be accorded administrative expense status, it is necessary to consider when the claim arises. Since Code section 503(b) concerns itself with expenses incurred in connection with the bankruptcy estate, the expense must be one which arises post-petition. Typically, only debts incurred for the economic preservation of the bankruptcy estate are entitled to an administrative priority. In re Dant & Russell, Inc., 853 F.2d 700, 706 (9th Cir.1988), citing Matter of Baldwin-United Corporation, 43 B.R. 443, 451 (S.D.Ohio 1984); In re Tri-L Corp., 65 B.R. 774 (Bankr.D.Utah 1986) (Administrative expense payments are reserved to those who either help preserve and administer the estate to the benefit of all of the estate’s creditors). The determination of when a claim arises has proved to be a particularly vexing question where an environmental injury which gives rise to liability occurs pre-petition, but the remediation costs are expended post-petition. Generally, environmental compliance costs which arise from the debtor’s pre-petition conduct are treated as general unsecured claims. Dant and Russell, 853 F.2d at 709; In re Great Northern Forest Products, Inc., 135 B.R. 46, 60-61 (Bankr.W.D.Mich.1991); In re Kent Holland Die Casting & Plating, Inc., 125 B.R. 493, 503 (Bankr.W.D.Mich.1991). However,
3400	for Greyhound Rent-A-Car, Inc., are both primarily and jointly liable for the payment of the damages to the injured third parties and ought to divide the payment thereof in the same proportion as the applicable policy limits of each bears to the aggregate of the applicable policy limits of the policies of the two carriers. Both carriers should reimburse the plaintiff Volkswagen Insurance Company, in that proportion, for the $100,000.00 which it paid into the registry of the Circuit Court of Volusia County for the settlement of the claims of the injured persons. Compare Hartford Acc. & Ind. Co., Inc. v. Liberty M. Ins. Co., Inc., Fla.1973, 277 So.2d 775. See also d 601, and note 7 at p. 603. 6. The plaintiff Volkswagen Insurance Company, as among the three carriers, is liable to the injured persons only for the excess of any liability which exceeds the coverage provided by the other two carriers. 7. Greyhound Rent-A-Car, Inc., as distinguished from its carrier, is entitled to indemnity from Luther T. Rouse, as Administrator of the Estate of Jeptha L. Cobb, and Volkswagen Insurance Company for the $10,000.00 which Greyhound Rent-A-Car, Inc. contributed to the settlement aforementioned under Greyhound’s claim for common law indemnity against Jeptha L. Cobb as driver of the vehicle involved in the collision. See Fincher Motor Sales, Inc. v. Lakin, Fla.App.1963, 156 So.2d 672. 8. Greyhound Rent-A-Car, Inc.’s claimed right to “indemnification” from Lakeland
160	"28 U.S.C. § 2679(d)(1), “when the U.S. Attorney certifies that a defendant government employee was acting within the scope of her employment during the incident out of which a negligence claim arises, 'any civil action or proceeding commenced upon such claim ... shall be deemed an action against the United States ... and the United States shall be substituted as the party defendant’ ”). . Counts I, IV, V, and VI of the complaint textually do not set forth claims against the FBI. These counts assert claims against the United States, and Anderson and Mueller in their official capacities. The Federal Defendants’ memorandum, however, is written as though each of these counts is directed against the FBI as well. .  cited by the Plaintiffs, actually helps the Federal Defendants. In Ochran, a federal prosecutor refused to protect an informant after learning that a criminal defendant had threatened the informant. 117 F.3d at 498-99. The court concluded that the prosecutor's decision fell within the ""discretionary function” exception to the FTCA and dismissed all but one claim. Id. at 501-02. The only surviving claim was based on the prosecutor's alleged duty to notify the informant of her legal remedies regarding protection from the defendant. Id. at 504. On a second appeal after remand, the court dismissed that claim, concluding that the prosecutor did not owe the informant a duty of care because there was no special relationship between the prosecutor and the informant."
2295	jury trial and his right to remain silent. A sentencing court’s finding under U.S.S.G. § 4A1.2 that a conviction used to enhance a defendant’s sentence was not constitutionally invalid is reviewed for clear error and for application of the proper legal standards. See United States v. Dickens, 879 F.2d 410 (8th Cir.1989). A criminal defendant may waive his right to counsel as long as the waiver is voluntary, and intelligently and knowingly made. Meyer v. Sargent, 854 F.2d 1110, 1114 (8th Cir.1988). Whether the defendant was made sufficiently aware of his right to have counsel and the possible consequences of foregoing assistance of counsel turns on the particular facts and circumstances of the case, including the defendant’s background, experience and conduct.  cert. denied, — U.S. -, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991). Here, the district court’s determination that La-Frombois’s waiver was voluntary and knowing was not clearly erroneous: the transcript shows that the state court thoroughly explained the right to have counsel, and LaFrombois’s prior experience and conduct at the hearing indicate he was aware of the possible consequences. LaFrombois’s other arguments are not properly before this court as they are raised for the first time on appeal. See United States v. Benson, 886 F.2d 1133, 1135 (8th Cir.1988). In any event, his arguments are without merit. The record shows he was sufficiently advised of the possible penalties, he understood he was giving up his right to a jury trial,
3378	(1) the Court’s finding that when it denied Keys’ request to operate a Level V group home, the City violated the Fair Housing Act by discriminating against Keys on the basis of familial status; and (2) its further finding that based on the handicapped status of potential residents, the FHA applies. The Court has discretion whether to grant or deny a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir.1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change 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); 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
1035	year or two. But debtor has in its Closing Brief expressed a willingness to utilize these avenues as necessary to promote this reorganization and the Court has every reason to believe this will happen. Predictably, the bank attacks the projections and points out the many areas where the debtor’s projections may be somewhat optimistic. But the Court is left persuaded that on balance the projections are more likely to be met than not, and that the debtor has access to sources of capital of the amounts probably needed to deal with minor shortfalls either through its principals or by delaying some payments and expenses where there is some leeway to do so under the plan. The bank cites to But SM 104 was a far more extreme case than ours. In that case the debtor proposed to eliminate all tenant and capital improvements (while maintaining a small reserve for repairs) not just for the initial year or two but for the whole ten year term of the plan. The SM 104 court correctly noted that by making no tenant or capital improvements for ten years it would be unlikely that the debtor could maintain the building in good enough condition to attract tenants. Id. at 236-37. In contrast, in our case the projections include hundreds of thousands
456	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. 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
1696	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); 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, 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
508	"option a nullity. All we know is that he treated Cox's exercise as timely. . These figures are approximations. The exact amounts are not material for our purposes. . The consideration cited in the warranty deed was “ten dollars and other good and valuable consideration.” The consideration cited in the option contract was ""one dollar.” . The option contract did not state, but the parties nonetheless agreed, that if Cox exercised his option, he would grant Christopher, as his real estate agent, a non-exclusive listing for a 5% commission. . Like the district court, we review the bankruptcy court's findings of fact for clear error and the court's conclusions of law and mixed questions of law and fact de novo. See . This is done because lenders often seek to disguise mortgages as conveyances to avoid the pro-mortgagor regime of law. See Restatement (Third) of Prop.: Mortgages § 3.2 cmt. a (1997). .Not all conditional sales may automatically be deemed mortgages. On occasion, a repurchase option may be truly intended by the parties, and if so, those conveyances are not deemed mortgages. See Conway's Ex’rs and Devisees, 11 U.S. (7 Cranch) 218 at 236-37, 3 L.Ed. 321."
3796	to the suppression of free expression and because the regulation was greater than was essential to further the government’s interest in combating unwanted secondary effects. Id. at 488. Thus, even without the “erotic” qualifier, the fondling proscription itself may have been unconstitutional for exceeding what was necessary to further the government’s interest. Because the ordinance continues to regulate the moves that a dancer may employ to convey an erotic message, Plaintiffs challenge to the constitutionality of the ordinance still stands and is not mooted by the County’s amendment to the ordinance. 2. Application of O’Brien Of the four cases cited by Plaintiff, only one applied O’Brien; the remainder applied the more exacting, strict scrutiny standard of review. See Schultz v. City of Cumberland, 228 F.3d 831, 843-44, 846-48 (7th Cir.2000) (applying strict scrutiny to fondling statute that was a content-based restriction on expressive conduct because it only applied to adult establishments “based on the content of the materials they sell or display”); Centerfolds, Inc. v. Town of Berlin, 352 F.Supp.2d 183, 193-94 (D.Conn.2004) (applying strict scrutiny to an ordinance virtually identical to the AEC’s pre-amendment ordinance); Score, 319 F.Supp.2d 1224 (applying O’Brien in a facial overbreadth challenge of a simulated sexual conduct provision that precluded touching the sex organs or anus); see also BSA Inc. v. King County, 804 F.2d 1104, 1110 (9th Cir.1986);
2721	“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. 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. Additionally, disposition of this matter might be considerably delayed and the cost multiplied if, at the close of the liability portion of the trial, the parties only then commenced discovery concerning damages. In the present case, defendant has failed to demonstrate that judicial economy will be maximized
2431	"by setting a wholesale rate for electricity and by interfering with FERC's capacity-auction policies. CPV intervened as a defendant. After a six-day bench trial, the District Court issued a declaratory judgment holding that Maryland's program improperly sets the rate CPV receives for interstate wholesale capacity sales to PJM. PPL Energyplus, LLC v. Nazarian, 974 F.Supp.2d 790, 840 (Md.2013). ""While Maryland may retain traditional state authority to regulate the development, location, and type of power plants within its borders,"" the District Court explained, ""the scope of Maryland's power is necessarily limited by FERC's exclusive authority to set wholesale energy and capacity prices."" Id., at 829. The Fourth Circuit affirmed. Relying on this Court's decision in  the Fourth Circuit observed that state laws are preempted when they ""den[y] full effect to the rates set by FERC, even though [they do] not seek to tamper with the actual terms of an interstate transaction."" PPL EnergyPlus, LLC v. Nazarian, 753 F.3d 467, 476 (2014). Maryland's program, the Fourth Circuit reasoned, ""functionally sets the rate that CPV receives for its sales in the PJM auction,"" ""a FERC-approved market mechanism."" Id., at 476-477. ""[B]y adopting terms and prices set by Maryland, not those sanctioned by FERC,"" the Fourth Circuit concluded, Maryland's program ""strikes at the heart of the agency's statutory power."" Id., at 478. The Fourth Circuit cautioned that it ""need not express an opinion"
725	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 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. Thomas, 684 F.Supp. 1056 (W.D.Okla.1988) (criminally touching and molesting children at day care center in lewd and lascivious manner); State Farm Fire & Casualty Co. v. Huie, 666 F.Supp. 1402 (N.D.Cal.1987) (rape of minor), affd sub nom. State Farm Fire &. Casualty Co. v. Bomke, 849 F.2d 1218 (9th Cir.1988); CNA Ins. Co. v. McGinnis, 282 Ark. 90, 666 S.W.2d 689 (1984) (sexual abuse of minor stepdaughter by stepfather on daily basis over ten-year period from age six to age sixteen); Fire Ins. Exch. v.
813	"disqualify myself from this case. The Clerk is hereby instructed to return the case to the assigning judge. IT IS SO ORDERED. In San Juan, Puerto Rico, this 21st day of September, 1983. /s/ Hector M. Laffitte Hector ,M. Laffitte U.S. District Judge . The statute provides in relevant part: ""In any action or proceeding to enforce a provision of ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fees as part of the costs.” . The Court must focus on the legal sufficiency of the affidavit, but cannot consider the truth or falsity of the allegations. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 . Mr. Harvey Nachman is not and has not acted as counsel in this case in any manner, as the record of this case shows. The undersigned judge, upon taking office, issued an order disqualifying himself in Mr. Nachman’s cases as per the attached Opinion and Order in Civil case 82-3063 (HL), dated September 2, 1983, which is annexed hereto as an Appendix. . A hearing on this Court’s ruling awarding attorneys’ fees to defendant was scheduled for September 4, 1984, exactly seven days prior to the filing of plaintiffs motion to recuse. . The recent revision of Rule 11 of the Federal Rules of Civil Procedure emphasizes that an attorney or a pro se litigant must have good grounds,"
1823	extinguish a patent safety threat when he performed a brief search limited exclusively to the area where both officers saw the object, later confirmed to be a gun, was placed. For these reasons, we AFFIRM. Richmond's girlfriend resided at the duplex, and Richmond had been living there for about one month before his arrest. Richmond cites Moore v. Pederson , 806 F.3d 1036, 1044-46 (11th Cir. 2015) (involving the warrantless seizure of a suspect inside his home); United States v. Perea-Rey , 680 F.3d 1179, 1188-89 (9th Cir. 2012) (holding a border patrol agent intruded into an area of curtilage where uninvited visitors would not be expected to appear to stop an individual suspected of entering the country illegally); and United States v. Reeves , 524 F.3d 1161, 1167-69 (10th Cir. 2008) (involving the warrantless seizure of a suspect inside his motel room and construing the encounter as occurring within the home). Perea-Rey and Struckman proscribed police entries without consent into cordoned areas of curtilage. But Richmond acknowledges that Boyack and Milone were permitted to enter onto the porch even without his consent, Brief of Appellant at 7, 15, unlike the closed off areas in Perea-Rey and Struckman . He also acknowledges that he
3121	"to bear its own costs and fees. . The complaint does not indicate when her workers’ compensation claim was filed. . Since the Court ""may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action,” the mislabelling of the action is of no import. Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir.2002). See also Scholastic Entm't, Inc. v. Fox Entm’t Group, Inc., 336 F.3d 982, 985 (9th Cir.2003). . At the hearing on this motion, plaintiffs counsel also repeatedly raised the issue that, in other ERISA cases, Northwest and its counsel have not raised this defense. A defense on the basis of subject-matter jurisdiction is never waived, however.  citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Even if defendants had failed to raise the issue earlier in this case, the Court would be obligated to consider the issue. In a related analytical error, plaintiff's counsel repeatedly cites to unpublished district court cases from outside this circuit, most recently in her ex parte application for permission to lodge supplemental briefs, where ERISA claims proceeded against airline employee benefit plans without mentioning the RLA and its jurisdictional impact. See, e.g., Carr v. American Gen. Assurance Co., Civil No. 08-645(DSD/JJG), 2009 WL 2461726 (D.Minn. Aug. 10, 2009). Since these cases do not discuss the RLA and its effects at"
4565	or by officials ... that deprives persons of rights, privileges,, or immunities secured or protected by the ‘Constitution or laws of the United United States v. Puerto Rico, 922 F.Supp.2d 185 (D.P.R.2013). All of these cases, ended in, settlement and in none did the defendant government challenge liability by arguing vicarious or imputed liability was unavailable under § 14141. Therefore, the case law suggests liability is available to sue governments whose law enforcement violates the statute. Summary judgment will not be granted to Maricopa .County on this issue of imputation of liability under § 14141. C. Liability Under Title VI and 42 ... . U.S.C. § 14141 Maricopa County argues it is entitled to summary judgment regarding its liability under Title VI and § 14141, even if imputation 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
2490	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 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 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985), those cases involved a clear injury in the absence of judicial action. See id. (wherein regulation restricted access to jury trial). Here, any overlapping jurisdictional claims are highly conjectural, and a decision on these abstracted claims is unwarranted. See Cass County, 570 F.2d at 741-42 (connecting boundary decisions to disputes
3994	its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing summary judgment motions, this court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941, 943-44 (6th Cir.1990). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standard. Thus, in most civil cases the court must decide “whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Id. at 252,106 S.Ct. 2505. IV. LAW AND ANALYSIS A. Validity of the '833 Patent As an initial matter, this court declines to reconsider the validity of the '833 patent. This court previously determined that the '833 patent is valid. (See Summ. J. Order at 33.) The Federal Circuit did not remand on this issue and the court finds no basis upon which to reconsider its ruling. Defendant concedes that the
4837	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 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 makes clear that states do not have a similar interest in regulating foreign corporations. The Court in fact specifically
1080	2597 (Thomas, J., dissenting) (interpreting the standard to mean “unless a State can conclusively establish that an abortion procedure is no safer than other procedures, the State cannot regulate that procedure without including a health exception”). Thus, the Government’s interest-based, medically based, and institutional competency arguments all fail to meaningfully distinguish the evidentiary circumstances present here from those that Stenberg held required a health exception to a ban on partial-birth abortion. The lack of a health exception also renders this Act unconstitutional. See, e.g., Planned Parenthood, 320 F.Supp.2d at 1033-34; Planned Parenthood v. Owens, 287 F.3d 910, 917-18 (10th Cir.2002); Hope Clinic v. Ryan, 249 F.3d 603, 604 (7th Cir.2001); Eubanks v. Stengel, 224 F.3d 576, 577 (6th Cir.2000); Planned Parenthood v. Farmer, 220 F.3d 127, 152 (3d Cir.2000) (Alito, J., concurring); Richmond Med. Ctr. for Women v. Gilmore, 219 F.3d 376, 377 (4th Cir.2000). IV. CONCLUSION While Congress and lower courts may disagree with the Supreme Court’s constitutional decisions, that does not free them from their constitutional duty to obey the Supreme Court’s rulings. As Judge J. Michael Luttig of the Court of Appeals for the Fourth Circuit stated in a concurring opinion soon after the Supreme Court decided Stenberg: As a court of law, ours is neither to devise ways in which to circumvent the opinions of the Supreme Court nor to indulge delay in the full implementation of the Court’s opinions. Rather, our responsibility is to
3317	have been issued in furtherance of a present contemplation to present evidence to a grand jury. This was a rather complicated matter and it is natural that it took time to gather the evidence. In this regard we point out that Weisenbeck indicated that he could not remember seeing the bank records but that sometimes it takes months to get them in response to a subpoena. Furthermore, it is reasonable to infer that his departure from the office about six months after the investigation started may have delayed the matter. In the circumstances, allowing the government the reasonable inferences to be drawn from the evidence, we cannot say that the evidence was insufficient to support convictions on the obstruction counts. See Government of Virgin Islands v. Williams, 739 F.2d 936, 940 (3d Cir.1984). Nevertheless appellants are entitled to a new trial on counts 5 and 6 for the reasons already set forth. III. Conspiracy to Obstruct Justice The appellants join in a three pronged attack on count 4 charging them with conspiracy to obstruct justice in violation of 18 U.S.C. § 371. These attacks are without merit. A. First, the appellants argue that count 4 was transformed into a dual-purpose conspiracy embracing both obstruction of justice and mail fraud because it incorporated the first 16 paragraphs of count 1, the mail fraud count. In addition, because the list of “overt acts” attached to count I
3303	Affirmed by unpublished PER' CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Loretta Meredith appeals the district court’s criminal judgment sentencing her to one year and one day of imprisonment for conspiring to knowingly and corruptly attempt to obstruct, influence, and impede an official proceeding, in violation of 18 U.S.C. § 1512(c)(2) and (k) (2012). In accordance with  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).
1986	"to three search warrants, or for a hearing to determine whether the warrant is sustainable under the good faith exception, should also be DENIED. Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED that this Report and Recommendation be filed with the Clerk of the Court. ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 30(a). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir.1988). Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Government and the Defendant. SO ORDERED. . The so-called “DCI still,'' acquired by Envirotek from a company named DCI, was designed to separate pure solvent from spent solvents, a listed hazardous waste under regulations promulgated by the EPA pursuant to RCRA, by the injection of steam into the spent solvents. Solvents and steam/water would then vaporize and condense, with the separated solvent being collected for reuse. The separated ""waste water” or ""overhead waste” was allegedly drained through a"
1385	of Christopher McDaniel v. County of Kern, Case No.: 1:15-cv-01320 JAM JLT, 2015 WL 7282881 (E.D. Cal. Nov. 11, 2008) and M.M. v. County of Kern, Case No.: 1:16-cv-00376 DAD JLT. The court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid, 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The record of this Court's docket is a source whose accuracy cannot reasonably be questioned, and judicial notice may be taken of court records. Mullis v. United States Bank, Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th. Cir. 1980). , The Court recognizes, as do the Plaintiffs, that this does not mean that no such unconstitutional conduct has occurred within this time period. However, it directly contradicts the statements of Plaintiff's counsel that such court determinations have been made (Doc. 37-1 at 2).
606	review defies generalized application, and demands, instead, close attention to the nature of the particular problem faced by the agency. . For a comparison of tliis aspect of OSHA with the National Labor Relations Act, which defines specifically prohibited practices, see Cohen, supra note 1, at 798-800. . Where existing methodology or research in 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); . 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
4478	if 'cause' is found, consideration of whether conversion or dismissal is in the best interests of creditors and the estate.”); Love, 957 F.2d at 1355 (bankruptcy courts must look at the totality of the circumstances on a case-by-case basis when determining good faith); see also Mason v. Young (In re Young), 237 F.3d 1168, 1174 (10th Cir.2001) (determination of good faith is made on a case-by-case basis, looking at the totality of the circumstances); In re Lilley, 91 F.3d 491, 496 (3d Cir.1996) (good faith of Chapter 13 filings must be assessed on a case-by-case basis in light of the totality of the circumstances); Solomon v. Cosby (In re Solomon), 67 F.3d 1128 (4th Cir.1995) (affirming totality of the circumstances standard); Fleury, 294 B.R. at 6; Virden, 279 B.R. at 408.
4974	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, the main focus of his remarks was the contrast between Thekkath and Tzelnic, arguing against the obviousness of combining them. Indeed, the next three paragraphs concern the impropriety of combining these two references. '417 Patent File History, Nov. 24, 2003 Response at 4-5. NetApp further argues that even if the prosecuting attorney’s statement were understood as an argument that a management layer above the storage layer is outside the scope of the claims, such a statement would be wrong on its face, citing While the question is a close one, read in context, the prosecuting attorney’s remarks concerning the “management layer” do not demonstrate clearly and unambiguously that the applicants considered the language of claim 1 to require the storage layer to be above the management layer, especially when the amendment to claim 1 that gained its allowance had nothing to do with the placement of the management layer. In rejecting the claims, the Examiner explained that, although Thekkath does not disclose a management layer, Tzelnic does, and so the two references in combination render the invention obvious. '417 Patent File History, June 24, 2003 Office Action at 3. To protest the combining of the two references, the prosecuting attorney argued that, first, the
2135	estopped to deny the validity of the patent because of pri- or recognition in North Carolina, but District Judge Williams determined this issue adversely to plaintiffs. It is well settled that courts must scrutinize the “claim” as allowed by the Patent Office to determine the nature of the invention, which should be read in light of the specification and drawings, and that courts have no right to enlarge a patent beyond the scope of its claim. Keystone Bridge Co. v. Phoenix Iron Co., 95 U.S. 274, 279, 24 L.Ed. 344; National Machine Corp. v. Benthall Machine Co., 4 Cir., 241 F. 72; Wire Wheel Corp., etc. v. Budd Wheel Co., 4 Cir., 288 F. 308; t. 416, 67 L.Ed. 871; Victor Cooler Door Co. v. Jamison Cold Storage Door Co., 4 Cir., 44 F.2d 288. The “claim” must also be 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,
3314	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 972), 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 before the grand jury. During cross-examination about his role in the investigation of alleged corruption in New Brunswick, Weisenbeck testified that he scheduled
479	determined in the fair value investigation as the best information available is supported by substantial evidence in the record and is otherwise in accordance with law? STANDARD OF REVIEW In reviewing challenges to administrative reviews this Court must sustain the ITA’s determination unless it is found to be “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516(b)(1)(B) (1982). See Seattle Marine Fishing Supply Co. v. U.S., — CIT-, 679 F.Supp. 1119, 1125 (1988). Substantial evidence has been held to be more than a “mere scintilla”, but sufficient to reasonably support a conclusion. Ceramica Regiomontana, S.A. v. U.S., — CIT-, 636 F.Supp. 961, 966 (1986), aff'd, 810 F.2d 1137 (Fed.Cir.1987); See Also Because a reviewing court must accord due weight to an agency’s interpretation of a statute it administers, this Court will defer to the agency’s interpretation, provided it is “sufficiently reasonable”. See American Lamb Co. v. U.S., 785 F.2d 994, 1001 (Fed.Cir.1986). Furthermore, so long as the agency’s methodology and procedures are reasonable means of effectuating the statutory purpose, and the agency’s conclusions are supported by substantial evidence on the record, the Court will accept the sufficiency of the agency’s investigation and will not question its methodology. Ceramica Regiomontana, supra, 636 F.Supp. at 966. At the same time, the Court will not permit the agency to contravene or ignore the intent of Congress under the guise of lawful discretion. Id. , DISCUSSION
3958	the FMLA claims. The Court will address the ADA, the ADEA, and the ERISA claims first and the remaining claims in turn. A. The ADA the ADEA, and the ERISA Kariotis, admittedly, has no direct evidence that unlawful discrimination of any form played a role in Navistar’s decision to terminate her. Accordingly, she proceeds under the indirect method of proof or three-step model enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to establish her claim of discrimination under the ADA, the ADEA, and/or the ERISA at the summary judgment stage. See DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir.1995) {McDonnell Douglas test used in ADA case); Grottkau v. Sky Climber, Inc., 79 F.3d 70, 73 (7th Cir.1996) (McDonnell Douglas test used in ERISA 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,
3552	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 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
3422	review the argument for plain error. United States v. Rodriguez, 398 F.3d 1291, 1300-01 (11th Cir.), petition for cert. filed, (No.04-1148) (Feb. 23, 2005). In Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621, the Supreme Court held that the Sixth Amendment required that any fact that increased a defendant’s sentence beyond the maximum sentence authorized by the facts established by a plea or a jury verdict must be admitted by the defendant or proven to a jury beyond a reasonable doubt. — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621. This court has explained that a Booker error also results from the district court’s use of a mandatory guidelines scheme, even in the absence of any constitutional error. There was no constitutional error in the application of the armed career criminal provisions. First, under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4, a defendant is an armed career criminal if he has three previous convictions for, inter alia, violent felonies. Burglary qualifies as a violent felony. 18 U.S.C. § 924(e)(1), (2)(B)(ii); see also United States v. Johnson, 399 F.3d 1297, 1302 (11th Cir.2005) (stating that burglary is a crime of violence under § 4B1.1). Here, the indictment alleged that Terrell had more than three prior burglary convictions. Additionally, Terrell conceded that his criminal history established the predicate offenses. Accordingly, there was no constitutional error under Booker. Additionally, although this court has recognized that there is a statutory
2253	on Sundays and national Holidays only, place copies of . issues in the rural and star route boxes of subscribers. Section 151.1(b) further provides that: Any mailable matter such as circulars . . . sale bills or other similar pieces deposited in such receptacles must bear postage at the applicable rate and a proper address. The court considers these particular regulations relevant and controlling in the instant case. The only question left for the court to consider is whether the actions of defendant Smith were outside the perimeter of his official authority. It is the opinion of this court that said acts were properly within the scope of his authority. The doctrine of official immunity is a well established concept. See Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959). Even cases involving the element of malice, an issue not herein presented but considered a more serious variance from official duty than is presented in the instant case, have been protected under this doctrine. The Supreme Court has stated that: The fact that the action here taken was within the outer perimeter of petitioner’s line of duty is enough to render the privilege applicable, despite the allegations of malice in the complaint In the instant case the action of the defendant is not alleged to be malicious, and is, in the opinion of this court, within the implied scope of his authority to
31	due process of law. Id. at 1006; see also Jackson v. FIE 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.” 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
1020	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 the parties who appoint them. Insofar as it is consistent with their fiduciary obligations, employer trustees are expected to advance the interests of the employer while employee trustees are expected to further the concerns of the union in the ongoing collective bargaining process between them. See Lamb v. Carey, 162 U.S.App.D.C. 247, [251,] 498 F.2d 789, 793 (1974); Goetz, Developing Federal Labor Law of Welfare and Pension Plans, 55 Cornell L.Rev. 901, 921 et seq. (1970). The trustees’ efforts to improve the position of the parties they represent are completely legitimate — indeed, they are essential to the operation of section 302(e)(5). Congress envisioned the conflict of views of employer and employee as a distilling process which would provide safeguards against trust fund corruption. 559 F.2d at 227-28. The logic and holding of this court’s opinion in Associated Contractors are equally applicable to the facts of this case. Accordingly, we hold that the Union’s conduct in insisting to impasse and striking to obtain Amax’s participation in the Union’s pension and trust fund violates Sections 8(b)(1)(B) and 8(b)(3). C.
1060	licensed physician and board-certified obstetrician and gynecologist, is an Assistant Professor in Obstetrics and Gynecology at the Northwestern University School of Medicine, the Director of the Northwestern Program in Family Planning, and the Medical Director at Prentice Ambulatory Care. (Tr. 517:12-522:2 (Hammond); Ex. 98, Curriculum Vitae of Cassing Hammond, M.D. [Hammond C.V.].) Dr. Hammond has performed thousands of previa-bility abortions, including D & E and D & X. (Tr. 526:1-530:8, 533:9-20 (Hammond).) He teaches various abortion procedures, including D & E and D & X, to residents and medical students at Northwestern. (Tr. 534:2-535:20 (Hammond).) Dr. Hammond previously testified in two cases that challenged partial-birth abortion bans. (Tr. 538:3-8, 539:21-540:10 (Hammond); Hope Clinic v. Ryan, 995 F.Supp. 847, 849, 850-51 (N.D.Ill.1998).) He is also a plaintiff in this case. (Tr. 522:3-5 (Hammond).) Dr. Carolyn Westhoff, M.D., a licensed physician and board-certified obstetrician and gynecologist, is the Medical Director of Special GYN Services, Medical Director of the Family Planning Clinic, an attending physician at New York Presbyterian-Columbia Presbyterian Medical Center, and Professor of Epidemiology and of Population and Family Health in the School of Public Health at Columbia University. (Tr. 731:2-10, 732:14-23, 765:6-16 (West-hoff); Ex. 126, Curriculum Vitae of Carolyn L. Westhoff, M.D. [Westhoff C.V.].) She has performed hundreds of previability abortions, including D & E and D & X procedures. (Tr. 743:9-744:4, 745:12-746:11, 747:18-751:4 (Westhoff).) In 2003, she performed or supervised fifty
2702	"make sense to read into the Stipulation an intent on the part of the County to adopt a position to which it remained in vigorous opposition. . Unless otherwise indicated, all chapter, section and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330, and to the Federal Rules of Bankruptcy Procedure, Rules 1001-9036. We use the term “res judicata” in its generic sense — encompassing doctrines that have been more precisely called claim preclusion and issue preclusion as well as the codification in Section 1327 of the effect of confirmation. We use this broad terminology because there is some ambiguity about which doctrine Debtors rely upon and our reasoning applies to all such doctrines. See generally v. Sims (In re Associated Vintage Group, Inc.), 283 B.R. 549 (9th Cir.BAP 2002) (each discussing res judicata and collateral estoppel terminology). . Under Debtors' Chapter 13 plan in the First Case the Property remained in the bankruptcy estate until Debtors received their discharge, which was not until November 15, 2000. See 11 U.S.C. § 1328(a). Section 362(c)(1) provides that, with some exceptions, ""the stay of an act against property of the estate” continues ""until such property is no longer property of the estate.” 11 U.S.C. § 362(c)(1). . As noted in the text, the bankruptcy court’s order was actually entered on Ventura’s motion for summary judgment. The excerpts of record and the bankruptcy court's"
4832	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. 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 rule directs a conclusion of disabled or not disabled. 20 C.F.R. § 404.1569; 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(b). In this case, for York to coincide with a particular grid rule, he “must be able to perform substantially all of the strength demands defining the sedentary level of exertion, as well as the physical and mental nonexertional demands that are also required for the performance of substantially all of the unskilled work considered at the sedentary level.” Social Security Ruling 96-9p, 61 Fed.Reg.
1740	"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. Gloucester Envtl. Mgmt. Serv. Inc., 719 F.Supp. 325, 334 (D.N.J.1989) (""If a court dismissed the federal defendant from ... a case [removed pursuant to section 1442(a)(1)], it must use its discretion to decide whether to remand the remaining ancillary claims to state court or to maintain jurisdiction over those claims.”). . See . Jefferson County v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999). Accord Mesa, 489 U.S. at 133-35, 109 S.Ct. 959; In re Agent Orange Prod. Liab. Litig., 304 F.Supp.2d 442, 446 (E.D.N.Y.2004); 16 James Wm. Moore et al., Moore's Federal Practice (""Moore's”), ¶ 107.15[1][b][ii]. . The requirement for a federal defense is broadly construed; a defense need only be colorable, not clearly sustainable. See Jefferson County, 527 U.S. at 431, 119 S.Ct. 2069 (""We ... do not require the officer virtually to 'win his case before he can have it removed.’ ”) (citation omitted); Colorado v. Symes, 286 U.S. 510, 519, 52 S.Ct. 635, 76 L.Ed. 1253 (1932) (where a"
2657	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. Sabol v. 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
2369	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 at trial.” Pl.’s Pretrial Mem. at 11 (doc. no. 23). Remarkably, plaintiff supported his request with a cite to one case — from 1918— where the Third Circuit declined a request to award attorneys’ fees in an admiralty case and made no statement that its conclusion was contrary to a general rule in favor of such an award. See Plaintiffs argument lies in as perilous a water as the sinking yacht that gave rise to 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
2495	on these abstracted claims is unwarranted. See Cass County, 570 F.2d at 741-42 (connecting boundary decisions to disputes over taxing authority, criminal jurisdiction, and fishing and hunting rights cases). Plaintiffs cite a number of cases where courts have resolved land disputes through declaratory judgment, but none of them are analogous to this case. In each of the cited cases, there were concrete and specific incidents involving reservation boundaries and sovereignty. See id.; Yankton Sioux Tribe v. South Dakota, 796 F.2d 241 (8th Cir.1986) (conversion and declaratory action arising from non-Indian harvesting on a reservation lake). Plaintiffs ask the Court to focus on the Rosebud Sioux Tribe litigation. See That suit sought a declaration of the original reservation boundaries intact after the defendant county exercised both civil and criminal jurisdiction over tribe members. 430 U.S. at 585, 97 S.Ct. 1361, 51 L.Ed.2d 660. In City of New Town v. United States, 454 F.2d 121 (8th Cir.1972), plaintiff, a North Dakota municipality, sought declaratory relief in the wake of particularized challenges to municipal authority. Even if plaintiffs have tracked the pleadings filed in those cases, their having done so does not make this dispute ripe. The distinction is pristine: Rosebud Sioux and City of New Town presented ripe factual disputes; this one does not. The cited cases involved explicit efforts by one sovereign to exercise particular
1799	"a motion to suppress is a fact-specific inquiry, we give deference to credibility determinations of the district court, who had the opportunity to listen to testimony and observe the witnesses at the suppression hearing."" United States v. Groves , 530 F.3d 506, 510 (7th Cir. 2008) (internal quotations omitted). We examine first whether the officers reasonably suspected that Richmond was engaged in criminal activity, and second whether Milone's search behind the screen door eclipsed a constitutional boundary. A. Reasonable Suspicion of Unlawful Activity A limited intrusion into an individual's privacy is permitted under the Fourth Amendment where the police have reasonable suspicion to believe criminal activity is afoot. See Terry , 392 U.S. at 30, 88 S.Ct. 1868 ; Reasonable suspicion exists when an officer can point to "" 'specific and articulable facts which, taken together with rational inferences from those facts[,] reasonably warrant that intrusion.' "" Baskin , 401 F.3d at 791 (quoting Terry , 392 U.S. at 21, 88 S.Ct. 1868 ). When making reasonable suspicion determinations, we ""must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing."" United States v. Arvizu , 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotations omitted). Reasonable suspicion requires more than a hunch but less than probable cause and ""considerably less than preponderance of the evidence."" Illinois v."
1883	in Permian: The regulatory system created by the Act is premised on contractual agreements voluntarily devised by the regulated com-, panies; it contemplates abrogation of agreements only in circumstances of unequivocal public necessity. 390 U.S. at 822, 88 S.Ct. at 1388. While in some circumstances the Commission has aided producers by including a minimum, or “floor” rate in an area order, see, e. g., Permian, 390 U.S. at 821, 88 S.Ct. 1344, it did not do so in Opinion No. 595. Second, the Commission held that producers who had charged in excess of the ceiling rates must pay refunds, unless they “worked off” those obligations by new dedications of gas to the interstate market by January 1, 1976. Cf. The language providing the basis for computing refunds is the subject of dispute. The opinion’s ordering paragraphs said: (B) . . . [Wjith respect to the rates involved in Section 4(e) proceedings ., the applicable area rate as defined in paragraph (A) above shall be effective from the date such Section 4(e) rates were collected subject to refund and all amounts collected under those Section 4(e) rates prior to August 1, 1971 in excess of the applicable area rate shall be subject to refund, plus interest at the rate specified in the respective Section 4(e) proceedings, in accordance with provisions of ordering paragraphs (D) and
2235	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 extra “bona fide purchaser” rights for trustees under § 544(a)(3). A trustee must still check the public records and be aware of encumbrances as would any purchaser. See, In re Marino, 813 F.2d 1562, 1565 (9th Cir.1987). Section 549(d) states that an action to recover property may not be commenced after the case has been closed. 11 U.S.C. § 549(d)(2). See, In re Weiman, 22 B.R. 49 (9th Cir. BAP 1982); Wiley Brooks’ bankruptcy closed almost two years ago. Therefore, even if this court were to find the re-recordation invalid under the facts of this case, the time to avoid it has expired. The validity of the bank’s lien went uncontested by Wiley Brooks’ trustee thus the statute of limitations has run on the trustee’s avoidance powers. Other parties affected by the stay are afforded no substantive or procedural rights under these provisions of the Bankruptcy Code. In re Stivers, 31 B.R. 735 (Bankr.N.D.Cal.1988). Consequently, if the debtor or the trustee chooses not to invoke the protections of § 362, no other party may attack any acts in violation of the automatic stay. Furthermore, Washington is a community property state in which property
4095	of error, and the Government’s response. We conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Art. 59(a), UCMJ. Sufficiency of Evidence In his first and third assignments of error, the appellant argues that the evidence of record is factually and legally insufficient to support his conviction for rape or for making a false official statement. The test for legal sufficiency requires this court to review the evidence in the light most favorable to the Government. In doing so, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the evidence is legally sufficient. 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560; United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). Without question, with regard to both offenses, that standard is met in this case. The test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, this court is convinced of the accused’s guilt beyond a reasonable doubt. Turner, 25 M.J. at 325. In resolving the question of factual sufficiency, we have carefully reviewed the record of trial, the briefs of counsel, and have given no deference to the factual determinations made at the trial level. Based on that review we are convinced beyond a reasonable doubt of the appellant’s guilt of
2222	ORDER Larry Olson appealed his conviction and sentence for racketeering and drug conspiracy charges. We affirmed his conviction, United States v. Olson, 450 F.3d 655 (7th Cir.2006), and ordered a limited remand to ask whether the district court would have imposed the same sentence under an advisory regime.  cert. denied, — U.S.-, 126 S.Ct. 1343, 164 L.Ed.2d 57 (2006). The district court has now indicated that it would likely impose a different sentence in light of the additional discretion afforded by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district court therefore asks us to vacate Olson’s sentence and remand for resentencing. In their responses to the district court’s statement, both Olson and the government ask us to vacate Olson’s sentence and remand for resentencing. Therefore, we VACATE Olson’s sentence and REMAND for resentencing.
2468	“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  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
3300	where defendant did not attempt to withdraw guilty plea in district court); United States v. Murphy, 899 F.2d 714, 716 (8th Cir.1990) (claim that guilty plea was involuntary must first be presented to district court and is not cognizable on direct appeal); and his claim that his counsel was ineffective is more properly raised in a motion under 28 U.S.C. § 2255, see United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir.2006). By his guilty plea, Alarcon has waived any non-jurisdictional challenge to his prosecution, see Smith v. United States, 876 F.2d 655, 657 (8th Cir.1989) (per curiam), and he cannot challenge the drug quantity used for sentencing because he stipulated to the amount in his plea agreement, cf. Having reviewed the record in accordance with Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw and deny Alarcon’s motions. The judgment of the district court is affirmed. . The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota.
1127	BIGGS, Circuit Judge. The record of these causes dicloses that the judgments of conviction against the respective appellants can be sustained only upon evidence procured by federal officers’ intercepting intrastate telephone communications. This testimony was introduced in evidence by the United States during the course of the appellants’ trial in the court below, federal officers testifying to the intercepted communications. 1 f such testimony is held to be inadmissible, the judgments of conviction of the respective appellants must be reversed. The decision of this court in Jake Accordingly the judgments of conviction of the appellants are reversed and the causes are remanded for further action in accordance with this opinion.
1619	a similar motion was denied some time ago, and said “now Karp seeks to take advantage of the new Rules * * *.” This sole objection is not a moving one. The case still awaits trial. The new Rules were written to be taken advantage of. There is no hurt to the Government in applying them here. This is by no means the first case illustrating that fortuitous matters of chronology may make a difference, sometimes a dramatic and painful difference, for a defendant in a criminal trial. E. g., compare Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), with  and Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). To.summarize and record the court’s rulings: The motion for severance is granted to the extent of requiring that Karp be tried separately from Pitkin. The motion for discovery and inspection is also granted. It is so ordered. . It is unnecessary here to insist that the decision was actually put still more narrowly on the ground that the “accredited ritual [of telling the jury not to draw the inference] was not followed * * 262 F.2d at 538. . Neither, by the way, is Gleason. The decision here requires only that Karp be tried separately from Pitkin. Nothing appears
4669	1503 (quoting 384 U.S. at 478, 86 S.Ct. 1602), but did not say whether the interview with Mathis fell within Miranda because of his incarceration or because of some other deprivation that was significant in the circumstances. Although it did not address Mathis, the Court’s opinion in Shatzer forecloses Ellison’s reading of the case for the former proposition. . On these facts, there would, of course, be no conclusion of custodial interrogation in those circuits that have previously applied the rule that such interrogation of a prisoner occurs only when the suspect’s restraint is more rigorous than the institutional norm. See, e.g., Garcia v. Singletary, 13 F.3d 1487, 1491 (11th Cir.1994); United States v. Conley, 779 F.2d 970, 973 (4th Cir.1985); 
3027	was a “complete absence of any union interest in the labor relations of (the) excluded employer,” in this case San Juan. Note, A Rational Approach to Secondary Boycotts and Work Preservation, 57 Va.L.Rev. 1280, 1300-01 (1971). In National Woodwork there was no interest in the labor relations of the manufacturer of the prefitted doors. Even union-constructed prefitted doors were rejected by the carpenters. PIPEFITTERS AND NLRB DISCRETION A strong case thus exists under National Woodwork and the Second Circuit’s above decision for enforcing the Board’s order, especially in light of the statements by Ortiz, Sr. and Ortiz, Jr. and the traditional deference accorded the Board. Bayside Enterprises, Inc. v. N.L.R.B., 429 U.S. 298, 97 S.Ct. 576, 50 However, the Supreme Court has very recently spoken in the subject once more, in N.L.R.B. v. Enterprise Ass’n. of Steam, Hot Water, etc. Pipefitters. This case seems to us to remove any lingering doubts as to the enforceability of the Board’s present order. In Pipefitters, Austin Co., the general contractor for a home for the aged (Norwegian Home) subcontracted the climate control work to Hudik-Ross (Hudik). Hudik employed steamfitters belonging to the union. The collective bargaining agreement between them provided that pipe threading and cutting were to be performed at the jobsite. The steamfitters had traditionally done that work at the jobsite. Nevertheless, Hudik then agreed to a provision in its subcontract with Austin that
2091	shows that agent Anda-luz’s search was not conducted in bad faith or for the purpose of unearthing incriminating information from defendants. At the time that agent Andaluz conducted the search, he had already placed defendants under arrest. Thus, the money seized did not play a role in the determination of probable cause to justify the arrest. Furthermore, as noted above, the agent conducted the search pursuant to the established inventory search procedures of the DEA. The agent properly articulated the policies behind this procedure, which have been acknowledged by the Supreme Court in Colorado v. Bertine, 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) and ' Ironically, Agent Andaluz’s questioning of Luis Fernandez Santana may not have been necessary to conduct 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,
374	"the error ""had substantial and injtirious effect or influence on the jury’s verdict""). . 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (""harmless beyond a reasonable doubt”). . Some courts have held that the Brecht standard is applicable only when the state appellate court previously has applied the more stringent Chapman standard. See Starr v. Lockhart, 23 F.3d 1280 (8th Cir.1994) (applying the Chapman harmless error standard on habeas review where state courts had not found constitutional error on direct review, and thus, had not performed harmless error analysis); Orndorff v. Lockhart, 998 F.2d 1426 (8th Cir.1993) (same); Other courts have held that the language of Brecht applies to all federal habeas proceedings. See Sherman v. Smith, 89 F.3d 1134 (4th Cir.1996) (same); Horsley v. Alabama, 45 F.3d 1486 (11th Cir.1995); Tyson v. Trigg, 50 F.3d 436 (7th Cir.1995) (federal habeas corpus courts should apply the Kotteakos standard even if state courts have not conducted a Chapman analysis.) . 131 F.3d 466 (5th Cir.1997). . 131 F.3d at 499; see Davis v. Executive Director of Dep’t of Corrections, 100 F.3d 750 (10th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1703, 137 L.Ed.2d 828 (1997); Sherman v. Smith, 89 F.3d 1134 (4th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 765, 136 L.Ed.2d 712 (1997); Tyson v. Trigg, 50 F.3d 436 (7th Cir.1995), cert. denied, 516 U.S."
996	PER CURIAM: Appealing the Judgment in a Criminal Case, Luis Tamayo-Zaragoza raises arguments that are foreclosed by  which held that 8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense. United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), cert. denied, — U.S.-, 128 S.Ct. 872, 169 L.Ed.2d 737 (2008). The appellant’s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED. 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.
1695	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 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, 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
3203	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. 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
529	JOSÉ A. CABRANES, Circuit Judge: The question presented, as a matter of first impression for this Court, is whether a civilian may be prosecuted in federal court for conduct on a United States military installation overseas. For many years, it was standard practice to try civilians who committed crimes while accompanying the military in military courts martial. See, e.g., Joseph W. Bishop, Jr., JUSTICE UNDER FlRE: A STUDY OF MILITARY Law 55-111 (1974). However, in a series of cases beginning with  the Supreme Court ruled this practice unconstitutional with respect to offenses' committed during peacetime. See id.; Kinsella, v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960); Grisham v. Hagan, 361 U.S. 278, 80 S.Ct. 310, 4 L.Ed.2d 279 (1960); McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960); see also United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955). Since Reid and its progeny, representatives of the armed forces, other executive branch officials, government commissions, members of Congress, and academic commentators, among others, have noted the existence of a “jurisdictional gap” — that
82	MESKILL, Circuit Judge: This is an appeal from an order of the United States District Court for the Eastern District of New York, Nickerson, /., entered on December 4, 1990, certifying a plaintiff class, declaring certain policies of the defendants, the Immigration and Natu ralization Service, and certain of its officials (collectively “INS”), contrary to law, issuing a permanent injunction and denying the INS’s application for a stay pending appeal. The district court’s order implemented the findings and conclusions that it previously had reached in a Memorandum and Order dated September 27, 1990. See In that opinion, the district court granted in part the plaintiffs’ motions for class certification and summary judgment against the INS and denied the INS’s motion for summary judgment. The district court concluded that the INS was legally obligated to ensure that lawful permanent resident aliens (LPRs) are provided with adequate temporary documentation of their LPR status and employment eligibility if their permanent documentation is lost, stolen, or confiscated pending the completion of deportation proceedings. Appealing from the district court’s December 1990 order, the INS necessarily challenges the district court’s findings and conclusions of September 27, 1990. Assuming familiarity with the district court’s opinion, we limit our discussion of the factual background. We affirm in part, vacate in part, and modify in
3428	application of § 5G1.3 is a question of law that we review de novo. United States v. Bidwell, 393 F.3d 1206, 1208-09 (11th Cir.2004). The district court properly imposed consecutive sentences. Terrell faced two undischarged state sentences — one for the burglary that formed the basis for the federal § 922(g) offense, and one for parole revocation. As the guidelines explain, the undischarged burglary sentence would qualify as relevant conduct because it formed the basis for the instant § 922(g) offense, and, therefore, any burglary sentence should run concurrently with the § 922(g) sentence under § 5G1.3(b). See U.S.S.G. § 5G1.3(b). The parole revocation sentence, however, would fall under § 5G1.3(c), and the court had discretion to impose consecutive sentences. Moreover, the court explained that consecutive sentences were appropriate because the court found the need to increase the punishment to account for the parole violation. As the commentary recommends and expressly provides for consecutive sentences in these “complex” circumstances, there was no error. III. Conclusion For the foregoing reasons, we AFFIRM Terrell’s conviction and sentence. . Although defense counsel objected to the admission of the guilty plea, counsel did not oppose the admissibility of a redacted certified copy of the burglary conviction. . Terrell also asserts that the court erred by denying his motion for a mistrial because the government failed to prove the interstate nexus element of the offense and that § 922(g) is unconstitutional. Because this court has
4159	"around the bullet in Paige’s left hip, and (3) soft tissue swelling around his right ankle that could be due to arthritis. . All further citations to Act provisions will take the form “Section — ,"" referring to the Title 42 numbering rather than to the Act’s internal numbering. Regulations drawn from 20 C.F.R. will be cited ""Reg. § —."" . Paige twice previously applied for benefits under the Act. Both his 1975 and 1982 applications were denied (see R. 184-204), and Paige does not now (as indeed he cannot) challenge those decisions that he failed to appeal. . Johnson was later vacated (107 S.Ct. 3202 (1987)) when the Supreme Court upheld the validity of step 2 in Council (perhaps unaware that step 2 had just been upheld) did not take that into consideration in its decision. That omission, however, has had no impact on this case, for Council acknowledges that Paige has impairments that, though not ultimately rising to the level of a disability, suffice for a step 2 ""severity"" finding (Yuckert, 107 S.Ct. at 2297 teaches step 2 is merely designed to ""identify! ] at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found disabled even if their"
2819	by private groups or organizations, if adopted, must not be of such character that rights of free speech would be effectively denied. Terminello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); Thomas v. Collins, 323 U.S. 516, 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. 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
4794	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 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 the confrontation is to be considered; while Coleman, supra, 399 U.S. at 5-6, 90 S.Ct. 1999, teaches us that we are also to weigh the question of whether it was the
1884	price for 1960-1968 by the extra amounts it would have earned had it charged the ceiling price during 1959-1960 and 1968-1971. The result would have been a refund obligation of only $390,521.80. The Commission, relying on a prior order in a similar case, Phillips Petroleum Company, 41 F.P.C. 415, 417 (1969), read paragraph (B) to preclude any offset, and rejected Gillring’s reports. After the Courts finally affirmed Opinion No. 595, Gillring sought a declaratory order allowing the reduction. The Commission denied the request. Interpretation of Opinion No. 595 When construction of an administrative regulation is at issue, courts owe great deference to the interpretation adopted by the agency, which will be upheld if it is reasonable and consistent with the regulation. Shell Oil Co. v. FPC, 491 F.2d 82, 88 (5th Cir. 1974). The court need not find that the agency’s construction is the only possible one, or even the one the court might have adopted in the first instance. Gillring’s claim that Opinion No. 595 entitles it to an offset starts and finishes with the plain language of the opinion. While Gillring’s interpretation has some vitality, it does not so forcefully leap from the text of Opinion No. 595 as to foreclose the Commission from rejecting it. Ordering paragraph (B) expressly limits paragraph (E), and (B) states that amounts “in excess of the applicable area rate shall be subject to refund.” Furthermore, the “area rate
2410	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 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 he was qualified for the positions, insofar as a high school diploma or its equivalent was required. A fair reading of the complaint and other materials is that plaintiff suffered an adverse employment action because of his age. The “claim has facial plausibility” because the complaint “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct.
608	physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. . . . (emphasis supplied). . A discussion of some of the costs of dust control is found in Hills, Economics of Dust Control, 132 Annals of the New York Academy of Sciences 322 (1965), App. at 442-54. Several industry representatives testified in detail concerning the cost of attempting to meet the standards. Of. Chrysler Corp. v. Department of Transportation, 472 F.2d 659 (6th Cir. 1972). These eases support the proposition that “practicable” as employed in the Automobile Safety Act of 1966, 15 U.S.C. § 1392(a), includes economic considerations, but the legislative history of that statute, unlike the history of OSHA, is more explicit on that point. . Temporary variances may be obtained when timely compliance is technologically impossible. . Testimony of industry representatives predicted both of these results. See, e. g., App. at 960-62. . Since technological progress is here linked ■ to objectives other than the traditional competitive, profit-oriented concerns of industry, accommodation of both sets of values will sometimes involve novel economic problems. International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411,
1415	its unexpectedly aged and worn condition. (Compl. ¶ 29.) If that proves true, plaintiff may be entitled to as much as $7,500 in damages, under the trebling of its actual damages. Eventually, the matter of damages will have to be tried. If plaintiff does not prove actual damages, or if three times its actual damages is less than $1,500, then plaintiff will be entitled to damages of $1,500. [2]Finally, Defendants ask that plaintiffs claim for $5 million in punitive damages on the First Cause of Action be stricken, on the ground that the treble damages for which the statute expressly provides precludes an award of punitive damages, because the treble damages serves the same function as punitive damages. see also Glover v. Gen. Motors Corp., 959 F.Supp. 332, 334 (W.D.Va., 1997). While the Second Circuit has not, to my knowledge, opined on this issue, I find the reasoning of the Seventh Circuit to be persuasive. I therefore dismiss the claim for punitive damages in connection with the First Cause of Action. Second Cause of Action (New York State Odometer Act) [3] The Second Cause of Action is brought under a New York State statute, N.Y. Gen. Bus. Law § 392-e, which provides that, upon transfer of ownership of a motor vehicle, giving a false statement of the vehicle’s mileage renders the violator “guilty of a misdemeanor.” N.Y. Gen. Bus. Law §§ 392-e (1-2). Obviously, this is a criminal
2326	all of which were for a dispenser including as an element a plunger with a cup member secured to it, but none of which included agitation means as an element, as did Claim 4. The claim of the application which became Claim 4 of the patent was allowed without criticism or comment. It is of no consequence that, in the course of the proceedings in the Patent Office, the rejection of narrow claims was followed by the allowance of a broader claim. Westinghouse Electric & Mfg. Co. v. Condit Electrical Mfg. Co., 2 Cir., 194 F. 427, 430; Smith v. Snow, 294 U.S. 1, 16, 55 S.Ct. 279, 79 L.Ed. 721; See and compare, The defendant also contends that Claim 4 must be read in the light of the specification and drawings, and that, when so read, it is apparent that the accused device does not infringe, because the dispensing element attached to the plunger of that device is different. The particular forms of devices described in specifications are to be considered as the forms which are preferred by the inventor. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 418, 28 S.Ct. 748, 52 L.Ed. 1122; National Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co., 8 Cir., 106 F. 693, 715; J. L. Owens Co. v. Twin City Separator Co., 8 Cir., 168 F. 259, 266; McDonough v. Johnson-Wentworth Co., 8 Cir., 30
3750	relevant where the violations have ceased before the Administrator begins an action, it has no bearing on the issuance of an injunction where the violations have continued up to the commencement of the suit, and where the employer still asserts that the Act does not apply. See Walling v. Youngerman-Reynolds Hardwood Co., Inc., 325 U.S. 419, 65 S.Ct. 1242, 89 L.Ed. 1705; cf. Walling v. Helmerich & Payne, 323 U.S. 37, 65 S.Ct. 11, 89 L.Ed. 29. Affirmed. See Walling v. American Needlecrafts, 6 Cir., 139 F.2d 60, 64. By order of the Industrial Commissioner, pursuant to New York Labor, Law, Consol.Laws, e. 31, Art. 13, §§ 350, 351. Lavery v. Pursell, 1888, 39 Ch.D. 508, 514. 127, 64 S.Ct. 851, 88 L.Ed. 1170.
2592	because of its fraudulent nature would change substantive rules of liability because this is a class 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., 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
4993	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). When reviewing the record for a genuine issue of material fact, the Court must view the summary judgment facts in the light most favorable to the nonmoving party and credit all favorable inferences that might reasonably be drawn from the facts without resort to speculation. Merch. Ins. Co. v. U.S. Fid. & Guar. Co., 143 F.3d 5, 7 (1st Cir.1998). If such facts and inferences could support a favorable verdict for the nonmoving party, then there is a trial-worthy controversy and summary judgment must be denied. Mr. Fitzpatrick’s complaint recites seven counts. The Court has previously dismissed three counts: three, five, and seven, representing claims for breach of the implied duty of good faith and fair dealing, fraud, and recoupment, respectively. Teleflex’s motion for summary judgment challenges the four remaining counts: breach of contract, unfair trade practices, breach of fiduciary duty, and unjust enrichment. In his summary judgment opposition brief, Fitzpatrick indicated he would file a motion to dismiss his unjust enrichment claim pursuant to Rule 41, voluntarily, effectively abandoning that claim at summary judgment. Because he has not filed the motion to dismiss, I will enter judgment against it in this memorandum of decision, as a conceded claim. The remaining three claims are discussed below,
1071	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 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 burden, and not strict scrutiny, was the test for evaluating the constitutionality of abortion regulations, it reaffirmed that there was a fundamental liberty right against unwarranted government interference in aborting a nonviable fetus. See 505 U.S. at 875-77, 112 S.Ct. 2791. Such substantial deference to Congress’s factfindings would not comport with the Supreme Court’s treatment of statutes burdening fundamental
4267	(1884), and Powell v. Com. of Pennsylvania, 127 U.S. 678, 691-692, 8 S.Ct. 992, 32 L.Ed. 253 (1888). Field’s views, expressed as dissent in the Slaughter-House Cases, 16 Wall. 36, 106, 109-111, 21 L. Ed. 394 (1873), received majority acceptance in Allgeyer v. State of Louisiana, 165 U.S. 578, 589-591, 17 S.Ct. 427, 41 L.Ed. 832 (1897). Reaching its apogee in Loehner v. State of New York, 198 U.S. 45, 53, 25 S.Ct. 539, 49 L.Ed. 937 (1905), the dogma of liberty to pursue common callings without regulation was generally believed to have been overthrown in Nebbia v. People of State of New York, 291 U.S. 502, 523, 527, 536, 54 S.Ct. 505, 78 L.Ed. 940 (1934), and 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
3276	Where proper union security provisions apply, the dues checkoff is primarily an administrative mechanism for collection. See 2 C. Morris, The Developing Labor Law, 1406-1408 (2d ed., 2d printing, 1983). The Committee, however, is not claiming union dues as a direct obligation owed by U.S. Truck, but as a contractual damage claim. Accordingly, the question is whether U.S. Track had a legally enforceable duty to deduct dues under the rejected agreement, and what measure of damages is appropriate under 29 U.S.C. § 185. An employer’s failure to deduct dues in violation of a contract is a matter of direct and peculiar concern to a labor organization and is within the jurisdiction of the federal courts. Where a local union has developed a reliance on the dues checkoff, the checkoff mechanism can effectively be its financial lifeline. Accordingly, federal courts have enforced legal dues checkoffs under 29 U.S.C. § 185. See, e.g., International Brotherhood of Electrical Workers Local No. 12 v. A-1 Electric Service, Inc., 535 F.2d 1 (10th Cir.1976), cert. denied, 429 U.S. 832, 97 S.Ct. 94, 50 L.Ed.2d 96 (1976); Food Handlers Loc. 425 v. Valmac Industries, Inc., 528 F.2d 217 (8th Cir.1975); Local 127, United Shoe Workers of America v. Brooks Shoe Manufacturing Company, 298 F.2d 277 (3rd Cir.1962); Bugher v. Consolidated X-Ray Service Corp., 515 F.Supp. 1180 (N.D.Tex.1981), aff'd, 705 F.2d 1426 (5th Cir.1983), cert. denied, 473 U.S. 904, 105 S.Ct. 3524, 87
2905	factors and allows the court to confirm a plan in which the debtor uses all of his disposable income for three years to make payments to his creditors. Thus, our inquiry into whether the plan “constitutes an abuse of the provisions, purpose or spirit of Chapter 13,” Estus, 695 F.2d at 316, has a more narrow focus. The bankruptcy court must look at factors such as whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentation to mislead the bankruptcy court; or whether he has unfairly manipulated the Bankruptcy Code. See Estus, 695 F.2d at 317; In re Johnson, 708 F.2d 865, 868 (2d Cir.1983); In re Rimgale, 669 F.2d 426, 432 (7th Cir. 1982); see also 5 Collier on Bankruptcy H 1325.04[2], [3]. Although the bankruptcy court erroneously concluded that the inquiry into good faith ended with the determination that Zellner had committed all of his disposable income to the plan, we believe that the court’s factual findings implicitly support a finding that there was no abuse of the bankruptcy laws. See Wegner, supra, at 1322. The bankruptcy court was satisfied with the accuracy of Zellner’s testimony as to his income and expenses, and EAC did not present evidence, beyond mere speculation, of any errors in the figures. Moreover, the court recognized Zellner’s special circumstances and concluded that his itemized expenses were necessary for the maintenance of his family. We conclude that the
2128	of the earnings, and there is no basis for attributing that result to Group. Accordingly, by using the judicial standard of review previously mentioned in this dissenting opinion, I would conclude that the Commissioner’s determination is reasonable, and, therefore, the petitioner is not entitled to a favorable ruling under section 367. Tannenwald, Simpson, Irwin, Quealy, Wilbur, and Chabot, JJ., agree with this dissenting opinion. Tannenwald, J., dissenting: I have indicated my agreement with Judge Dawson’s dissent because I am satisfied with his analysis of the facts and his conclusion that respondent’s determination was reasonable. Like him, I am not inhibited in so doing by the action of the Judge to whom this stipulated case was assigned. See I append these remarks because I am not convinced that there is necessarily any difference between the standard of review articulated in the majority opinion and the ultimate test adopted in Judge Dawson’s dissenting opinion. The difficulties which I have are founded upon the fact that Judge Dawson does not elaborate (nor do the cases under sections 166, 446, and 482 from which he draws sustenance) upon how he would measure his ultimate test of “arbitrary and unreasonable,” while the majority opinion elaborates upon the standard of measurement without adopting an ultimate test. Judge Dawson studiously avoids the use of the word “capricious,” so I think it can be inferred that he is not equating his ultimate test of
2440	"receiving any offsetting payments from CPV. Because neither CPV nor Maryland has challenged whether plaintiffs may seek declaratory relief under the Supremacy Clause, the Court assumes without deciding that they may. See Brief for Public Utility Law Project of New York, Inc., as Amicus Curiae 21 (arguing that the incumbent generators should have been required to exhaust administrative remedies before filing suit). Respondents also raised arguments under the Dormant Commerce Clause and 42 U.S.C. § 1983. The District Court rejected those arguments, According to Maryland and CPV, the payments guaranteed under Maryland's program are consideration for CPV's compliance with various state-imposed conditions, i.e., the requirements that CPV build a certain type of generator, at a particular location, that would produce a certain amount of electricity over a particular period of time. The payments, Maryland and CPV continue, are therefore separate from the rate CPV receives for its wholesale sales of capacity to PJM. But because the payments are conditioned on CPV's capacity clearing the auction-and, accordingly, on CPV selling that capacity to PJM-the payments are certainly ""received ... in connection with"" interstate wholesale sales to PJM. 16 U.S.C. § 824d(a). Although Oneok, Inc. v. Learjet, Inc., 575 U.S. ----, 135 S.Ct. 1591, 191"
2318	MEMORANDUM Osama Mikho Oraha, a native of Iraq and citizen of Canada, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s denial of his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. We deny the petition for review. The agency did not abuse its discretion by denying as untimely Oraha’s motion 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
4029	which justified any consideration based upon race or ethnicity and failed to narrowly tailor its discriminatory procedures. Plaintiffs further allege that defendant’s instructions on gender related selections did not serve a governmental objective and the discriminatory procedures adopted by the government did not substantially relate to the achievement of any important governmental objective. In furtherance of their case, plaintiffs now seeks the court’s certification of a class consisting of all commissioned officers of the USAF who were considered by and selected for involuntary retirement by the board, pursuant to Rule 23 of the Rules of the Court of Federal Claims (“RCFC”). ARGUMENT Rule 23 of the RCFC grants the court broad discretion over decisions of class certification. See Taylor, et In making this determination, the court assesses the criterion set forth in Quinault Allottee Association, et al. v. United States, 197 Ct.Cl. 134, 453 F.2d 1272 (Ct.C1.1972). This bench mark decision established the following standards warranting class certification: (1) members must constitute a large but manageable class; (2) there is a question of law common to the whole class; (3) a common legal issue oven-ides separate factual issues affecting individual members; (4) claims of the party plaintiff are typical of claims of the class; (5) the Government must have acted on grounds generally applicable to the whole class; (6) the claims of many claimants must be so small that it is doubtful they would be otherwise pursued; (7) the party plaintiffs
2421	this terminology for convenience, without expressing a view on precisely what provisions fall under this category. . By order dated September 28, 1979, the Chamber of Commerce’s motion to intervene as a party defendant, pursuant to Rule 24(b), Fed.R.Civ.P., was granted. . Because of this disposition, it is not necessary to consider the question of plaintiffs standing to bring this suit, an aspect of the constitutional requirement that there be a “case or controversy.” We likewise do not reach the question whether the Secretary had the discretion to adopt the regulations of August 31, 1977 or whether his action was arbitrary or capricious. . The material we considered was submitted for the record as Joint Stipulation of Facts. . 
342	capacity as receiver for the Title Guarantee & Trust Company, was a volunteer and that a tax levied against one person and voluntarily paid by another cannot be recovered. We do not think that the receiver in this instance was a volunteer. He paid the tax because of a clause in the reorganization plan which provided that the costs of reorganization should be paid out of certain funds in his hands. The parties concerned were agreed that this clause required the receiver to pay the tax, and procured an order from the Circuit Court of Baltimore' City directing him to do so. For cases bearing upon the right of a voluntary payor to recover a tax illegally exacted, see: . 548, 52 S.Ct. 501, 76 L.Ed. 1285; Clift & Goodrich Inc. v. United States, 2 Cir., 56 F.2d 751; Central Aguirre Sugar Co. v. United States, Ct. Cl., 2 F.Supp. 538; Ohio Locomotive Crane Co. v. Denman, 6 Cir., 73 F.2d 408; certiorari denied 294 U.S. 712, 55 S.Ct. 508, 79 L.Ed. 1246; White v. Hopkins, 5 Cir., 51 F.2d 159; Aaron v. Hopkins, 5 Cir., 63 F.2d 804. The judgment of the District Court will therefore be affirmed but without prejudice to the Government to assess and collect the tax if funds are available after the claims of the bank’s depositors have been satisfied, and if it be found that the certificates are within the purview of section
1342	place, and the series of burglaries which had taken place in Blair prior to the morning in question. Once it has been shown that the police conduct was reasonable up until the car was searched incident to a valid search warrant, the seizure of the evidence by the use of the warrant can only be held constitutionally valid. It follows from our holding that the stopping of the car and the subsequent request for Hawkins to get out of the car was proper, that officer Cowan could constitutionally observe the burglary tools on the floor of the ear because they were in “plain view”. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; Davis v. United States, 9 Cir., 327 F.2d 301. Since the tools were properly observed, the observation could supply the basis for probable cause for arrest and the issuance of a search warrant to seize them. Since the evidence was validly seized, it could be introduced into evidence at the petitioner’s trial. The judgment of the trial court denying habeas corpus relief is affirmed. . We express no opinion on the legality of this search. . Made applicable to the states by the Fourteenth Amendment. . The state concedes that no probable cause for arrest existed prior to the time of the observation of the burglary tools. . Arrest is used in the constitutional sense here to mean that the person has probable
317	"as an affirmative defense. (Doc. 94, at 13 n. 10.) This contention fails for three reasons. First, plaintiffs misapprehend the nature of the ""common promotional plan” issue. It is not a separate statutory or regulatory exemption, but is instead a definitional linchpin of the 100-unit exemption, which Sanibel did plead as an affirmative defense. (See doc. 24, at 4; doc. 25, at 6.) Second, even if it were an affirmative defense, Sanibel’s omission of it in its pleadings does not conclude the inquiry. Under Eleventh Circuit law, ""omission of an affirmative defense is not fatal as long as it is included in the pretrial order."" Pulliam v. Tallapoosa County Jail, 185 F.3d 1182, 1185 (11th Cir.1999); see also Plaintiffs offer no argument why Sanibel has not adequately cured its failure to present the affirmative defense in its answer by raising it in its principal brief on summary judgment, well in advance of the pretrial order. Third, the touchstone of the Rule 8(c) pleading requirement for affirmative defenses is the prevention of unfair prejudice or surprise to the plaintiff. ""When there is no prejudice, the trial court does not err by hearing evidence on the issue.” Grant v. Preferred Research, Inc., 885 F.2d 795, 797-98 (11th Cir.1989) (affirmative defense was properly raised"
161	"by the Plaintiffs, actually helps the Federal Defendants. In Ochran, a federal prosecutor refused to protect an informant after learning that a criminal defendant had threatened the informant. 117 F.3d at 498-99. The court concluded that the prosecutor's decision fell within the ""discretionary function” exception to the FTCA and dismissed all but one claim. Id. at 501-02. The only surviving claim was based on the prosecutor's alleged duty to notify the informant of her legal remedies regarding protection from the defendant. Id. at 504. On a second appeal after remand, the court dismissed that claim, concluding that the prosecutor did not owe the informant a duty of care because there was no special relationship between the prosecutor and the informant. . These claims are set forth in counts I, IV, and V. Even though counts IV and V do not reference the FTCA, under 28 U.S.C. § 2679(b)(1), the FTCA is the exclusive remedy against the United States for McCloskey's wrongful death. . In Fair, the plaintiff brought an FTCA action against the United States to recover for the deaths of three persons shot by an air force officer after he had been released from the air force hospital. 234 F.2d 288, 289-90 (5th Cir.1956). The complaint alleged, in relevant part, that (1) the air force officer had previously threatened the life of one of the plaintiff's decedents; (2) the other two decedents had been hired to protect her; and"
2915	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. 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 long and its overall length was only 17 inches. Such characteristics are readily apparent and externally visible. The record is not devoid of evidence of Roberts’s guilt. Roberts’s conviction does not constitute a manifest miscarriage of justice. See Staples, 511 U.S. at 616 n. 11, 114 S.Ct. 1793; Reyna, 130 F.3d at 109 n. 6; Avants, 367 F.3d at 449. Accordingly, the judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
4922	"if he or she had brought an individual action."" Tyson , 136 S.Ct. at 1046-47. Accordingly, the class certification order cannot stand. We will remand with instructions that the District Court conduct a ""rigorous"" examination of the factual and legal allegations underpinning Plaintiffs' claims before deciding if class certification is appropriate. C. Pendent Appellate Jurisdiction In addition to challenging the District Court's Rule 23 ruling, Citizens also contests the District Court's non-final FLSA certification order under the doctrine of pendent appellate jurisdiction. This doctrine "" 'allows [us] in [our] discretion to exercise jurisdiction over issues that are not independently appealable but that are intertwined with issues over which [we] properly and independently exercise[ ] [our] jurisdiction.' "" . DuPont , 269 F.3d at 202-03 ). The doctrine is a narrow one that ""should be used 'sparingly,' and only when there is sufficient overlap in the facts relevant to both ... issues to warrant plenary review."" Id. (quoting E.I. DuPont , 269 F.3d at 203 (internal quotation omitted) ); see also In re Montgomery County , 215 F.3d 367, 375-76 (3d Cir. 2000) (citation omitted). Further, the doctrine is ""available only to the extent necessary to ensure meaningful review of an unappealable order."" Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. City Sav., F.S.B. , 28 F.3d 376, 382 (3d Cir. 1994)as amended (Aug. 29, 1994) (citation omitted). Following the Supreme Court's decision in Swint"
4611	". In its recent Melendres decision, the Ninth Circuit held, on remand, the district court could consider whether dismissal of Sheriff Arpaio in his official capacity was warranted because, typically, a suit against a person in his official capacity is, “in all respects other than name, [] treated as a suit against the entity.” Melendres v. Arpaio, 784 F.3d 1254, 1260 (9th Cir.2015). Because the court did not specify whether Arpaio is or is not an appropriate party and because no party has .argued this point, the Court will not decide it. The Ninth Circuit’s statement does, however, bolster the Court’s assessment of the relationship between Maricopa- County and Arpaio and ""the potential for Maricopa County’s liability. , See Title IX prohibits discrimination in federally funded educational programs on the basis of gender, instead of race. 20 U.S.C. § 1681,. Like Title VI, Title ,IX. authorizes termination or refusal of funding for .""the particular political entity, or part thereof, or other recipient as to whom [an 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,” ás well as enforcement through “any other means authorized by law.” 20 U.S.C. § 1682. . An ""appropriate person,” under Title IX is,"
617	"A, B, C, D, E, F, G, H, I, O, Q, R, S, T, U, V, W, X, AA, BB, CC, DD, EE, FF and GG; Debtors’ Exhibits A, B, C, E and F; Glasser’s Exhibits G-l, G-2, G-5, G-6, G-7, G-9, G-10, G-ll, G-12, G-13 and G-14; and the Stipulated Facts. . Order for Additional Briefs (Docket No. 308). . Debtors’ Supplemental Hearing Brief (Docket No. 313); Bank of the West’s Additional Brief Regarding 1) Legal Authority Supporting the Validity of a Waiver of California Anti-Deficiency Statutes by a Guarantor and 2) Applicability of Colorado Law (Docket No. 314). . In re Richter, 478 B.R. 30, 40 (Bankr.D.Colo.2012). . Id. (quoting . See Debtors' Objection. . See Bank’s Response. . Richter, 478 B.R. at 40; see also In re Lenz, 110 B.R. 523, 525 (D.Colo.1990). . Id. at 40-41 (internal citations omitted). . See Security Service Federal Credit Union v. First American Mortg. Funding, LLC, 861 F.Supp.2d 1256, 1264 (D.Colo.2012)(""[A] court need not choose which body of law to apply unless there is an outcome determinative conflict between the potentially applicable bodies of law.”). . Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc., 532 F.3d 1063, 1077 n. 12 (10th Cir.2008). . Haggard v. Spine, 2009 WL 1655030, at *3"
1097	There is but a single order involved. The plaintiff alleges that the cheese was picked up in Wisconsin, but Mr. Raeder’s affidavit does not represent that the pickup was by the defendant’s own truck. Mr. Olender, on the other hand, has expressly averred that “the merchandise was not picked up by a Philip Olender & Company truck, nor was the driver under the direction or control of Philip Olender & Company.” The foregoing suggests that this was an isolated mail order transaction, and that it would be unfair to subject the defendant to jurisdiction under the Wisconsin long-arm statute. I conclude that the defendant’s contacts within Wisconsin were not sufficient to constitute a “substantial connection” for the purposes of due process. cf. Nordberg Div. of Rex Chainbelt Inc. v. Hudson Eng. Corp., 361 F.Supp. 903 (E.D.Wis.1973). Therefore, IT IS ORDERED that the defendant’s motion to dismiss this action be and hereby is granted.
3347	business by him, and otherwise state the facts.” 208 U.S. at 560, 28 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;  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
222	delivered the various units to the Davis Dam. That there was no intentional invasion of plaintiffs’ contract rights not only unequivocally appears, but it is not asserted. Consequently, so far as the tort phase of plaintiffs’ claim is concerned, it appears that the alleged negligence occurred in the manufacture and construction of the generator equipment months before plaintiffs entered into any contractual relation with the Government for the assembly of such units. There are a multitude of cases which sustain the principle that, as an indispensable condition precedent to liability for interference with the performance of one’s contract, there not only must be knowledge of the contract, but there must be an intentional interference therewith. . 303, 48 S.Ct. 134, 72 L.Ed. 290; Baruch v. Beech Aircraft Corp., 10 Cir., 1949, 175 F.2d 1; New York Trust Co. v. Island Oil & Transport Corp., 2 Cir., 1929, 34 F.2d 649; The Federal No. 2, 2 Cir., 1927, 21 F.2d 313; Kelly v. Central Hanover Bank & Trust Co., D.C.S.D.N.Y., 1935, 11 F.Supp. 497, 513, reversed oh other grounds, 2 Cir., 1936, 85 F.2d 61; Tipton v. Burson, 1951, 73 Ariz. 144, 238 P.2d 1098; Dewey v. Kaplan, 1937, 200 Minn. 289, 274 N.W. 161; Brink v. Wabash R. Co., 1901, 160 Mo. 87, 60 S.W. 1058, 53 L.R.A. 811; see Twitchell v. Glenwood-Inglewood Co., 1915, 131 Minn. 375, 155 N.W. 621; see Cat’s Paw Rubber Co. v. Bario Leather &
602	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); . 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 as a tradeoff for the House’s abandoning its insistence on rule-making on the record . . . ” 487 F.2d at 349. . The Government’s theory in this regard was pressed upon the Second Circuit in Associated Industries, 470 supra,
14	any other jurisdiction shall be limited to the process of enforcement of any award hereunder. Rec. Doc. 10-3 at 33, 61. There is no serious dispute that the four elements required for an agreement to “fall under” the Convention are met in this case. First, both the Hull and Primary P & I policies are in writing and contain an agreement to arbitrate “any dispute arising under or in connection with this insurance.” Second, the agreement provides for arbitration in London, England, which is a Convention signatory nation. Third, the agreement arises out of a commercial relationship, because contracts of marine insurance have been held to constitute a “commercial relationship” within the context of an arbitration dispute. See, e.g., Roser v. Belle of New Orleans, L.L.C., No. 03-1248, 2003 WL 22174282, at *4 (E.D.La. Sept. 12, 2003). Finally, the fourth element is met because the record establishes that none of the third-party defendants are United States citizens. Osprey is domiciled in London, England, and both the Hull Underwriters and Primary P & I Underwriters are also domiciled for business purposes in London, England. Having found that the arbitration agreement “falls under” the Convention, the Court must now determine whether Monda Marine’s claims are within the 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
3241	contract. In the discussions in connection with Conclusions of Law 7, 8, 9, 11 and 12 the Court rejects these arguments. In Conclusion of Law 10, the Court agrees with U.S. Truck that one employee who grieved her layoff and received an award is barred from further recovery. 7. That an Employee Would Have Been Laid Off Even Absent Rejection Is Irrelevant If the Layoff Violated the Rejected Agreement. Generally, a collective bargaining agreement only prescribes the wages and conditions applicable to employment, and does not guarantee future employment. See, e.g., J.I. Case Co. v. NLRB, 321 U.S. 332, 80 S.Ct. 419, 4 L.Ed.2d 454 (1944); Fraser v. Magic Chef—Food Giant Markets, Inc., 324 F.2d 853, 856 (6th Cir.1963); However, the conditions applicable to employment may include contractual limitations on the circumstances in which employment may be terminated. To the extent that these job security provisions are enforceable under 29 U.S.C. § 185, they form the basis of an allowable damage claim. The Court recognizes that certain language of In re Continental Airlines, 64 B.R. 865 (Bankr.S.D.Tex.1986), supports U.S. Truck’s argument: Federal labor law does not require an award of damages for time periods during which no work would have been available in any event, even where an employee was discharged in violation of the NLRA. See NLRB v. Biscayne Television Corp., 337 F.2d 267, 268 (5th Cir.1964); Nabors v. NLRB, 323 F.2d 686, 690 (5th Cir.1963); Midland Ross, Inc.,
1492	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 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, plaintiff’s failure to state a claim under ERISA is not sufficient basis for the dismissal of plaintiff’s cause of action. Although
2792	or even likely pending the court’s final resolution of this case. Accordingly, the court finds that operational risks cited are too speculative to support a finding of irreparable injury to plaintiffs. NEPA Harm, 5. The purpose of NEPA is to ensure that the agency and the public are aware of the environmental consequences of a project before beginning the project. Sierra Club v. Hodel, 848 F.2d 1068, 1097 (10th Cir.1988). Courts have noted that the harm from proceeding with a project without completing the necessary NEPA evaluation is irreparable in that once a decision has been made and implemented, NEPA’s purpose of making certain that decision makers have all relevant information prior to making final decisions would be thwarted. Id.; Sierra This is not an injury arising out of the substance of the decision that has been made or its effects; it is a procedural interest in protecting the processes established by NEPA and providing the decision maker with all the relevant information. In this ease, the alleged NEPA harm does not arise out of the decision to construct TOCDF, a decision that was made and implemented long ago. Rather, the decision which plaintiffs seek to enjoin is the Army’s decision to operate the incinerator during the approximately one year before a final trial on the merits. During this period, the Army will be conducting the remaining trial burns, carried out with live agent. The court finds that, pending final resolution
2814	deny plaintiff nor others with similar standing the “equal protection of the laws.” The Court has found, however, neither Tennessee statutes nor Memphis municipal ordinances give the Mayor such discretion and authority; and, consequently, it is not necessary to consider and declare whether or not plaintiffs’ rights have been violated under the facts and circumstances present in the record. The City of Memphis under appropriate statutory authority to make its City Hall, or any portion of it available for non-governmental purposes, might make and publish appropriate regulations governing the conditions, restrictions, and circumstances of such use provided they were nondiscriminatory and provided they did not confine expression of sentiments to those officially approved. Such regulations relating to use of City Hall by private groups or organizations, if adopted, must not be of such character that rights of free speech would be effectively denied. Terminello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); Thomas v. Collins, 323 U.S. 516, 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
533	practice to try civilians who committed crimes while accompanying the military in military courts martial. See, e.g., Joseph W. Bishop, Jr., JUSTICE UNDER FlRE: A STUDY OF MILITARY Law 55-111 (1974). However, in a series of cases beginning with Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), the Supreme Court ruled this practice unconstitutional with respect to offenses' committed during peacetime. See id.; Kinsella, v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960); Grisham v. Hagan, 361 U.S. 278, 80 S.Ct. 310, 4 L.Ed.2d 279 (1960); McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960); see also Since Reid and its progeny, representatives of the armed forces, other executive branch officials, government commissions, members of Congress, and academic commentators, among others, have noted the existence of a “jurisdictional gap” — that is, the lack of any congressional authorization to try civilians who commit crimes while accompanying the military overseas in civilian courts of the United States. See infra notes 17-20 and accompanying text. On more than thirty occasions, Congress itself has considered, but failed to act on, bills that would close the jurisdictional gap. See infra note 23 and accompanying text. In this appeal, we are confronted with a legacy of the jurisdictional gap created by the Supreme Court’s decisions in Reid and
1368	Cal.4th at 330, 120 Cal.Rptr.3d 741, 246 P.3d 877. The California Supreme Court has held that the phrase “as a result of’ in UCL section 17204 “imposes an actual-reliance requirement on plaintiffs prosecuting a private enforcement action under the UCL’s fraud prong.” Tobacco II, 46 Cal.4th at 326, 93 Cal.Rptr.3d 559, 207 P.3d 20. This also applies under the UCL’s “unlawful” and “unfair” prongs, where the predicate unlawfulness is misrepresentation and deception. Hale v. Sharp Healthcare, 183 Cal.App.4th 1373, 1385, 108 Cal.Rptr.3d 669 (2010); see also Kwikset, 51 Cal.4th 310, 120 Cal.Rptr.3d 741, 246 P.3d 877; In re Actimmune Mkt. Litig., No. 08-2376, 2010 WL 3463491, at *8 (N.D.Cal. Sept. 1, 2010), aff'd, 464 Fed. Appx. 651 (9th Cir.2011); Kane v. Chobani, No. 12-CV-02425-LHK, 973 F.Supp.2d 1120, 1129, 2014 WL 657300, at *5 (N.D.Cal.2014). The federal and state statutes relied on by Plaintiff prohibit a particular type of consumer deception, the mislabeling of food products. As such, the actual reliance requirement applies to Plaintiffs claims under all prongs of the UCL. See Figy v. Amy’s Kitchen, No. 13-CV-03816-SI, 2013 WL 6169503 (N.D.Cal. Nov. 25, 2013); Kwikset, 51 Cal.4th 310, 120 Cal. Rptr.3d 741, 246 P.3d 877; Wilson v. Frito-Lay N. Am., 961 F.Supp.2d 1134 (N.D.Cal.2013). Defendant argues that Plaintiff cannot establish standing because Plaintiff cannot demonstrate that he was deceived by Defendant’s alleged conduct. However, Plaintiff counters that he purchased Defendant’s products in reliance on the “no trans fat” and
1051	should be extended until the Court rendered its decision on the merits and issued a final judgment. On March 17, 2004, the Court denied Plaintiffs’ motion for summary judgment and reserved for trial the issue of whether the Act is unconstitutional for lack of a maternal health exception. See National Abortion Federation v. Ashcroft, 2004 WL 540470, at *5 (S.D.N.Y. Mar.17, 2004). Beginning on March 29, 2004, the Court conducted a sixteen-day bench trial, hearing testimony from twenty-two witnesses, sixteen of whom appeared in person and six via deposition. Courts in the Northern District of California and the District of Nebraska held parallel trials in cases challenging the Act’s constitutionality. As did this Court, both temporarily restrained the Act’s enforcement. See Planned Parenthood, 320 F.Supp.2d at 967. Following a trial on the merits, the Northern District of California permanently enjoined enforcement of the Act. See Planned Parenthood, 320 F.Supp.2d at 1034-35. The application for a permanent injunction remains pending in the District of Nebraska. C. The Congressional Record 1. 104th Congress Congress first held hearings on proposed versions of the Act during this legislative session. The House Subcommittee on the Constitution of the Judiciary Committee held two hearings while the Senate Judiciary Committee held one. (a) June 1995 House Hearing The House subcommittee held the first hearing on June 15, 1995. (H.R.Rep. No. 104-267, at 12 (1995).) Two physicians and one nurse testified in favor of a ban, while a physician and
666	nuisance but eliminated the landowners’ expectation of land reclamation, causing the property’s value to plummet. These consequences fulfilled the three requirements of a taking enunciated in Penn Central, 438 U.S. at 124, 98 S.Ct. at 2659, and Lucas, — U.S. at---, 112 S.Ct. at 2886-94. With the issuance of the Wilson Order, then, “all the events” had occurred to fix the supposed liability of the Government. Japanese War Notes, 373 F.2d at 358. The landowners needed nothing more to state a takings daim. The temporary taking allegedly ended on August 13, 1984, when the federal district court ordered the original Project to proceed. By restoring some measure of value to the claimants’ property, this action concluded the “temporary” taking. See The claimants’ property value remained intact for at least four months, until the district court suspended its August Order on December 14, 1984. During that time, the claimants regained their expectation of development, and could presumably have sold the land if they so wished. Because the claimants’ temporary taking claims accrued with the August 1984 Order, the statute of limitations bars their claims. III. This court’s recent opinion in Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed.Cir.1994) (in banc), gives rise to a question of tolling the statute of limitations for the alleged temporary taking. In Lovela-dies, a claimant sought to challenge the validity of a Government action in district court and simultaneously to challenge its economic consequences as
4158	pounds or less (R. 232-33). No further RFC evaluations apparently occurred until those by Dr. Fintel in 1986. At that time she said, first orally at the Hearing (R. 93) and then in her brief supplemental written report (R. 283-84), that Paige remains capable of light work. Thus all Secretary and this Court have been tendered are a skeletal RFC evaluation, now over 12 years old, and an even more sketchy opinion from a doctor who has never examined Paige and who may have applied overly demanding standards to her evaluation of his abilities (see nn. 7 and 10). This is not a case where it can conclusively be said no useful purpose would be served by remand (as in, e.g., It should, however, be remembered that the relevant date for determining Paige’s disability is not today but the period beginning November 22, 1983. On the existing evidence, AU Doyle has found Paige could do no more than sedentary work at that time (a finding that labeled Paige “disabled” under the Grid). To the extent that it may prove impossible on remand to adduce any further evidence bearing on Paige’s situation as of that by-now-five-year-old date, it would surely seem the evidentiary failure now ought to work against Secretary and not against Paige— else this Court’s present decision to remand rather than reverse (as it well could have done) would create an injustice under the circumstances. Conclusion This Court finds Secretary
4069	3579, in the amount of $125,000 (Lanier is separately and jointly liable with his co-defendants at trial for this money, which is an amount equal to the advance fees paid by the victims). This timely appeal followed. II. DISCUSSION A. Sufficiency of the Evidence When reviewing the District Court’s decision denying appellant’s motion for judgment of acquittal, we must examine the evidence in the light most favorable to the government and give the government the benefit of all reasonable inferences that may be drawn logically from the evidence. United States v. Freitag, 768 F.2d 240, 242 (8th Cir.1985). We note in that regard that the essential elements of a crime may be proven by circumstantial as well as direct evidence. Willfulness, intent, and guilty knowledge may also be proven by circumstantial evidence and frequently cannot be proven in any other way. Id. 1. Mail Fraud To establish a violation of 18 U.S. C. § 1341, the government must produce sufficient evidence for a jury to find that the defendant devised a scheme to defraud, that the defendant had specific intent, and that the mails were used for the purpose of executing the scheme. United States v. Sedovic, 679 F.2d 1233, 1237-38 (8th Cir.1982). Lanier argues that the evidence is insufficient to find him guilty of mail fraud. He maintains that the evidence only proves that he was an unknowing participant in a criminal venture, if a criminal venture ex isted
4538	statutes under which the United States’ brings its claims. Title VI is part of the Civil Rights Act of 1964, a sweeping piece of legislation which banned racial discrimination in voting, schools, workplaces, and public accommodations and created mechanisms through which the federal government could enforce each provision. The Act was passed in the context of widespread conflict and unrest regarding racial desegregation, including resistance to desegregation by-state and local governments and 'private individuals. Its purpose was to harness the power of the federal government to eradicate racial discrimination throughout the United States, regardless of local bias. The Supreme Court has held private plaintiffs may bring suit under .Title VI for violations caused by intentional discrimination but not disparate impact discrimination. The federal government, by contrast, may sue for either intentional or disparate impact discrimination. See infra, Part 111(A). And federal agencies which extend federal financial assistance are both “authorized and directed to effectuate [its] provisions.” 42 U.S.C. § 2000d (emphasis added). Just as in Borden Co., the statutory scheme of Title VI and the Civil Rights Act of 1964 lends itself to and is enhanced by viewing private enforcement action as supplemental and cumulative to government enforcement action. The other statute under which the United States brings these claims, the Violent Crime Control and Law Enforcement Act of 1994, may be best known for its crime prevention measures, including a federal ban on assault weapons and
3356	v. A.T. & T. Co., 535 F.2d 1356, 1358 (2d Cir. 1976); 7 Moore’s Federal Practice f| 65.-04[2], at 65-47 to 65-49, fi 65.21 at 85 (Supp. 1976-77). This, of course, does not mean that we must inevitably affirm the district court’s decision. See Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1197 (2d Cir. 1971) (Friendly, J.) (. . . Congress would scarcely have made orders granting or refusing temporary injunctions an exception to the general requirement of finality as a condition to appealability . . . if it intended appellate courts to be mere rubber-stamps save for the rare cases when a district judge has misunderstood the law or transcended the bounds of reason). In trademark cases, a preliminary injunction will lie where there is a likelihood of confusion by shoppers, Hills Bros. Coffee, Inc. v. Hills, Supermarkets, Inc., 428 F.2d 379 (2d Cir. 1970). . Courts have framed relief differently even when the threat of confusion has been much the same. In Hat Corporation of America v. D. L. Davis Corp., 4 F.Supp. 613 (D.Conn.1933), the court granted an absolute injunction restraining the use of the name “Dobbs” on hats. Yet in Stetson v. Stetson, 85 F.2d 586 (2d Cir.), cert. denied, 299 U.S. 605, 57 S.Ct. 232, 81 L.Ed. 446 (1936), the district court determined, and the court of appeals affirmed that a “Notice of Disclaimer” would suffice to dissipate public
1717	"to Remand and Memorandum of Law in Support Thereof (""Objections”). . Objections ¶¶ 1-3 (quoting R & R at 2, 8). . 28 U.S.C. § 636(b)(1). . For a full recitation of plaintiffs' fact allegations in this MDL see In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 175 F.Supp.2d 593 (S.D.N.Y.2001) (""MTBE I”) (concerning preemptive effect of Clean Air Act); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 209 F.R.D. 323 (S.D.N.Y.2002) (""MTBE II”) (denying class certification); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 342 F.Supp.2d 147 (S.D.N.Y.2004) (""MTBE III"") (federal agent jurisdiction); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 341 F.Supp.2d 351 (S.D.N.Y.2004) (""MTBE IV"") (declining to abstain); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 361 F.Supp.2d 137 (S.D.N.Y.2004) (""MTBE VI”) (sovereign immunity); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 364 F.Supp.2d 329 (S.D.N.Y.2004) (""MTBE VII”) (preemption constitutes a colorable federal defense for purposes of the federal officer removal statute). . See 12/12/01 Complaint at Law, Quick, et al. v. Shell Oil Co., et al, No. O1-L-147 (Ill. Cir. Kankakee County) (""Compl.”) ¶¶ 3, 41 (listing ""MTBE, BETX compounds, including benzene, toluene, and xylem,” as contaminants of the potable water supply). The facts recited herein are mere allegations, and do not constitute findings of the Court. . See 2/21/02 First Amended Complaint, Quick, et al. v. Shell Oil Co., et al., No."
321	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); 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 the former. 440 F.2d at 915-16. Now we are again
741	evidence. Explicitly, he refers to his rumored beating of a guard in a jail delivery attempt on a prior occasion, and his wife’s defense testimony in the criminal trial of another. For proof, Downey adverts to the testimony of several jurors at his coram vobis hearing. The State urges that jury deliberations are wrapped in a mantle of privilege, and jurors cannot be called to impeach their verdict. In controversy here, however, is not the nature of the mental processes of each juror in reaching the verdict, nor is it proposed that jurors testify as to their impression of the impact of particular evidence on the deliberations. United States v. McKinney, 429 F.2d 1019, 1029, 1030 (5 Cir. 1970); cf. 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
850	"Liquid Glass argues that no consumer would-be confused or deceived into thinking that Liquid Glass products were produced by Porsche because a red Corvette&emdash;not a Porsche or Porsche logo&emdash;is displayed on the label of the Liquid Glass polish bottle. PI. Opp. Br. at 5, 7, 8, 23. The allegedly infringing advertisements, however, which are what is at issue here, focus primarily on a Porsche, with only a small illustration of Liquid Glass products in the lower right-hand comer. See Verif. Countercl. at Exh. B. Analysis of consumer confusion may be based upon initial confusion, not necessarily whether, after closer examination, the consumer would - likely figure out that Liquid Glass is a separate company. See  cert. denied, 505 U.S. 1219, 112 S.Ct. 3028, 120 L.Ed.2d 899 (1992); Mobil Oil Corp. v. Pegasus Petroleum Corp., 818 F.2d 254, 260 (2d Cir.1987) (likelihood that ""potential purchasers would be misled into an initial interest” justifies finding of infringement); Clinique Laboratories, Inc. v. Dep Corp., 945 F.Supp. 547, 551 (S.D.N.Y.1996)(""a court may find infringement has occurred based on confusion that creates initial customer interest, even if no final sale is completed as a result”). Therefore, based on the prominence of the Porsche car in the advertisements, a consumer, casually flipping through magazines which carry them, may well be initially confused as to whether Porsche, or its"
329	have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. The present action was probably timely under the provisions of this section. . 15 U.S.C. § 78j(b). . 17 C.F.B. § 240.10b-5. . 15 U.S.C. §§ 77a-77aa. See, e. g., Douglass v. Glenn E. Hinton Investments, Inc., 440 F.2d 912, 914 (9th Cir. 1971) ; Janigan v. Taylor, 344 F.2d 781, 783 (1st Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). . Douglass, supra, note 5, at 914. See Sackett v. Beaman, 399 F.2d 884, 890 890 (9th Cir. 1968). See also UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 703-05, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) ; . Faced with analogous choices, other circuits have recently chosen the securities statute of limitations rather than that of general fraud. See Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972) ; Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). But see Charney v. Thomas, 372 F.2d 97 (6th Cir. 1967). However, they have also determined that the adopted state statute shall only run in accordance with the federal law which decrees that the statute does not begin to run until the fraud is, or should be, discovered. Parrent, supra at 128; Vanderboom, supra at 1240. Accord Janigan v. Taylor,
1855	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 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 otherwise vitiate an affirmative claim by a contractor through the device of the Forfeiture Act could thwart the contractor’s effort to avoid a default termination justified on the basis of fraud. Because the court finds fraud sufficient to sustain the default termination, Triad also fails in its defense to the demand for repayment of unliquidated progress payments. It adds nothing other than confusion to say that Triad was advancing a claim that is now forfeited. The defendant also proposes that the court forfeit “future claims
2058	OPINION OF THE COURT PER CURIAM. Rita M. Covone appeals a decision of the United States District Court for the Western District of Pennsylvania that affirmed the decision of the Commissioner of Social Security denying her application for 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. 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
330	. 15 U.S.C. §§ 77a-77aa. See, e. g., Douglass v. Glenn E. Hinton Investments, Inc., 440 F.2d 912, 914 (9th Cir. 1971) ; Janigan v. Taylor, 344 F.2d 781, 783 (1st Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). . Douglass, supra, note 5, at 914. See Sackett v. Beaman, 399 F.2d 884, 890 890 (9th Cir. 1968). See also UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 703-05, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) ; Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 90 L.Ed. 743 (1946). . Faced with analogous choices, other circuits have recently chosen the securities statute of limitations rather than that of general fraud. See Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). But see Charney v. Thomas, 372 F.2d 97 (6th Cir. 1967). However, they have also determined that the adopted state statute shall only run in accordance with the federal law which decrees that the statute does not begin to run until the fraud is, or should be, discovered. Parrent, supra at 128; Vanderboom, supra at 1240. Accord Janigan v. Taylor, 344 F.2d 781 (1st Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). See also Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946) ; Bailey v. Glover, 88 U.S. (21
1629	that, upon a plea of former acquittal or conviction, the record may show with accuracy the exact offense to which the plea relates. U. S. v. Simmons, 96 U. S. 360, 24 L. Ed. 819; U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516; Pettibone v. U. S., 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419; In re Greene (C. C.) 52 Fed. 104.” A scheme to defraud, which in its facts and details would constitute the offense described in the statute, will appear by reference to the charges of the indictment in Stokes v. U. S., already referred to. In and further charging that the defendant represented that said bonds would mature in accordance with certain paragraphs in the bond; and that the redemption value of the bonds when called, and the money payable to the holders of such bonds, would be a specified sum; whereas, in truth, the defendant, being the president of the Provident Bond & Investment Company, did not intend that the bonds would mature as represented,
4855	statements describing his activities of daily living indicated that Withrow was able to stand and walk to a greater extent than Dr. Chung generally outlined. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (stating that an inconsistency between a treating physician’s opinion and a claimant’s daily activities is a specific and legitimate reason to discount the treating physician’s opinion). The ALJ’s hypothetical to the vocational expert presented all the limitations that were supported by the record. The hypothetical included the existence of moderate mental impairments that could be controlled by appropriate medication. Given the sparse medical record, the ALJ did not err by not including the existence of uncontrolled impairments in his hypothetical to the vocational expert. See 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,
3939	percent (8%) per annum. Inasmuch as defendants charged eighteen percent (18%) per annum, plaintiffs contend that defendants’ rate was usurious. In opposition, defendants claim that it was entitled to charge Vk% monthly interest or finance charge (18% per annum) pursuant to the retroactive application of the 1974 amendment to the Mississippi interest statute, Miss.Code Ann. § 75-17-1, et seq. (Supp.1975). Additionally, defendants argue that under the “most favored lender doctrine,” it is entitled to charge the maximum interest rate permitted by Mississippi for the state’s most favored lender. STATE LAW The rate of interest that a national bank may charge is ultimately a question of federal law, and the matter is governed by 12 U.S.C. § 85. By its own terms, 12 U.S.C. § 85 recites: § 85. Rate of interest on loans, discounts, and purchases. Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory or District where the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank in the Federal reserve district where the bank is located, whichever may be greater, and no more, except where by the laws of any State a different rate is limited for banks
3520	group, determining that they were not entitled either to legislative or qualified im munity. Cmty. House, Inc. v. City of Boise, 654 F.Supp.2d 1154, 1165-66 (D.Idaho 2009) (“Cmty. House II ”), • The court determined that genuine issues of material fact precluded qualified immunity on the Establishment Clause claims, but because the individual defendants did not explicitly raise at that time a qualified immunity defense with respect to the FHA claims, the court did not consider that issue. Id. We are now faced with the second interlocutory appeal in this case. Because the individual defendants appeal from a denial of summary judgment on the basis of immunity, we have jurisdiction pursuant to 28 U.S.C. § 1291 and the collateral order doctrine. We hold that Mayor Bieter and the members of the City Council are entitled to absolute legislative immunity for their actions in promoting and approving the lease and sale of Community House to the BRM. Additionally, municipal employees Chatterton and Birdsall as individuals are entitled to qualified immunity because at the time the City approved the lease and sale, a reasonable official would not have known that such actions would violate the Establishment Clause or the FHA. We therefore reverse and remand to the district court for further proceedings consistent with this opinion. I BACKGROUND A. The History of Community House Boise, like many other cities, has experienced over time a dramatic increase in its homeless population. The general population
1361	adjudicating only cases which the Constitution and Congress authorize. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). An Article III federal court must ask whether a plaintiff has suffered sufficient injury to satisfy the “ease or controversy” 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. 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
2448	the provision that “this application is submitted with the understanding that the permit applied for must be renewed annually.” The December 31,1928, permit was different in terms and conditions from either the 1923 or 1926 permit; it was supported by a new bond in the amount of $3,000, and authorized the use of 1,100 gallons per month of formula 40 denatured alcohol; the use of formula 39(b) bad been previously authorized. It contained a provision that it would expire December 31, 1929. Appellant operated under this authority in the year 1929, making no claim for operation under either the 1923 or 1926 permits. He at no time, by institution of suit or otherwise, insisted upon the recognition of his 1923 permit. He asked for permission to manufacture only one product—violet toilet water. The right to use denatured alcohol was ended at the expiration or the duration of each permit, and this included the 1923 permit. The application for the 1830 permit was disapproved, for the reason that the appellant had manufactured during 1929 substandard and redistillable violet toilet water, and he had
2666	lateral curb lines, then the lateral boundary lines of the roadways of two or more highways, which join one another at, or approximately at, right angles * * *.” NEB.REV.STAT. § 39-602(37) (1978) (emphasis added). The definition of a highway is: “the entire width between the boundary limits of any street, road, avenue, boulevard, or way which is publicly-maintained when any part thereof is open to the use of the public for the purposes of vehicular traffic.” NEB. REV.STAT. § 39-602(32) (1978). Ben Gay, Inc. argued that County Road # 38 was not publicly maintained and is therefore not a highway. The testimony at trial was in conflict on this point and the issue was correctly submitted to the jury. See Bern v. Evans, 349 F.2d 282, 291 (8th Cir.1965); McQueen v. Navajo Freight Lines, Inc., 293 F.2d 590, 594 (8th Cir.1961). The standard of review of jury determination of a factual question is narrow. An appellate court may not substitute its view of the facts for that of the trier of fact unless it is in a position to hold that reasonable minds, viewing the evidence in the light most favorable to the prevailing party, could only have found otherwise than the trier of fact. McIntyre v. Everest & Jennings, Inc., 575 F.2d 155, 158 (8th Cir.), cert. denied, 439 U.S. 864, 99 S.Ct. 187, 58 L.Ed.2d 173 (1978). See also Mizell v. United States, 663 F.2d 772,
2716	“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 issue” means more than the presentation of a new legal theory of recovery. Bulk Oil (USA) Inc. v. Sun Oil Trading Co., 584 F.Supp. 36, 43 (S.D.N.Y. 1983). New issues sufficient to revive the right to a jury trial are not raised if the amended pleadings concern the same “general area of dispute” as was raised in the original pleadings. Lanza v. Drexel, 479 F.2d at 1310. Here, plaintiff alleges that it is only since discovery has commenced that he has learned of MCA’s plan to expand its use of the trademark “UPTOWN” and that it is this expanded use of the mark that is Sunenblick’s basis for a claim of reverse confusion. Plaintiffs original complaint alleges trademark infringement, false designation and unfair competition, and the proposed amended complaint merely adds allegations of reverse
3169	deficiency, and it certainly cannot be said that the State court “clearly and expressly” rested its decision on any such independent state law grounds. Accordingly, there is no ground for a procedural bar defense. C.A Prima Facie Case To establish a prima facie case of discrimination in the selection of a grand jury foreman, a petitioner must demonstrate: 1. That the group against whom discrimination is asserted is a distinct class, singled out for different treatment; 2. The degree of under representation, by comparing the proportion of the group in the total population to the proportion called to serve as foremen over a significant period of time; 3. That the selection procedure is susceptible to abuse or is not racially neutral. Johnson v. Puckett, 929 F.2d 1067, 1071-72 (5th Cir.1991). No showing of resulting prejudice is necessary. Guice v. Fortenberry, 661 F.2d 496, 498 n. 2 (5th Cir.1981) (en banc)(“Guice I”). The State concedes in its post-hearing memorandum (Doc. 43, pg.4) that Petitioner has established a prima facie case. The facts underlying the prima facie case are also relevant to the State’s rebuttal burden, so they will be discussed below despite the concession. D. Distinct Class Element one of the Castaneda test, distinct class, is satisfied. Louisiana and federal courts have recognized the black race as a class capable of being singled out for different treatment. State v. Thomas, 609 So.2d 1078, 1081 (La.App. 2d Cir.1992); Johnson,
2672	but he didn’t know any more than I did as far as advice is concerned.” Upon the whole testimony I find that the returns, the waiver, and the payment were not voluntarily made. No question is made but that the burden of showing his right to recover rests upon the plaintiff. The plaintiff testified in his own behalf. He did not produce account books. The nature of any books of account kept by him was not clearly shown, nor is it shown but' that such records or books as he did keep were shown the deputy collectors when they visited his place of business in 1926. The defendant did not, other than by objection upon the trial, ask their production. 6 S. Ct. 524, 29 L. Ed. 746; Yu Cong Eng v. Trinidad, 271 U. S. 500, 46 S. Ct. 619, 70 L. Ed. 1059. The plaintiff’s testimony concerning his income as well as the items and accounts of his expenditures on the whole was satisfactory and convincing. It appeared to the court that in the matter of expenditures, where he had nothing in the nature of a voucher to support the item, he understated or estimated rather than overstated such amounts. A notable instance of this is found in his claim of expenditure for gas and oil for the two years, he having vouchers for part of the year 1925 but none for the prior year. No attempt was made at
841	fail. This court also rejects Liquid Glass’s argument that Porsche’s counterclaim is barred by the doctrine of laches. Liquid Glass asserts that Porsche was aware that Liquid Glass was using Porsche marks in its advertisements as early as 1991 and failed to bring suit until now. Neither of the elements óf laches has been met. Laches is an equitable defense which is left to the discretion of the district court. A.C. Aukerman Co. v. R.L. Chaides Construction Co., 960 F.2d 1020, 1032 (Fed.Cir.1992). To invoke the defense, Liquid Glass must demonstrate inexcusable delay on the part of Porsche and that this delay prejudiced Liquid Glass. Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961); Lasseigne v. Nigerian Gulf Oil Co., 397 F.Supp. 465, 473 (D.Del.1975). Any delay by Porsche in filing suit was completely excusable. Porsche diligently enforced its rights to the mark, immediately writing to Liquid Glass when it became aware of the improper advertisements and requesting that Liquid Glass discontinue using the marks. See E-Systems, Inc. v. Monitek, Inc., 720 F.2d 604, 607 (9th Cir.1983)(noting that mark owner’s diligence in enforcing the mark and good faith ignorance by the junior user are two factors which can be considered in evaluating a lach-es defense to a trademark suit). Cease and desist letters were repeatedly sent to Liquid Glass and were met with responses representing that the matter could be settled amicably. Several settlement
4900	Wenatchee cases, the case of Golding v. Associacion Aguicarera Cooperation Lafayette, 42 Labor Cases ¶ 31,119, which holds that mechanics employed to repair tractors used by their employer in agricultural services for individual farmers were not exempt from the Act since the work was not performed on a farm. Defendant contends that the Wenatchee and Lafayette cases cannot be distinguished from the present case and were erroneously decided. Two additional cases cited by Amicus Curiae concern employees in the floral business employed in various operations in maintaining their employers’ greenhouses. The exemption was applied to them, primarily because they were employed by the farmer himself in his own horticultural practices. Walling v. Rocklin, 132 F.2d 3, C.C.A. 8th, 1942; Maneja v. Waialua Agricultural Co., 1955, 349 U.S. 254, 75 S.Ct. 719, 99 L.Ed. 1040, involved a large, completely mech anized farming operation in Hawaii. The court discusses application of the agricultural exemption to various types of employees, holding those involved in farming operations exempt from the Act, and others not so involved covered. This case is a good example of the fine distinctions which must be made in applying the exemption, and is further authority for the proposition that all employees of a single concern do not stand in the same position. This Court holds, therefore, that Defendant is an independent contractor performing agricultural services to farm-ers, but his employees are not exempt from the provisions
1987	"faith exception, should also be DENIED. Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED that this Report and Recommendation be filed with the Clerk of the Court. ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 30(a). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court’s Order. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir.1988). Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Government and the Defendant. SO ORDERED. . The so-called “DCI still,'' acquired by Envirotek from a company named DCI, was designed to separate pure solvent from spent solvents, a listed hazardous waste under regulations promulgated by the EPA pursuant to RCRA, by the injection of steam into the spent solvents. Solvents and steam/water would then vaporize and condense, with the separated solvent being collected for reuse. The separated ""waste water” or ""overhead waste” was allegedly drained through a hose onto the ground. See Indictment, at 12-14. The so-called ""Brighton still” was designed to apply “dry” heat"
1143	Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583; Lummus Co. v. Commonwealth Oil Refining Co., 2 Cir., 297 F.2d 80; Chronicle Publishing Co. v. National Broadcasting Co., 9 Cir., 294 F.2d 744; Ferguson v. Tabah, 2 Cir., 288 F.2d 665; Glen Oaks Utilities, Inc. v. City of Houston, 5 Cir., 280 F.2d 330; Arny v. Philadelphia Transportation Co., 3 Cir., 266 F.2d 869; Thibodaux v. Louisiana Power & Light Co., 5 Cir., 255 F.2d 774, reversed, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058; United Gas Pipeline Co. v. Tyler Gas Service Co., 5 Cir., 247 F.2d 681; Day v. Pennsylvania Railroad Co., 3 Cir., 243 F.2d 485; il of Western Electric Technical Employees-National v. Western Electric Co., 238 F.2d 892 at 894.
4408	(SAC ¶ 91.) In July 2011, BoA and AIG participated in an unsuccessful mediation. (SAC ¶ 104.) BoA also hired new litigation counsel. (SAC ¶ 108.) On August 8, 2011, the end of the Class Period, AIG filed a complaint against BoA in New York State Supreme Court. (SAC ¶¶ 112, 120.) AIG raised fraud and securities claims based on BoA’s sale of $28 billion in MBS to AIG between 2005 and 2007. (SAC ¶¶ 7, 120.) Although AIG sold many of its securities to the Federal Reserve Bank of New York, AIG maintains that it did not assign to the Federal Reserve various litigation rights, including the right to bring fraud and securities claims. See In its complaint, AIG sought as relief rescission of its purchases of the disputed MBS, rescissory damages, or compensatory damages equaling at least $10 billion, together with punitive damages and other unspecified relief. (SAC ¶ 120.) On the day that AIG filed suit, BoA’s stock fell 20%. (SAC ¶ 15.) Although many media outlets attributed the decline to AIG’s suit, (SAC ¶¶ 113-15, 117), the filing date coincided with Standard & Poor’s decision to downgrade the United States Government’s credit rating. (SAC ¶ 143.) The KBW Bank Index, “a weighted index consisting of the stocks of 24 of the largest banks in the United States,” (SAC ¶ 144 n. 56), declined by 10% on news of the downgrade. (SAC ¶
1744	"faith”). . The statute provides in pertinent part: ""[A] notice of removal of a civil action or proceeding shall be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b). . See Somlyo, 932 F.2d at 1046 (""federal courts rigorously enforce the statute's thirty-day filing requirement”). . Whitaker, 261 F.3d at 202 (""the commencement of the removal period [can] only be triggered by formal service of process, regardless of whether the statutory phrase 'or otherwise' hints at some other proper means of receipt of the initial pleading”) (citing Murphy . 28 U.S.C. § 1446(b) (emphasis added). . Moore's ¶ 107.30[3][a][ii]. Accord Lovern v. General Motors Corp., 121 F.3d 160, 162 (4th Cir.1997) (""The statute does not preclude defendants from removing a case where their discovery of the grounds of federal jurisdiction is belated because facts disclosing those grounds were inadequately or mistakenly stated in the complaint.”). . Yankee Bank for Fin. & Sav., FSB v. Hanover Square Assocs.-One Ltd. P’ship, 693 F.Supp. 1400, 1411 (N.D.N.Y.1988) (quoting Wilson v. Intercollegiate (Big Ten) Conference Athletic Assoc., 668 F.2d 962, 965 (7th Cir.1982)). . See Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92, 100-01, 18 S.Ct. 264, 42 L.Ed. 673 (1898) (interpreting congressional intent in"
3075	.and ‘number and types of other jobs,’ as used in the factors discussed above, are not intended to require an onerous evi-dentiary showing. Rather, the terms only require the presentation of evidence of general employment demographics and/or of recognized occupational classifications that indicate the approximate number of jobs (e.g., ‘few,’ ‘many,’ ‘most’) from which an individual would be excluded because of an impairment.”) The Court will now explain why Plaintiffs evidence fails to meet her burden under the ADA in “working” cases. First, the Court holds that a lifting restriction alone is not sufficient to establish a substantial impairment to the major life activity of working. See Thompson v. Holy Family Hosp., 121 F.3d 537, 541 (9th Cir.1997); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir.1996). Other courts have held that even lesser amounts were not substantial limitations. See Marinelli v. City of Erie, Pa., 216 F.3d 354, 364 (3rd Cir.2000) (10 pounds); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 644 (2nd Cir.1998) (10-20 pounds); Helfter v. United Parcel Service, Inc., 115 F.3d 613, 617-18 (8th Cir.1997) (10-20 pounds); McKay v. Toyota Motor Mfg., US.A., Inc., 110 F.3d 369, 373 (6th Cir.1997) (20 pounds); Wooten v. Farmland Foods, 58 F.3d 382, 384-86 (8th Cir.1995) (10-20 pounds); Piascyk v. City of New Haven, 64 F.Supp.2d 19,
1262	Id. Reinstatement is generally the preferred remedy for a discriminatory discharge, but front pay may be awarded if reinstatement is not feasible. Deloach, 897 F.2d at 822; Johnson v. Chapel Hill I.S.D., 853 F.2d 375, 382 (5th Cir.1988). Reinstatement is considered to be not feasible if the plaintiff can no longer be a satisfactory employee for the defendant, if the plaintiffs •reinstatement would disrupt the employment of others, or if antagonism between.the victim and the discriminatory employer exists such that would make reinstatement unfeasible. Deloach, 897 F.2d at 822; see also Woodhouse v. Magnolia Hospital, 92 F.3d 248, 258 (5th Cir.1996) (reinstatement of the employee was not an abuse of discretion by the trial court); It is for the court to determine whether a front pay award is appropriate, and to determine the amount. Both the decision to award front pay and the amount awarded are reviewed by an appellate court under an abuse of discretion standard. Deloach, 897 F.2d at 822, 824. The court is allowed to conduct further proceedings as necessary to make the required determinations on an award of front pay. Reneau v. Wayne Griffin & Sons, Inc., 945 F.2d 869, 871 (5th Cir.1991). The cases do not indicate that expei*t testimony is necessary to make the correct determinations, although in at least one case an expert was used. Deloach, 897 F.2d at 822-23. Nevertheless, in other cases it appears that expert witnesses
3656	in Certain Internal-Combustion, Industrial Forklift Trucks from Japan, 57 Fed. Reg. 3167 (Dep’t Comm. 1992) (FinalResults). The Court held in Hyster that Commerce properly (1) determined it is not required to conduct a test of consumer tax incidence; (2) determined the Japanese consumption tax was included in the price of defendant-intervenors’ forklift trucks; (3) selected a model match methodology; (4) determined Toyo’s purchases from suppliers were at arm’s length; (4) accepted Nissan’s accounting methodology pertaining to Nissan’s U.S. value-added costs; (5) treated Toyota’s fringe benefits; (6) determined verification of Nissan’s and Toyo’s cost of production was unnecessary; (7) treated Nissan’s home market rebates; and (8) accounted for Toyota’s value-added labor costs and product liability premiums. Additionally, the Court remanded the case to Commerce and ordered the agency to eliminate the use of 19 U.S.C. § 1677b(a)(4)(B) (1988) in accounting for the “multiplier effect,” and to consider any further adjustments to USP consistent with Zenith Elecs. Corp. v. United States, 11 Fed. Cir. (T)_, 988 F.2d 1573 (1993) and title 19 which the agency deemed appropriate. Hyster, 18 CIT at 136, 848 F. Supp. at 192. The Court also ordered Commerce to point to substantial evidence on the record in support of its determination that Nissan and Toyota’s related-party transfer prices were arm’s length, and if it is unable to point to such evidence, to make any necessary adjustments. Id. at 136, 848 F. Supp. at
3264	damages is the expiration date of the contract, International Brotherhood of Electrical Workers v. A-1 Electric Service, Inc., 535 F.2d 1 (10th Cir.1976), cert. denied, 429 U.S. 832, 97 S.Ct. 94, 50 L.Ed.2d 96 (1976), or the duration of the layoff, Jones Dairy Farm and United Food and Commercial Workers, International Union, Local P-1236, 83-2 Lab. Arb. Awards 118389 (1983) (CCH); American Standard Inc. and International Association of Machinists and Aerospace Workers, Lodge 681, 82-1 Lab. Arb. Awards ¶ 8125 (1982) (CCH). See also Big Bear Mining Company v. District 17, United Mine Workers of America, above. Fringe benefits should be included in the back pay award, including vacations, to the extent actual economic loss was suffered by the employee.  aff'd in relevant part, rev’d in part on other grounds, 700 F.2d 330 (6th Cir.1983); International Paper Company, Pine Bluff Mill and United Paperworkers International Union, Local No. 735, 81-2 Lab. Arb. Awards ¶ 8368 (1981) (CCH). Accordingly, the portions of the Committee’s claim on behalf of the following employees will be allowed in the following amounts: 12. Two Office Employees Whose Layoffs Did Not Violate the Rejected Agreement Are Not Entitled to Damages. The converse of Conclusion of Law 6, above, is that employees whose layoffs did not violate the rejected agreement, and who are therefore not entitled to damages under 29 U.S.C. § 185, are not entitled to contract rejection damages in bankruptcy. There are two such employees, Hazel
2868	Given the circumstances of this case, that conclusion cannot be reached here. The dual mailboxes, doorbells and utility meters provided ample notice that the structure located at 4637 Newport was not a single-family dwelling. The description of the premises in the search warrant was not in accordance with the outward appearance of the structure. While there is no reason to believe that the Government agents did not honestly believe that the building was a single-family dwelling, the failure of the search warrant to accurately describe the place to be searched, as expressly required by the Fourth Amendment, simply cannot be excused. A good-faith, inadvertent violation of a Constitutionally-protected right is no less an infringement of that right. As stated in The search warrant being invalid, the evidence seized under the authority of that warrant must be suppressed unless there is another, independent ground upon which the seizure may be justified. Applicability of the “Plain-View” Doctrine The Government contends, in the alternative, that even if the search warrant was invalid, the search and seizure was nevertheless proper and the evidence obtained thereby admissible since the items seized were within the
205	"availing itself of the privileges, protection, and benefits, M.K.M. cannot refuse to escape the consequences: ""The exercise of that privilege may give rise to obligations, and so far as these obligations arise out or are connected with the activities within the State, a procedure to enforce them can, in most instances, hardly be said to be undue. Eddie Dassin, Inc. v. Darlene Knitwear, Inc., 441 F.Supp. 324, 326 (D.P.R.1977), applying International Harvester Co. of America v. Com. of Kentucky, 234 U.S. 579 [34 S.Ct. 944, 58 L.Ed. 1479] (1914) and International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310 [66 S.Ct. 154, 90 L.Ed. 95] (1945).” . The first Circuit, applying  understood that the District Court lacked personal jurisdiction over the officers of the defendant corporation, because plaintiff failed to even allege that defendant individual officers actively participated or cooperated in the alleged action of the corporation. . See Donatelli v. National Hockey League, 893 F.2d 459, 462-465 (1st Cir.1990); United Elec. Workers v. 163 Pleasant Street Corp., 960 F.2d 1080, 1087-1089 (1st Cir.1992). . As the defendant in this action is a New Jersey corporation with its principal place of business in New Jersey, and the individual defendants Andrew and Barbara Kallen are also residents of New Jersey, there is no doubt that venue in this action may also lie in the District Court of New Jersey. . Pursuant to 28"
3430	"for consecutive sentences in these “complex” circumstances, there was no error. III. Conclusion For the foregoing reasons, we AFFIRM Terrell’s conviction and sentence. . Although defense counsel objected to the admission of the guilty plea, counsel did not oppose the admissibility of a redacted certified copy of the burglary conviction. . Terrell also asserts that the court erred by denying his motion for a mistrial because the government failed to prove the interstate nexus element of the offense and that § 922(g) is unconstitutional. Because this court has rejected these arguments, we need not discuss them further. See United States v. Clay, 355 F.3d 1281, 1286 (11th Cir.), cert. denied, - U.S. -, 125 S.Ct. 626, 160 L.Ed.2d 456 (2004); United States v. McAllister, 77 F.3d 387, 390 (11th Cir.1996). . The prior conduct was proven sufficiently, as the government proffered a certified copy of the guilty plea, and Terrell does not dispute the validity of the evidence. . Rule 403 states: ""[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.Evid. 403. Rule 403 is ""an extraordinary remedy which the district court should invoke sparingly, and [t]he balance ... should be struck in favor of admissibility.” United States v. Dodds, 347 F.3d 893, 897 (11th"
3900	had called the lessor within the 60-day period and stated that the debtor was going to continue to operate out of the leased premises. There is language in Re-Trac that the result might have been different if the debtor could prove the statement was that it intended to assume the sublease. However, this court is unwilling to speculate as to what that court's ultimate decision would be if faced with different facts. Moreover, assuming the Debtor timely verbally advised R & J that it intended to “assume the lease,” the Debtor would still have to overcome Cybernetics as well as the requirements of § 365(b)(1)(A) with which the Debtor made no attempt to comply. In 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.
482	corrected submission will be taken into account. Where a party to the proceedings refuses to provide requested information, that fact may be taken into account in determining what is the best available information. 19 C.F.R. § 353.51(b) (1982). It is important to note initially the use of the mandatory term “shall” in the statute, indicating that the best information otherwise available must be used in the enumerated circumstances. Atlantic Sugar, Ltd. v. U.S., 744 F.2d 1556 (Fed.Cir.1984). The Court also notes the essential nature of cooperation by the parties to the investigation. As stated in Atlantic Sugar, supra, non-cooperation may be “penalized” by the mandatory use of whatever other best information is available. Furthermore, as indicated in  the fact that an administering agency does not timely receive a response from a person or party from whom it is requested is, in and of itself, sufficient to sustain Commerce’s use of the best information available. Plaintiff states in its Memorandum in Support of Its Motion for Review that “the ITA never notified Extraco that Extraco had not submitted sufficient information to adequately respond to [petitioners’] allega tion.” However, the administrative record presents evidence to the contrary. In a letter dated November 19, 1981, for example, Commerce requested of Extraco information relating to issues raised by the domestic industry. That letter stated: “Failure to respond to this request may result in our using the best information available for appraisement and
4256	154. Similarly, in civil rights cases and cases under the Federal Employers Liability Act the majority of the Supreme Court often regards as a constitutional issue the procedural ques tion whether there was sufficient evidence to go to the jury. Thompson v. City of Louisville, 362 U.S. 199, 204, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Garner v. State of Louisiana, 368 U.S. 157, 163, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961). Justice Frankfurter protested that consideration of such cases diverted the energies of the Court from the important problems suitable for consideration by the nation’s highest tribunal. Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 525, 540, 547, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957). See also Ex parte Republic of Peru, 318 U.S. 578, 602-603, 63 S.Ct. 793, 87 L.Ed. 1014 (1943). . Clean hands is a good defense in a patent infringement suit, as Judge. Maris points out in De-Raef Corp. v. Horner Sales Corp., 10 F.R.D. 28 (W.D.Pa. 1950). See also Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245-247, 54 S.Ct. 146, 78 L.Ed. 293 (1933); Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 684, 64 S.Ct. 268, 88 L.Ed. 376 (1944). . For that Court, as Professor Wechsler observes, “above all others has the faculty of rendering decisions that accord a quality of rapid obsolescence to the learning we law teachers [and practicing lawyers]
1745	"defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b). . See Somlyo, 932 F.2d at 1046 (""federal courts rigorously enforce the statute's thirty-day filing requirement”). . Whitaker, 261 F.3d at 202 (""the commencement of the removal period [can] only be triggered by formal service of process, regardless of whether the statutory phrase 'or otherwise' hints at some other proper means of receipt of the initial pleading”) (citing Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354-55, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999)). . 28 U.S.C. § 1446(b) (emphasis added). . Moore's ¶ 107.30[3][a][ii]. Accord ). . Yankee Bank for Fin. & Sav., FSB v. Hanover Square Assocs.-One Ltd. P’ship, 693 F.Supp. 1400, 1411 (N.D.N.Y.1988) (quoting Wilson v. Intercollegiate (Big Ten) Conference Athletic Assoc., 668 F.2d 962, 965 (7th Cir.1982)). . See Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92, 100-01, 18 S.Ct. 264, 42 L.Ed. 673 (1898) (interpreting congressional intent in providing for removal and stating, ""[t]he reasonable construction of the act of Congress, and the only one which will prevent the right of removal, to which the statute"
3793	defendant’s license to return to that conduct. 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). When a plaintiff challenges the constitutionality of an ordinance and that ordinance is subsequently repealed or amended, the repeal or amendment may be viewed as a form of voluntary cessation by the governmental entity of the “offending conduct.” Despite the exception for voluntary cessation, however, the constitutional challenge is usually still rendered moot in the event of a repeal or amendment because the law presumes that governmental entities will not enact unconstitutional laws. Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1310 (11th Cir.2000); If there is a substantial likelihood that the law will be reenacted, however, the case will proceed despite the amendment. Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1328-29 (11th Cir.2004); cf. Deja Vu, 274 F.3d at 387. And, if a plaintiffs constitutional challenges to an ordinance remain valid despite an amendment to the ordinance challenged, there is no reason to find the claim moot. “[T]he ‘superseding statute or regulation moots a case only to the extent that it removes challenged features of the prior law. To the extent that those features remain in place, and changes in the law have not so fundamentally altered the statutory framework as to render the original controversy a mere
4612	"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,” ás well as enforcement through “any other means authorized by law.” 20 U.S.C. § 1682. . An ""appropriate person,” under Title IX is, “at a minimum, an Sfficial of the recipient entity with authority to take corrective action to end the discrimination.” Id. at 290, 118 S.Ct. 1989, In the context of schools (the primary entities governed by Title IX), ""appropriate person” can refer to teachers, principals, or school boards, depending-on the authority of those actors within a particular educátional system. See . [ánd] does not give assistant principals administrative control over educational programs or activities---- Thus neither a principal nor an assistant ’principal can be considered a grant recipient.”). Notice to an ""appropriate person” is also required under Title VI. And at least one district court has extended the Supreme Court’s interpretation of this phrase in Title IX to Title VI, holding a person with “authority to take corrective action to end the alleged discrimination”- can be liable under Title VI if, after notice of another’s violation of the statute, the authority"
3274	first earn $20,000 for that year before taking holidays or sick days. Under the rejected agreement, vacation pay was pro-rated from an employee’s average pay. Exhibit 29, however, calculated it at the minimum hourly rate, which would be a minimum for the employee’s average pay. The Court concludes that such complex calculations, while necessarily somewhat contrived, do not overstate the value of the Committee’s claim, and most likely understate it. See Laborers Clean-Up Contract Administration Trust Fund v. Uriarte Clean-Up Service, 736 F.2d 516, 521 (9th Cir.1984); Mo-Kan Teamsters Pension Fund v. Creason, 716 F.2d 772, 777-78 (10th Cir.1983), cert. denied, 464 U.S. 1045, 104 S.Ct. 716, 79 L.Ed.2d 178 (1984); and United Brotherhood of Carpenters, Local 379 v. Day & Zimmerman, Inc., 531 F.Supp. 696, 700 (E.D.Tex.1982). Therefore, the Court concludes that the total losses calculated in Exhibit 29 are reasonably accurate and the debtor’s objections to the calculations must be rejected. 19. Four Local Unions Are Entitled to Damages For the Debtor’s Violation of the Dues Checkoff Provision of the Rejected Agreement. The Committee presented evidence on behalf of four local unions for lost membership dues. The Committee argues that U.S. Truck was obligated under the rejected agreement to check off dues, i.e., to deduct dues from actively working union members’ paychecks, and remit them to the appropriate local unions. U.S. Truck argues that it
1478	a word of degree is used the district court must determine whether the patent’s specification provides some standard for measuring that degree. The trial court must decide, that is, whether one of ordinary skill in the art would understand what is claimed when the claim is read in light of the specification. The trial court found here that an expert would know the limitations of the claims. The specification clearly sets forth, for example, that the divider blocks are intended to absorb the weight of overhead loads. Furthermore, even if Industrial needed to experiment so as to determine the limits of the ’373 patent’s claims, the claims would not be invalid under section 112. See, e.g., Industrial has not carried its burden of persuading us that the ’373 patent is invalid for indefiniteness. C. Recapture Rule Industrial argues that the PTO incorrectly allowed the broadened reissue claims with a scope equivalent to the scope of the preamended claims in the original patent application. The recapture rule does not apply here, however, because there is no evidence that Seattle Box’s amendment of its originally filed claims was in any sense an admission that the scope of that claim was not in fact patentable. See In re Petrow, 402 F.2d 485, 488, 159 USPQ 449, 451 (CCPA 1968); see also Ball Corp. v. United States, 729 F.2d 1429 (Fed.Cir.1984). IV Liability The court must consider
1992	“[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 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 injury) or a medical diagnosis (such as with respect to a current disability), competent medical evidence is generally required to fulfill the well-grounded-claim requirement of section 5107(a) that the claim be “possible” or “plausible”. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); see Caluza, supra. Where the determinative issue does not require medical expertise, lay testimony may suffice by itself (such as in the recounting of symptoms or, in certain circumstances, attesting to in-service incurrence or aggravation of a disease or injury). See Caluza, supra; Heuer v. Brown,
4094	"that specific acts of misconduct not resulting in conviction of a felony or crime of moral turpitude are not the proper subject of cross-examination for the purpose of attacking the credibility of an accused as a witness. Cf. Walder v United States, 347 US 62, 98 L ed 503, 74 S Ct 354 (1954). As in jRobertson, there is no showing that accused was convicted of the offenses he admitted. Accordingly, we hold that the law officer erred in permitting this cross-examination over the defense’s protest. Reversal of all the findings, however, is not required. With regard to the pair of offenses of February 9th, there is no fair risk that trial counsel’s cross-examination about other misconduct prejudiced accused. 27 CMR 480. As to that housebreaking and larceny the prosecution’s ease was clear and unequivocal. The evidence showed that accused ""ivas caught red-handed as he emerged from the exchange with the stolen articles. Faced with this situation accused initially admitted his presence in the building but claimed his actions had been coerced at gunpoint. When this unlikely story failed to satisfy the agents, accused admitted its falsity and orally confessed, which confession he made again in writing the next day. Against this strong showing, the accused initially asserted only that he had been drinking and couldn’t remember events that took place during the critical period. Notwithstanding that this position failed to meet the Government’s evidence head-on, even if it was effectively abandoned"
1935	filed a supplemental bill of particulars, and an filed an addendum to it on June 2, 1993. On June 25, 1993, Richard I. Johnson, Sr. filed an omnibus motion seeking the dismissal of Counts II and III and a portion of Count I of the Indictment on the grounds that certain EPA regulations known as the “mixture” and “derived-from” rules had been invalidated and that the Indictment, insofar as it alleged the unlawful treatment and/or disposal of “hazardous wastes,” relied on those rules. Additionally, Johnson argued that the distillation process referred to in Count III was not subject to RCRA regula tion. Johnson also sought the deletion of surplusage in the Indictment, a further bill of particulars, a hearing pursuant to  regarding the veracity of the affidavit upon which a search warrant was issued, the suppression of evidence seized pursuant to the execution of three search warrants based on the alleged over-breadth of the seizure authorization, a hearing regarding the review by the United States Attorney’s Office of seized legal files, severance of Counts I through XV from Counts XVI through XXI, disclosure of evidence which the Government intends to offer pursuant to Fed.R.Evid. 404(b), and disclosure of Brady and Jencks Act material. On June 28, 1993, Rosinski filed a motion seeking the dismissal of Count I of the Indictment, a bill of particulars, pretrial discovery, and suppression of evidence. In a letter dated July 2, 1993,
3530	a citywide problem to which many private as well as public interests responded. CHI would ask us to put on blinders to the context which spawned the sale and lease. Only were we to ignore everything leading up to the dispute could we conclude that the lease and sale affected merely a few people. Our final consideration is whether the actions of the mayor and council members involved the formulation of policy or were merely ad hoc decisions. An “ad hoc” decision is made “with a particular end or purpose,” as distinguished from “a coordinated policy.” Webster’s New International Dictionary, Unabridged 26 (2002). Budgetary decisions, such as a decision to eliminate an employment position, typically involve the formation of policy. See On the other hand, decisions directed toward specific individuals, such as a decision to indemnify a government employee, are normally considered to be ad hoc. Trevino v. Gates, 23 F.3d 1480, 1482 (9th Cir.1994). Once again, the fact that the lease and sale to the BRM viewed out of context involved only a single building and parcel of land is not dispositive. We have previously held that a denial of public funds for a loan to a single entity for the purchase of a single hotel “involved the formation of policy applied to the public at large.” San Pedro Hotel Co., 159 F.3d at 476. Because the denial of the loan was a discretionary decision on whether to disburse public
3407	was unduly harsh and he urged the court to sentence him at the low end of the guidelines and to impose concurrent sentences. The court explained that it had no discretion under the guidelines and sentenced Terrell to 262 months imprisonment. The court further ordered that the federal 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 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
1188	"Policy and Procedure. In order to qualify for transfer on the basis of accumulating thirly-six vested months, the last six months must be consecutive without a conviction for either a Class A or B violation. . Defendants’ earlier Motion to Dismiss the appeals for lack of jurisdiction was granted in part, denied in part, and denied in part as moot in our order of January 25, 1995. We determined then that no final merits judgment has been entered in this case as plaintiffs' claims for damages remained unresolved. Accordingly, we do not have appellate jurisdiction under 28 U.S.C. § 1291. . See, e.g., Gottlieb v. Wiles, 11 F.3d 1004 (10th Cir. 1993); Croyden Walker v. City cf Mesquite, 858 F.2d 1071 (5th Cir.1988); Guthrie v. Evans, 815 F.2d 626 (11th Cir. 1987). .The agreed entry does not refer to the MCC as either a ‘'supermaximum"" security institution or a ""disciplinary segregation institution.” The agreed entry does provide that once a prisoner has been assigned to the MCC, the prisoner will be assigned a Security Classification Designation of Level 5. The significance of this classification is not clear from the record. Even assuming arguendo that this is a ""supermaximum” classification, objecting members fail to cite any Indiana authority that would render such a classification unlawfiil. . In fact, the agreed entry provides that upon transfer to the MCC a prisoner’s"
647	with appurtenant buildings, and the land on which the same are situated and by which the same are surrounded, or improved, or unimproved land owned with the intention of placing a house or mobile home thereon and residing thereon .... Property included in the homestead must be actually intended or used as a principal home for the owner. When these conditions are met, the Idaho Code provides for a $50,000.00 automatic exemption. The exemption is “automatic” in that the debtor need not file of record a “declaration” of homestead in order to gain the benefit of the statute. The homestead exemption statutes are to be liberally construed in favor of the debtor. In re Olsen, 93 I.B.C.R. 130, 131 (Bankr.D.Idaho 1998); Millsap, 122 B.R. at 579, 91 I.B.C.R. at 7. If a homestead exemption is valid, a judgment lien is properly avoidable under § 522(f)(1)(A) as a judicial lien to the extent it impairs the exemption. The Creditors contend that the Koopals did not actually reside in the Priest River Property at the time of filing bankruptcy with the intent to make it their principal home, thus vitiating their claimed exemption. However, the Koopals did reside in the Priest River Property before the lien and before moving to Jerome, which established their homestead exemption in the property from and after the time the Koopals occupied it as their principal residence, § unless they later abandoned or lost it.
2974	grounds for reversal. Headspeth also argues that the district court erred in refusing to allow his counsel to define the term reasonable doubt in closing argument. This argument is flatly refuted by our decision in United, States v. Crockett, 813 F.2d 1310 (4th Cir.1987), which held that it was not an abuse of discretion to limit closing argument in this fashion. Id. at 1317. Finally, Headspeth contends that the district court erred in refusing to give his requested instruction on the defendant’s privilege not to testify. Since the district court gave an instruction on testimonial privilege that accurately and adequately stated the governing law, however, its failure to give the precise instruction requested by Headspeth was not reversible error. See United States v. Beltran, 761 F.2d 1, 11 (1st Cir.1985) (same). Accordingly, the judgment of conviction is affirmed. Ill Headspeth challenges the enhanced sentence he received for the violation of § 922(g) on three separate grounds: (1) that a prior conviction for storehouse breaking is not a proper basis for sentence enhancement under § 924(e); (2) that § 924(e) is void for vagueness; and (3) that his procedural due process rights were violated because he was not given a separate evidentiary hearing on the issue of enhancement. Because we agree with Head-speth that storehouse breaking is not a predicate offense under the
4144	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 inferred from the state of marriage itself.’ ” Rangolan v. County of Nassau, 370 F.3d at 248. The court must now look to case law to find an appropriate award. In 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
920	"Tex. Fam.Code Ann. § 1.101. . Id. (""[EJvery marriage entered into in this state is presumed valid unless expressly made void by Chapter 6 or unless expressly made voidable by Chapter 6 and annulled as provided by that chapter”). . Id. § 6.108. . Doc. 86-15 ¶ 2. . Tex. Fam.Code Ann. § 2.302. . Id. § 1.101; Doc. 79 at 20. . Doc. 54-1 at 4-5. . Doc. 99 at 24. . 29 U.S.C. § 1132(a)(3). . Arocho v. Goodyear Tire & Rubber Co., 88 F.Supp.2d 1175, 1185 (D.Kan.2000). . Id. at 1185 (quoting Varity Corp. v. Howe, 516 U.S. 489, 515, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996)). . Id. (citing cases). . Id. (alteration omitted) (quoting . See id at 1186. (""Goodyear fulfilled its fiduciary obligation of discharging its duties ‘in accordance with the documents and instruments governing the plan.' ”); see also Averhart v. U.S. WEST Management Pension Plan, 46 F.3d 1480, 1489 n. 6 (10th Cir.1994) (""as a matter of law, benefits committee did not breach fiduciary duties by denying benefits to employees who were not entitled to such benefits under the terms of the plan”)."
2728	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  we remand to the BIA for addition al explanation and investigation into that question. The BIA may answer it in the negative. But, if such is the BIA’s finding, it must make its reasons plain so as to afford meaningful appellate review. See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir.2005). Ill Even if the documents are determined to be valid, and even if they are held to establish changed country conditions in the above sense, there arises the question of whether petitioner’s motion to reopen could have been denied on the ground that his children were born after he had been ordered to depart. The panel in Shou Yung Guo appears to have
2435	"by providing a 20-year price guarantee to a new entrant-even though FERC refused Maryland's request to extend the duration of the NEPA past three years. Id., at 479. We granted certiorari, 577 U.S. ----, 136 S.Ct. 356, 193 L.Ed.2d 288 (2015), and now affirm. II The Supremacy Clause makes the laws of the United States ""the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."" U.S. Const., Art. VI, cl. 2. Put simply, federal law preempts contrary state law. ""Our inquiry into the scope of a [federal] statute's pre-emptive effect is guided by the rule that the purpose of Congress is the ultimate touchstone in every pre-emption case."" A state law is preempted where ""Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law,"" Northwest Central Pipeline Corp. v. State Corporation Comm'n of Kan., 489 U.S. 493, 509, 109 S.Ct. 1262, 103 L.Ed.2d 509 (1989), as well as ""where, under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,"" Crosby v. National Foreign Trade Council, 530 U.S. 363, 373, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) (brackets and internal quotation marks omitted). We agree with the Fourth Circuit's judgment that"
530	JOSÉ A. CABRANES, Circuit Judge: The question presented, as a matter of first impression for this Court, is whether a civilian may be prosecuted in federal court for conduct on a United States military installation overseas. For many years, it was standard practice to try civilians who committed crimes while accompanying the military in military courts martial. See, e.g., Joseph W. Bishop, Jr., JUSTICE UNDER FlRE: A STUDY OF MILITARY Law 55-111 (1974). However, in a series of cases beginning with Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), the Supreme Court ruled this practice unconstitutional with respect to offenses' committed during peacetime. See id.; Grisham v. Hagan, 361 U.S. 278, 80 S.Ct. 310, 4 L.Ed.2d 279 (1960); McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960); see also United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955). Since Reid and its progeny, representatives of the armed forces, other executive branch officials, government commissions, members of Congress, and academic commentators, among others, have noted the existence of a “jurisdictional gap” — that is, the lack of any congressional authorization to try civilians who commit crimes while accompanying the military overseas in civilian courts of the United States. See infra notes 17-20 and accompanying text. On
2843	(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  the search warrant being challenged described only a “dwelling house,” whereas it was conceded by the Government that the structure contained two stories and was occupied and in the possession of two families, each family being in possession of a different part of the dwelling house. The court held, at page 994: “Under the facts, as conceded, the description of the property contained in the aforesaid search warrants was not in sufficient compliance with the Fourth Amendment In United States v. Hinton, 219 F.2d 324 (7th Cir.1955), the court reversed a conviction for purchasing and selling narcotics on the ground that a search warrant was invalid for failing to particularly describe the place to be searched and the search made thereunder
358	a charge that the inordinate delay in carrying out his execution violates the eighth amendment; that the retrospective competency hearing violated his due process rights; that he received ineffective assistance of counsel; and prosecutorial misconduct. After reviewing all of same, we find no basis therein for appellate review. Barber’s request for a certificate of probable cause is DENIED. . Barber requests a Certificate of Appealability (COA); however, because his petition was filed prior to the effective date of the AEDPA his application must be construed as a request for a certificate of probable cause (CPC). Lindh v. Murphy, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The standards for issuing a CPC and the AEDPA-required COA are identical. See Muniz v. Johnson, 132 F.3d 214 (5th Cir.1998). Blankenship v. Johnson, 106 F.3d 1202 (5th Cir.1997), opinion withdrawn and superseded on rehearing by, 118 F.3d 312 (5th Cir.1997). . 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). . 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Hogue v. Johnson, 131 F.3d 466 (5th Cir.1997). . Dr. Lett otherwise concluded. . Barber v. State, 737 S.W.2d 824 (Tex.Crim.App.1987). . Barber v. State, 757 S.W.2d 359 (Tex.Crim.App.1988), cert. denied, Barber v. Texas, 489 U.S. 1091, 109 S.Ct. 1559, 103 L.Ed.2d 861 (1989). . Dr. Griffith, permitted to testify about Barber's ■ future dangerousness
2090	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 L.Ed.2d 1000 (1976). A particularly pertinent case is In Bertine, a police officer arrested appellant for drunk driving. After taking Bertine into custody and prior to the arrival of a tow truck to take Bertine’s van to an impoundment lot, a backup officer inventoried the contents of the van. The backup officer inventoried the van in accordance with local police procedures, which required a detailed inspection and inventory of impounded vehicles. He found the backpack directly behind the front seat of the van. The officer opened the closed backpack in which he found controlled substances, which included cocaine and a large amount of cash. Bertine was charged, inter alia, with possession of cocaine with intent to distribute. He moved to suppress the evidence found
1560	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. 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),
3594	assets to justify the issuance of a preliminary injunction. Lone Star Industries, Inc. v. Rankin County, Mississippi, Board of Supervisors, 153 B.R. 642 (Bankr.S.D.N.Y.1993). 9. On the morning of the first hearing date on the preliminary injunction application on March 19, 1993, the Board filed a post-petition administrative proof of claim. However, this court ruled that the Board’s claim for a prepetition release of hazardous wastes must be regarded as a prepetition claim. Id. The court also ruled that it could not be said with certainty that the Board’s failure to file a timely CERCLA claim would bar any recovery for the CERCLA claim asserted in the District Court in Mississippi, citing 10. In light of the foregoing, the Board filed its Notice of Motion, dated April 15, 1993, for an order permitting it to file a late proof of claim with respect to the CERCLA claim which is the subject of the District Court action in Mississippi. The debtor maintains that such late filing should not be accepted as “excusable neglect.” DISCUSSION Allowability At the outset, it should be noted that 42 U.S.C. §§ 9607(a) and 9613(f) per mit a private party to recover from a responsible party response costs it incurs in conducting cleanup pursuant to CERCLA. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992); Dant & Russell, Inc. v. Burlington Northern Railroad Co. (In re
208	Corpus Christi Division, and defendants have opposed that motion. Dkts. 12 and 14. Analysis To establish subject-matter jurisdiction predicated on diversity, complete diversity of citizenship must exist among the parties, and the amount in controversy must exceed $75,000.00. 28 U.S.C. § 1332. The parties agree that complete diversity exists, but contest whether the amount in controversy exceeds $75,000 with respect to new plaintiff Brittani Johnson. The court need not resolve the dispute concerning the amount in controversy, however, because the parties also agree that, absent an exception, removal is barred by the one-year limitation set forth in 28 U.S.C. § 1446(b). Congress enacted § 1446(b) to reduce the opportunity for removal after substantial progress has been made in state court. However, the one-year limitation set forth in § 1446(b) is not jurisdictional, and the Fifth Circuit recognized an exception in Tedford to address situations where “[sjtrict application of the one-year limit would encourage plaintiffs 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
489	complaint in the district court. The district court granted the city’s motion for summary judgment, agreeing with the state courts that the claims were barred by issue and claim preclusion, and concluding that it lacked jurisdiction to entertain an appeal from the state court proceedings. However, the court denied the city’s motion for sanctions under Fed.R.CivJP. 11. The Prewitts appealed from the summary judgment, but ultimately dismissed the appeal voluntarily. On cross-appeal from the denial of its sanctions motion, the city argues that remand is required because the district court faded to set forth any findings in support of its denial of the motion. This court reviews a decision on a motion for Rule 11 sanctions for an abuse of discretion. Where the district court has failed to set forth any findings supporting its denial of a motion for Rule 11 sanctions, remand is necessary. Griffen v. City of Oklahoma City, 3 F.3d 336, 341 (10th Cir.1993). Remand is appropriate because, where no reason for denying the motion for Rule 11 sanctions is given, this court cannot determine whether an abuse of discretion has occurred. Vild, 956 F.2d at 571. Because the city’s argument has merit, the portion of the district court judgment denying Rule 11 sanctions is vacated and this matter is remanded for a statement of findings in support of the denial of the motion.
1660	cases before general courts-martial, jeopardy within the meaning of the relevant provision of the Fifth Amendment to the Federal Constitution may attach prior to findings by the court and approval of the sentence by the reviewing authority. I further agree with the Board of Review that the 40th Article of War must be read in the light of the Fifth Amendment and the adjudications of the Federal Courts with respect to the ‘double jeopardy’ clause thereof.” His difference with the Board of Review was stated to “resolve about the question as to the operative effect” and applicability of the principles discussed in the opinion of the Circuit Court of Appeals for the Ninth Circuit in the case of .R. 797. In Cornero v. United States, supra, a jury had been impaneled to fry defendants charged with a conspiracy to violate the National Prohibition Act. The prosecuting attorney having announced that he was unable to proceed because of the absence of necessary witnesses, the jury was discharged. The court held that jeopardy had attached and that the doctrine of imperious necessity did not extend to the absence of witnesses. The Board of Review, relying upon the statement made in the communication from Headquarters, 76th Infantry Division to the Commanding General of the Third Army (see footnote 3) : “ — The case was previously referred for trial by general court-martial and trial was commenced. Two witnesses, the mother and father of
2104	of this Court in a section 7477 declaratory judgment action is to declare whether respondent’s determination is reasonable. H. Rept. 94-658,1976-3 C.B. (Vol. 2) 931,935; S. Rept. 94-938,1976-3 C.B. (Yol. 3) 299,304. A subsidiary question is raised, however, in declaring the reasonableness of respondent’s determination. That inquiry focuses on the appropriate standard of review against which such reasonableness is to be measured. While neither party has urged adoption 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 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
955	in refusing to allow appellant costs after the trial was continued for three months because of illness to appellees’ former counsel. III. STANDARD OF REVIEW The determination of insider status is a question of fact. Matter of Missionary Baptist Found., 712 F.2d 206, 210 (5th Cir.1983); In re UVAS Farming Corp., 89 B.R. 889, 892 (Bankr.D.N.M.1988); In re Taylor, 29 B.R. 5, 7 (Bankr.W.D.Ky.1983); 2 Collier on Bankruptcy 11101.30, at 101-72 (15th ed. 1990). We review the bankruptcy court’s findings of fact for clear error. In re Torrez, 63 B.R. 751, 753 (9th Cir.BAP 1986), affd 827 F.2d 1299 (9th Cir.1987). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be clearly erroneous. Friedman contends that, because the facts herein are “largely undisputed,” we must review the trial court’s finding that appellees were not insiders de novo. In support of this argument, Friedman cites In re Schuman, 81 B.R. 583 (9th Cir. BAP 1987), which observes that in certain circumstances it may be more accurate to consider the determination of insider status as a mixed question of fact and law. In responding to the argument that summary judgment was improper because insider status is a factual determination, Schuman states: The Panel agrees that the insider determination might be considered a ‘question of fact’ in the sense that it is made on a case-by-case basis, after the consideration
4818	that the failure of the Government to transcribe the grand jury proceedings was in violation of his Fifth Amendment rights to be indicted by a grand jury and to due process of law, and his Sixth Amendment right to confront the witnesses against him. It is established that no minutes of the grand jury proceedings were kept. Thus acceptance of this argument would require dismissal of the indictment. This court has consistently, and recently, held that the recording of grand jury proceedings, at least in the absence of a prior request therefor, is permissive and not mandatory. See United States v. Ybarra, 430 F.2d 1230, 1233 (9th Cir. 1970); United States v. Thore-sen, 428 F.2d 654, 666 (9th Cir. 1970); and Loux v. United States, 389 F.2d 911, 916 (9th Cir. 1968). We decline to re-examine these decisions. Affirmed. . All of those witnesses had previously inspected groups of photographs in an effort to identify the robbers, but with little success. Defendants raise no question here concerning the validity of the photo-identification procedures. There had been no lineup, although the three defendants had all been available for at least a month. . See also, United States v. Wade, 388 U.S. 218, 241-243, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ; Gilbert v. California, 388 U.S. 263, 269-274, 87 S.Ct. 1951, 18 L.Ed. 2d 1178 (1967). . It should be noted that in Stovall v. Denno, 388 U.S. 293, 87
4736	OF ACTION UNDER SECTION 471 The first issue presented in connection with the pending motions is whether a private federal cause of action can be brought by MountainWest Financial under Section 471. Visa argues that no express or implied private cause of action exists under Section 471 for an alleged violation of the statute. Because Section 471 does not contain any remedy or enforcement provision, the question is whether a private cause of action was implied by Congress. In determining whether a private cause of action is implicit in a federal statute, the Supreme Court has explained that the ultimate question is whether Congress intended to create a private right of action when enacting the statute. Karahalios v. National Fed’n of Fed. Employees, 489 U.S. 527, 109 S.Ct. 1282, 1286, 103 L.Ed.2d 539 (1989); Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 536, 104 S.Ct. 831, 838, 78 L.Ed.2d 645 (1984); Middlesex County Sewage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981); Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981); California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981); Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 91, 101
4253	as Justice Holmes often remarked. Compania General de Tabacos v. Collector, 275 U.S. 87, 100, 48 S.Ct. 100, 72 L.Ed. 177 (1927). Military service is another burden which Leviathan does not shrink from imposing upon its constituents. Holmes, cited in Dumbauld, The Declaration of Independence and What It Means Today (1950) 61. Compared with the magnitude of these sacrifices, the exigencies of litigation are ordinarily scarcely more than trifling inconveniences. . Dumbauld, The Constitution of the United States (1964) 154. Similarly, in civil rights cases and cases under the Federal Employers Liability Act the majority of the Supreme Court often regards as a constitutional issue the procedural ques tion whether there was sufficient evidence to go to the jury. Garner v. State of Louisiana, 368 U.S. 157, 163, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961). Justice Frankfurter protested that consideration of such cases diverted the energies of the Court from the important problems suitable for consideration by the nation’s highest tribunal. Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 525, 540, 547, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957). See also Dick v. New York Life Ins. Co., 359 U.S. 437, 456-459, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959); Ex parte Republic of Peru, 318 U.S. 578, 602-603, 63 S.Ct. 793, 87 L.Ed. 1014 (1943). . Clean hands is a good defense in a patent infringement suit, as Judge. Maris points out in De-Raef Corp.
3120	"as a matter of law. It is the general factual scenario, not any minor technicality or lack of particularity, that cause this Court not to have jurisdiction. Since the Court finds exclusive jurisdiction over plaintiffs claims lies with the system board of adjustment, defendants’ motion to dismiss is GRANTED. Each party is to bear its own costs and fees. . The complaint does not indicate when her workers’ compensation claim was filed. . Since the Court ""may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action,” the mislabelling of the action is of no import. Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir.2002). See also . At the hearing on this motion, plaintiffs counsel also repeatedly raised the issue that, in other ERISA cases, Northwest and its counsel have not raised this defense. A defense on the basis of subject-matter jurisdiction is never waived, however. Ashcroft v. Iqbal, - U.S. --, 129 S.Ct. 1937, 1945, 173 L.Ed.2d 868 (2009), citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Even if defendants had failed to raise the issue earlier in this case, the Court would be obligated to consider the issue. In a related analytical error, plaintiff's counsel repeatedly cites to unpublished district court cases from outside this circuit, most recently in her ex parte application for"
4051	"that ""determinations as to the dischargeability of particular debts” are core proceedings); § 157(b)(1) (granting authority to bankruptcy judges to hear core proceedings). . Plaintiffs also discovered, in August 2009, that Jacobson included in his invoices to Plaintiffs a bill from Complete Construction for $5000 that Complete Construction informed Jacobson was a mistaken bill that should not be paid. . Corbels are decorative brackets that are placed under the eaves of homes. The corbels Plaintiffs hired Jacobson to build were custom made and designed only for Plaintiffs’ home. . Fed.R.Civ.P. 56(a). Rule 56 is applicable to bankruptcy adversary proceedings via Federal Rule of Bankruptcy Procedure 7056. . LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir.2004). . Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Id. (citing Federal Rule of Civil Procedure 56). . Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 674 (10th Cir.2002) (internal quotations omitted). . Celotex Corp., 477 U.S. at 327, 106 S.Ct. 2548. .Doc. 36 at 1. . Id. at 1-2. . Id. at 2. . Fed.R.Civ.P. 56(c); see also Diaz, 289 F.3d at 674 (""[T]he non-movant- must either establish the existence of a triable issue of fact under Fed.R.Civ.P. 56["
476	case presents two basic questions for review. First, whether ITA’s decision to base its determination on best information available is supported by substantial evidence in the record and is otherwise in accordance with law? Second, whether ITA’s decision to base the margin of dumping on the rate determined in the fair value investigation as the best information available is supported by substantial evidence in the record and is otherwise in accordance with law? STANDARD OF REVIEW In reviewing challenges to administrative reviews this Court must sustain the ITA’s determination unless it is found to be “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516(b)(1)(B) (1982). See Substantial evidence has been held to be more than a “mere scintilla”, but sufficient to reasonably support a conclusion. Ceramica Regiomontana, S.A. v. U.S., — CIT-, 636 F.Supp. 961, 966 (1986), aff'd, 810 F.2d 1137 (Fed.Cir.1987); See Also Smith-Corona Group v. U.S., 713 F.2d 1568, 1571 (Fed.Cir.1983). Because a reviewing court must accord due weight to an agency’s interpretation of a statute it administers, this Court will defer to the agency’s interpretation, provided it is “sufficiently reasonable”. See American Lamb Co. v. U.S., 785 F.2d 994, 1001 (Fed.Cir.1986). Furthermore, so long as the agency’s methodology and procedures are reasonable means of effectuating the statutory purpose, and the agency’s conclusions are supported by substantial evidence on the record, the Court will accept
2210	seeking a determination of benefits and an injunction preventing the defendants from terminating the plan assets without providing for payment of what he saw as his accrued pension benefit. He characterizes the benefit as either an accrued pension benefit or a retirement-type subsidy. M & I (for efficiency’s sake we will refer to the appellees collectively as M & I) says that what he is receiving is a disability benefit. The dispute was presented to the district court on defendants’ motion to dismiss. The motion was granted on October 13, 1998. We review a decision on a motion to dismiss de novo, accepting as true the well-pleaded factual allegations in the complaint and drawing all reasonable inference in Arndt’s favor. It is important to note, and undisputed in this case, that M & I is permitted by 29 U.S.C. § 1054(h) to amend the plan to reduce or eliminate benefits and by § 1344(d) to terminate the plan and recover its excess assets. Article 12 of the plan itself sets out the power of the trustees to amend or terminate the Security plan. But, under ERISA, the bank may not reduce accrued retirement benefits, which is what Arndt says it is doing. Certain other principles are undisputed. Section 204(g)(1) of ERISA, 29 U.S.C. § 1054(g)(1), provides, with exceptions not relevant here, that the “accrued benefit of a participant under a plan may not be decreased by an amendment of the plan....
442	"within an exception to the automatic stay,” a court’s powers under § 105 ""are not unlimited.”); Browning, 743 F.2d at 1084 (""A bankruptcy court has the power to enjoin proceedings excepted from a § 362 stay under 11 U.S.C. § 105[]....”); cf. Ja-vens v. City of Hazel Park (In re Javens), 107 F.3d 359, 366 (6th Cir. 1997) (""By creating exceptions for police and regulatory actions, Congress removed local regulation only from the effect of the automatic stay; it did not eliminate the bankruptcy court's power to enjoin the enforcement of local regulation which is shown to be used in bad faith.”) (internal quotation marks omitted);  (5).”). Because we conclude that the bankruptcy court abused its discretion by entering the injunction even if it had proper authority under § 105(a), however, we do not consider the scope of a court’s power to enjoin administrative proceedings that are excepted from the automatic stay. . We have previously noted that ""there may be some question as to whether the members' interests in Cajun constitute 'equity interests’ in the strict sense of the term.” Mabey v. Southwestern Elec. Power Co., 150 F.3d at 515 n. 6 (citing"
633	is appropriate. II. Status of Radiologic Technologists and Registered Respiratory Therapists I and II Lastly, we address the issue of whether the radiologic technologists and the respiratory therapists should have been placed in the professional unit rather than the technical unit. Professional employee is expressly defined in 29 U.S.C. § 152(12). Section 159(b) prohibits the Board from placing professionals in the same bargaining unit as nonprofessionals unless a majority of the professionals consent to the unit. The hospital argues the radiologic technologists and respiratory therapists are in fact “professional” positions and, thus, were wrongfully included within the all technical unit. In light of the Board’s expertise in ascertaining job classifications, its determination is entitled to deference by reviewing courts. cf. NLRB v. Corral Sportswear Co., 383 F.2d 961, 963 (10th Cir.1967) (Board determination of “supervisor” entitled to considerable deference), cert. denied, 390 U.S. 995, 88 S.Ct. 1196, 20 L.Ed.2d 94 (1968). Moreover, the Act decrees that the Board’s factual findings are conclusive if supported by substantial evidence on the record. 29 U.S.C. § 160(f). The Regional Director concluded that the evidence did not support a finding that the radiologic technologist and the respiratory therapist positions satisfied the strict requirements of a “professional” under § 152(12). The Hospital contends the evidence cannot sustain this finding. The Hospital has not persuaded us, however, that the Regional Director’s conclusion is unsupported by substantial evidence in the record. The Hospital buttresses its claim
2972	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. Here the trial court properly instructed the jury that the government bore, throughout the trial, the burden of proving its case beyond a reason able doubt, and its failure to supplement this instruction with a definition of reasonable doubt is not grounds for reversal. Headspeth also argues that the district court erred in refusing to allow his counsel to define the term reasonable doubt in closing argument. This argument is flatly refuted by our decision in United, States v. Crockett, 813 F.2d 1310 (4th Cir.1987), which held that it was not an abuse of discretion to limit closing argument in this fashion. Id. at 1317. Finally, Headspeth contends
3166	is proeedurally barred because Petitioner did not file a timely motion to quash the indictment as required by Louisiana law. That defense is fatal to most of the foreman-discrimination claims seen by this court. See Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Williams v. Cain, 125 F.3d 269, 274-75 (5th Cir.1997). This Petitioner also failed to file a timely motion to quash, but his claim is not subject to a procedural bar because the last reasoned state-court decision did not rely on the bar. A procedural bar serves as a defense to a federal petition only when the State court clearly and expressly relied upon the bar in its last reasoned ruling. Foster v. Johnson, 293 F.3d 766, 786 (5th Cir.2002). Petitioner’s original post-conviction application did not challenge the indictment directly. Rather, he complained that his counsel were ineffective for failing to pursue the issue. (Tr. 1758, 1779-81) The trial judge summarily denied the application (Tr. 1337), but the State appellate court remanded and ordered the trial court to hold an evidentiary hearing and provide reasons for his decision. The trial court heard evidence on January 30-31 and October 30 of 1995. Tr. Vol. I, pp. 179-300. During the process of the hearing and post-hearing briefing, the ineffective assistance claim was transformed into a direct challenge to the indictment. Defense counsel argued at the first hearing that the Bossier Parish
2492	Agric. Prods. Co., 473 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985), those cases involved a clear injury in the absence of judicial action. See id. (wherein regulation restricted access to jury trial). Here, any overlapping jurisdictional claims are highly conjectural, and a decision on these abstracted claims is unwarranted. See Cass County, 570 F.2d at 741-42 (connecting boundary decisions to disputes over taxing authority, criminal jurisdiction, and fishing and hunting rights cases). Plaintiffs cite a number of cases where courts have resolved land disputes through declaratory judgment, but none of them are analogous to this case. In each of the cited cases, there were concrete and specific incidents involving reservation boundaries and sovereignty. See id.; Plaintiffs ask the Court to focus on the Rosebud Sioux Tribe litigation. See Rosebud Sioux Tribe v. Kneip, 375 F.Supp. 1065 (D.S.D.1974), aff'd 521 F.2d 87 (8th Cir.1975), aff'd 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977). That suit sought a declaration of the original reservation boundaries intact after the defendant county exercised both civil and criminal jurisdiction over tribe members. 430 U.S. at 585, 97 S.Ct. 1361, 51 L.Ed.2d 660. In City of New Town v. United States, 454 F.2d 121 (8th Cir.1972), plaintiff, a North Dakota municipality, sought declaratory relief in the wake of particularized challenges to municipal authority. Even if plaintiffs have tracked the
1003	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.” Id. (internal quotation marks and alterations omitted). 2. Manifest Disregard of the Law a. Functional Equivalence TiVo argues that the arbitration panel manifestly disregarded the law by conflating patent licenses and patent infringement actions — mutually exclusive concepts — in interpreting the PLA. The Goldwassers respond that the concepts are not as unrelated as TiVo asserts; infringement damages are frequently calculated based on an estimated reasonable royalty that the infringer would have paid under a licensing agreement. See In fact, the question before us is not whether these are separate legal concepts — the arbitration panel does not say otherwise — but whether the arbitration panel provided at least a “barely colorable” justification for concluding that the Goldwassers’ right to royalties, as that term is used in the PLA, includes a right to a portion of a settlement for past infringement. In urging error, TiVo cites Wang Laboratories, Inc. v. Oki Electric Industry Co., 15 F.Supp.2d 166 (D.Mass.1998), in which the district court held that a lump sum payment to the licensor to cover past infringement did not amount to a royalty payment triggering the most favored licensee clause in the parties’ agreement. See id. at 171 (stating
1644	Siderúrgica v. Thyssen Steel Caribbean, supra. The Motion to Dismiss based upon in personam lack of jurisdiction is DENIED. IT IS SO ORDERED. . The decision of the Administrator of the State Insurance Fund is not final until thirty days after the notification of the decision, that is until April 16, 1994; hence, the year commences to run after said date, Tropigas de P.R., supra, p. 638. . The transaction was the placing in the stream of commerce of a plane manufactured by Boeing, sold to American Airlines, an airline that regularly flies to Puerto Rico. . The cause of action is related to the manufacture of the plane and the landing of said airplane in Puerto Rico. . World Wide Volkswagen Corp. v. Woodson, supra at p. 291, 100 S.Ct. at p. 564. Boeing should have known that American Airlines, the purchaser of the product, regularly flies to Puerto Rico and in fact has a hub in this forum.
3596	(1993). 10. In light of the foregoing, the Board filed its Notice of Motion, dated April 15, 1993, for an order permitting it to file a late proof of claim with respect to the CERCLA claim which is the subject of the District Court action in Mississippi. The debtor maintains that such late filing should not be accepted as “excusable neglect.” DISCUSSION Allowability At the outset, it should be noted that 42 U.S.C. §§ 9607(a) and 9613(f) per mit a private party to recover from a responsible party response costs it incurs in conducting cleanup pursuant to CERCLA. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992); Syntex Corp. v. The Charter Company (In re Charter Co.), 862 F.2d 1500, 1503 (11th Cir.1989). Whether or not a contingent response claim is allowable in bankruptcy depends, in part, on a finding that it is not a claim for reimbursement or contribution which is dis-allowable under 11 U.S.C. § 502(e)(1)(B). A contingent CERCLA claim that is not a direct claim between the parties but depends upon the co-liability of the parties, as to a third party or to the Environmental Protection Agency (“EPA”), is a disallowa-ble claim for reimbursement or contribution. Dant & Russell, 951 F.2d at 249; Charter., 862 F.2d at 1503; In re Eagle-Picher Industries, Inc., 144 B.R. 765, 769 (Bankr.S.D.Ohio 1992); In re Hemingway Transport, Inc.,
3325	any other defendant charged. In addition, she told the jury that count 4 charged that appellants had conspired and agreed to conceal that Nelson had unlawfully diverted funds from Malouf and the city by altering and fabricating documents and by causing these altered and fabricated documents to be turned over to federal law enforcement officials during the course of a grand jury investigation. In the circumstances we cannot understand why the jury would not have been able to consider count 4 apart from the first three counts. Clearly the judge’s cautionary instructions and explanation of the charges neutralized the threat of prejudice and the appellants were afforded a fundamentally fair trial. See United D. Shamy raises an additional challenge to his conviction for conspiracy to obstruct justice. Noting that there is no direct evidence linking him to several of the overt acts allegedly committed by Nelson in furtherance of the conspiracy, including alteration of the closing statement and alteration of city tax records, Shamy complains that he may have been convicted of conspiracy on the basis of acts he neither authorized nor adopted. We, however, are satisfied that the jury could reasonably have found there was a conspiracy between Shamy and Nelson to obstruct justice and there were overt acts committed in furtherance of the conspiracy during its existence. Thus, Shamy was responsible for the acts even if committed
1043	“feasibility” standard has been interpreted as excluding “visionary schemes.” In re Pizza of Hawaii Inc., 761 F.2d 1374, 1382 (9th Cir. 1985). But, possibility of failure is not fatal. Hobson v. Travelstead (In re Travelstead), 227 B.R. 638, 651 (D.Md.1998). The issue is primarily one of fact so long as the debtor presents evidence that it can reasonably accomplish what is promised in the plan. The Code does not require debt- or to prove that success is inevitable or assured, and a relatively low threshold of proof will satisfy § 1129(a)(11) so long as adequate evidence supports a finding of feasibility. Computer Task Group, Inc. v. Brotby (In re Brotby), 303 B.R. 177, 191 (9th Cir. BAP 2003), citing Ltd., 223 B.R. 756, 762 (Bankr.D.Nev. 1998); General Elec. Credit Equities, Inc. v. Brice Road Dev. LLC (In re Brice Road Dev. LLC), 392 B.R. 274, 283 (6th Cir. BAP 2008). The Court finds that the plan more likely than not can be performed as promised and that it is therefore feasible and complies with § 1129(a)(ll). 6. Conclusion The debtor’s Second Amended Plan complies with all of the applicable provisions of §§ 1129(a) and 1129(b)(2)(A). The objection will be overruled and the plan will therefore be confirmed, as modified. The interest rate payable to the bank shall be not less than 8.5% per annum, fixed, and the non-material amendment offered in the debtor’s
4593	"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); 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 stated, was that a claim for retaliatory prosecution involves"
3402	the public performance of a sound recording until 1995. Id. As we noted in SoundExchange, the 1995 amendments to the Copyright Act afford the owner of a copyright of a sound recording “the narrow but exclusive right ‘to perform the copyrighted work publicly by means of a digital audio transmission.’ ” Id. (quoting §§ 106(6), 114(d)). When Congress recognized this exclusive right, it also enacted a detailed statutory scheme providing for the administration of this protected right, codified in Title 17 of the United States Code. See 17 U.S.C. §§ 114, 801-804. The statutory scheme requires “certain digital music services ... to pay recording companies and recording artists when they transmit ] sound recordings.” The statute provides for the appointment of three Copyright Royalty Judges by the Librarian of Congress. 17 U.S.C. § 801(a). If the owners of sound recording copyrights are unable to negotiate a mutually acceptable royalty with digital music services, the statute empowers the Judges to set “reasonable rates and terms of royalty payments.” Id. § 114(f)(1)(A). The statute mandates that the rates “shall be calculated to achieve the following objectives”: (A) To maximize the availability of creative works to the public. (B) To afford the copyright owner a fair return for his or her creative work and the copyright user a fair income under existing economic conditions. (C) To reflect the relative roles of the copyright owner and the copyright user
2351	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 physician, with its extra weight, and any substantial evidence to the contrary remains the responsibility of the fact-finder. Schisler v. Heckler, 787 F.2d at 81 (citing Bluvband, 730 F.2d at 892-93; Mongeur v. Heckler, 722 F.2d 1033,1039 n. 2 (2d Cir.1983); Gold v. Secretary of HEW, 463 F.2d 38, 42 (2d Cir. 1972)). The merits of the treating physician rule are not at issue in the present case. This panel is bound by our prior decisions. While the Secretary understandably might disagree with the rule, he has made no attempt to take the issue to the Supreme Court. He also denies that he is following a policy of nonacquiescence, Stieberger, 801 F.2d at 36, and vigorously professes to follow the rule in adjudicating all disability claims. See Schisler, 787 F.2d at 83. Notwithstanding this seemingly broad area of agreement, the AU’s decision made no express, implied, or even oblique reference to
496	Electric Cooperative, Inc., 394 F.2d 672, 675 (5th Cir.1968), (quoting affidavit of REA Administrator) (emphasis added), cert. denied, 393 U.S. 1000, 89 S.Ct. 488, 21 L.Ed.2d 465 (1968). Similarly: The all-requirements provisions of the wholesale power sales contracts not only ensure that the cooperatives will have ah adequate market for their power among their local utility members during the period of the loan but also assure the REA that the utilities making up the federated cooperative seriously desire the loan to be made and intend to use its share of the power capacity which the loan would create. This customary and long established practice of the REA has been made known to, and acquiesced in, by Congress. See also, Public Utility District No. 1 of Franklin County v. Big Bend Electric Coop. Inc., 618 F.2d 601, 603 (9th Cir.1980) (in which the court recognized the wide latitude given to the REA to “determine the appropriate course of conduct to accomplish the legislative purpose.”); Upper Missouri G & T Electric Coop. Inc. v. McCone Electric Coop. Inc., 160 Mont. 498, 503 P.2d 1001 (Mont.S.C.1972) (in which the validity of an all-requirements contract 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
3000	from wrongful refusal to permit development. The instant case does not require us to pass upon the authority of a State to insist in such cases that landowners follow normal planning procedures or to enact rules to control damages awards based on hypothetical uses that should have been reviewed in the normal course, and we do not intend to cast doubt upon such rules here. The mere allegation of entitlement to the value of an intensive use will not avail the landowner if the project would not have been allowed under other existing, legitimate land-use limitations. When a taking has occurred, under accepted condemnation principles the owner’s damages will be based upon the property’s fair market value, see, e. g., 4 J. Sackman, Nichols on Eminent Domain § 12.01 (rev. 3d ed. 2000) — an inquiry which will turn, in part, on restrictions on use imposed by legitimate zoning or other regulatory limitations, see id., § 12C.03[1]. The state court, however, did not rely upon state-law ripeness or exhaustion principles in holding that petitioner’s takings claim was barred by virtue of his failure to apply for a 74-lot subdivision; it relied on Williamson County. As we have explained, Williamson County and our other ripeness decisions do not impose further obligations on petitioner, for the limitations the wetland regulations imposed were clear from the Council’s denial of his applications, and there is no indication that any use involving any substantial structures or
3555	separate case that the very facility at issue, as operated by the BRM, is not a dwelling. Intermountain Fair Hous. Council v. Boise Rescue 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  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
525	"adopted, 2011 WL 824584 (D.S.C. Mar. 7, 2011) (risk of forcing institutionalization due to reduction or termination of medical and personal-care services); Pitts v. Green stein, 2011 WL 2193398 (M.D.La. June 6, 2011) (reduction in maximum number of home and community-based health service hours); Cruz v. Dudek, 2010 WL 4284955 (S.D.Fla. Oct. 12, 2010) (risk of forcing institutionalization of quadriplegics due to inadequate in-home health services); Brantley v. Maxwell-Jolly, 656 F.Supp.2d 1161 (N.D.Cal. 2009) (funding cuts in adult health day-care program); Mental Disability Law Clinic v. Hogan, 2008 WL 4104460 (E.D.N.Y. Aug. 28, 2008) (requiring hospitalization for receipt of outpatient mental health services). . See Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir.2001), quoting  aff’d, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (""Quite simply, the ADA’s broad language brings within its scope `anything a public entity does.’""); Hason v. Med. Bd. of Cal., 279 F.3d 1167, 1172 (9th Cir.2002), quoting Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 861 (1st Cir.1998) (""Courts must construe the language of the ADA broadly in order to effectively implement the ADA’s fundamental purpose of `providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’""). . Plaintiffs also allege that OURS administers its federal funds in a manner that favors individuals with less severe disabilities and disfavors those with more severe disabilities and ""does not"
2600	facts by investment advisers with a fiduciary duty to their clients. Sullivan v. Chase Investment Services of Boston, Inc., supra, 434 F.Supp. at 180 and 183; see SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 190-191, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963). Like Rule 10b-5, the Investment Advisers Act must “be liberally construed to effectuate its remedial purposes, and * * * that purpose may be served only by allowing an overinclusive recovery to a defrauded class if the unavailability of the class device renders the alternative a grossly underinclusive recovery.” Blackie v. Barrack, supra, 524 F.2d at 906 n. 22. Finally, “ ‘[t]he categories of “omission” and “misrepresentation” are not mutually exclusive,’ ”  quoting Little v. First California Co., 532 F.2d 1302, 1304 n. 4 (9 Cir. 1976), and the ambiguity of the dividing line (illustrated in this case) makes it appropriate to treat both kinds of misinformation the same. One justification for a 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
3102	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 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 suspend sentence and place Worcester on probation, conditioned the offer on the waiver of his right to appeal from the criminal conviction. Id., 370 F.2d at 718. Worcester clearly fits into the category of cases wherein the defendant has been denied his right to a full and fair opportunity to litigate the issue in question to a final conclusion. Fontneau has not presented any evidence to this court that he has been denied such an opportunity. In fact, the record reveals that, despite failing to appeal his conviction, Fontneau has had a
2080	during a custodial interrogation if those statements were extracted without a prior warning. Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990), quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). For the Fifth Amendment protection to come into play, however, the statements must be the result of a custodial interrogation. A defendant is said to be in custody when he or she is either subjected to a formal arrest or restrained to the degree usually associated with a formal arrest. United States v. Fernandez Ventura, 85 F.3d 708, 709 (1st Cir.1996), quoting Thompson v. Keohane, - U.S. -, -, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995); To determine whether a particular restraint on freedom of movement meets this test, the Court “must examine all the 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
737	an uninterrupted, continuous act, touching but a single possession — a shop with a cash register and money within — all of a single ownership. Consequently, the contention is that to split his indivisible act into parts, each constituting a crime, is to put him in jeopardy twice for the same wrongdoing, which is proscribed by the Fourteenth Amendment’s embrace of the Fifth. As late as 1970 we held, in Smith v. Cox, 435 F.2d 453 (4 Cir. 1970), a case arising in Virginia, that the Double Jeopardy Clause does not bar conviction and sentence at one trial for multiple offenses arising from a unitary criminal transaction where each offense rests on different necessary elements. It was declared, relying on  and McGann v. United States, 261 F.2d 956 (4 Cir. 1958), cert. denied, 359 U.S. 974, 79 S.Ct. 891, 3 L.Ed.2d 841 (1959), that the clause is infringed only if all the components of a crime defined under one statute must also be proved to convict under another. “[T]he test to be applied * * * is whether each provision requires proof of an additional fact which the other does not.” Blockburger v. United States, supra, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Statutory burglary is the breaking and entering of a shop “with intent to commit larceny”. Va.Code Ann. § 18.1-89 (Supp.1971). Grand larceny occurs when a person unlawfully steals,
4070	drawn logically from the evidence. United States v. Freitag, 768 F.2d 240, 242 (8th Cir.1985). We note in that regard that the essential elements of a crime may be proven by circumstantial as well as direct evidence. United States v. Hudson, 717 F.2d 1211, 1213 (8th Cir.1983). Willfulness, intent, and guilty knowledge may also be proven by circumstantial evidence and frequently cannot be proven in any other way. Id. 1. Mail Fraud To establish a violation of 18 U.S. C. § 1341, the government must produce sufficient evidence for a jury to find that the defendant devised a scheme to defraud, that the defendant had specific intent, and that the mails were used for the purpose of executing the scheme. Lanier argues that the evidence is insufficient to find him guilty of mail fraud. He maintains that the evidence only proves that he was an unknowing participant in a criminal venture, if a criminal venture ex isted at all. He points to one victim’s testimony that he had never tried to hurt the victim and to the absence of evidence that he directly solicited or received money from any of the victims. There is substantial evidence, however, that Lanier participated in the scheme with knowledge of its fraudulent elements, that he sought to further the scheme, and that the mails were used to execute the scheme. Each victim, as well as Hasse and FBI Agent Payne, testified that Lanier provided
2767	Inc., 837 F.Supp. 616, 620-22 (D.Del.1993); Steelcase Inc. v. Haworth Inc., 954 F.Supp. 1195, 1199 (W.D.Mich.1997); and Nitinol Medical Technologies, Inc. v. AGA Medical Corp., 135 F.Supp.2d 212, 218-19 (D.Mass.2000). These courts have reasoned that the relevant intent is that of the client, not of the attorney. Thus, reliance on advice of an attorney effects a waiver only regarding information known to the client, which could be relevant in deciding whether the client reasonably relied on the advice of the attorney. On the other side, district courts ordered discovery of opining attorneys’ internal drafts, research notes, and thought processes in Greene, Tweed of Delaware, Inc. v. DuPont Dow Elastomers, L.L.C., 202 F.R.D. 418, 420, 422 (E.D.Pa.2001); Mushroom Associates v. Monterey Mushrooms Inc., 24 U.S.P.Q.2d 1767, 1771 (N.D.Cal.1992); and Handgards, Inc. v. Johnson & Johnson, 413 F.Supp. 926, 929-31 (N.D.Cal.1976), among other cases. These courts have asserted that a fair test of the client’s reliance on an attorney’s opinion requires a full opportunity to explore the attorney’s reasoning, including examination of internal drafts, research files, and thoughts and doubts that were never communicated to the client. See, e.g., Novartis Pharmaceuticals, 206 F.R.D. at 399. Eco Mfg. LLC v. Honeywell Intern., Inc., 2003 WL 1888988, *4-5 (S.D.Ind. April 11, 2003). In Eco, Judge Hamilton found that, because the relevant issue is the intent of the alleged infringer and not that of its attorneys, discovery of the attorneys’ work product
3475	court. They were identified as being books and records belonging to defendants. There was no objection to the summaries as such, but the objection was that the books themselves were neither offered and received in evidence nor was there a sufficient foundation laid for them to be so received. We think the objection should have been sustained. In the absence of statute, the general rule governing the introduction of books of account of a party in Ms own favor is that a foundation must bo laid by proof of their character, authenticity, correctness, and regularity. 22 C. J. § 1035, p. 864; Phillips v. United States, 201 F. 259 (C. C. A. 8); Plaintiff places reliance upon the ease of St. Paul F. & M. Ins. Co. v. American Food Prod. Co. (C. C. A.) 21 F.(2d) 733, in which this court held that in eases where necessity required, books of account and summaries therefrom might be received in evidence without the testimony of the persons who made the original memoranda from which entries in, the books were made, providing there existed circumstantial guaranty of trustworthiness of the books. In that caso the evidence showed that the books from which summaries had been made were regular books of account ; that the entries therein were made in the regular course of business from data sent in by sales agents; that the entries in the boobs were
274	him. There is no evidence that any of the police officers in this case knew plaintiff independently or bore any ill will against him. Plaintiff has shown no evidence of improper motive for the alleged fabrication. The grand jury properly returned an indictment. After a criminal trial, plaintiff was acquitted on all charges. Plaintiffs argument that the fact of his acquittal and his denial that he engaged 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., 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.
110	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 a suit against the FBI, but the suit against the FBI itself will not be treated as a suit against the United States. Id. Citing  the Federal Defendants point out that the FTCA expressly prohibits lawsuits against individual federal agencies like the FBI. Citing 28 U.S.C. § 2679(d) and 28 C.F .R. § 15.3, they further explain that where, as here, the Attorney General has certified that individual federal employees (Mueller and Anderson), sued in their official capacity, acted within the scope of their employment at all relevant times, the United States must be substituted as the party defendant in their stead. The Federal Defendants point out that, because the United States is already a named defendant in this case, no substitution is required, and that the court should dismiss all counts directed against Mueller, Anderson, and the FBI. a. Claims against Mueller and Anderson I
3566	every municipal service costs money, but that doesn’t mean a city can give away its sanitation department to the Muslims, its police department to the Jews or its schools to the Catholics in an exclusive sweetheart deal. Birdsall and Chatterton are entitled to qualified immunity from the Establishment Clause claims for a very basic reason independent of whether approving the deal here was clearly 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 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
1488	Whitaker, Judge, delivered the opinion of the court: The decision of this case is controlled by the decision of the Supreme Court in (308 U. S. 62.) The contract under consideration in that case stipulated that the prices charged included all Federal taxes theretofore imposed by Congress which were applicable to the materials called for under the contract, and it was agreed that— If any sales tax, processing tax, adjustment charge, or other taxes or charges are imposed or changed by the Congress subsequent to the date of this contract and made applicable directly upon production, manufacture, or sale of the supplies called for herein and are paid by the Contractor on the articles or supplies herein contracted for then the price herein stipulated will be increased or decreased accordingly and any amount due the Contractor as result of such change will be charged to the Government and entered
2686	the debtor, any ambiguity may also reflect that the court that originally confirmed the plan did not make any final determination of the matter at issue, and claim preclusion generally does not apply to a “claim” that was not within the parties’ expectations of what was being litigated, nor where it would be plainly inconsistent with the fair and equitable implementation of a statutory or constitutional scheme. See Miller I, 253 B.R. at 456-59, aff'd, Miller II, 284 B.R. at 124; Repp, 307 B.R. at 148 n. 3; Associated Vintage Group, 283 B.R. at 554-65. Another major limitation is that due process requires adequate notice and procedures. See, e.g., Repp, 307 B.R. at 149-54 (notice requirements); 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
3193	suspension order. See id. at 11120. On April 3, 1987, with the growing season upon them, plaintiffs rushed into district court seeking relief from the EPA’s suspension order. The growers’ argument was quite straightforward: They simply could not grow their crops without dinoseb. Unlike farmers in other parts of the country, farmers in the Northwest have no substitutes for dinoseb. Climatic conditions and the prevalence of certain pests, black nightshade in particular, make dinoseb the only effective pesticide available on the market. For example, the farmers argued, without dinoseb there would be no eaneber-ry crop in the Pacific Northwest, where 95 percent of the nation’s commercial caneber-ry crop is grown. Potential crops losses would amount to $39.2 million this year. See 2 Reporter’s Transcript (RT) at 257. On April 15, 1987, after a two-day hearing, the district court asserted jurisdiction on the basis of section 6(c)(4) of FIFRA, 7 U.S.C.A. § 136d(c)(4). See 668 F.Supp. at 1446, 1447. It then preliminarily enjoined enforcement of the suspension order pending completion of the EPA’s cancellation proceedings, and allowed use of dinoseb subject to twelve conditions, see pp. 1074-75 infra, patterning the injunction after the EPA’s modification of its suspension order as to certain other crops, see p. 1062 n. 7 supra. The court permitted limited sales of dinoseb to growers of certain crops; prohibited uncertified applicators from using the pesticide; barred “[wjomen of child-bearing age, i.e., under the age of 45,” from “any aspect
393	entitled to Chevron deference because it is inconsistent with specific provisions of the diversity visa statute. Lastly, the Plaintiffs contend that, in prior years, the INS has instructed applicants to appear to obtain a visa even after the applicable fiscal year has ended. Accordingly, the Plaintiffs argue that Nyaga remains eligible to receive a diversity visa, and as a consequence, the case is not moot because this court is capable of providing meaningful relief. VI. DISCUSSION Article III of the Constitution limits the jurisdiction 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 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.
860	case remitted for an evidentiary hearing. After the hearing, the Appellate Division also affirmed his conviction, and the case is now pending in the Court of Appeals. . People v. Butler, 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587 (1971). . The jury was instructed that this testimony was not to be considered as evidence against Butler, an instruction which was given and underscored whenever' evidence was offered as to declarations by Conroy outside the presence of Butler. . 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), made retroactive in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968). . In each instance when Conroy’s statements were testified to, the court, following Delli  which was in effect when this case was tried, instructed the jury that Conroy’s admissions were received only as against him and were to be disregarded in determining Butler’s guilt or innocence. The instruction was repeated in the court’s charge. . See 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) ; United States ex rel. Siegel v. Lennox, 460 F.2d 690 (3d Cir. 1972) ; United States ex rel. Ross v. La Vallee, 448 F.2d 552 (2d Cir. 1971) ; Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971) ; United States ex rel. Joseph v. LaVallee,
4149	2) that balance the claimant’s physical limitations against the other relevant factors (Regs. §§ 404.1569, 416.969). Before doing so the AU must determine what type of work a claimant is capable of performing in light of his or her impairments. Secretary’s regulations define types of work using physical exertion criteria (Regs. §§ 404.1567, 416.967). Alternatively the AU may base the step 5 determination on other evidence, including the assessment of a vocational expert (Regs. §§ 404.1566(e), 416.966(e)). Indeed, when a claimant suffers from nonexertional impairments exclusively or in addition to exertional impairments, the AU may not be able to rely solely on the Grid — resort to a vocational expert may be required (see Reg. Subpart P, Appendix 2, § 200.00(e); In all events, Secretary’s decision must be upheld unless (1) the findings are not supported by substantial evidence or (2) Secretary has applied incorrect legal standards (Reynolds v. Bowen, 844 F.2d 451, 455-56 (7th Cir.1988)). 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, 216, 83 L.Ed. 126 (1938) has defined “substantial evidence” as: more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Facts Paige was born December 25, 1932 (R. 63), making him 53 years old at the time of the Hearing. He has a
2083	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 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 to this question would be an incriminating response. Indeed, Fernandez Santana claimed ownership of the money in direct response to the agent’s query. It is clear to this Court that defendant Fernandez Santana may have hesitated to answer agent Andaluz’s question if he had been given a proper Miranda warning. Accordingly, we hold that the agent’s questioning
2240	declaratory action against the patentee elsewhere. And if the manufacturer is joined as an unwilling defendant in a forum non conveniens, he has available upon an appropriate showing the relief provided by § 1404(a) of the Judiciary Code. 62 Stat. 869, 937, 28 U.S.C. § 1404(a).” (Emphasis supplied.) The Supreme Court recognized the right of a litigant to initially choose his forum — even where this involves a “race to the courthouse.” American Brake Shoe had a statutory right for which it sought vindication in the Maryland court. Its right was separate and independent from that against the alleged infringing manufacturer, and such, right, sanctioned by statute, ought not be interfered with except for compelling reasons. 35 U.S.C. §§ 271, 281; Minnesota Mining & Mfg. Co. v. Polychrome Corp., 267 F.2d 772 (7th Cir. 1959). The Supreme Court in Kerotest gave its approval to the normal procedural' safeguards used to protect litigants from-having to do battle in an improper forum. One of these safeguards is the application of the doctrine of forum non-conveniens under the provision of section 1404(a) of the Judicial Code.. Here, the District Court did not enjoin the suit between the patentee and the alleged infringing customer because of frivolousness or because it constituted' harassment of Sundstrand’s customers; rather it ordered the patentee to seek its remedy in the Illinois court should the- customers choose to make an appearance in that court. This
4249	is to be regarded as equivalent to saying that when he examined defendant’s process, in the light of the patent claims, he found that there was no infringement. To interpret his words differently would be to assume that he was hurling nosegays at the judicial system, and pessimistically anticipating that the courts would reach a conclusion contrary to his own view of the law. This type of intellectual rotten-egging is a sport generally reserved for critics for the Supreme Court’s constitutional decisions. It is not likely to occur in the course of the commercial conflicts of competing cheese-mongers. One could readily believe that Colonel Frederick Bernays Wiener, for example, if required to make an affidavit, in advance of the decision in  regarding the outcome of that case might well predict that the Court would not be convinced by his able argument that to restrict Delaware’s historic freedom to mould her own governmental institutions as a State would be to revive in a particularly pernicious form the doctrines of “substantive due process” so vigorously castigated by Justice Black in his opinion in Ferguson v. Skrupa, 372 U.S. 726, 729-732, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963). But with regard to a decision on the scope of the Brandenberger patent, we do not attribute to Mr. Lutz any such thought of a discrepancy between law as known by lawyers and as unknown by judges, and we accept (under
1702	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. 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
1412	Plaintiff has also produced an undated reminder sticker from Napa Auto-Care Center that was found in or on the truck; it advised the previous owner that the “next service” on the vehicle was to occur at 163,439 miles. (Compl. ¶ 27; Pis. Cross-Mot. for Partial Summ. J Ex. D.) This is more than enough evidence to permit a trier of fact to conclude that Milea intended to defraud plaintiff. The intent to defraud required under the Federal Odometer Act can be inferred when a seller lacks actual knowledge of the true mileage but exhibits gross negligence or a reckless disregard for the truth in preparing odometer disclosure statements. See Tusa v. Omaha Auto. Auction, Inc., 712 F.2d 1248, 1253 (8th Cir.1983); Auto Sport Motors, Inc. v. Bruno Auto Dealers, Inc., 721 F.Supp. 63, 66 (S.D.N.Y.1989). Therefore, unrebutted evidence that an employee of the seller (Lin) knew that the actual mileage was substantially in excess of the mileage recorded at time of sale — which the record before this court contains, (See Pis. Cross-Mot. for Partial Summ. J Ex. E.), — compels an inference of intent to defraud, and so the denial of defendants’ motion to dismiss the First Cause of Action. In fact, plaintiffs cross-motion for summary judgment on liability under the First Cause of Action must be granted, because the evidence in the record admits but one interpretation: a representative of Milea knowingly and intentionally altered the odometer by more than
3291	PER CURIAM. Jorge Alarcon pled guilty to conspiring to distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C. § § 846 and 841(b)(1)(A), and the district court sentenced him to the statutory minimum of 120 months in prison. On appeal, his counsel has moved to withdraw and has filed a brief under Alarcon seeks appointment of new counsel and has filed a pro se supplemental brief. Counsel argues in the Anders brief that the sentence imposed is unreasonable. We disagree. See United States v. Vaughn, 519 F.3d 802, 804-05 (8th Cir. 2008) (reviewing sentence for procedural error and substantive reasonableness), cert. denied, — U.S. —, 129 S.Ct. 998, 173 L.Ed.2d 297 (2009); see also United States v. Rojas-Coria, 401 F.3d 871, 874 n. 4 (8th Cir.2005) (Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), has no impact on case involving sentence imposed as result of statutory minimum). Alarcon’s pro se argument that his guilty plea was not knowing
656	States, 812 F.2d 1387, 1390 (Fed.Cir.1987). This court reviews a grant of summary judgment by the Court of Federal Claims de novo. Turner v. United States, 901 F.2d 1093, 1095 (Fed.Cir.1990). A six-year statute of limitations governs claims before the United States Court of Federal Claims: [E]very claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the [claim] thereon is filed within six years after such claim first accrues. 28 U.S.C. § 2501 (1988 & Supp. V 1993). A claim accrues when all events have occurred that fix the alleged liability of the Government and entitle the plaintiff to institute an action. Japanese War Notes Claimants The question here is whether “all events” occurred to fix the alleged liability of the Government six years before the claimants’ 1991 takings claims. The claimants allege two distinct takings: (1) a temporary taking commencing when the Wilson Order issued in 1976 and ending in 1988 when the district court upheld the EPA’s Final Determination; and (2) a permanent taking commencing when the EPA issued its Final Determination in 1985. The temporary taking claim is time-barred; the permanent taking claim is not. I. When presented with a regulatory taking claim, this court analyzes three separate criteria: (1) the character of the governmental action; (2) the economic impact of the regulation on the claimant; and (3) the
4037	SUMMARY ORDER Petitioner Sunil Kumar Jassi, a native and citizen of India, seeks review of the April 2, 2010, order of the BIA, affirming the December 17, 2009, decision of Immigration Judge (“IJ”) Barbara A. Nelson, which denied his motion to rescind. In re Sunil Kumar Jassi, No. [ AXXX XXX XXX ] (B.I.A. Apr. 2, 2010), ajfg No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Dec. 17, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case. We review the denial of a motion to rescind an in absentia order for abuse of discretion. See Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.2006); see also 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]
3491	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 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, 1315 (9th Cir.1981). 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,
3386	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, that defendant was on notice of plaintiffs claim that the city zoning scheme violated the familial status protection of the FHA. B. Handicap Discrimination Claims Finally, defendant asserts that the Court erred in finding that the potential residents were entitled to “handicapped” protection under the FHA. The City points to recent Supreme Court cases which require courts to make an individual inquiry to determine whether specific individuals are entitled to handicapped status protections under the ADA. See Albertsons, Inc., v. Kirkingburg, — U.S. -, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999); As plaintiff points out, however, this Court’s ruling is based on a finding that at least some of the potential residents will be handicapped. Recent Supreme Court cases under the ADA do not alter the Court’s analysis on this point. The record is clear that at least some potential residents will be learning disabled, and entitled to FHA handicapped protection. IT IS THEREFORE ORDERED that the Motion For Reconsideration of Defendant City of Olathe (Doc. # 57) filed June 30, 1999, be and hereby is OVERRULED, except for the following two modifications: 1. The Court modifies the first sentence in the first full paragraph of page 38 of the Memorandum and Order (Doc. # 54) filed June 23, 1999,
3996	must compare the properly construed claims to the Ultra, as a matter of fact. However, the Federal Circuit did not define “hollow.” Therefore, this court must first define the term “hollow,” before it can proceed to the second step and determine whether the accused product infringes by comparing the properly construed claims to the accused product. In the instant case, Plaintiff asserts that “hollow,” as used in the '833 patent, means “having a cavity within which may or may not contain another material.” (Pls.’s Renewed Mot. for Summ. J. at 5, ECF No. 257.) Defendant argues that “hollow” means “empty.” (Def.’s Opp’n to Pis.’ Renewed Mot. for Summ. J. at 12, ECF No. 268.) As the court explained in  It is well-settled that, in interpreting an asserted claim, the court should look first to the intrinsic evidence of record, i.e., the patent itself, including the claims, the specification and, if in evidence, the prosecution history. [Citation omitted.] Such intrinsic evidence is the most significant source of the legally operative meaning of disputed claim language .... Although words in a claim are generally given their ordinary and customary meaning, a patentee may choose to be his own lexicographer and use terms in a manner other than their ordinary meaning, as long as the special definition of the term is clearly stated in the patent specification or file history. Id. Additionally, the Federal Circuit in Texas Digital Sys. v. Telegenix, Inc., 308
4829	and logical bridge between the evidence and the result. Green v. Shalala, 51 F.3d 96, 100-01 (7th Cir.1995). The ALJ did not build a bridge between the medical evidence of record and her finding that medical improvement occurred as of December 23, 1993. She does not explain why she chose that specific date and she does not link any evidence to that date. Thus, the ALJ erred in finding York disabled as of December 23,1993. B. The ALJ Erred in Relying on Liberty Mutual’s Surveillance In making her findings, the ALJ also relied on surveillance conducted by the insurance company defending against York’s worker’s compensation case. The ALJ admitted into the record the insurance company’s records including the investigation reports. In  the court held investigative reports that might otherwise be considered hearsay can be admissible in administrative proceedings as long as they are relevant and material, and if they have sufficient indicia of reliability. In Keller, the claimant was seeking DIB because he suffered from a right leg injury. Keller, 928 F.2d at 228. In the record before the ALJ in Keller there were notes from a treating physician in which he stated that investigative reports had been called to his attention which described the claimant working at his wife’s tavern and showing no signs of a limp. Id. at 229. During his hearing, the ALJ asked Keller about his work at the tavern. Id. Keller answered that “although he spent
1257	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. 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 the 2005 discharge gratuity. In addition, his complaint alleged no facts indicating that either Kent or Sobt acted to prevent the 2005 discharge gratuity from being issued or that they had any responsibility for or involvement in the decision not to issue the gratuity. Upon careful review of the district court order and the pleadings, and upon consideration of the brief, we find no reversible error. For the foregoing reasons, we affirm the district court’s
178	BAZELON, Circuit Judge. This case is an adjunct to There we set aside orders of the Commission authorizing Panhandle Eastern Pipe Line Company (“Panhandle”) to abandon its deliveries of 127,000 thousand cubic feet (“Mcf”) of natural gas per day to Michigan Consolidated Gas Company (“Michigan Consolidated”). Michigan Consolidated brought the instant proceedings to review a subsequent order of the Commission approving Panhandle's proposal to distribute 157,000 Mcf of gas among its resale (utility) customers. The great bulk of this 157,000 Mcf (i. e., 127,000 Mcf) became available to Panhandle as a result of the abandonment. The remaining 30,000 Mcf were made available by an expansion of Panhandle’s transmission facilities. The Commission held a consolidated hearing, from which Michigan Consolidated was excluded, concerning the approval of that expansion and
2617	also presents predominating common questions: If a brokerage house is liable or no for what one of its representatives did, it will be liable or no for most of the others. Finally, plaintiffs could establish their case by demonstrating that research personnel in the brokerage houses responsible for investigating CIS (and it appears that each defendant brokerage house made some effort to find out about CIS) knew the full facts concerning CIS’s past performance and knew the nature of the representations in the Performance Charts concerning past performance. Whether this kind of knowledge by members of the research staff would be sufficient to impose liability on the brokerage firm itself is a question which the Court need not decide. Cf. The only question which the Court need decide and does decide is whether the liability of the brokerage house based on the conduct of its research staff involves predominating common questions of fact, and the answer is affirmative. The other area where common-questions arguably do not predominate involves receipt of a Performance Chart from a representative of the brokerage house. To recover from a brokerage house for its knowing participation in fraudulent conduct, a client of both CIS and a defendant broker who received a Performance Chart must demonstrate not only that he received the chart but that he received it directly or
1462	evidence or allegations in this case of fraud or that appellant did not have the requisite service or character of discharge. As there is no exception under either 38 U.S.C. § 110 or § 1159 for “administrative error,” service connection for the right thigh was, therefore, improperly severed, and appellant is entitled to service connection for gunshot wounds to both thighs. However, a conclusion that appellant is entitled to be service connected for both thighs does not mean that he is entitled to a rating above 10%. Appellant has only a single disability to the left thigh, even though he has been improperly, but non-severably, service connected and rated for the right thigh. As a consequence, under the principles enunciated in  and Esteban v. Brown, 6 Vet.App. 259, 261 (1994), appellant cannot be awarded a separate rating for his left thigh because to do so would award him duplicate ratings for the “same symptomatology” (residuals of a gunshot wound to the left thigh) and thereby violate the prohibition against pyramiding. See 38 C.F.R. § 4.14 (1993). Unlike severance, limiting appellant here to a single 10% disability where he is service connected for both thighs is not precluded by our statutes, and is supported by ease law and regulation.
3376	MEMORANDUM AND ORDER VRATIL, District Judge. This matter comes before the Court on the Motion For Reconsideration of Defendant City of Olathe (Doc. # 57) filed June 30, 1999. The City asks the Court to reconsider certain aspects of the Memorandum and Order (Doc. # 54) filed June 23, 1999, specifically: (1) the Court’s finding that when it denied Keys’ request to operate a Level V group home, the City violated the Fair Housing Act by discriminating against Keys on the basis of familial status; and (2) its further finding that based on the handicapped status of potential residents, the FHA applies. The Court has discretion whether to grant or deny a motion to reconsider. See The Court may recognize any one of three grounds justifying reconsideration: an intervening change 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
2987	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 IV Petitioner questions the trial court’s instructions concerning aiding and abetting, erroneously asserting that the jury indicated failure to understand the charge, when in fact it merely requested repetition of this point (Tr. 631). Petitioner concedes that the court required knowing misconduct, mental culpability and intentional aid in illegal conduct (Petitioner’s brief at 16) but claims that these explicit instructions should have been even more explicit, by asserting that they were “brief, unexplained and buried in a morass of jurisprudence” (id.). No error of any kind, and a fortiori no violation of any federal right, is established. V Petitioner complains that the prosecutor, without evidentiary support, improperly argued that petitioner could be found to
891	Similarly, Jenohs was decided under the Supreme Court’s rule-making powers for the administration of justice in the federal courts rather than as a matter of federal constitutional law. See Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). . Cf. People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 236, 299 N.Y.S.2d 617, 619, 247 N.E.2d 492, 493 (1969). . United States ex rel. Sadowy v. Fay, 284 F.2d 426, 427 (2d Cir. 1960), cert. denied, 365 U.S. 850, 81 S.Ct. 814, 5 L.Ed.2d 814 (1961) ; United States ex rel. Murphy v. Denno, 234 F.Supp. 692, 695 (S.D.N.Y.1964) ; United States ex rel. Birch v. Fay, 190 F.Supp. 105, 107 (S.D.N.Y.1961) ; see . Cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). . United States v. Keogh, 391 F.2d 138, 146-147 (2d Cir. 1968). . In an affidavit to the Appellate Division the Assistant District Attorney who prosecuted the case swore he was on vacation when the wiretapping occurred and that when he was told by a subordinate there was nothing of evidentiary value on the tapes he did not waste time listening to them. Brief for Respondent at 23-24, People v. Butler, 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587 (1971). . 33 A.D.2d at 676, 305 N.Y.S.2d at 369.
1050	(4) fails to serve a legitimate state interest; and (5) violates women’s right to equal protection guaranteed by the Fifth Amendment. (Id. ¶¶ 53-60.) If Plaintiffs are correct on any one of these grounds, the Act is unconstitutional and must be permanently enjoined. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 930, 937, 946, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000); Planned Parenthood Fed’n of Am. v. Ashcroft, 320 F.Supp.2d 957, 960, 1034-35 (N.D.Cal.2004). On November 5, 2003, hours after the Act was signed into law, the Court held a hearing on Plaintiffs’ application for a temporary restraining order. The following day, the Court granted Plaintiffs’ application and temporarily restrained enforcement of the Act through November 21, 2003. See On November 10, 2003, the Government requested that the Court consolidate the proceedings on the preliminary and permanent injunctions, and set a hearing date within 120 days to permit a period of expedited discovery. Plaintiffs consented to this proposal, provided that they were permitted to move for summary judgment on their claim that the Act was unconstitutional for lack of a health exception. On November 18, 2003, the Court ordered the parties to engage in expedited discovery preceding a consolidated hearing. In addition, Plaintiffs were granted permission to file their proposed summary judgment motion. Upon the Government’s consent, the Court extended the temporary restraining order until March 19, 2004. On March 15, 2004, the parties stipulated that the temporary restraining order
331	Glenn E. Hinton Investments, Inc., 440 F.2d 912, 914 (9th Cir. 1971) ; Janigan v. Taylor, 344 F.2d 781, 783 (1st Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). . Douglass, supra, note 5, at 914. See Sackett v. Beaman, 399 F.2d 884, 890 890 (9th Cir. 1968). See also UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 703-05, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) ; Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 90 L.Ed. 743 (1946). . Faced with analogous choices, other circuits have recently chosen the securities statute of limitations rather than that of general fraud. See Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972) ; But see Charney v. Thomas, 372 F.2d 97 (6th Cir. 1967). However, they have also determined that the adopted state statute shall only run in accordance with the federal law which decrees that the statute does not begin to run until the fraud is, or should be, discovered. Parrent, supra at 128; Vanderboom, supra at 1240. Accord Janigan v. Taylor, 344 F.2d 781 (1st Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). See also Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946) ; Bailey v. Glover, 88 U.S. (21 Wall.) 342, 22 L.Ed. 636 (1875). . See J. I.
1806	"the officer was pursuing the defendant, whom the officer suspected might be a mob assassin on his way to kill another condominium resident. Pace , 898 F.2d at 1229. Upon discovering he was being followed, the defendant took what the officer considered to be evasive action. Id . When the defendant entered the garage, the officer had to decide whether to pursue him to investigate his suspicion or to let him go despite the threat he might have posed to another resident. Id . We balanced the potential for harm against the intrusion on the defendant's privacy and held both the officer's suspicion and entry were reasonable. Id . (citing Terry , 392 U.S. at 21-22, 88 S.Ct. 1868 and Like the police in Pace , Boyack and Milone articulated objectively reasonable grounds to suspect Richmond was engaged in criminal activity that justified their entry onto the porch. Richmond describes the facts differently. But ""[t]he need to resolve ambiguous factual situations-ambiguous because the observed conduct could be either lawful or unlawful-is a core reason the Constitution permits investigative stops."" United States v. Miranda-Sotolongo , 827 F.3d 663, 669 (7th Cir. 2016). Because the aggregate facts support a particularized and objective basis for the officers to suspect Richmond was engaged in criminal activity, their suspicions were reasonable within the meaning of the Fourth Amendment. The sum of all the information known to officers at the"
3589	C. A. 1st Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of 
1558	contain approximately equal numbers of people. Indeed, judicial districts are jurisdiction specific, not population oriented. Many times the limits of a judicial district are historical and tied directly to a unit of local government. However, where one is drawing subdistricts within existing judicial districts, either for the purpose of determining violation under Section 2 or for remedy purposes, equitable considerations (and possibly constitutional questions) arise. A subdistrict which allows a much smaller number of people to elect one or more judges whose jurisdiction extends throughout the judicial district, including those who reside in the district but cannot vote for or against that judge or those judges, raises rather perplexing questions. In any event, this court concludes, as did Judge Barbour in Plaintiffs as well as some of the other parties have implied that this court is free to create additional judgeships. The State Legislature followed that approach in the proposal which was rejected by Louisiana’s voters. Clearly in determining whether a violation has been proven, the court is limited to existing circumstances. As Judge Jones pointed out in her concurring opinion in Overton v. City of Austin, 871 F.2d 529, 543 (5th Cir.1989): “The district court assumed arguendo that it might order an expansion of the city council to accommodate single-member districts. This reasoning puts the cart before the horse, by authorizing a remedy
2703	"to which it remained in vigorous opposition. . Unless otherwise indicated, all chapter, section and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330, and to the Federal Rules of Bankruptcy Procedure, Rules 1001-9036. We use the term “res judicata” in its generic sense — encompassing doctrines that have been more precisely called claim preclusion and issue preclusion as well as the codification in Section 1327 of the effect of confirmation. We use this broad terminology because there is some ambiguity about which doctrine Debtors rely upon and our reasoning applies to all such doctrines. See generally Paine v. Griffin (In re Paine), 283 B.R. 33, 38-39 (9th Cir.BAP 2002) and The . Under Debtors' Chapter 13 plan in the First Case the Property remained in the bankruptcy estate until Debtors received their discharge, which was not until November 15, 2000. See 11 U.S.C. § 1328(a). Section 362(c)(1) provides that, with some exceptions, ""the stay of an act against property of the estate” continues ""until such property is no longer property of the estate.” 11 U.S.C. § 362(c)(1). . As noted in the text, the bankruptcy court’s order was actually entered on Ventura’s motion for summary judgment. The excerpts of record and the bankruptcy court's docket do not reflect any cross-motion for summary judgment by Debtors, but the bankruptcy court’s order states ""Fourth Cause"
3707	Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.1990) (citations omitted). B. 12(b)(1) Legal Standard Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for “lack of subject-matter jurisdiction.” Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court’s subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 358 (9th Cir.1996). A federal court is presumed to lack jurisdiction in a particular-case unless the contrary affirmatively appears: Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir.1981). A challenge to subject matter jurisdiction may be facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000). As explained in 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
2140	Door Co. v. Jamison Cold Storage Door Co., 4 Cir., 44 F.2d 288. The “claim” must also be 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; 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
3068	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 v. Whitehall Laboratories, 251 F.3d 236, 239 (1st Cir.2001); In this case, the Court concludes that Plaintiff has failed to show that she had a disability as the term has been interpreted for the purposes of the ADA. “Not all physical impairments rise to the level of disability under the ADA.” Le-bron-Torres, 251 F.3d at 239. Instead, the ADA defines the term disability as: (A) “a physical or mental impairment that substantially limits one or more of the major life activities of [an] ... individual,” (B) “a record of such an impairment,” or (C) “being regarded as having such an impairment.” 42 U.S.C.A. § 12102(2)(A)-(C). Plaintiff claims that she falls within category (A) of section 12102(2). In making the argument that she qualifies for protection under the ADA, Plaintiff
1011	would be submitted to the district court. FIOR subsequently submitted a bill for attorney’s fees of $18,548.70. The bankruptcy judge allowed only $6,638 of fees plus $262.52 for costs. On May 2, 1997 the district court entered an order adopting the proposed findings and conclusions of the bankruptcy court and ordering the appellant to pay $5,000 as a fine for criminal contempt and the attorney fees and costs determined by the bankruptcy judge. The appellant appeals. ANALYSIS Prosecution By An Interested Prosecutor. It is fundamental that the prosecutor of a criminal charge be disinterested. Where that is not the case, a judgment of conviction is to be reversed without the need of showing prejudice. In this case FIOR had an interest. The prosecutor here — the man who drafted the motion, examined the witnesses, asked for the sanction — was FIOR’s lawyer. He owed FIOR a duty in addition to his duty as prosecutor of the criminal contempt. He was an interested prosecutor. Id. at 803, 107 S.Ct. 2124. The prosecution must be set aside. Id. at 814,107 S.Ct. 2124. It is noteworthy that on this appeal there is no appearance and no opposition by FIOR; nor is there any appearance by the United States. The prosecutor has disappeared. REVERSED.
4633	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 (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 that sometimes forces the denial of both motions, but that does not produce such a frustrating result here. Statutory and Constitutional Framework It is well-settled that
247	and UC # 7975 testified at the trial. Plaintiff was acquitted on July 25, 2007. DISCUSSION The individual defendants and the City have now moved for summary judgment under Federal Rule of Civil Procedure 56 on all of the plaintiffs claims, except that the City has moved for judgment on the pleadings under 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. 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,
2231	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, 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 extra “bona fide purchaser” rights for trustees under § 544(a)(3). A trustee must still check the public records and be aware of encumbrances as would any
3434	"establish that the defendant had a prior felony conviction, and the defendant had offered to stipulate to the prior convictions. 519 U.S. at 191-92, 117 S.Ct. 644. In contrast, in this case, the government is offering the evidence to establish Terrell's knowledge. The evidence did not apply to whether Terrell had a prior conviction as required under § 922(g). The U.S. Supreme Court did not discuss the evidence in the context of this first prong of the test, and, therefore, Old Chief is not dispositive. . ""The decision of whether to grant a mistrial lies within the sound discretion of a trial judge as he or she is in the best position to evaluate the prejudicial effect of improper testimony.” . Under U.S.S.G. § 5G1.3, when a defendant is subject to a term of imprisonment for more than one offense, the terms should run concurrently when one of the offenses serves as relevant conduct to the other offense. U.S.S.G. § 5G1.3(b). The guidelines commentary, however, recommends that consecutive sentences are appropriate when the undischarged term of imprisonment results from revocation of parole. U.S.S.G. § 5G1.3, comment. (n.3(C)). Moreover, as the commentary explains, when the case involves complex situations, such as different undischarged terms of imprisonment subject to different guidelines, the court has the discretion to impose sentence in an appropriate manner to achieve reasonable punishment. U.S.S.G. § 5G1.3, comment. (n.3(D))."
1211	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.” 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
2115	purposes the avoidance of Federal income taxes.” Neither Congress in its hearings nor respondent in his rulings has ever defined what is meant by a “principal purpose.” Although we have never interpreted the term principal purpose within the context of section 367, nonetheless, we have interpreted the meaning of principal purpose in a somewhat analogous provision under section 269. That section, unlike section 367, focuses on whether the principal purpose for which an acquisition was made is the evasion or avoidance of Federal income tax. For section 269 to apply, principal purpose has been interpreted to mean a tax-evasion or avoidance purpose which outranks or exceeds in importance, any other purpose. VGS Corp. v. Commissioner, 68 T.C. 563, 595 (1977): In contrast to section 269, section 367 speaks in terms of a plan having as one of its principal purposes the avoidance of Federal income taxes. When these two statutory provisions are laid side by side, it becomes apparent that the subjective tax-avoidance motive in section 269 acquisitions must be greater than the tax-avoidance motive in section 367 transfers. Consequently, section 269 is instructive in the instant case by defining the nature and scope of the tax-avoidance purpose. However, because of the statutory variance between section 269 and section 367, with respect to the intendment of the respective statutes, we believe that the term “principal purpose” should be construed in accordance with its ordinary meaning. Such a rule of statutory construction
2443	the drug quantity by including the weight of the packaging. See U.S.S.G. § 2D1.1, cmt. n. 1 (2003). As a result the court held Flowers responsible for 5.3 grams of crack instead of 3.57, an increase of 49%, and 28.5 grams of marijuana instead of 22, an increase of 30%. Nobody noticed the mistake until appeal, but as the government now acknowledges, the miscalculation caused the court to arrive at an incorrect range of 97 to 121 months instead of the correct range of 63 to 78 months for the two drug convictions. Given the magnitude of the mistake, the government concedes that the oversight constituted plain error warranting resentencing, and we accept the concession. Although after  the guidelines are advisory, a sentencing court still must calculate and consider the advisory range. United States v. Dean, 414 F.3d 725, 727-30 (7th Cir. 2005); United States v. Baretz, 411 F.3d 867, 877 (7th Cir.2005). And whether pre- or post-Booker, basing a sentence on a miscalculated range is an error that affects substantial rights and may constitute plain error. Baretz, 411 F.3d at 877; United States v. Hall, 212 F.3d 1016, 1022 (7th Cir.2000); United States v. Maggi, 44 F.3d 478, 484 (7th Cir.1995). Accordingly, we VACATE the sentence and REMAND for resentencing.
4743	— U.S. —, 111 S.Ct. 2749, 2763-64, 115 L.Ed.2d 929 (1991); Karahalios v. National Fed’n of Fed. Employees, 489 U.S. 527, 109 S.Ct. 1282, 1286, 103 L.Ed.2d 539 (1989); Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 536, 104 S.Ct. 831, 838, 78 L.Ed.2d 645 (1984); Middlesex County Sewage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981); Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981); California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979); Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). Various factors have been considered by the Supreme Court in discerning whether Congress intended a private remedy in a statute that does not expressly provide one. Key factors include the language of the statute itself, the surrounding statutory scheme, and the legislative history and purpose of the statute. Karahalios, 109 S.Ct. at 1286; Thompson, 108 S.Ct. at 516; Northwest Airlines, 451
42	"relates to the business of insurance”. 15 U.S.C. § 1012(b). . This problem also arises in situations involving courts of different states. As relates to the present case, state legislatures (including New York and Louisiana) adopted the Uniform Insurers Liquidation Act (""UILA”) and established reciprocal procedures for resolving claims against insolvent insurers. See N.Y. Ins. Law §§ 7408, et seq.; La.Rev.Stat. Ann. §§ 22:757, et seq. Obviously, state legislatures can withhold jurisdiction from their own state courts but cannot control the jurisdiction of the federal courts. . See, e.g., Clark v. Fitzgibbons, 105 F.3d 1049, 1051-52 (5th Cir.1997); Barnhardt Marine Ins., Inc. v. New England Int’l Surety of Amer., Inc., 961 F.2d 529, 531-32 (5th Cir.1992); Gonzalez v. Media Elements, Inc., 946 F.2d 157 (1st Cir.1991); Law Enforcement Insurance Co. v. Corcoran, 807 F.2d 38 (2d Cir.1986); Lac D’Amiante du Quebec Ltee v. American Home Assurance Co., 864 F.2d 1033 (3d Cir.1988); Hartford Casualty Insurance Co. v. Borg-Warner Corp., 913 F.2d 419 (7th Cir.1990); Grimes v. Crown Life Insurance Co., 857 F.2d 699 (10th Cir.1988). .Only one federal court has given traction to the Superintendent’s argument that the New York rehabilitation proceedings left the district court without jurisdiction to rule on Gallon’s summary judgment motion. In Insurance Affiliates, Inc. v. O'Connor, the district court held that the UILA divested Colorado courts of jurisdiction ""to hear actions involving controverted claims involving out-of-state insurers unless ancillary proceedings have"
2522	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 that Monogram or GE ever received any returned mail from the Robertsons. See, e.g.,  motion to amend denied, 331 F.Supp.2d 1354 (M.D.Ala.2004); Hoefs v. CACV, 365 F.Supp.2d 69, 73 (D.Mass.2005); Johnson v. Arrow Fin’l Servs., LLC, 2006 WL 2170663, at * 3 (N.D.Ill. Sept. 15, 2006). In addition, there is no evidence that the Robertsons continued receiving account statements at the same address where the Notice and New Agreement purportedly were sent, and thereafter continued making payments on their account. See, e.g., Battels v. Sears Nat’l Bank, 365 F.Supp.2d 1205, 1209 n. 3 & 1213 (M.D.Ala.2005); Hoefs, 365 F.Supp.2d at 73. There has also been no showing that Monogram’s or GE’s records of plaintiffs’ account reflected that the Notice or New Agreement were mailed to them. See, e.g., Taylor, 325 F.Supp.2d at 1311; Kurz v. Chase Manhattan Bank, 319 F.Supp.2d 457, 464 (S.D.N.Y.2004); Marsh,
270	jury. See Jenkins v. City of New York, 1999 WL 782509, *8-9 (S.D.N.Y.1999) (bare allegation that police knew of perjured grand jury testimony insufficient to proceed to trial). Plaintiff argues that, because plaintiff and defendant give markedly different accounts of the events that led up to plaintiffs arrest, the issue of probable cause must be decided by the jury. The cases plaintiff relies on for the argument uniformly involve arrests without warrants. See, e.g., Murphy v. Lynn, 118 F.3d 938, 945 (2d Cir.1997); Weyant v. Okst, 101 F.3d 845, 855 (2d Cir.1996); Richardson v. City of New York, 2006 WL 2792768 (E.D.N.Y.2006); Taylor v. City of New York, 2006 WL 1699606 (S.D.N.Y.2006); Kirk v. Metropolitan Transp. Authority, 2001 WL 258605 (S.D.N.Y.2001); Naccarato v. Scarselli, 124 F.Supp.2d 36 (N.D.N.Y.2000). These cases are inapplicable here because plaintiff was arrested subsequent to an indictment and pursuant to an arrest warrant, which presumptively establishes probable cause for the arrest. Not only is there a presumption of probable cause arising from the indictment and arrest warrant, but also the undisputed facts in this case as to the information known to the arresting officers established ample probable cause. UC # 3159 identified plaintiff from a compilation of mug shots as the person who, at the time of the identification, had sold him drugs on three occasions. After the mug shot identification, the same person sold UC # 3159 drugs two other times prior to the arrest. UC # 3159
1446	the petitioner. See Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812. As the recitation of the facts earlier in this opinion shows, the evidence in this case was sufficient for the BIA to uphold the findings of the IJ. G. Denial of Discretionary Relief Westover also claims that the BIA erred in denying her application for adjustment of status. Because she was placed into removal proceedings before April 1,1997, and her final order of removal came after October 30, 1996, Westover’s appeal is governed by § 309(c)(4)(E) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. 104-208,110 Stat. 3009-546, a transitional rule regarding judicial review. See Prado v. Reno, 198 F.3d 286, 288 n. 2 (1st Cir.1999); IIRIRA § 309(c)(4), set out as note under 8 U.S.C. § 1101. Under these transitional rules, we lack jurisdiction to review the BIA’s discretionary denial of Westover’s application for adjustment of status. See Bernal-Vallejo, 195 F.3d at 61-63. Ill We affirm the BIA’s order of removal on the basis of the two original charges lodged by the INS. . When Petitioner was placed into deportation proceedings, her surname was Bindloss. She married Terry Westover on May 21, 1992. Since Petitioner refers to herself in her brief to this court using the surname Westover, we do the same. Additionally, Westover named Doris Meiss-ner, Commissioner of the INS, as a respondent. The only proper respondent in an appeal from a BIA final
1518	Id. at n. 5. The arbitrator also discussed the decision of the United States Court of Appeals for the Third Circuit in Dorn’s Transportation v. Teamsters Pension Trust Fund, 787 F.2d 897 (3d Cir.1986), summarizing its holding narrowly: “[I]n the context of the sale of a business, a transaction has as its principal purpose the evasion of withdrawal liability within the meaning of the statute only if both parties to the transaction share that purpose.” Flying Tiger, 19 E.B.C. at 2847 (emphasis in original). The arbitrator commented: ‘While the statutory language might well support a more expansive reading, other courts have also read the provision narrowly.” Id. at n. 6 (emphasis added)(citing  aff'd, 827 F.2d 491 (9th Cir. 1987), as rejecting application of § 1392(c) where employer timed withdrawal to mini mize liability). The arbitrator’s broad interpretation of § 1392(c) in this case does not square with his narrow reading of the same provision in Flying Tiger. If the phrase “evade and avoid” has a plain meaning, that meaning cannot expand and contract depending upon the circumstances. Although the arbitrator articulated that the applicable statute had a plain meaning, the arbitrator clearly looked beyond the parameters of § 1392(c) in order to reach his decision. He discussed other provisions of the Multiemployer Pension Plan Amendments Act of 1980, 29 U.S.C. §§ 1382, et seq. (the “MPPAA”), explaining that the results in ITU and Cuyamaca
3503	an absence of evidence on these issues, the Court finds that Armco fails to sustain its burden of proving either that it was acting under the direction of a federal official or that a causal connection exists between the rules imposed by the federal government and the liability asserted by the Estate based on Armco’s failure to warn. Frank Ruffin allegedly contracted an asbestos-related disease that caused his death while working at a steel mill constructed by Armco pursuant to a contract between Arm-co’s Steel Division and DPC during World War II. DPC was created in 1940 by the Reconstruction Finance Corporation (“RFC”), an entity established by Congress to administer certain proprietary and commercial activities of This government owned corporation was managed and operated by the Secretary of Commerce and by RFC directors and personnel. (Defendant’s Memorandum, Instrument No. 6 at Ex. F). Its function was to act as a service agency responsible for war production and policies. (Defendant’s Memorandum, Instrument No. 6 at Ex. F). When either the President, the War Production Board, the War Department, the Navy Department, the Maritime Commission or the Office of Petroleum Coordinator for War would confirm the need for plant facilities, materials, services, or supplies, the RFC, with the approval of the Secretary of Commerce, would commission the DPC to either construct the necessary facilities or otherwise provide what was required. (Defendant’s Memorandum,
3636	"no indication that Eason took advantage of this opportunity. . Eason also argues that the government's failure to provide a copy of the dash camera video was a violation of Brady. The government commits a Brady violation when it suppresses evidence that is favorable to a defendant and is material as to either guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). But Eason made only a passing reference to Brady before the district court, and failed to seek a ruling from the district court on this issue. Regardless of whether Brady applies to the circumstances presented here, Eason does not explain how showing the video was ""material as to guilt.” See ). . 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"
774	"The Director filed a Fed. R.Civ.P. 59(e) motion to alter or amend the court’s judgment. Following the district court’s denial of this motion, the Director filed a timely notice of appeal. On appeal, the Director renews his contention that the district court lacked jurisdiction under § 2241(d). Second, the Director asserts 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 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"
4898	horticultural commodities (including commodities defined as agricultural commodities in section 114lj (g) of Title 12), the raising of livestock, bees, fur-bearing animals; or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or •on a farm as an incident to or in .conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.” — 29 U.S.C. § 203 (f). The distinction between employment in an “occupation necessary to the production” of goods for interstate commerce within the meaning of Section 3 (j), and employment in agriculture under Section 13(a), is discussed at length by the United States Supreme Court in . 755, 69 S.Ct. 1274, 93 L.Ed. 1672. As a result of this case, Congress, in 1949, amended Section 13(a) (6) by adding to the agricultural exemption a special exemption for irrigation activities. The court in the Farmers case held that the field employees of a mutual irrigation company owned entirely by farmers were within the coverage of the Fair Labor Standards Act, and were not exempt under the agricultural exemption. “But the conclusion that the work is necessary to agricultural production does not require us to say that it is agricultural production.”— Same ease, 337 U.S. at p. 759, 69 S.Ct. at p. 1277. “The question is whether the activity in the particular case is carried on as part of the agricultural function or
3159	route or routes, and between fixed termini, except as such carriers may be authorized to engage in special or charter operations.” This proviso has been scrupulously observed by the Commission and serves to prevent White House, by the certificate before us, from going into the mass transportation business, and thereby becoming a serious competitor for such business with A. B. and W. We find nothing in the cases relied upon by plaintiff which militates against the conclusions we have reached. See, particularly, Crescent Express Lines v. United States, 320 U.S. 401, 64 S.Ct. 167, 88 L.Ed. 127; Fordham Bus Corp. v. United States, D. C., 41 F.Supp. 712; Campus Travel Co. Inc. v. United States, D. C., 72 F.Supp. 711; 63 S. Ct. 950, 87 L.Ed. 1277; Lee Transportation Co. v. Elliott, 44 M.C.C. 437. The civil action of the plaintiff is accordingly dismissed. Dismissed. STERLING HUTCHESON, Chief Judge, and BRYAN, J., concur.
1550	2765. The Court also made it plain that three factors must be established before it becomes necessary to undertake an examination of the totality of the circumstances (the so-called “Zimmer” factors): (1) The minority group must be sufficiently large and geographically compact to constitute a (voting) majority in a single-member district; (2) The minority group must be politically cohesive; and (3) The minority must demonstrate that the white majority votes sufficiently as a bloc to enable the majority to usually defeat the cohesive minority’s preferred candidate. While satisfying these threshold factors does not prove a violation of Section 2, failure to establish all of them may eliminate the necessity to even conduct a totality of the circumstances examination.  on petition for rehearing, 897 F.2d 763 (5th Cir.1990); Overton v. City of Austin, 871 F.2d 529 (5th Cir.1989). Although the Fifth Circuit has apparently not yet squarely so held, it seems rather clear that the majority population with which Thornburg v. Gingles is concerned is a voting majority, not simply a population majority. The Court of Appeals has at least implied that the single-member district which is created must contain at least a voting age majority of the minority group. See Houston v. Haley, 859 F.2d 341 (5th Cir.1988), vacated on other grounds, 869 F.2d 807 (1989), (where the court referred to this issue as “critical”); Brewer v. Ham, 876 F.2d 448, 452 (5th Cir.1989); Overton v. City of Austin,
3328	linking him to several of the overt acts allegedly committed by Nelson in furtherance of the conspiracy, including alteration of the closing statement and alteration of city tax records, Shamy complains that he may have been convicted of conspiracy on the basis of acts he neither authorized nor adopted. We, however, are satisfied that the jury could reasonably have found there was a conspiracy between Shamy and Nelson to obstruct justice and there were overt acts committed in furtherance of the conspiracy during its existence. Thus, Shamy was responsible for the acts even if committed by Nelson. See United States v. Riccobene, 709 F.2d 214, 225 (3d Cir.)., cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983);  cert. denied, 404 U.S. 1058, 92 S.Ct. 737, 30 L.Ed.2d 746 (1972). At trial the United States presented evidence that: (1) Nelson withheld $5,000 from Malouf s closing proceeds without informing Malouf he was doing so; (2) two years later, upon learning about Weisen-beck’s investigation, Nelson altered Mal-ouf s closing statement, adding a notation representing that $5,000 had been withheld on Shamy’s behalf; (3) when interviewed by Weisenbeck, Shamy claimed that he had proposed that Nelson withhold $5,000 from Malouf; (4) Nelson produced a letter dated April 16, 1983 in which Shamy outlined his proposal that Nelson withhold $5,000 from the proceeds; (5) at his appearance before the grand jury, Shamy testified that he had dictated the letter to his
550	sources cited supra note 18. Our decision today is only the latest consequence of Congress’s failure to close this jurisdictional gap. III. In closing, it is worth emphasizing several features of our holding today. First, our holding extends only to conduct outside the territorial boundaries of the United States for which 18 U.S.C. § 7(3) is the sole jurisdictional basis. Some federal criminal statutes are expressly extraterritorial, see, e.g., 18 U.S.C. § 112(e) (protection of foreign officials, official guests, and internationally protected persons), and some criminal statutes — for example, offenses against the United States government — apply extraterritorially whether or not there is “clear evidence” of such intent by Congress due to the nature of the offenses involved, see See generally Bin Laden, 92 F.Supp.2d at 193-97. Our holding does not affect these categories of statutes. Second, although Congress has not provided any jurisdiction to try civilians like Gatlin who commit crimes on military installations abroad, such individuals are usually subject to prosecution by the country in which such installations are based— in Gatlin’s case, by 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
913	218 F.3d 1190, 1197 (10th Cir.2000) (quoting Adler, 144 F.3d at 670-71); see Kannady, 590 F.3d at 1169. . City of Herriman, 590 F.3d at 1181. . Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006). . Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). . Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). . Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). . Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). . Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991). . Calia v. Werholtz, 426 F.Supp.2d 1210, 1214 (D.Kan.2006) (citing . 29 U.S.C. § 1132(a)(1)(B). . Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). . Kimber v. Thiokol Corp., 196 F.3d 1092, 1097 (10th Cir.1999). . Doc. 86 at 8. . 29 U.S.C. § 1132(a)(1). . 29 U.S.C. § 1002(8). . Doc. 54-1 at 4-5. . See Restatement (Second) of Conflict of Laws § 283 (1971); see also Grabois v. Jones, 77 F.3d 574, 576 (2d Cir.1996) (explaining that federal courts ordinarily apply state law to determine who is the rightful beneficiary of an ERISA-regulated benefit plan); Doc. 79 at 19. . Doc. 79 at 19. . Texas law acknowledges that an agreement to enter into a marriage relationship is
2976	plainly, this offense is not the sort of “violent felony” referred to in § 924(e)(2)(B)(i), for it does not have as an element the use — actual, attempted, or threatened — of force against the person. The government contends, however, that storehouse breaking falls within the scope of § 924(e)(2)(B)(ii), both as a form of “burglary” and as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” We are not persuaded by either argument. Section 924(e) does not define the term “burglary.” When Congress uses a common law term like burglary in a federal criminal statute without otherwise defining it, Congress is presumed to adopt the meaning given that term at common law. At common law, “burglary” has long been defined as the breaking and entering of the dwelling house of another, in the nighttime, with the intent to commit a felony therein. See W. LaFave and A. Scott, Criminal Law 708 (1972). So defined, the generic term burglary would not encompass the specific offense of storehouse breaking set forth in Md.Code Ann. art. 27, § 32, because the latter does not involve a dwelling house in the nighttime. The government argues, however, that the legislative history and purpose of the § 924(e) sentence enhancement provision demonstrate that Congress intended the term burglary to have a more expansive definition than obtained at common law. We disagree. At
4907	"of the individual named parties only."" Dukes , 564 U.S. at 348, 131 S.Ct. 2541 (citation and internal quotation marks omitted). To invoke this exception, every purported class action must satisfy the requirements of Rule 23. See id. Courts determine whether class certification is appropriate by conducting a two-step analysis. First, the court must ascertain whether the putative class has satisfied the requirements of Rule 23(a). Marcus , 687 F.3d at 590 (citing Fed. R. Civ. P. 23(a)-(b) ). And second, the court must determine whether the requirements of Rule 23(b) have been met. Id. To satisfy Rule 23(a), the purported class must establish that there are ""questions of law or fact common to the class."" R. Civ. P. 23(a)(2) ). If the district court is satisfied that Rule 23(a) 's requirements are met, then it must proceed to the second step and determine whether ""the class fits within one of the three categories of class actions in Rule 23(b)."" Id. Class certification is proper only if the district court is satisfied, ""after a rigorous analysis,"" that the plaintiffs ""established each element of Rule 23 by a preponderance of the evidence."" Marcus , 687 F.3d at 591. When conducting the Rule 23 analysis, we have instructed that district courts ""resolve all factual or legal disputes relevant to class certification, even if they overlap with the merits-including disputes touching on the elements of the"
532	prosecuted in federal court for conduct on a United States military installation overseas. For many years, it was standard practice to try civilians who committed crimes while accompanying the military in military courts martial. See, e.g., Joseph W. Bishop, Jr., JUSTICE UNDER FlRE: A STUDY OF MILITARY Law 55-111 (1974). However, in a series of cases beginning with Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), the Supreme Court ruled this practice unconstitutional with respect to offenses' committed during peacetime. See id.; Kinsella, v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960); Grisham v. Hagan, 361 U.S. 278, 80 S.Ct. 310, 4 L.Ed.2d 279 (1960); see also United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955). Since Reid and its progeny, representatives of the armed forces, other executive branch officials, government commissions, members of Congress, and academic commentators, among others, have noted the existence of a “jurisdictional gap” — that is, the lack of any congressional authorization to try civilians who commit crimes while accompanying the military overseas in civilian courts of the United States. See infra notes 17-20 and accompanying text. On more than thirty occasions, Congress itself has considered, but failed to act on, bills that would close the jurisdictional gap. See infra note 23 and accompanying text. In this appeal,
501	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 The REA and CFC have asserted, in the complaint, that Article II, Section 10(e) of the Mortgage provides that Southwestern will not “without the approval in writing of the holders of notes representing more than 50% of the unpaid principal amount of the notes, enter into or amend any contract or contracts for the purchase of electric power.” REA alleges that it holds more than 50% of Southwestern’s unpaid amount. (Plaintiff’s Complaint, para. 16), (emphasis added). Moreover, CFC asserts that the mortgage grants it (together with the REA) an interest in, and present assignment of... “[a]ll right, title, and interest of the Mortgagor [Southwestern] in, to and under any and all contracts heretofore or hereafter executed by and between the
1149	pretrial confinement. On the day before the scheduled trial, the government apparently first learned of the additional charge. Yet it took 17 days before the appellant was brought to trial on both charges. Where, as here, an accused’s case involves separate sets of charges occurring on different dates, each set has a different starting time for the purpose of determining the government’s burden under the decision of United States v. Burton, supra. This determination of separability for the purpose of computing the government’s accountability has long been recognized by the United States Court of Military Appeals. See United States v. Marell, 23 U.S. C.M.A. 240, 49 C.M.R. 373 (1974); United States v. Mosley, 22 U.S.C.M.A. 515, 47 C.M.R. 932 (1973); United States v. Mladjen, 19 U.S.C.M.A. 159, 41 C.M.R. 159 (1969). Of significant applicability here, is what was said in United States v. Ward, 23 U.S. C.M.A. 391, 394, 50 C.M.R. 273, 276, 1 M.J. 21, 23 (1975): “When different charges become known, or are committed at different times, two procedural principles are operative. The first is the Manual policy that all known offenses ‘should be tried at a single trial.’ Manual for Courts-Martial, United States, 1969 (Rev.), paragraph 31g. The second is that every charge must be speedily brought to trial. This case and others that have come to our attention since Johnson convince us that while the Manual policy on joinder of offenses may provide advantages to
540	§ 7(3) (emphasis added). The parties in the present case agree that jurisdiction, if it exists, is grounded in the first part of this subsection, which we underscore above. Thus, whether there is jurisdiction turns on two distinct questions: (1) whether Congress intended for § 7(3) to apply to lands outside the territorial boundaries of the United States, including, specifically, United States military installations; and (2) whether the United States exercises “exclusive or concurrent jurisdiction” over Lincoln Village. We agree with Gatlin that § 7(3) does not apply extraterritorially, and we therefore do not consider the second question. 1. The leading case (and, surprisingly, the only appellate authority) on whether § 7(3) applies extraterritorially is the Fourth Circuit’s decision in  on which, understandably, the District Court relied. Erdos involved a killing in the United States embassy in the Republic of Equatorial Guinea of an American citizen by another American citizen. See id. at 158. The defendant, Erdos, was tried and convicted in the United States District Court for the Eastern District of Virginia for violating 18 U.S.C. § 1112, which prohibits manslaughter in the “special maritime and territorial jurisdiction of the United States.” See 474 F.2d at 158 & n. 1. On appeal, Erdos argued that the District Court lacked jurisdiction because § 7(3) (as here, the only possible basis for jurisdiction) did not apply to areas outside the
3769	to litigate the constitutionality of the licensing suspension provisions has not been challenged, and rightly so. White’s Place v. Glover, 222 F.3d 1327, 1329 (11th Cir.2000) (“We will not force a plaintiff to choose between intentionally violating a law to gain access to judicial review and foregoing what he or she believes to be constitutionally protected activity in order to avoid ... [sanctions].”) The County does argue, however, that Plaintiff lacks third-party standing to litigate the rights of its danc ers by challenging the substantive criminal provisions of the AEC. (Def.’s Mem. at 8-9.) Third-party standing is an exception to the prudential requirement that a party must litigate its own rights and interests and not those of a third party. See Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1251-52 (5th Cir.1995). A party may assert a third party’s rights if they share a close relationship, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (school and parents); Craig v. Boren, 429 U.S. 190, 195, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (bartender and customers); if the third party is unlikely or unable to defend his or her rights in court, Barrows v. Jackson, 346 U.S. 249, 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
1254	officer A. Kent and probation officer specialist Christopher J. Sobt participated in the 2005 denial by failing to answer his questions about whether the check would be issued. On appeal, Marsh argues that the rule in the Florida Administrative Code providing for a discharge gratuity unconstitutionally discriminates between prisoners released into civil confinement and other released prisoners. He 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. 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.
1871	developing those circumstances on cross-examination to rebut that inference. Any resulting prejudice is due to Eaton’s tactical error — not a misapplication of the rules of evidence. The district court did not abuse its discretion in allowing the cross-examination. The Government’s cross-examination on Eaton’s prior drug use and familiarity with drugs was also a result of Eaton’s testimony during direct examination. As the district court correctly noted, Eaton’s direct testimony “was calculated to create the impression that he was ignorant of, or at least inexperienced with, narcotics use.” As with the circumstances surrounding the prior conviction, Eaton opened the door for inquiry into his alleged inexperience with drugs and drug use. Knowledge is an element of the offense charged. See In addition, evidence of knowledge is one of the express exceptions to the general prohibition of bad acts evidence. Fed.R.Evid. 404(b). Eaton’s testimony addressed the knowledge element. The Government had a right to rebut that evidence through cross-examination. The Government's inquiry cannot be unfairly prejudicial, because the defendant himself is responsible for bringing the subject into evidence. Moreover, the balancing of probative value and prejudicial effect is left to the sound discretion of the trial court. We agree with the district court that the prejudicial impact of Eaton’s prior drug use did not substantially outweigh its probative value. See United States v. Harrison, 679 F.2d 942, 948 (D.C.Cir.1982). VI. CONCLUSION We hold that (1) the court’s jury instruction on constructive
1531	"Retirement Fund, 766 F.Supp. 1202, 1209 (D.Mass.1991). . Section 1392(c) has not been discussed frequently, but where it has been addressed, it has typically been construed narrowly. See Pension Trust Fund of Philadelphia and Vicinity v. Fed. Exp. Corp., No. 80-304, 1995 WL 791371 at *8 n. 3 (D.Del. Dec. 27, 1995). . Courts addressing the application of § 1392(c) have done so most often where a conveyance of assets to or other dealings with subsidiaries are suggestive of bad faith. See e.g., Sherwin-Williams Co. v. N.Y. State Teamsters Conference Pension, Retirement Fund, 158 F.3d 387 (2d Cir,1998)(stating that weak financial status of subsidiary made avoid or evade motive more likely); Flying Tiger Line v. Teamsters Pension Trust Fund of Philadelphia, 830 F.2d 1241 (3d Cir.1987)(focusing on whether sale of subsidiary’s stock was sham transaction); Dorn’s Transportation, Inc. v. Teamsters Pension Trust Fund of Philadelphia, 787 F.2d 897 (3d Cir.l986)(finding that sale of motor freight business did not violate § 1392(c) where, regardless of seller’s motive, buyer continued to make payments to fund; characterizing § 1392 as embodying ""good faith” requirement). . Congress underscored the right to withdraw in § 1401(e) of the Act. This section authorizes an employer to obtain from the plan sponsor ""general information” in order ""to compute its withdrawal liability."" It also"
2887	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. Because Duan failed to meet the lower burden of proof for asylum, his claim for withholding of removal necessarily fails, 3. Pursuant to Article III of CAT, an applicant bears the burden of establishing that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(l)-(2). Although Duan testified that he was twice beaten to the point of unconsciousness during a 16-day detention , the record evidence cuts against a finding of past torture. During the six months after his release from police custody and before he left China, Duan was not harmed any of the nine times he reported to the police station or
3860	the likelihood of confusion in the use of the Commerce mark by CNIS, either in its name as presently formed or modified. As the concurrence observes, nothing in this opinion precludes the District Court on remand, if the evidence so warrants, from permitting CNIS to continue doing business under the “Commerce National Insurance Services” name. If, on the other hand, the Courts concludes that CIA’s evidence establishes the foregoing elements of the trademark infringement claim, then it should grant CIA appropriate equitable relief. Costs taxed against Commerce National Insurance Services, Inc. and Commerce Bancorp, Inc. . We have appellate jurisdiction under 28 U.S.C. § 1291 and review the District Court’s factual findings for clear error. See Clear error exists when giving all due deference to the opportunity of the trial judge to evaluate the credibility of witnesses and to weigh the evidence, we are left with a definite and firm conviction that mistake has been committed. See Versa Prods. Co. v. Bifold Co., 50 F.3d 189, 209 (3d Cir.1995). . Although the parties do not clearly identify the statute on which they base their claims, it appears that they charge a violation of the Lanham Act, 15 U.S.C. § 1125. . CIA also requests that the case be remanded for consideration of its claim for damages. However, on the record before us, there seems to be no evidence as to the amount of damages CIA sustained.
3676	contends that he did not procedurally default on his claims. In his Amended Objections to the Report and Recommendation, he argues that he followed proper state procedure at the time, when he petitioned the Court of Common Pleas for nunc pro tunc relief. The Commonwealth asserts that Judge Temin’s Order was unlawful, and therefore, Veal failed to file a timely petition for allocatur with the Pennsylvania Supreme Court. Veal counters that Judge Temin’s Order was valid and, regardless of the validity of Judge Temin’s Order, a federal court should refrain from evaluating an issue that no Pennsylvania court has addressed. On October 30, 2000, I heard oral argument on this issue. Chief Judge Becker, in a recent Third Circuit opinion in  sets forth the controlling law on whether or not Veal procedurally defaulted his claims. The petitioner in Hull followed a procedure that is the same for all relevant purposes as the procedure followed by Veal. Hull was convicted in state court. He challenged his conviction on direct appeal, which was ultimately denied by the Pennsylvania Supreme Court. Hull filed an initial action for state post-conviction relief under the PCRA. He appealed the denial of his PCRA action to the Superior Court and the Superior court affirmed the denial. Hull’s counsel failed to file a timely petition for allocatur in the Pennsylvania Supreme Court challenging the Superior Court’s denial of post-conviction relief. Thereafter, Hull filed an initial action for federal habeas relief. This
4033	retired USAF officers. Finally, the court is satisfied that the class will be adequately represented and their interests fairly protected by plaintiffs’ counsel. Plaintiffs’ attorneys are neither members of the class nor related to members of the class, and they do not have an economic stake in a positive outcome of the suit beyond the potential recovery of attorney fees. See Kominers v. United States, 3 Cl.Ct. 684, 686 (1983). There is no evidence that counsel is incapable or lacks sufficient resources for the completion of the litigation. See Black v. United States, 24 Cl.Ct. 471, 478 (1991). The court furthermore finds that an opt-in approach to ascertain the composition of the class is appropriate in the instant matter. See CONCLUSION Plaintiffs’ motion to certify is hereby ALLOWED. An Opt-in class is certified consisting of persons who meet all of the following requirements: (1) all commissioned officers of the United States Air Force (2) who were considered by and selected for involuntary retirement from the United States Air Force (3) by the Fiscal Year 1994B Colonel Selective Early Retirement Board. The parties are directed to confer and propose, jointly if possible, a method for notifying class members and for receipt of them notification. The parties are hereby ordered to file a joint status report on or before April 30, 2001 with their proposal. Additionally, defendant’s motion to appoint Barry P. Steinberg and William A. Aleo as counsel
1645	not entitled to uninsured motorist benefits under Tennessee law and the terms of her policy. McHone filed a cross-motion for summary judgment asserting she was entitled to the uninsured motorist benefits. The District Court granted State Farm’s motion, finding State Farm was entitled to a credit of $300,000 based upon McHone’s settlement with Gramercy’s receivership, which exceeds the $100,000 uninsured motorist policy limits of her insurance policy. The District Court stated it was unnecessary to determine when Gramercy became insolvent for purposes of the insurance policy because State Farm is entitled to a credit for the settlement proceeds McHone' received regardless of the date of insolven- We review the district court’s grant of summary judgment de novo. Summary judgment is proper if, viewing the record in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact and the moving party is entitled to judgment' as a matter of law. Fed. R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). At issue is whether McHone is entitled to recover uninsured motorist benefits in the amount of $100,000 from State Farm pursuant to her insurance policy. On appeal, McHone disputes the definition of the policy limits as defined by the district court. McHone argues the State Farm policy’s reference to “the minimum limits required by the law” actually refers to the legal requirement
25	to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Company shall not be liable for a greater proportion of any loss to which Coverage E applies than the applicable limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.” Prior to the decision of the Supreme Court of Arkansas in the Wallace case, the federal courts in Arkansas and the Court of Appeals for the Eighth Circuit had held in at least two cases that policy provisions identical or similar to the provision contained in defendant’s policy were void as violative of Ark.Stats. § 66-4003.  399 F.2d 330; Childers v. Southern Farm Bureau Casualty Ins. Co., E.D.Ark., 282 F.Supp. 866; cf. Carter v. Saint Paul Fire and Marine Insurance Co., E.D.Ark., 283 F.Supp. 384. In Wallace, supra, the Arkansas Supreme Court held that the anti-stacking provision of the policy there in suit did not violate the Arkansas statute. In seeking to distinguish the Wallace case from this case counsel for plaintiff urges that there both of the policies involved had been issued by the same company whereas here the policies were issued by different companies. The distinction drawn by counsel is factually valid, but this Court has not read and does not read Wallace so narrowly. The language of the final paragraph of the Wallace
1469	relief from his imprisonment or from the conditions thereof. That right has been established since the decision of the Supreme Court in Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Neither does the case involve the right of an inmate to have the assistance of another inmate in gaining access to the courts for the redress of grievances where those who have the former inmate in charge have not otherwise provided him with legal assistance or made more conventional legal assistance available to' him.. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Finney v. Arkansas Bd. of Correction, 505 F.2d 194, 213 (8th Cir. 1974);  aff’d, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). Finally, the case presents no question as to constitutional deprivations, if any, that the plaintiff, Dee, may have sustained while confined in ISMF or thereafter. All that we are concerned with here is whether the individual plaintiff, Watts, suffered a personal deprivation of federally protected rights which entitles him to an award of monetary damages against any of the defendants. In resisting the claim of Watts the defendants advance the basic contention that while an inmate of a prison who has no other access to legal assistance has a constitutional right to the services of an inmate writ writer, Johnson v. Avery, supra, the writ writer has no reciprocal
1359	the court must determine whether lack of federal jurisdiction appears from the face of the complaint itself. Wolfe, 392 F.3d at 362. On a factual challenge, the party opposing the motion must produce affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction. Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). Under a factual attack, the court need not presume the plaintiffs allegations are true. White v. Lee, 227 F.3d 1214, 1242 (9th Cir.2000); accord Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). In the absence of a full-fledged evidentiary hearing, however, disputed facts pertinent to subject matter jurisdiction are viewed in the light most favorable to the nonmoving party. Federal courts are courts of limited jurisdiction, adjudicating only cases which the Constitution and Congress authorize. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). An Article III federal court must ask whether a plaintiff has suffered sufficient injury to satisfy the “ease or controversy” 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
873	150 (2d Cir. 1969), cert. denied, 397 U.S. 951, 90 S.Ct. 976, 25 L.Ed.2d 133 (1970) ; United States ex rel. Dukes v. Wallack, 414 F.2d 246 (2d Cir. 1969). . Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972) ; see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). . Cf. United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973) ; United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972) ; United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969) ;  cert. denied, 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970). . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). . 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). . Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), subsequently codified in 18 U.S.C. § 3500. . But cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), holding that a statement that would support impeachment for bias and interest “relates” to the witness’ testimony under 18 U.S.C. § 3500. See also Rosenberg v. United
3911	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 a one-time act. See Nor does Silvas identify facts that would suggest her FHA claim should be equitably tolled. See Garcia v. Brockway, 526 F.3d 456, 465-66 & n. 9 (9th Cir.2008). Thus, the district court did not abuse its discretion in denying a preliminary injunction based on Silvas’s FHA 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
698	own choice authorized to practice in the proceedings. Although the regulation uses the word “shall” when referring to the judge’s duty, the point of this rule seems to be to assure that the alien knows about the right to counsel regardless of financial circumstances. When he has already gotten a lawyer and the lawyer submits form EOIR-28, it is hard to see how the IJ’s failure to issue the prescribed advice would prejudice the alien. Even if we assume that there is something either in this regulation or in due process standards generally that requires that the alien be present for the critical stages of his hearing, Ramos has not shown how the failure to meet that requirement prejudiced him. See He does not, even now, challenge the truth of the five allegations on which the IJ relied. Those allegations were as follows: 1. Ramos is not a national of the United States. 2. Ramos is a native of Mexico and a citizen of Mexico. 3. Ramos arrived in the United States at or near an unknown place, on or about an unknown time.. 4. He was not then admitted or paroled after inspection by an Immigration Officer (or he arrived at a-time or place other than as designated by the Attorney General). 5. He was, on September 22, 2000, convicted in- the County Court of Hall County, Nebraska, for the offense of Attempted Possession of a Controlled Substance, to wit:
2100	in part the petition for review. We lack jurisdiction to consider any challenge to the IJ’s finding that Lopez-Ordenas is statutorily ineligible for asylum following the reinstatement of his prior removal order because he did not exhaust it before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). We similarly lack jurisdiction to consider Lopez-Ordenas’ arguments regarding cancellation of removal or his class membership in Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D.Cal.1991) because he failed to raise them before the BIA. See id. Even if credible, substantial evidence supports the agency’s denial of Lopez-Ordenas’ withholding of removal claim because he failed to establish a nexus between any past or feared future harm and a protected ground. See We lack jurisdiction to consider Lopez-Orde-nas’ contentions regarding membership in a particular social group, as he did not exhaust them before the BIA. See Barron, 358 F.3d at 678. Substantial evidence also supports the agency’s denial of Lopez-Ordenas’ CAT claim because he failed to establish it is more likely than not he would be tortured by or with the consent or acquiescence of the government if removed to Guatemala. See Alphonsus, 705 F.3d at 1049-50. We reject Lopez-Ordenas’ contentions that the agency failed to consider all of the evidence or relevant factors in assessing his claims. See Fernandez v. Gonzales, 439
3643	see also Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986). Alternatively, he affirmatively waived the claim by withdrawing his request for a continuance at the pretrial conference and specifically asking the court to proceed with trial as scheduled. See United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). Rose’s claim that the district court violated his Sixth Amendment rights by denying his request for the appointment of substitute counsel is without merit. As the district court determined, Rose failed to establish grounds for replacing his counsel, Scott Miller Anderson and substituting new counsel. The court found Rose’s assertion that counsel had lied to him to be incredible, and this court will not revisit that determination. See The record indicates that Rose’s request was based on his disagreement with counsel’s strategy, which is insufficient to warrant the substitution of new counsel. See United States v. Fields, 483 F.3d 313, 353 (5th Cir. 2007); cf. Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). The record further shows that Rose understood the risks of self-representation and clearly, unequivocally, and repeatedly expressed his desire to proceed pro se. See Faretta v. California, 422 U.S. 806, 815-21, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Rose does not now argue that his invocation was unknowing, involuntary, or equivocal, nor does he contend that the district court’s colloquy was inadequate. Rather, he contends that the
2228	the court affirmed the district court’s decision denying the defendant’s motion for summary judgment. Clearly, Holbrook and Ventas are in conflict. Whereas Holbrook held that declaratory judgments preclude all subsequent actions except those based on the judgment, Ventas held that declaratory judgments should be accorded no preclusive effect whatsoever. As a district court seeking to apply Kentucky law, but nonetheless bound to follow interpretations thereof provided by the Sixth Circuit, we are thus faced with a troublesome dilemma requiring us to select one precedent over another. Ultimately, two considerations have persuaded us to follow Holbrook. First, because a subsequent panel may not overrule the decision of a previous panel, the latter of two conflicting precedents must yield to the former. See Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985), and 6TH CIR. R. 206(c)). Second, based on our own review of Kentucky case law, we have concluded that Holbrook offers a more accurate interpretation of Kentucky law. Having concluded that Holbrook is the applicable precedent, we must now proceed to apply it to the case at bar. Here, Plaintiffs’ voluntarily dismissed declaratory judgment action sought a declaration that Defendant’s sale of his stock would be in violation of the Agreement, while their present action seeks damages based on a theory of anticipatory repudiation. Thus, under Holbrook, Plaintiffs’ present action will be precluded unless it can be deemed to be based on the previous declaratory
1849	default on two other grounds. The first was that the contractor had falsified the results of leak tests performed on the TVPCs. The second was that Triad fraudulently concealed from MICOM its discovery that the wrong type of soldering flux may have been used on completed units. Fraud taints everything it touches. Carrier Corp. v. United States, 328 F.2d 328, 164 Ct.Cl. 666, 678 (1964). Consequently, proof of fraud by clear and convincing evidence is a ground for default termination. Joseph Morton Co., 757 F.2d at 1278-79; see United States v. Acme Process Equipment Co., 385 U.S. 138, 144-48, 87 S.Ct. 350, 354-56, 17 L.Ed.2d 249 (1966). Fraud is sufficient to vitiate acceptance of delivered contract goods. See On this basis, defendant seeks confirmation of the decision to default terminate, as well as return of payments made in excess of the value of completed units accepted. The government also raises as a defense a special plea in fraud pursuant to 28 U.S.C. § 2514 (1988). The effect of this provision is to forfeit claims tainted by fraud. Such fraud consists of knowingly or recklessly making false statements with intent to deceive. Ingalls Shipbuilding, Inc. v. United States, 21 Cl.Ct. 117, 122 (1990). The defense must be established by clear and convincing evidence. O’Brien Gear & Machine Co. v. United States, 591 F.2d 666, 672, 219 Ct.Cl. 187, 199 (1979). The government also seeks damages and penalties
2069	Colón and Luis Fernandez Santana from a conversation with Guerrero, who had met with the above mentioned defendants on February 27, 1997. The surveillance team had also confirmed the presence of those two individuals at Guerrero’s house earlier that day. This evidence was sufficient to provide the agent reasonable suspicion required to engage in an investigatory stop of defendants Guerrero, Fernandez Santana and Miguel Rodriguez Colón. Defendants claim they were not free to leave, since they were surrounded by agents with their guns drawn when agent Andaluz initially intervened with them. However, it is well-established law that the use of guns and the presence of more than one police officer do not necessarily convert an investigative stop into an arrest. The First Circuit recently explained in Young: We have recently rejected the contention that every incidence of 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
4998	a general unsecured claim, upon the ground that the mortgage had not been timely “filed” as required by Section 443.460 RSMo 1949, V.A.M.S., and the decisions construing the same, and to review and reverse that order petitioner has brought this petition for review. Though Section 443.460 RSMo 1949, V.A.M.S., does not fix a definite time for the filing of a chattel mortgage to make it good against innocent purchasers, lienors and trustees in bankruptcy, the Missouri courts and Federal courts dealing with the problem have uniformly held that the mortgage, to be so effective, must be filed promptly. These cases are collected in U. S. Hoffman Machinery Corp. v. Lauchli, 8 Cir., 150 F.2d 301, and in In the latter case it was held that withholding of the mortgage from record for five business days, when all the parties resided in or near the city in which the Recorder’s office was maintained, was too long, and rendered the mortgage void as to subsequent innocent purchasers, lienors, etc. Here, all the parties resided, and were doing business, in Kansas City, where the Recorder’s office is located. It, therefore, must be held, and in fact is conceded by petitioner, that the mortgage was not filed promptly enough to make it valid against subsequent innocent purchasers, lienors, etc., under Section 443.460. RSMo 1949, V.A.M.S., as construed by the cases cited. But petitioner says the timeliness of the filing of its mortgage is not
665	Prods., Inc. v. Construction Laborers Pension Trust for S. Cal., — U.S. -, ---, 113 S.Ct. 2264, 2291-92, 124 L.Ed.2d 539 (1993); Golden Pacific Bancorp v. United States, 15 F.3d 1066 (Fed.Cir.1994). In such a case, the owner presumably paid a discounted price for the property. Compensating him for a “taking” would confer a windfall. Finally, the Constitution recognizes a distinction between a temporary and a permanent taking. U.S. Const., amend. V; First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). Simply declaring a regulation that takes property invalid does not grant a constitutionally sufficient remedy. First English, 482 U.S. at 319, 107 S.Ct. at 2388; Thus, property owners cannot sue for a temporary taking until the regulatory process that began it has ended. This is because they would not know the extent of their damages until the Government completes the “temporary” taking. Only then may property owners seek compensation. First English, 482 U.S. at 321-22, 107 S.Ct. at 2389-90. II. This case features allegations of both temporary and permanent takings. First, the temporary taking claim. On November 16, 1976, General Wilson ordered a halt to the land reclamation project. This order did not bar a nuisance, did significantly affect the economic value of the perennially flooded lands, and did abridge the owners’ expectations of gaining valuable dry lands. As the Court of Federal Claims noted, “[i]t
2415	Court noted that under 5 U.S.C. § 1009(d), it could stay the discharge pending completion of the military’s administrative processes. More importantly, it found that plaintiff had fulfilled all of the conditions traditionally required for the .granting of such a stay: (1) A likelihood that petitioner will prevail on the merits of the appeal; (2) Irreparable injury to the petitioner unless the stay is granted; (3) No substantial harm to other interested persons; and (4) No harm to the public interest. [Id. at 252] Under the circumstances of that case, the court concluded that it was appropriate to stay the upcoming discharge pending a final determination by the ABCMR. Accord, Sohm v. Fowler, 124 U.S.App.D.C. 382, 365 F.2d 915 (D.C.Cir. 1966); 1966) ; Crawford v. Davis, 249 F.Supp. 943 (E.D.Pa.), cert. den. 383 U.S. 921, 86 S.Ct. 923, 15 L.Ed.2d 676 (1966). We find the principles set forth in Covington and similar cases to be sound and properly applicable to this case. Our sole remaining task is to determine whether, under the facts of this case, a stay is properly granted. III. Likelihood of Success on the Merits In his petition for relief in this ease, petitioner alleges the following errors by the Army Physical Evaluation Board: a. That the Board failed to find that petitioner was unfit for military duty under the provisions of Army Regulation 40-501. b. That the Board failed to consider the petitioner’s evidence concerning his ability to
3507	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); 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
2046	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)); 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) which court first assumed jurisdiction over any property involved; (2) the inconvenience of the federal forum; (3) the desirability of
2086	officers had improperly seized two duffel bags containing approximately 25 kilograms of cocaine. The Court rejected appellant’s plea, noting that the officers had obtained defendant’s consent to search and freely surrendered the keys to both the doors and the trunk. Accordingly, it held that the seizure was proper. Furthermore, it noted that “[e]ven if the defendant’s consent 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  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
917	"that there is also no presumption of validity. Coulter v. Melady, 489 S.W.2d 156, 158 (Tex.Ct.App.1972). . Tex. Fam.Code Ann. § 1.101 (""[Ejvery marriage entered into in this state is presumed to' be valid unless expressly made void by Chapter 6 or unless expressly made voidable by Chapter 6 and annulled as provided by that chapter”). . Id §§ 6. 201-6. 206. . Id. §§ 6.102-6.110. . Doc. 79 at 24; Tex. Fam.Code Ann. § 6.108. . Doc. 87-1. . Doc. 86-15. . Doc. 87-1 ¶¶ 2-3. . Id. ¶ 2. . Doc. 86-15 ¶ 2. . Id. ¶¶ 3-4. . Doc. 86-5. . Doc. 96 at 3. . Id. at 4. . Id. at 27. . Id. . ) . Docs. 96-6, 96-7. . Doc. 96-1. . Doc. 96-2. . Docs. 96-3, 96-4. . Doc.96-5. . Doc. 96 at 7. . Docs. 96-2, 96-5. . Doc. 99 at 4. . Id. at 4, 7. . Id. at 20. . Doc. 79 at 21-22. . Tex. Fam.Code Ann. § 1.101. . Id. (""[EJvery marriage entered into in this state is presumed valid unless expressly made void by Chapter 6 or unless expressly made voidable by Chapter 6 and annulled as provided by that chapter”). . Id. § 6.108. . Doc. 86-15 ¶ 2. . Tex. Fam.Code Ann. §"
377	held that the Brecht standard is applicable only when the state appellate court previously has applied the more stringent Chapman standard. See Starr v. Lockhart, 23 F.3d 1280 (8th Cir.1994) (applying the Chapman harmless error standard on habeas review where state courts had not found constitutional error on direct review, and thus, had not performed harmless error analysis); Orndorff v. Lockhart, 998 F.2d 1426 (8th Cir.1993) (same); Other courts have held that the language of Brecht applies to all federal habeas proceedings. See Davis v. Executive Director of Dep't of Corrections, 100 F.3d 750 (10th Cir.1996) (Brecht standard applies to all federal habeas proceedings); Sherman v. Smith, 89 F.3d 1134 (4th Cir.1996) (same); Horsley v. Alabama, 45 F.3d 1486 (11th Cir.1995);  . 131 F.3d 466 (5th Cir.1997). . 131 F.3d at 499; see Davis v. Executive Director of Dep’t of Corrections, 100 F.3d 750 (10th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1703, 137 L.Ed.2d 828 (1997); Sherman v. Smith, 89 F.3d 1134 (4th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 765, 136 L.Ed.2d 712 (1997); Tyson v. Trigg, 50 F.3d 436 (7th Cir.1995), cert. denied, 516 U.S. 1041, 116 S.Ct. 697, 133 L.Ed.2d 655 (1996); Horsley v. State of Alabama, 45 F.3d 1486 (11th Cir.), cert. denied, 516 U.S. 960, 116 S.Ct. 410, 133 L.Ed.2d 328 (1995); Smith v. Dixon,
1825	"and peddlers of all kinds,"" id. at 8, 133 S.Ct. 1409, with this comment: [I]ntroducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. Id. at 9, 133 S.Ct. 1409. If an officer's actions fall outside the scope of the license that a reasonable officer can presume-if, in other words, the officer takes actions beyond those that a homeowner has authorized for all visitors- Jardines holds that it is immaterial that the officer might be lawfully present while conducting those unauthorized actions. And although the subjective intent of the officer is irrelevant to the legality of his actions, see, e.g. ,  Jardines explained that this means only that ""a stop or search that is objectively reasonable is not vitiated by the fact that the officer's real reason for making the stop or search has nothing to do with the validating reason."" 569 U.S. at 10, 133 S.Ct. 1409. The Court returned to this theme in Collins v. Virginia , --- U.S. ----, 138 S. Ct. 1663, 201 L.Ed.2d 9 (2018), in which it considered ""whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein."" Id. at 1668. No, was the Court's clear answer. In"
4215	application of the PLRA's fee limitations may upset the expectations of Plaintiffs’ counsel, it cannot be said that the imposition of the restrictions directly affects the Plaintiffs. Therefore, because a statute has a retroactive effect under Landgraf only when it negatively impacts a party’s expectations or rights, statutory restrictions as to the amount and availability of attorney's fees will not generally raise retroactivi1y problems. See Landgraf v. USI Film Prods., 511 U.S. 244, 276-78, 114 S.Ct. 1483, 1503, 128 L.Ed.2d 229 (1994). . In Landgraf, the Court noted several additional examples of new statutes whose application to pending cases was proper. These included statutes whose plain language unambiguously requires application to pending cases, see statutes authorizing or affecting the propriety of prospective relief, see American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189 (1921); statutes conferring or ousting jurisdiction, see Bruner v. United States, 343 U.S. 112, 72 S.Ct. 581, 96 L.Ed. 786 (1952); and statutes revising procedural rules, see Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). See Landgraf v. USI Film Prods., 511 U.S. 244, 272-76, 114 S.Ct. 1483, 1501-02, 128 L.Ed.2d 229 (1994) (collecting cases). . The district court ruled that if it had applied the fee limitations of § 803(d), it would have awarded counsel for Plaintiffs the maximum hourly rate available. We express no opinion as to the
19	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 litigate their in rem claims. See On the issue of piecemeal litigation and potentially relitigating issues with nonsignatories to the insurance policies, the Fifth Circuit has expressly stated: We have anticipated that arbitration of a portion of a dispute will lead to duplicated efforts and inefficiency if the dispute, once arbitrated, must then be resolved in court with nonsignatory parties. But we have held that any inconvenience or duplication of effort is a consequence of having agreed to arbitrate. Specifically, duplication of effort, redundant testimony, and the possibility of inconsistent findings ... are the risks that parties to an arbitration clause must be considered to have contemplated at the time they struck their bargain. The relevant federal law requires piecemeal resolution when necessary to give effect to an
2274	any imminent threat when it removed the leaking storage tanks in 1989. Further, it appears that the contaminated soil was not removed in 1989 because the regulations applicable at that time did not require removal. Finally, as the trustee points out, the debt- or did not own the property and cleanup was effected almost two years after the lease was rejected and the trustee returned the property to PLC. In short, unlike the site in Conroy it appears that, the property in the instant case could have been abandoned by the trustee because it posed no imminent threat to the public. See In re Smith-Douglass, Inc., 856 F.2d 12, 16 (4th Cir.1988); In re Purco, 76 B.R. 523, 533 (Bankr.W.D.Pa.1987); The court in Conroy addressed only the specific issue before it: whether the response costs incurred post-petition by a state agency to clean up an ongoing hazardous condition on a debtor’s property are entitled to receive administrative expense priority. Unsurprisingly and sensibly the court answered in the affirmative. Notably, the court distinguished the matter before it from the Dant & Russell case: Contrary to the Conroys’ suggestion, the Ninth Circuit’s decision in In re Dant & Russell, Inc., 853 F.2d 700 (1988), is also distinguishable. That case held that a lessor who has a bankruptcy claim against a lessee for the costs of cleaning up hazardous wastes deposited by the lessee on the leased property is not entitled to an administrative
556	"to James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155 (1937). In Dravo, the Supreme Court had held for the first time that a state could retain concurrent jurisdiction over lands acquired by the United States with the consent of the state pursuant to Article I, § 8, Clause 17 of the Constitution. Since the 1909 Act applied only to lands over which the United States had exclusive jurisdiction, the 1940 Act was needed ""simply [to] restore[ ] to the Federal Government the jurisdiction it was recognized as having until the Dravo decision was handed down.” H.R. Rep. No 76-1623, at 1; accord S. Rep. No. 76-1708, at 1. . See, e.g.,  rev’d on other grounds sub nom. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955); In re Varney, 141 F.Supp. 190, 200 (S.D.Cal.1956); United States v. Kinsella, 137 F.Supp. 806, 811 (S.D.W.Va.1956), rev'd on other grounds sub nom. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); In re Di Bartolo, 50 F.Supp. 929, 933 (S.D.N.Y.1943); United States v. Burney, 21 C.M.R. 98, 125 (C.M.A.1956); United States v. Robertson, 19 C.M.R. 102, 110-11 n. 2, 1955 WL 3407 (C.M.A.1955); United States v. Rubenstein, 19 C.M.R. 709, 785-88, 1955 WL 3505 (U.S.A.F. Bd. of Review 1955), aff'd, 22 C.M.R. 313, 1957 WL 4632 (C.M.A.1957); see also Note, Criminal Jurisdiction over"
742	attempt on a prior occasion, and his wife’s defense testimony in the criminal trial of another. For proof, Downey adverts to the testimony of several jurors at his coram vobis hearing. The State urges that jury deliberations are wrapped in a mantle of privilege, and jurors cannot be called to impeach their verdict. In controversy here, however, is not the nature of the mental processes of each juror in reaching the verdict, nor is it proposed that jurors testify as to their impression of the impact of particular evidence on the deliberations. United States v. McKinney, 429 F.2d 1019, 1029, 1030 (5 Cir. 1970); cf. Mattox v. United States, 146 U.S. 140, 147-51, 13 S.Ct. 50, 36 L.Ed. 917 (1892); 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
3538	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); 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
184	allege that because plaintiffs goods and materials, sold and delivered within Puerto Rico, were shipped from outside of Puerto Rico to the defendants in the State of New Jersey, there is no justification for extending personal jurisdiction by virtue of “specific jurisdiction” , (docket 9, p. 4) Defendants further assert that they have not “purposefully availed ... of the privileges of conducting activities within Puerto Rico, thus invoking the benefits and protection of its laws. ” (docket 9, p. 5) The Court disagrees. In cases where the subject matter jurisdiction of the court rests on diversity jurisdiction, the determination as to whether the court has personal jurisdiction over the parties is controlled by the state long arm jurisdiction statute. The exercise of jurisdiction within Puerto Rico’s long arm statute falls well within constitutional standards. Due process requires only that in order to subject the defendant to a judgement “in personam”, if he/she is not present within the territory, that certain minimum contacts exist with Puerto Rico, so as to avoid that the maintenance of the suit offends jurisdictional notions of fair play and substantial justice. Rule 4.7(a)(1) of the Puerto Rico Rules of Civil Procedure, specifies that the minimum contacts requirement is met if the non-resident conducts any business transaction in Puerto Rico . By signing and executing the contract in Puerto Rico, and by agreeing that the contract shall be governed by the laws of The Commonwealth of Puerto
2124	gate completely closed. Undeniably, it is convenient for the Court not to have to prolong litigation with secondary proceedings over toll charges and conditions, and the majority opinion perhaps spares us consideration of difficult issues. However, our Court exists not for its own sake but for the benefit of the litigants before it. Regrettably, as Congress has recently chosen to bestow various new forms of jurisdiction upon us in the declaratory relief area, we have reacted with the most begrudging and narrow interpretations, engendering both statutory and judicial reversals of our positions. See, e.g., Sheppard & Myers v. Commissioner, 67 T.C. 26 (1976), in effect reversed by amendments to sections 7428(a) and 7476(a); We should take the hint and attempt, where we can do so within a fair construction of the congressional language, to read these new provisions so as to effectuate rather than frustrate the congressional purpose. Dawson, J., dissenting: I respectfully disagree with the judicial standard invoked by the majority opinion in reviewing the Commissioner’s determination in this case and the result reached therein. Section 367(a)(1) expressly authorizes the Commissioner to issue a favorable ruling only when “it has been established to the satisfaction of” the Commissioner that “such exchange is not in pursuance of a plan having as one of its principal purposes the avoidance of Federal income taxes.” Section 7477(a)(2) expressly authorizes this Court to review the Commissioner’s determination
3280	the federal courts. United Mine Workers of America, District 22 v. Roncco, 314 F.2d 186 (10th Cir.1963). Where a local union has developed a reliance on the dues checkoff, the checkoff mechanism can effectively be its financial lifeline. Accordingly, federal courts have enforced legal dues checkoffs under 29 U.S.C. § 185. See, e.g., International Brotherhood of Electrical Workers Local No. 12 v. A-1 Electric Service, Inc., 535 F.2d 1 (10th Cir.1976), cert. denied, 429 U.S. 832, 97 S.Ct. 94, 50 L.Ed.2d 96 (1976); Food Handlers Loc. 425 v. Valmac Industries, Inc., 528 F.2d 217 (8th Cir.1975); Local 127, United Shoe Workers of America v. Brooks Shoe Manufacturing Company, 298 F.2d 277 (3rd Cir.1962);  cert. denied, 473 U.S. 904, 105 S.Ct. 3524, 87 L.Ed.2d 650 (1985). A review of the union security and checkoff provisions of the collective bargaining agreement indicates that they are clear and mandatory, and the Court con- eludes that the dues checkoff obligation is enforceable. See Finding of Fact 52. The Committee claims damages in an amount equal to the full amount of dues which U.S. Truck did not deduct for union member employees who were actively working. The Committee’s records provide a monthly measure of these lost dues for the duration of the rejected agreement. The Court concludes that this measure of damages is consistent with that used under 29 U.S.C. § 185. See Bugher, 515 F.Supp. at 1183; Amalgamated
212	PER CURIAM: Mark A. Barnes appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint without prejudice. The district court dismissed the complaint pursuant to  finding that the complaint challenges the fact or duration of Barnes’ confinement and thus should have been raised in a petition under 28 U.S.C. § 2254 following exhaustion of state remedies. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Barnes v. Parr, No. 1:11-cv-00160-LMBTCB (E.D.Va. Mar. 22, 2011). 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. AFFIRMED.
3429	"the court found the need to increase the punishment to account for the parole violation. As the commentary recommends and expressly provides for consecutive sentences in these “complex” circumstances, there was no error. III. Conclusion For the foregoing reasons, we AFFIRM Terrell’s conviction and sentence. . Although defense counsel objected to the admission of the guilty plea, counsel did not oppose the admissibility of a redacted certified copy of the burglary conviction. . Terrell also asserts that the court erred by denying his motion for a mistrial because the government failed to prove the interstate nexus element of the offense and that § 922(g) is unconstitutional. Because this court has rejected these arguments, we need not discuss them further. See United States v. Nichols, 124 F.3d 1265, 1266 (11th Cir.1997); United States v. McAllister, 77 F.3d 387, 390 (11th Cir.1996). . The prior conduct was proven sufficiently, as the government proffered a certified copy of the guilty plea, and Terrell does not dispute the validity of the evidence. . Rule 403 states: ""[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.Evid. 403. Rule 403 is ""an extraordinary remedy which the district court should"
4778	endeavoring to distinguish between the fact of a prior conviction and the basic facts necessary to give that conviction content, suggests an uncomfortably cramped — and somewhat artificial — definition of relevance. In my view, the disputed evidence is relevant — albeit perhaps marginally so — but nonetheless inadmissible under a proper application of Rule 403. Second: I question the court’s approach to Rule 403 in this situation. The rule does not state, nor should it 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 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
2912	"of products as “identical” according to 19 U.S.C. § 1677(16)(A). D. The Department’s Claimed Reliance on a Practice Not to Alter a Model-Match Methodology Absent Compelling Reasons Does Not Suffice to Sustain the Remand Redetermination The Remand Redetermination relies on a claimed ""practice ... not to alter a model-match methodology developed at an earlier stage of a proceeding absent `compelling reasons’ for the modification."" Remand Redetermination 4. In support of this reliance, the Remand Redetermination cites various decisions of the Court of International Trade for the proposition that the practice is grounded in a reasonable construction of the antidumping statute. Id. (citing Fagersta Stainless AB v. United States, 32 CIT —, 577 F.Supp.2d 1270 (2008);  aff’d 537 F.3d 1373 (Fed.Cir.2008) and Mittal Steel USA, Inc. v. United States, 31 CIT 1395 (2007)). After making various factual findings, the Remand Redetermination states as follows: ""[t]he Department finds on remand that the record evidence does not support the assertion that meaningful physical and commercial differences between laminated and other painted CORE products justify a departure from its previous model match methodology."" Id. at 10. The prior decisions of the Court of International Trade cited in the Remand Re-determination are not binding on the court in this case. More important, however, is that those prior decisions do not state a principle under which the court may affirm the Remand Redetermination. None of the cited cases hold that the Department is"
4217	a party’s expectations or rights, statutory restrictions as to the amount and availability of attorney's fees will not generally raise retroactivi1y problems. See Landgraf v. USI Film Prods., 511 U.S. 244, 276-78, 114 S.Ct. 1483, 1503, 128 L.Ed.2d 229 (1994). . In Landgraf, the Court noted several additional examples of new statutes whose application to pending cases was proper. These included statutes whose plain language unambiguously requires application to pending cases, see United States v. Schooner Peggy, 1 Cranch [5 U.S.] 103, 2 L.Ed. 49 (1801); statutes authorizing or affecting the propriety of prospective relief, see American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189 (1921); statutes conferring or ousting jurisdiction, see and statutes revising procedural rules, see Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). See Landgraf v. USI Film Prods., 511 U.S. 244, 272-76, 114 S.Ct. 1483, 1501-02, 128 L.Ed.2d 229 (1994) (collecting cases). . The district court ruled that if it had applied the fee limitations of § 803(d), it would have awarded counsel for Plaintiffs the maximum hourly rate available. We express no opinion as to the appropriateness of such an award. The district court may, of course, reconsider the award on remand. See Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 n. 28 (4th Cir. 1978) (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.
2142	this constitute an invention or a mere improvement upon a prior art and therefore not patentable? In the opinion of this Court it is a mere improvement and hence the patent is invalid. The Examiner failed to make any reference to certain other patents now cited by defendants, same being Malloy (1,625,265), Inman (1,952,624), Smith (1,822,244), Valvano (Design 84,-224), Tramill (Br. 358,362) and Mannin (Br. 357,334). It is only necessary, in the course of this opinion, to make slight reference to these prior arts. Even though not cited as a reference by the Examiner, there is no presumption that these patents were overlooked as they may have been considered and cast aside as not pertinent. Conceding that the burden of establishing invalidity of the patent rests upon the defendant herein, let us examine the essential elements which plaintiffs claim constitute an invention. It is obvious that the King patent covers all of the features of plaintiffs’ patent with the possible exception of (1) a separate guard rail, and (2) securing the guard rail on top of the marginal portion of the carpet, thus permitting the guard rail to serve as a supplemental fastening for the carpet. The use of a guard rail on a miniature golf course was not novel with Davis. Design Patent No. 83,499 issued to Carter on March 3, 1931, provided for same. Malloy, No. 1,625,265, while having many of the features of a game
202	"..."" . Furthermore, the place where the performance of the contract is to take place is pivotal in reaching this determination. The performance of the contract was known to the defendants to be in Puerto Rico. See Coletti v. Ovaltine Food Products, 274 F.Supp. 719, 722 (D.P.R.1967). . Because M.K.M. exercised the privilege of conducting activities within Puerto Rico, thus availing itself of the privileges, protection, and benefits, M.K.M. cannot refuse to escape the consequences: ""The exercise of that privilege may give rise to obligations, and so far as these obligations arise out or are connected with the activities within the State, a procedure to enforce them can, in most instances, hardly be said to be undue.  applying International Harvester Co. of America v. Com. of Kentucky, 234 U.S. 579 [34 S.Ct. 944, 58 L.Ed. 1479] (1914) and International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310 [66 S.Ct. 154, 90 L.Ed. 95] (1945).” . The first Circuit, applying Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902 (1st Cir.1980), understood that the District Court lacked personal jurisdiction over the officers of the defendant corporation, because plaintiff failed to even allege that defendant individual officers actively participated or cooperated in the alleged action of the corporation. . See Donatelli v. National Hockey League, 893 F.2d 459, 462-465 (1st Cir.1990); United Elec. Workers v. 163 Pleasant Street Corp., 960 F.2d 1080, 1087-1089"
4656	POSNER, Circuit Judge. Some years ago Michael Segal — lawyer, certified public accountant, insurance broker — was indicted along with Near North Insurance Brokerage (NNIB), a company he owned, for multiple violations of federal law. He was charged with racketeering, mail and wire fraud, making false statements, embezzlement, and conspiring to interfere with operations of the Internal Revenue Service. NNIB was charged with mail fraud, making false statements, and embezzlement. Both were convicted in 2004, and the following year Segal was sentenced to 121 months in prison.  he was resen-tenced to time served and ordered to pay $842,000 in restitution and to forfeit to the government his interest in the company and $15 million. To resolve a series of disputes that arose over the forfeiture judgment and had not been resolved either by the district court or in either of the decisions (cited above) by this court, the parties in 2013 agreed to a binding settlement that specified the final ownership and disposition of certain of Segal’s assets. Segal, by then released from prison, participated actively, indeed aggressively, in the negotiation of the settlement. But after the district judge approved the settlement the parties clashed over three issues concerning the disposition of Segal’s assets and returned to the
2048	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. . 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) 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
4686	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 actually a citizen of Ohio, not New York. See OneWest Bank, N.A. v. Melina, 827 F.3d 214, 219 (2d Cir. 2016) (per curiam) (national banking association is citizen of state listed in its articles of association as its main office); Arthur v. JP Morgan Chase Bank, NA, 569 Fed.Appx. 669, 673 (11th Cir. 2014) (Chase's principal office is in Ohio); Regardless, this fact would not defeat complete diversity.
4613	"the [state] statutes place institutional control over ’program or activities’ with the school district and school board ... [ánd] does not give assistant principals administrative control over educational programs or activities---- Thus neither a principal nor an assistant ’principal can be considered a grant recipient.”). Notice to an ""appropriate person” is also required under Title VI. And at least one district court has extended the Supreme Court’s interpretation of this phrase in Title IX to Title VI, holding a person with “authority to take corrective action to end the alleged discrimination”- can be liable under Title VI if, after notice of another’s violation of the statute, the authority fails to take corrective action. .. DOJ’s meeting with county supervisors highlights an issue which has yet to be resolved by the facts presented, but which is not necessary to the issue of notice. Maricopa County points out that DOJ’s meeting with the supervisors took place without Montgomery or any representative from the Maricopa County Attorney’s Office (""MCAO”) and that this could mean one of two things: either (1) the United States did not believe the Board of Supervisors (in other words, ""Maricopa County) was represented by MCAO, or (2) the United States did believe the Board of Supervisors was represented by MCAO and committed an ethical violation by meeting with the Board without MCAO’s presence, notification, or consent. If the first option is true, communications"
4909	"Citizens and find that the certification order here is deficient. To satisfy Rule 23(c)(1)(B), an order granting class certification must include: ""(1) a readily discernible, clear, and precise statement of the parameters defining the class or classes to be certified, and (2) a readily discernible, clear, and complete list of claims, issues or defense to be treated on a class basis."" Wachtel ex rel. Jesse v. Guardian Life Ins. Co. , 453 F.3d 179, 187-88 (3d Cir. 2006). ""Although a motion for class certification presents a discretionary question for a district court, the court 'must clearly articulate its reasons, in part, so we can adequately review the certification decision on appeal under Rule 23(f).' "" Maximus, Inc. , 457 F.3d 291, 297 (3d Cir. 2006) ). Our decision in Marcus is instructive on this issue. In that case, after applying the Wachtel standard to the facts at issue, we held that the district court failed to satisfy Rule 23(c)(1)(B) because the court's order, ""[r]ather than set[ting] out its own [class] definition,"" merely stated that ""the New Jersey sub-class is granted"" and then cited to a docket entry for the plaintiff's amended notice of motion for class certification. Marcus , 687 F.3d at 592. While recognizing that the district court and counsel may have ""share[d] [an] understanding of the class definition,"" we nevertheless emphasized that ""post hoc clarification is no substitute for"
3046	thereby inferring that throughout its operation the plant was presumptively operated by the Government, The actual evidence, 'however, did not support the characterization that the TDY plant was directly and substantially operated by the Government. There was no evidence that TDY was ever ordered, coerced or forced to operate as a military defense plant. The situation at the TDY plant' was not similar to the California synthetic rubber plants at issued in Cadillac Fairview/California, Inc. v. Dow Chemical Co., 299 F.3d 1019, 1022 (9th Cir.2002) (Dow operated the government-owned plan as the “agent” of the United States at the “expense and risk” of the United States), or the Virginia high tenacity rayon plant at issue in TDY voluntarily and actively sought the aviation contract work and financial inducements offered by the Government during WWII to build and expand its existing plant. Throughout its Operating history, TDY repeatedly bid on such contracts to its financial benefit. There was no evidence the Government ordered TDY to take on the aeronautical manufacturing during WWII or
2736	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 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 had been involved in a single-car accident in which he sustained a blunt force trauma to the head and severe scalp lacerations that required numerous cranial stitches. Following the accident, he experienced intermittent memory loss that continued regularly for about three months. On February 6, 1997, approximately one month before submitting his application,
1104	12 Stat. 71. See Appendix 1. A reading and thorough study of the Congressional Act just mentioned, conclusively established that Congress confirmed the title to the Tierra Amarilla Grant in Francisco Martinez as a private land grant, and its action is final and not subject to judicial review. The leading case on the proposition that Congress’ action in this sphere is not subject to judicial review is Tameling v. United States Freehold & Emigration Co., 93 U.S. 644, 23 L.Ed. 998. See also Yeast v. Pru, D.C.N.M., 292 F. 598; United States v. Maxwell Land-Grant Co., 121 U.S. 325, 7 S.Ct. 1015, 30 L.Ed. 949 and 122 U.S. 365, 7 S.Ct. 1271, 30 L.Ed. 1211 and 13 S.Ct. 457, 37 L.Ed. 376. After the Congressional confirmation, a patent (see Appendix 2) for the grant was issued to Francisco Martinez February 21, 1881, and was subsequently duly recorded in the office of the County Clerk of Rio Arriba County, New Mexico, on the 9th day of October, 1901. It appears from the evidence adduced on the trial of this cause, including oral testimony and voluminous abstracts, that the plaintiff corporation is through mesne conveyances under the deed of Francisco Martinez and wife to one Manzanares, the holder of such title as conveyed to said premises by said muniments of title. It is unnecessary to relate each conveyance, but suffice it to say that Francisco Martinez and wife executed a deed
3465	"(dated Sept. 23, 1994) (filed March 24, 1999) (hereinafter ""Balch Dep. I.”). . See Butler Dep. at 45. . See id. . See Dep. of Office Greg Mize at 5-7 (filed March 24, 1999) (hereinafter ""Mize Dep.”). . See id. at 28. . See Butler Dep. at 89. . See id. at 97-98. . See Balch Dep. I at 20-21, 23-24; Balch Dep. II at 33-35, 111 (""That's him, he is the one.”). . See Balch Dep. I at 25-26. . See Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir.1998). . Marx v. Gumbinner, 905 F.2d 1503, 1506 (11th Cir.1990) (citations and brackets omitted). . Rankin, 133 F.3d at 1435 (citations omitted). . See id. at 1434. . . See Rankin, 133 F.3d at 1435 (citations omitted). . See Marx, 905 F.2d at 1507 (“That a defendant is subsequently acquitted or charges are dropped against the defendant is of no consequence in determining the validity of the arrest itself.’’) (citations omitted). . See id. at 1507 (citation omitted). . In a ""show-up,’’ a witness is asked to identify one suspect. . Plaintiff argues that summary judgment is inappropriate because the relevant facts are in dispute. See Pl.’s Resp. to Defs.’ Mot. for Summ. J. at 10. However, Plaintiff fails to identify those points of dispute, and the Court finds, based on a review of the pleadings submitted, that the parties are in accord as to the facts relevant"
4504	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 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,
973	the tax liability of the petitioner for the income which was distributed directly to the decedent. Petitioners concede, moreover, that the income distributed to the minor son prior to November 10, 1931, the date of his emancipation, should be taxed to decedent. Helvering v. Schweitzer, 296 U. S. 551. Respondent concedes that the amount distributed to the emancipated son during the entire year was not taxable to the decedent. The only question remaining, therefore, is whether or not that portion of the income of the trust distributed to Helen Gallatin Welsh de Stubner for the period from January 1 to July 21,1931, the date of her death, was taxable to the decedent. It is now well settled, following the decision in Albert C. Whitaker, 33 B. T. A. 865; Helvering v. Brooks, 82 Fed. (2d) 173. See also Helvering v. Coxey, 297 U. S. 694,
2147	knew that Holdcraft was within a protected group. We further note that Arndt scored the highest within each individual interview. If Arndt had not been selected, or had declined the offer, the next three ranked individuals in line for the job before Hold-craft all were males over the age of forty. Given the undisputed evidence in this case, we agree with the district court that Hold-craft clearly is unable to demonstrate that the County’s selection of Arndt was pretext for discrimination or that the County’s failure to hire him was motivated by age or gender discrimination. As the district court noted, courts do not sit as super personnel departments second guessing an employer’s perceptions of an employee’s qualifications. The law does not require an employer to make, in the first instance, employment choices that are wise, rational, or even well-considered, as long as they are nondiscriminatory. Powell v. Syracuse Univ., 580 F.2d 1150, 1156-57 (2d Cir.1978). Because the County set forth legitimate, nondiscriminatory reasons for hiring Arndt rather than Holdcraft, and because Hold-craft failed to promulgate evidence on which a reasonable jury could find the proffered reasons were a pretext for discrimination, we find that the district court did not improvidently grant summary judgment to the County on Holdcraft’s age or gender discrimination claims. Accordingly, we affirm the district court’s order granting the County’s motion for summary judgment. We dispense with oral argument because the facts and legal
1485	alleged infringer. The only question to ask under this test is whether claims of the original patent which are repeated in the reissue patent are infringed. Section 252 assumes that a patentee having valid claims in a patent will retain those claims in the reissued patent. If valid claims in the original patent appear unaltered in the reissue patent, the doctrine of intervening rights affords no protection to the alleged infringer. We have already held, however, that the claims appearing in Seattle Box’s reissued patent are substantively different than those in the original patent. That is, Seattle Box repeats no claim from its original patent in its reissued patent. Industrial, therefore, may properly raise a defense of intervening rights. See When the doctrine of intervening rights is properly raised, the court must consider whether to use its broad equity powers to fashion an appropriate remedy. The second paragraph of section 252 states: [The court] may provide for the continued manufacture, use or sale of the thing made * * * or used as specified, or for the manufacture, use or sale of which substantial preparation was made before the grant of the reissue, and it may also provide for the continued practice of any process patented by the reissue, practiced * * prior to the grant of the reissue, to the extent and under such terms as the court deems equitable for the protection of investments
4609	"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 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 th'e underlying claims. Furthermore, in the Ninth Circuit, injunctions tracking statutory language"
4645	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. In  the Court noted that conscientious objector status need not be premised solely upon religious beliefs and training to exempt an individual from induction into the military. Moreover, the Gillette court clarified that a “willingness to use force in self-defense, in defense of home and family, or in defense against immediate acts of aggressive violence toward other persons in the community, has not been regarded inconsistent with a claim of conscientious objection to war as such.” Id. at 448, 91 S.Ct. 828. After Gillette, in the 1980’s the United States revised the classification of conscientious objector status to reflect Gillette’s holding. See generally 32 C.F.R. §§ 1636.1-1636.10 (collectively, the “CO Regulations”). As noted, Respondent concedes that Gillette
4757	improperly deprived the government of a jury trial on the crime as charged, id. at 28. In support of our conclusion, we added by way of dictum that “even in the face of an offer to stipulate, the government may choose to present evidence on the one felony necessary to prove the crime charged,” id. at 28. Although we stand by and reaffirm the proposition central in Collamore, that a defendant may not use a stipulation or any other procedural device, including bifurcation, to remove from his felon-in-possession prosecution the fact of his prior conviction, we now realize upon reconsideration that our dictum rested on a shaky foundation. In Collamore, we relied on three cases, two from the Sixth Circuit, and United States v. Burkhart, 545 F.2d 14, 15 (6th Cir.1976); and one from the Eighth Circuit, United States v. Bruton, 647 F.2d 818, 825 (8th Cir.1981), 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.
368	retain employment; (5) inability to develop personal relationships; (6) inability to feel or show remorse; (7) lack of concern for others; (8) a tendency to derive pleasure from hurting others; (9) inability to learn from experience or punishment; (10) the ability to manipulate others; and (11) the development of extremely strong sex drives with a tendency toward sexual deviancy. He also testified that petitioner’s behavior was becoming increasingly violent and that he would continue to pose a threat to the safety of others even if he were to be incarcerated. . See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). . Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citing Woods v. Johnson, 75 F.3d 1017 (5th Cir.), cert. denied, — U.S. -, 117 S.Ct. 150, 136 L.Ed.2d 96 (1996). . Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). . 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). . Chapman, 386 U.S. at 24, 87 S.Ct. at 828. . 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). . Brecht, 507 U.S. at 623, 113 S.Ct. at 1714. . The Texas Court of Criminal Appeals was silent as to which standard it applied. . The district court applied the standard espoused in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (Whether the error
3089	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 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
2529	"was unconscionable. Thus, the court stated, ""[a]s a result, at least for the purposes of our analysis, the validity of the Georgia choice of law provision applicable to the parties' contract has not been called into question. Therefore, we see no reason to disregard the parties' agreement to apply Georgia law to their contract.” Overstreet, 462 F.3d at 411-12. And in Coates, the original cardmember agreement (that was amended to include an arbitration clause) contained an Ohio choice-of-law provision and there was no challenge to the validity of that agreement. Thus, ""Ohio law ... [was] made applicable by the terms of the cardholder agreement.” Coates, 125 F.Supp.2d at 825. . The Rogers court also explicitly rejected the decision in  aff'd, 265 F.3d 1059 (5th Cir.2001), in which District Judge Walter Gex held that plaintiffs were bound by an arbitration clause contained in a revised account agreement, when they continued to use their accounts after receiving notice of the revision, even though they had only signed their initial signature card with the bank (which did not contain the arbitration clause). The court in Rogers stated that its ‘review of arbitration law and contract law leads us to a different conclusion” than in Herrington. Rogers, 912 So.2d at 119. . Indeed, even the Georgia statute upon which defendants attempt to rely in arguing that the arbitration provision is valid and enforceable under Georgia law allows a credit card bank to modify the terms"
1341	of the auto under the seat rather than in a tool box in a more conventional place, and the series of burglaries which had taken place in Blair prior to the morning in question. Once it has been shown that the police conduct was reasonable up until the car was searched incident to a valid search warrant, the seizure of the evidence by the use of the warrant can only be held constitutionally valid. It follows from our holding that the stopping of the car and the subsequent request for Hawkins to get out of the car was proper, that officer Cowan could constitutionally observe the burglary tools on the floor of the ear because they were in “plain view”. 88 S.Ct. 992, 19 L.Ed.2d 1067; Creighton v. United States, 132 U.S.App.D.C. 115, 406 F.2d 651; Davis v. United States, 9 Cir., 327 F.2d 301. Since the tools were properly observed, the observation could supply the basis for probable cause for arrest and the issuance of a search warrant to seize them. Since the evidence was validly seized, it could be introduced into evidence at the petitioner’s trial. The judgment of the trial court denying habeas corpus relief is affirmed. . We express no opinion on the legality of this search. . Made applicable to the states by the Fourteenth Amendment. . The state concedes that no probable cause for arrest existed prior to the time of the observation of the burglary tools.
4015	PER CURIAM: The Federal Public Defender appointed to represent Victor Lynn White has moved for leave to withdraw and has filed a brief in accordance with White has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. 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.
2627	the scope of Section 7(a) ignores the connector “or”. Section 4(f) requires the Commission to give notice of a preliminary permit application “to any State or municipality likely to be interested in or affected by such application.” 16 U.S.C. § 797(f) (emphasis added). Municipalities “in the vicinity of’ a project site are likely to be “affected by” the application whereas here Western Minnesota has stated its “interest ]” in the Saylorville Dam project. That interest is therefore established and more than just “likely.” Even if Section 4(f) were viewed as in some way qualifying the scope of the municipal preference in Section 7(a), Western Minnesota qualifies by its clear “interest” in the project. The Commission’s reliance on  as support for interpreting Section 4(f) as a limit on the scope of Section 7(a) is misplaced. That case did not discuss whether the two provisions should be read together. In Northern Colorado, the Commission had failed to provide written notice of a preliminary permit application to the Water Conservancy District even though the District was a “municipality” under FPA § 3(7) and “likely to be interested in or affected by” the application under Section 4(f) because the District distributed water from the canal at the project site. See id. at 1516. In granting the District’s petition to reopen the preliminary permit application process, the court stated that Section 4(f)’s notice requirement “was designed to assist municipalities in their competition for permits”
3677	not envision a scenario in which “Hull’s waiver claim would never get past the state trial court.” Id. at 99. However, “Hull only needed a waiver from the Pennsylvania Courts, not necessarily for the state’s highest court.” Id. (citations omitted). When the Pennsylvania Supreme Court denied Hull’s petition for allocatur without comment, it left the trial court’s order, and thus the state waiver, standing. If Hull had filed a petition for allocatur nunc pro tunc without the order from the Court of Common Pleas, the state supreme court’s denial without comment would have been properly read as a denial based on procedural default. See id. at 95 (reversing its earlier opinion based on two recent Supreme Court cases, Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590, 115 L.Ed.2d 706(1991)). With the Court of Common Pleas order on the record, however, the Third Circuit reasoned that the Supreme Court could have reversed the order “by either dismissing (rather than denying) Hull’s second petition, or by clearly stating that Hull’s petition remained untimely and that his procedural default remained effective.” Id. The Third Circuit concluded: “We are of course bound by Hull II but, at all events, agree that on these facts when the Pennsylvania courts granted Hull the right to file a petition for allowance of appeal nunc pro tunc, the subsequent denial of that petition was on the merits.” Id. at 100. The difference between
4309	Da-meco, Inc., Farmers Home Administration (“FHA”), Internal Revenue Service (“IRS”), Darrell A. McNutt (“McNutt”) and Oklahoma Tax Commission (“OTC”) filed by the Debtor on January 8, 1992 (Docket Entry No. 14) with objection thereto filed January 23, 1992 by ORRC (Docket Entry No. 21) and a Response to the Motion filed by the IRS on February 6, 1992 (Docket Entry No. 27). Appearances were entered at the hearing by Robert Inglish on behalf of the Debtor; Givens Adams for OTC; John McGuire for IRS; and Mark Craige on behalf of ORRC. By previous Order, the Debtor and the IRS were ordered to file Briefs on the legal issue of the applicability of the recent supreme Court case of These Briefs were timely filed and considered by this Court in this ruling. After review of the Briefs submitted by the parties and consideration of the statements of counsel made at the hearing, this Court does hereby enter the following findings and conclusions in conformity with Rule 7052, Fed.R.Bankr.P., in this core proceeding: 1. The Debtor filed the Motion to Determine Secured Status of the parties referenced herein on two tracts of real property located in Choctaw County, Oklahoma. It is undisputed that the IRS possesses a valid tax lien on this property. However, Debtor wishes to value the secured claim of the IRS and the other claimants possessing a security interest in the property
4421	suit. This claim is without merit. As an initial matter, the risk disclosures could not have misled a reasonable investor into thinking that risks like the AIG suit did not exist in light of information communicated to the market about BoA’s exposure to MBS litigation generally and to the AIG specifically. Halperin, 295 F.3d at 359 (a generic disclaimer contains actionable omissions if it can mislead a reasonable investor “into thinking that the risk that materialized and resulted in his loss did not actually exist”). In any event, where there is disclosure that is broad enough to cover a specific risk, the disclosure is not misleading simply because it fails to discuss the specific risk. This is particularly so when there is ample disclosure of the broader risk. Id. at 731. In Hunt, the Court of Appeals held that the general disclosure that a fund would invest in “government guaranteed mortgage-related securities” was sufficient to cover investments in “collateralized mortgage obligations,” particularly in view of the extensive disclosure about the mortgage-related instruments that the fund purchased. Id. at 730-31. In this case, no reasonable investor could have read BoA’s extensive risk disclosures as negating the possibility that litigants would file suits such as the AIG suit. The possibility of such increasing litigation was explicitly disclosed, as was the fact that lawsuits could have a material adverse effect on BoA’s financial condition. The extensive disclosures discussed
473	it appears that the alien immigrant afflicted with the prohibited malady is in such a stage of the disease that it must in the opinion of the medical officer have existed and been susceptible of discovery at the point of embarkation.” Counsel for appellant in the ease insisted that however complete may be the power of Congress to legislate concerning the exclusion of aliens and to entrust the enforcement of such legislation to administrative officers, nevertheless the legislation there involved was repugnant to the Constitution because it defined a criminal offense and authorized a purely administrative officer to determine whether the crime had been committed, and if so, to inflict punishment. In support of this contention the case of 140, was cited and relied on. In that ease it was said: “We regard it as settled by our previous decisions that the United States can, as a matter of public policy, by congressional enactment, forbid aliens or classes of aliens from coming within their borders, and expel aliens or classes of aliens from their territory, and can, in order to make effectual such decree of exclusion or expulsion, devolve the power and duty of identifying and arresting the persons included in such decree, and causing- their deportation upon executive or subordinate officials. But when Congress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment at
121	Kelly v. United States, 924 F.2d 355, 362 (1st Cir.1991), the Federal Defendants argue that investigative functions and decisions, including whether, when and how to investigate or apprehend fugitives, are subject to the discretionary function exception. They contend that the United States has not waived its sovereign immunity for claims based on the FBI’s exercise of its discretion to determine whether, when, and how to investigate or apprehend individuals like Sampson. See 28 U.S.C. § 2680(a). They add that the Plaintiffs’ negligence claim, arising out of the FBI’s failure to use specific technology to reconnect or trace calls, is also subject to the discretionary function exception, because it implicates budgetary and policy-making decisions. The Federal Defendants rely on S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 820, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)), in support of this contention. The Federal Defendants further argue that the United States is liable neither for Anderson’s alleged negligence in disconnecting Sampson’s call, nor for the FBI’s alleged negligence in training or supervising Anderson because, under Massachusetts law, a private person would not be liable in like circumstances. Alternatively, the Federal Defendants argue that the complaint does not establish that the United States owed McCloskey a duty of care. They cite Leidy v. Borough of Glenolden, 277 F.Supp.2d 547, 569-70 (E.D.Pa.2003), in support of the proposition that there is no general duty to protect
2717	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 issue” means more than the presentation of a new legal theory of recovery. Rosen v. Dick, 639 F.2d 82 (2d Cir.1980); New issues sufficient to revive the right to a jury trial are not raised if the amended pleadings concern the same “general area of dispute” as was raised in the original pleadings. Lanza v. Drexel, 479 F.2d at 1310. Here, plaintiff alleges that it is only since discovery has commenced that he has learned of MCA’s plan to expand its use of the trademark “UPTOWN” and that it is this expanded use of the mark that is Sunenblick’s basis for a claim of reverse confusion. Plaintiffs original complaint alleges trademark infringement, false designation and unfair competition, and the proposed amended complaint merely adds allegations of reverse confusion, not even an additional claim. The issues raised in the proposed amended complaint
1815	"88 S.Ct. 1868 ; see also Dickerson , 508 U.S. at 373, 113 S.Ct. 2130. In sum, police may conduct an area search strictly limited to that which is necessary for the discovery of weapons if the officer has a reasonable and articulable suspicion that the subject whose suspicious behavior he is investigating at close range may be able to gain access to a weapon to harm the officers or others nearby. 2. Reasonable suspicion is required to conduct a search. Like all Terry searches, Milone's search must be supported by reasonable suspicion. To assess whether reasonable suspicion existed here, we look again to the totality of circumstances known to Boyack and Milone at the time the search occurred. We also balance the need to search against the intrusion which the search entails. Terry, 392 U.S. at 21, 88 S.Ct. 1868 ; see also Marylandv. Buie , 494 U.S. 325, 335-36, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) ; Pace , 898 F.2d at 1229 (upholding Terry stop on curtilage). Terry contemplates searches to screen persons who may be ""armed and presently dangerous."" Terry , 392 U.S. at 30, 88 S.Ct. 1868. In so determining, ""[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger."" Id . at 27,"
678	O’SULLIVAN, Circuit Judge. This matter is before us on the petition of taxpayers, F. W. Drybrough and the executor of the estate of his deceased wife, Citizens Fidelity Bank & Trust Company, to review a decision of the Tax Court of the United States, reported as Conduct by F. W. Dry-brough is primarily involved and we shall refer only to him as the taxpayer or petitioner. The issues before us are (1) the tax effect of the assumption of liabilities in connection with transfers by Dry-brough to controlled corporations, and (2) the deductibility of interest paid on certain mortgage indebtedness. The Tax Court opinion sets out in extensive detail the complicated transactions that provide the background of the case before us, and we relate here only such facts as are relevant to the conclusions we reach. Commencing in the twenties and continuing to the time of the events here involved, Drybrough had been a successful investor in downtown Louisville real estate and, with his wife, also operated a
963	careful instructions from Mr. Friedman_ There is substantial support in the language above for the trial court’s finding that appellees were not insiders. Assuming that another fact finder could have found differently, where there are two permissible views of the evidence the fact finder’s choice between them cannot be clearly erroneous. Anderson, 470 U.S. at 574, 105 S.Ct. at 1511. In the course of oral argument on appeal, Friedman also alluded to appellees having been given a general power of attorney. Again, we find there is nothing in the record which suggests that appellees functioned on a scale of such unlimited discretion as would invest them with an ability to order, organize or direct Friedman’s operations. Friedman argues that  is analogous to the present case and supports the proposition that appellees were insiders. There, however, the defendant’s principal used his position and the information gained as the debtor's accountant to arrange for a loan from defendant ABD to the debtor which the court found was both burdensome to the debtor and structured to make the debtor’s subsequent default a certainty. In this case, all indications are that the subject note and deed of trust were executed in an adversary atmosphere and at arm’s length. EMB therefore does not support Friedman’s position. C. Equitable Subordination. Section 510(c)(1) provides, in part, that the bankruptcy court may “under principles of equitable subordination, subordinate for purposes of distribution ... all or part of an allowed
3020	notices in English and Spanish in its offices. The local was also ordered to sign notices for posting at the Puerto Rico offices of PRMMI, MTM, San Juan, Sea Freight and International. Upon exceptions by the union, a panel of the Board affirmed the findings and conclusion of the administrative law judge and adopted his order. This petition and cross-application followed. The secondary boycott was outlawed by Congress in order to prevent unions from injuring third parties who were neutrals in disputes between unions and employers. Congress has determined that it is repugnant to allow a union to deliberately harm a neutral in order to obtain concessions from the real party to the dispute. See In addition, the secondary boycott upsets the balance which Congress has sought to introduce at the bargaining table. It decreases the target’s business and leaves it less able to resist union demands. Note, Secondary Boycotts and Work Preservation, 57 Va.L. Rev. 1280, 1289 (1971). . In this case the Board found that the union exerted pressure against the neutrals, PRMMI and MTM, in order to force changes in the operation of San Juan, International and Sea Freight. Under National Woodwork Manufacturers v. N. L. R. B., supra, the union’s defense was that it sought to preserve work traditionally done by its members. Although the administrative law judge cited no cases, his Decision and Order appear
3036	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. 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). 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
857	"confusion). Furthermore, disclaimers will never remedy dilution because consumer confusion is irrelevant in establishing a dilution claim. See 15 U.S.C. § 1127. It is unlikely that a disclaimer either at the beginning of the video or in the comer of a magazine advertisement would cure the likelihood of consumer confusion. In any event, on a motion for a preliminary injunction, this court need not reach what Liquid Glass could do to alter its video and its ads, but must simply examine whether what is presented is likely to be infringing or diluting. ■ . . This court also rejects out of hand Liquid Glass's unsupported argument that because Porsche offered to settle the matter in  by paying for the expenses incurred in changing the name of the business, Porsche should reimburse Liquid Glass for the cost of reshooting the video. Pl. Opp. Br. at 19. Moreover, Liquid Glass's proclamation that Porsche is ""reprehensible” for resolving this matter through litigation instead of through settlement (Id. at 19) also rings hollow in light of Liquid Glass’s statement that it has spent millions of dollars in bringing numerous lawsuits defending its own trademarks and trade dress throughout the country. Id. at 8, Exh. 1. And, of course, it was not Porsche who filed this action but Liquid Glass which, even while mouthing its interest in settlement, filed suit behind Porsche's back."
3084	Inc., 85 F.3d 1311, 1319 (8th Cir.1996). Other courts have held that even lesser amounts were not substantial limitations. See Marinelli v. City of Erie, Pa., 216 F.3d 354, 364 (3rd Cir.2000) (10 pounds); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 644 (2nd Cir.1998) (10-20 pounds); Helfter v. United Parcel Service, Inc., 115 F.3d 613, 617-18 (8th Cir.1997) (10-20 pounds); McKay v. Toyota Motor Mfg., US.A., Inc., 110 F.3d 369, 373 (6th Cir.1997) (20 pounds); Wooten v. Farmland Foods, 58 F.3d 382, 384-86 (8th Cir.1995) (10-20 pounds); Piascyk v. City of New Haven, 64 F.Supp.2d 19, 29-31 (D.Conn.1999) (15 pounds), aff'd 216 F.3d 1072 (2nd Cir.2000) (Table case); Recognizing that a lifting restriction alone would not suffice, Plaintiff has offered Figueroa’s declaration, which the Court finds contains only bald assertions and conclusory statements, and fails to meet Plaintiffs specific burden of production in ADA “working” cases. The first obstacle that the Figueroa declaration faces is it conclusion: that Plaintiff is “virtually unemployable” in the manual labor field. This conclusion is made with casual disregard for statements by Plaintiff that she performed her employment at Hilton as a Control Guard without regard to her condition (Docket # 37, Ex. 4 at p. 24), and that Plaintiff admitted she could perform, despite her physical disability, the cleaning activities associated with her position (Docket # 37, Ex. 20 at p. 35, Ex.
3570	for lost profits was barred by a clause in the sales contract that excluded consequential and special damages. On May 13, 1986, this court granted the motion, and soon thereafter entered an opinion setting forth its reasons for the ruling. See Accordingly, this court then allowed the plaintiffs to file their amended complaint. The complaint alleges that the defendant intentionally and callously withheld information of defects in the mining shaft and failed to warn the plaintiffs. It seeks consequential and punitive damages. The defendant has filed a motion to dismiss, the parties have presented their contentions at oral argument, and time is ripe for the court to rule on the defendant’s motion. Application of the Contractual Limitation of Damages to the Plaintiffs’ Amended Complaint The gravamen of the plaintiffs’ amended complaint is that the defendant learned of a problem in the shaft it sold plaintiffs yet failed to warn them of this danger, thereby resulting in great loss to the plaintiffs’ when
4941	ORDER CONSTRUING CLAIM TERMS OF THE '720 AND '417 PATENTS ELIZABETH D. LAPORTE, United States Magistrate Judge. On November 24, 2008, the Court held a hearing to construe the disputed terms of United States Patent Numbers 7,318,720 (the “'720 patent”) and 6,868,417 (the “'417 patent”) (collectively, the “NetApp patents”) pursuant to Prior to the hearing, the parties stipulated to construction of the disputed term of United States Patent Number 7,107,385 (the “'385 patent”), as reflected in their November 21, 2008, letter to the Court (docket no. 103). Pursuant to Court order, the parties filed additional briefs following the hearing. Without leave of Court or stipulation, Sun submitted a separate letter brief dated December 3, 2008, concerning the construction of “inode” in the '417 patent (docket no. 109). NetApp objected to the 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
4466	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 Auto Supply Co. v. Savage Arms, Inc. (In re Savage Indus., Inc.), 43 F.3d 714, 719-20 n. 8 (1st Cir.1994). A bankruptcy court’s decision to dismiss or convert a case under § 1307(c) is reviewed for an abuse of discretion. See see also Ho v. Dowell (In’re Ho), 274 B.R. 867, 870-71 (9th Cir. BAP 2002). A court abuses its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact. Ho, 274 B.R. at 871. A finding of bad faith, as a basis for granting a motion to convert or dismiss under § 1307(e), is reviewed for clear error. Leavitt, 171 F.3d at 1223. The clearly erroneous standard requires this Panel to give great deference to the bankruptcy court as the trier of fact. Under this standard, a finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is
2267	Holland Die Casting & Plating, Inc., 125 B.R. 493, 503 (Bankr.W.D.Mich.1991). However, courts have found an exception to this general rule when the pre-petition environmental contamination also poses an identifiable and imminent harm in the post-petition period which requires the expenditure of funds to contain or remediate the problem. In re Conroy, 24 F.3d 568 (3d Cir.1994); In re Chateaugay Corp., 944 F.2d 997, 1010 (2d Cir.1991); In re Wall Tube & Metal Products Company, 831 F.2d 118, 123-24 (6th Cir.1987); In re Peerless Plating, 70 B.R. 943, 948-49 (Bankr.W.D.Mich.1987). A number of courts which have found that post-petition costs of remedi-ating a pre-petition environmental injury are properly classified as administrative expenses, rely on See, In re Wall Tube & Metal Products Company, 831 F.2d at 123-24; In re Conroy, 24 F.3d at 570. PLC argues that the holdings in Midlantic and Conroy definitively establish that the Bankruptcy Code does not provide a safe haven for polluters, and consequently, costs expended to remediate environmental pollution should be treated as an administrative expense. It further contends that In re Torwico Electronics, 8 F.3d 146, 151 (3d Cir.1993) makes it abundantly clear that a debt- or’s responsibility for compliance with the environmental laws “runs with the waste,” and thus it does not matter when the pollution occurred or when it was discovered. The trustee counters that PLC reads the case authority too
4870	begins by telling us that Eom has said he wants only to challenge his prison sentence and does not wish to have his guilty plea set aside. Thus, counsel should have omitted any discussion of possible challenges to the voluntariness of Eom’s plea or the adequacy of the plea colloquy. See United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009); United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel has evaluated whether Eom could challenge the reasonableness of the 51-month sentence he asked the district court to impose. Counsel notes, however, that the court correctly calculated the imprisonment range and that Eom’s sentence at the bottom of that range is entitled to a presumption of reasonableness. See United States v. Jackson, 598 F.3d 340, 345 (7th Cir.2010). And counsel concludes that this presumption could not be overcome by arguing that the district court failed to adequately consider the sentencing factors under 18 U.S.C. § 3553(a). See United States v. Singleton, 588 F.3d 497, 500-01 (7th Cir.2009). The court acknowledged Eom’s arguments in mitigation: that he is well educated and, until this offense, had an impressive work history and no criminal record. But the court emphasized that Eom’s professional training made him computer savvy, and the transcripts of his online conversations with the undercover officer demonstrate that Eom knew his actions were illegal because he asked the girl about the legal age for
360	the retrospective competency hearing violated his due process rights; that he received ineffective assistance of counsel; and prosecutorial misconduct. After reviewing all of same, we find no basis therein for appellate review. Barber’s request for a certificate of probable cause is DENIED. . Barber requests a Certificate of Appealability (COA); however, because his petition was filed prior to the effective date of the AEDPA his application must be construed as a request for a certificate of probable cause (CPC). Lindh v. Murphy, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The standards for issuing a CPC and the AEDPA-required COA are identical. See Lucas v. Johnson, 132 F.3d 1069 (5th Cir.1998); Muniz v. Johnson, 132 F.3d 214 (5th Cir.1998).  opinion withdrawn and superseded on rehearing by, 118 F.3d 312 (5th Cir.1997). . 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). . 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Hogue v. Johnson, 131 F.3d 466 (5th Cir.1997). . Dr. Lett otherwise concluded. . Barber v. State, 737 S.W.2d 824 (Tex.Crim.App.1987). . Barber v. State, 757 S.W.2d 359 (Tex.Crim.App.1988), cert. denied, Barber v. Texas, 489 U.S. 1091, 109 S.Ct. 1559, 103 L.Ed.2d 861 (1989). . Dr. Griffith, permitted to testify about Barber's ■ future dangerousness during the punishment phase, testified that Barber did not suffer from any form of mental illness,
1218	present on the face of the pleading. (Pis.’ Reply Mem. of Law in Further Supp. of Their Mot. to Remand (“Pis.’ Reply Mem.”) 2.) But, because Plaintiffs believe that Defendants could not intelligently ascertain removability, and, therefore, that the Summons with Notice was not an initial pleading, (Pis.’ Mem. 1, 12-13), Plaintiffs argue that the “Defendants’ Notice of Removal was premature and the Court should remand the action on 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 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
887	S.Ct. 286, 17 L.Ed.2d 210 (1966) ; cf. United States v. Birnbaum, 337 F.2d 490, 497-498 (2d Cir. 1964). . People v. Butler, 33 A.D.2d 675-676, 305 N.Y.S.2d 367, 369 (1969). The New York Court of Appeals affirmed without opinion, 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587 (1971). . Similarly, Jenohs was decided under the Supreme Court’s rule-making powers for the administration of justice in the federal courts rather than as a matter of federal constitutional law. See Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). . Cf. People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 236, 299 N.Y.S.2d 617, 619, 247 N.E.2d 492, 493 (1969). .  cert. denied, 365 U.S. 850, 81 S.Ct. 814, 5 L.Ed.2d 814 (1961) ; United States ex rel. Murphy v. Denno, 234 F.Supp. 692, 695 (S.D.N.Y.1964) ; United States ex rel. Birch v. Fay, 190 F.Supp. 105, 107 (S.D.N.Y.1961) ; see Buchalter v. New York, 319 U.S. 427, 429-430, 63 S.Ct. 1129, 87 L.Ed. 1492 (1943). . Cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965). . United States v. Keogh, 391 F.2d 138, 146-147 (2d Cir. 1968). . In an affidavit to the Appellate Division the Assistant District Attorney who prosecuted the case swore he was on vacation when the wiretapping occurred and that
2539	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 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 components of the case) and the need in particular circumstances to advance considerations of compensation
1507	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 F.2d at 389-390. See also Wynn v. United States, supra note 8, 130 U.S.App.D.C. at 62, 397 F.2d at 623; 3 J. Wigmore, Evidence § 951 at 509 (3rd ed. 1940); C. McCormick, Evidence § 40 at 85 (1954). . United States v. Provoo, 215 F.2d 531, 534 (2d Cir. 1954). See also the cases cited infra note 15. . At one point during the trial, even appellant’s counsel argued that by means of the excluded testimony “I can show that this man [the officer] is generally depraved. * * * ” . 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
659	v. South Carolina Coastal Council, — U.S. -, -, 112 S.Ct. 2886, 2900, 120 L.Ed.2d 798 (1992). Here the courts must inquire into the degree of harm created by the claimant’s prohibited activity, its social value and location, and the ease with which any harm stemming from it could be prevented. Id. If state nuisance law does not justify the restraint, the court must proceed to the remaining criteria. The second criterion — the economic impact of the regulation on the claimant — is designed to insure that not every restraint on private property results in a takings claim. This concern evolved into the threshold requirement that a claimant show that the Government denied him “economically viable use” of his land. Nollan v. California Coastal Comm’n, 483 U.S. 825, 834, 107 S.Ct. 3141, 3147, 97 L.Ed.2d 677 (1987). This criterion requires this court to determine whether a partial denial of use constitutes a taking. In this context, this court has recognized a dichotomy between noncompensable “mere diminutions” and compensable “partial takings” in borderline cases. Florida Rock Indus., Inc. v. United States, 18 F.3d 1560, 1570 (Fed.Cir.1994). “Mere diminution” occurs when the property owner has received the benefits of a challenged regulation, such that an “average reciprocity of advantage” results from it. Lucas, — U.S. at-, 112 S.Ct. at 2894; Florida Rock, 18 F.3d at 1570. A “partial taking” occurs when a regulation singles out a
2622	by the Commission to be as “equally well adapted” to that of a competing non-municipal applicant. It defined the word “municipality” broadly, leaving no indication that geographic considerations are relevant to an applicant’s status as a municipality. FPA § 3(7), 16 U.S.C. § 796(7). Further, nothing in the text of Section 7(a) suggests that Congress’s use of the phrase “shall give preference” is anything other than a mandatory directive to the Commission. The ordinary meaning of “shall” is the opposite of “may,” denoting the Commission’s duty to prefer municipalities with at least equal plans, not an invitation for the Commission to determine when preferring a particular municipality would serve the public interest as the Commission sees it. See 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),
4440	Congress enacted 28 U.S.C. § 1292, an exception to § 1291, which provides for interlocutory appeals in a specified group of cases. Subsection 1292(a)(3) vests jurisdiction in the courts of appeals to hear [ijnterlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. 28 U.S.C. § 1292(a)(3). It is upon this provision that appeal in the instant case is premised. As noted, § 1292(a)(3) is an exception to the general rule of finality stated in § 1291, and as such, it is to be construed narrowly. City of Fort Madison v. EMERALD LADY, 990 F.2d 1086, 1088 (8th Cir.1993); Hollywood Marine, Inc. v. M/V ARTIE JAMES, 755 F.2d 414, 416 (5th Cir. 1985). The provision was enacted in 1926, well before the merger of the rules of law and admiralty, and with a specific set of circumstances animating Congress’ concern to provide an interlocutory appeal. In admiralty, trials were traditionally bifurcated. First, there would be a trial before the court on the issue of liability. If there was a finding of liability, there would then be a separate hearing before a special master to ascertain damages. These damages hearings were often both lengthy and costly. Congress intended 28 U.S.C. § 1292(a)(3) to permit parties to appeal the finding of liability on the merits, before undergoing the long, burdensome, and
2239	than a recital. This was the posture of the three suits on July 25, 1962, when Sundstrand moved for an injunction restraining the further prosecution of the Maryland suit and enjoining the filing of any additional infringement suits against it or its customers. The District Court for the Northern District of Illinois granted a temporary restraining order contingent on the defendants in the Maryland action filing their voluntary appearance in the Illinois suit. In effect, the order placed in the hands of the defendant customers in the Maryland suit the power to transfer that suit to the Northern District of Illinois without the consent of the patentee-plaintiff or the Maryland District Court. The United States Supreme Court in  laid down guidelines for the lower courts in handling the complex multiple suit, multiple party, and forum non conveniens problems that arise in patent actions. While the Supreme Court therein established a broad area of discretion in the District Courts to enable them to properly regulate the course of complicated litigation in these areas, nowhere in the opinion can we find authority for the action of the Illinois District Court in the instant case. In Kerotest the patent owner filed an action for infringement against a customer of the manufacturer alleged to be infringing. This action was started in Illinois. By amendment the manufacturer was added as a defendant, but prior to the amendment the manufacturer
669	preclude challenges to the validity of Government action in order to protect a constitutional claim for compensation.” Id. Thus, in Loveladies, this court clarified that a litigant may file a suit challenging the validity of governmental regulatory activity concurrently with a takings claim arising from the same set of facts. Furthermore, if a district court finds the regulatory activity valid, the Court of Federal Claims must hear the takings claim even if the regulatory challenge consumes more than six years. Accordingly, the Court of Federal Claims may stay a takings action pending completion of a related action in a district court. Cf. Pennsylvania R.R. Co. v. United States, 363 U.S. 202, 204-05, 80 S.Ct. 1131, 1132-33, 4 L.Ed.2d 1165 (1960); In this case, however, the claimants had not filed concurrent actions in the Court of Federal Claims and a district court. The claimants, therefore, did not face the Hobson’s choice either to challenge the validity of the Wilson Order or bring a takings claim. They could have brought both suits contemporaneously and had the takings challenge stayed pending resolution of the validity issue. Instead, the claimants elected to pursue a single remedy. This conscious choice militates against “equitably tolling” the statute of limitations on the basis of the Loveladies decision. Otherwise, claimants would be able to file in the Court of Federal Claims as an afterthought, once their challenge in the district court was resolved. Requiring that suits be filed contemporaneously,
353	were sufficiently serious to meet the objective component of the deliberate indifference test. Aplt.App. at 22. It argued, however, that plaintiffs had failed to show that “anyone who interacted with Mr. Grassi knew of and disregarded any serious medical need.” Id. at 23. The district court agreed, and so do we. We cannot improve on the district court’s thorough analysis of the facts and the law on this point. As for plaintiffs’ arguments, we see no relevance in whether CCA complied with its internal policies during the course of this matter. Whether prison medical treatment constitutes deliberate indifference rising to the level of an Eighth Amendment violation comprehends the seriousness of the deprivation and the prison official’s state of mind. See Compliance with corporate policy is not part of the deliberate indifference analysis. Plaintiffs’ assertion that “[t]he nursing staff at CCCF knew or should have known that Mr. Grassi would suffer a ruptured appendix with the corresponding possibility of life-threatening complications” is unsupported by evidence in the record. There is no evidence that any member of the nursing staff knew what would befall Grassi, and no expert testimony or other evidence was offered to establish what the nursing staff “should have known” in these circumstances. In them brief, plaintiffs imply that the “brief phone call” with Dr. Sutton, the administration of over-the-counter medications, the fact that Grassi was allowed to return to his cell, and
1759	"727 F.Supp. at 326 (citations omitted) (noting that remand was appropriate because state court litigation had advanced considerably; but resting remand decision on finding that defendants had failed to show that another paper pursuant to section 1446(b) had allowed defendants to ascertain removability). See also Adams v. Lederle Labs., 569 F.Supp. 234, 247 (W.D.Mo.1983) (""Where the second paragraph of section 1446(b) provides the operative law for a case, it is obvious that a defendant's acts .in the state court, taken before the case became removable or before the defendant was able to determine that the case was removable, cannot be taken as a waiver of the right to remove.”). . . Objections (quoting Complaint II ¶¶ 8, 10, 37, 41). . See Compl. ¶¶ 10, 37, 41; Complaint I ¶¶ 10, 37, 41; Complaint II ¶¶ 8, 10, 37, 41. . See Complaint III ¶ 248. . Shell Oil does not claim its right to removal was revived, but that the initial pleading was not removable. In their objection, plaintiffs cite inapposite cases where defendants unsuccessfully sought to prove that their right to removal was revived because the initial complaint was amended so "" 'drastically that the purposes of the 30-day limitation would not be served by enforcing it.’ ” Objections at 7-8 (quoting Wilson, 668 F.2d at 964; Cantrell v. Great Republic Ins. Co., 873 F.2d 1249, 1255"
971	could lead to different factual findings and conclusions). Determining credibility, weighing evidence, and drawing reasonable inferences are left to the trier of fact. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. Procedurally, the.party moving for summary judgment bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrates the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553; see also Fed.R.Civ.P. 56(c). The burden then shifts to the nonmoving party to establish the existence of a genuine issue for trial. See Matsushita, 475 U.S. at 585-87, 106 S.Ct. at 1355-56; The Court must accept the evidence of the nonmoving party and draw all justifiable inferences in favor of that party. See Matsushita, 475 U.S. at 585-87, 106 S.Ct. at 1355-56. However, to meet its burden, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts,” but instead, must “come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 586-87, 106 S.Ct. at 1355-56 (quoting Fed.R.Civ.P. 56(e)). II. ANALYSIS At the time of Plaintiffs injury, Defendant Rail Link, Inc., Plaintiffs employer, was a workers’ compensation subscriber, covered by the Texas Workers’ Compensation Act (“TWCA”), Tex. Labc® Code Ann. §§ 401.001-418.002. Following his injury, Plaintiff filed
880	(2d Cir. 1968), cert. denied, 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970). . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). . 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). . Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), subsequently codified in 18 U.S.C. § 3500. . But cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), holding that a statement that would support impeachment for bias and interest “relates” to the witness’ testimony under 18 U.S.C. § 3500. See also . See United States v. Crisona, 416 F.2d 107, 112-114 (2d Cir. 1969), cert. denied, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970); United States v. Sopher, 362 F.2d 523, 525-526 (7th Cir.), cert. denied. 385 U.S. 928, 87 S.Ct. 286, 17 L.Ed.2d 210 (1966) ; cf. United States v. Birnbaum, 337 F.2d 490, 497-498 (2d Cir. 1964). . People v. Butler, 33 A.D.2d 675-676, 305 N.Y.S.2d 367, 369 (1969). The New York Court of Appeals affirmed without opinion, 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587 (1971). . Similarly, Jenohs was decided under the Supreme Court’s rule-making powers for the administration of justice in the federal courts rather than as a
3125	4 Cir., 215 F.2d 69, 75. That court fully reviewed the cases in which a similar question was presented. We do not believe it necessary to repeat that review here. The court noted that in none of them which upheld the Government’s position was the applicability of this section to rent-a-car companies expressly considered and passed upon. The court’s approach to the construction of the statute is soundly based, as is apparent from In construing the very same section of this statute the Supreme Court held that there was no duty on the lienor to make inquiry as to the record of an undisclosed real owner where the purchase was made by his “straw man,” even though the letter of the statute would require such inquiry. The Court said: “Manifestly, section 204 is a remedial measure. It empowers the courts, exercising sound discretion, to afford relief to innocent parties having interests in condemned property where the claim is reasonable and just. Its primary purpose is not to protect the revenues; but this is proper matter for consideration whenever remission is sought. The section must be liberally construed to carry out the objective. The point to be
745	jury deliberations are wrapped in a mantle of privilege, and jurors cannot be called to impeach their verdict. In controversy here, however, is not the nature of the mental processes of each juror in reaching the verdict, nor is it proposed that jurors testify as to their impression of the impact of particular evidence on the deliberations. United States v. McKinney, 429 F.2d 1019, 1029, 1030 (5 Cir. 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);  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
1811	"act unreasonably in taking preventive measures to ensure there were no weapons within defendant's immediate grasp before permitting him to reenter his automobile). Area searches are allowed ""in the Terry context"" because ""the arrestee, who may not himself be armed, may be able to gain access to weapons to injure officers or others nearby, or otherwise to hinder legitimate police activity."" Id . All the same, the search remains a serious intrusion so it ""must 'be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs or other hidden instruments for the assault of the police officer.' "" Jackson , 300 F.3d at 746 (quoting Terry , 392 U.S. at 29, 88 S.Ct. 1868 ); see also ""The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence ...."" Adams v. Williams , 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). We have similarly held that, under Terry , an officer may conduct a protective search for weapons of an individual's person, ""and area within his control,"" if "" 'a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.' "" Cady v. Sheahan"
362	misconduct. After reviewing all of same, we find no basis therein for appellate review. Barber’s request for a certificate of probable cause is DENIED. . Barber requests a Certificate of Appealability (COA); however, because his petition was filed prior to the effective date of the AEDPA his application must be construed as a request for a certificate of probable cause (CPC). Lindh v. Murphy, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The standards for issuing a CPC and the AEDPA-required COA are identical. See Lucas v. Johnson, 132 F.3d 1069 (5th Cir.1998); Muniz v. Johnson, 132 F.3d 214 (5th Cir.1998). . 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Hogue v. Johnson, 131 F.3d 466 (5th Cir.1997). . Dr. Lett otherwise concluded. . Barber v. State, 737 S.W.2d 824 (Tex.Crim.App.1987). . Barber v. State, 757 S.W.2d 359 (Tex.Crim.App.1988), cert. denied, Barber v. Texas, 489 U.S. 1091, 109 S.Ct. 1559, 103 L.Ed.2d 861 (1989). . Dr. Griffith, permitted to testify about Barber's ■ future dangerousness during the punishment phase, testified that Barber did not suffer from any form of mental illness, but he did have a sociopathic anti-social personality disorder. He testified that a sociopathic personality was characterized by:
843	to the discretion of the district court. A.C. Aukerman Co. v. R.L. Chaides Construction Co., 960 F.2d 1020, 1032 (Fed.Cir.1992). To invoke the defense, Liquid Glass must demonstrate inexcusable delay on the part of Porsche and that this delay prejudiced Liquid Glass. Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961); United States v. Koreh, 59 F.3d 431, 445 (3d Cir.1995); Lasseigne v. Nigerian Gulf Oil Co., 397 F.Supp. 465, 473 (D.Del.1975). Any delay by Porsche in filing suit was completely excusable. Porsche diligently enforced its rights to the mark, immediately writing to Liquid Glass when it became aware of the improper advertisements and requesting that Liquid Glass discontinue using the marks. See Cease and desist letters were repeatedly sent to Liquid Glass and were met with responses representing that the matter could be settled amicably. Several settlement agreements proposed by Porsche were, however, shot down by Liquid Glass. Vague objections to proposed agreements, coupled by Liquid Glass’s failure to provide alternate provisions or language, as well as false assurances that certain advertisements would be or even were discontinued, resulted in prolonged settlement negotiations. Contrary to Liquid Glass’s assertion that “[tjhere is no plausible excuse on the part of Porsche for
4850	"not on the income side with which we deal today), we address here only the above-median debtor scenario and save the question of the applicability of our holding to below-median debtors for another ‘day. .While the ""reasonably necessary” qualification applies to the exclusion from disposable income of foster care and disability payments in addition to child support payments, our decision today addresses its operation only with respect to child support. . Bankruptcy courts have displayed a similar intent to protect child support payments received by debtors. For instance, in The interest is not within the reach of the custodial parent’s creditors outside of bankruptcy and thus, should not be within their reach in bankruptcy.”). . The trustee argues that the child support award in this case is a particularly unreliable indicator of reasonable necessity because the amount of the award was mutually agreed upon by Brooks and her ex-husband — not calculated by a court in the first instance. However, the Illinois divorce court was not bound by the agreement of the parties. See Blisset v. Blisset, 123 Ill.2d 161, 121 Ill.Dec. 931, 526 N.E.2d 125, 128 (1988) (""[AJlthough property disposition agreements between spouses are binding upon the"
1333	the pair were convicted. The tools seized under the warrant were introduced at the trial of the petitioner for burglary and possession of burglary tools. It is the use of these tools in evidence which is the basis of the petitioner’s claim for relief. It is argued in this case that the petitioner’s Fourth Amendment rights were violated when the police stopped his car and eventually found burglary tools in his possession. The issue can only be resolved by an examination of the police activity in this case in light of the Fourth Amendment principles. The Supreme Court has recognized that the protection of the Fourth Amendment applies at all times whenever an individual has a reasonable expectation of privacy. 351, 88 S.Ct. 507, 19 L.Ed.2d 576. It is quite clear that a person driving an automobile has such an expectation and is therefore protected by the Fourth Amendment. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L. Ed.2d 142; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. There is no doubt that petitioner was protected by the Fourth Amendment when he drove through the streets of Blair, Nebraska. The Fourth Amendment provides: “[T]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The important Fourth Amendment issues therefore are whether there was a “search” or “seizure” or both in this case
3093	"185(a) (“Law 80”) are DISMISSED WITHOUT PREJUDICE. Judgment will be entered accordingly. SO ORDERED. . Although the Court will discuss the substance of Figueroa’s Declaration, we agree with Defendant that it is doubtful that Figueroa's statement would be admissible under Fed.R.Evid. 702. First, Ms. Figueroa has a masters degree in psychology, not human re sources or economics. Therefore, her bare assertion that she has experience in the employment market in Puerto Rico lacks the proper foundation. Second, her statement does not discuss any ""scientific, technical or other specialized knowledge” since no statistical evidence has been produced. Finally, the declaration does not appear to rest on a reasonable foundation, nor is it relevant to the facts of this case. See "
2010	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); 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,
2005	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 .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, and Fugere, all supra. Where the Manual M21-1 imposes requirements not in the regulation that are unfavorable to a claimant, those additional requirements may not be applied against the claimant. Ibid. They are not for further consideration and should
3334	be remanded to the district court for a new trial on counts 5 and 6 and for further proceedings consistent with this opinion. . Even though the city was the purchaser there is no question that Nelson should have paid the real estate taxes. There was, however, no transfer fee due on the conveyance as it was exempt. N.J.Stat.Ann. § 46:15-10(b) (West Supp.1988). Thus no provision for the fee should have been made on the closing statement. . The government does not argue that the limitation on cross-examination was harmless. In any event we are not persuaded that it was. The issue involved, the pendency of the grand jury proceeding, involved facts peculiarly within the knowledge of the government. See Thus, it is difficult to understand how the appellants could develop evidence on the issue except from government witnesses. . Because of our result, we need not specially address appellants’ other challenges to the convictions on counts 5 and 6 though in fact we pass upon them in considering count 4. . Inasmuch as Perrone’s motion for acquittal was granted at the end of the government’s case he was not mentioned as a possible conspirator. Of course, the underscoring of portions of the charge was done by us as the charge was oral. We do not suggest that the district judge emphasized these portions. . The judge reserved judgment on the motion. The government
2068	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 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 obtained the profiles of Miguel Rodriguez Colón and Luis Fernandez Santana from a conversation with Guerrero, who had met with the above mentioned defendants on
156	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); 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
3841	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  this Court held that a county jail’s policy of banning newspapers and magazines violated a pretrial detainee’s first amendment rights where the state failed to show that the ban served a legitimate governmental objective. Van Cleave’s complaint also alleges that he was released from the county jail on July 6, at 6:00 p.m., however “the Sergeant told [Van Cleave] that [his] money and identification were locked in the safe and no one could open it until 8:00 a.m. the next day.” This allegation does not state a claim. Locking Van Cleave’s property in a safe served the obvious legitimate governmental interest of securing Van Cleave’s property; the Sergeant’s inability to open the safe does not evidence an intent to punish
3580	JOHNSON, District Judge. The material facts in this case are in all respects similar to the facts in Eugene H. On the authority of that case and in conformity with the opinion therein, the order of the trial court dismissing the action is affirmed.
37	"to do so in a reasonably timely manner. In sum, because the Superintendent offers no plausible excuse for ignoring the judgment of the district court — a judgment of which he was fully apprised — for some fourteen months, we hold that there was no abuse of discretion by the district court in denying the Superintendent’s Rule 60(b)(6) motion. III Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED. . Though the Superintendent’s notice of appeal designates both a) his Rule 60(b) motion for relief and b) his motion for stay or dismissal, we dismiss the appeal of the latter issue because the Superintendent has failed to brief the issue and has thus abandoned it. ); Fed. R.App. P. 28(a)(9)(A) (requiring argument to contain ""appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”). .The relevant Rule 60(b) text provides: On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void ... or (6) any other reason justifying relief from the operation of the judgment. Fed.R.Civ.P. 60. . Rule 60(b)(4) motions have no set time limit; in this circuit, they need not even be made within a"
2117	the alternative, it was pursuant to a plan having as one of its principal purposes, or first in importance, the avoidance of Federal income taxes. Petitioner responds to this argument by pointing to the evidence in the record which establishes the reasons for the earnings retention. These reasons focus on OLINV’s need for working capital. At issue is whether this ostensible working capital translates into legitimate working capital needs. It is well settled that a normal bona fide business practice for a corporation is the retention of a portion of its earnings and profits in order to provide for the reasonable needs of its business, including, but not limited to, working capital and the expansion of its operations. Cf. We believe that petitioner has demonstrated such a need and that respondent’s determination is not based upon substantial evidence in the record. Under certain conditions, OLINV has the right to “job-out” its sales orders to other manufacturers. At present, OLINV has a degree of operational autonomy with respect to both manufacturing and marketing and it is reasonable to expect that such independence will grow as OLINV begins to acquire its own manufacturing facilities as stated in its corporate purposes. Therefore, we are unable to find sufficient evidence in the record which would support respondent’s determination that petitioner’s share of the unrepatriated earnings of OLINV amounted to tax avoidance per se and that no valid business reasons existed for such an accumulation. Respondent
2394	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  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.
3494	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, 1315 (9th Cir.1981). 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 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
4834	Farms qualifies as an “offeree company” under the IPA. Elaine A. McReynolds is the Commissioner of the Tennessee Department of Commerce and Insurance. Charles W. Burson is the Attorney General of the State of Tennessee. III. Plaintiffs’ Challenge is Ripe Holly Farms asserts that this action is not ripe for decision. Tyson’s offer contains several conditions. Holly Farms argues that this Court will have issued an advisory opinion should any one of these conditions ultimately not be met. Precedent precludes this argument. Courts routinely reach the merits of actions challenging less than all the impediments to the success of a tender offer. See, e.g., Most of the precedent that guides this Court’s analysis below would not exist if Holly Farms correctly states the law. Holly Farms is covered by the IPA and has opted into the ACPA. Tyson’s challenge to the Tennessee Acts is ripe. IV. Commerce Clause Analysis of the Tennessee Acts This action involves a tender offer for a corporation organized under the laws of a state other than Tennessee. This Court limits its analysis and holding to the Tennessee statutes as they apply in this case. This Court therefore takes no position on the constitutionality of the IPA, BCA, or CSAA as they apply to Tennessee corporations. Tennessee recently
2966	not necessary to vindicate that interest. See United States v. McKinney, 450 F.2d 943, 943 (4th Cir.1971) (due process does not require disclosure of presen-tence report); United States v. Knupp, 448 F.2d 412 (4th 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.,  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
1648	a higher burden of proof. We deny the petition for review. The Immigration and Naturalization Act (INA) authorizes the Attorney General to confer asylum on any refugee. 8 U.S.C. § 1158(a) (2000). The INA 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) (2006). Without regard to past persecution, an alien can establish a well-founded fear of persecution on a protected ground. 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
4580	"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 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 which “expressly permitted officers to make racial classifications.” Melendres, 989 F.Supp.2d at 899. The court also found that"
1480	W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1557, 220 USPQ 303, 316 (Fed.Cir.1983). Industrial has not carried its burden of persuading us that the ’373 patent is invalid for indefiniteness. C. Recapture Rule Industrial argues that the PTO incorrectly allowed the broadened reissue claims with a scope equivalent to the scope of the preamended claims in the original patent application. The recapture rule does not apply here, however, because there is no evidence that Seattle Box’s amendment of its originally filed claims was in any sense an admission that the scope of that claim was not in fact patentable. See In re Petrow, 402 F.2d 485, 488, 159 USPQ 449, 451 (CCPA 1968); see also IV Liability The court must consider Industrial’s liability for infringement, if any, during two distinct time frames. The first period extends between the date the original patent issued, July 11, 1978, and the date the reissue patent issued, August 19, 1980. Seattle Box’s only enforceable patent rights during this period arise from 35 U.S.C. § 252, which allows claims in a reissue patent to reach back under certain circumstances to the date the original patent issued. The second period begins on the date the reissued patent issued, August 19, 1980. During this period, Seattle Box’s broadened patent claims cover a double-concave block with a height “substantially equal to or greater than” the diameter of the separated pipes. We consider the two time
1827	"of the Fourth Amendment. If the search of the curtilage had turned up something belonging to another resident of the home, such as illegal drugs or child pornography, that other resident would be entitled to contest that search and seek to suppress the evidence. That would be so even though the police had never given any thought to the possibility of another resident or her connection to the property. Here, Richmond does have a Fourth Amendment interest in the home, giving him the necessary interest to contest the search and the right to seek suppression of illegally collected evidence. Rakas v. Illinois , 439 U.S. 128, 134, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The government might point to  as support for its position, but nothing in that case is in tension with the later decisions in Jardines and Collins . The only common element is the fact that a person's front porch featured in the facts. Otherwise, everything that is missing here was present there. First, the district court found, and the Supreme Court confirmed, that the police had ""strong probable cause"" that defendant Santana had just participated in an illegal sale of narcotics. Id. at 41-42, 96 S.Ct. 2406. Second, it found that Santana herself was in a public place as she stood on the threshold of her dwelling, and so, given the existence of probable cause, the police were entitled to arrest"
3226	the extent that— (1) such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or un-matured; ... As noted in In re Continental Airlines Corp., 57 B.R. 845, 849 (Bankr.S.D.Tex. 1985): The Bankruptcy Court must determine the allowability of claims for both summary judgment and estimation purposes by applying the appropriate substantive law which would be applied in the non-bankruptcy context. See, e.g., Woods-Tucker Leasing Corp. v. Hutcheson-In-gram Development Co., 642 F.2d 744, 748 n. 8 (5th Cir.1981); Vanston Bondholders Protective Comm. v. Green, 329 U.S. 156, 161, 67 S.Ct. 237, 239, 91 L.Ed. 162 (1946). See also 3 Collier on Bankruptcy ¶ 502.02 at 502-27 to 29 (15th ed. 1987); Bordewieck & Countryman, The Rejection of Collective Bargaining Agreements by Chapter 11 Debtors, 57 Am.Bankr.L.J. 293, 330-31 (1983). Note, The Bankruptcy Law’s Effect on Collective Bargaining Agreements, 81 Colum.L.Rev. 391 (1981). In this case, the Committee’s claim for breach of the collective bargaining agreement is determined by reference to the federal common law of labor contracts which has developed under 29 U.S.C. § 185 (Labor Management Relations Act, § 301). Textile Workers v. Lincoln Mills of Alabama, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957). See Continental, 57 B.R. at 849. 2. Whether or Not Valid and Binding, the New Agreement Does Not Bar
3669	conclusion that the § 2255 motion was untimely, denied a certificate of appealability and dismissed the appeal. On May 2, 2007, Black filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the Middle District of Pennsylvania to challenge his 1994 conviction. The district court dismissed the petition on the ground that Black could only challenge his conviction via a § 2255 motion. Black timely appealed and both sides have filed motions with this Court for summary action. We have jurisdiction 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 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
1483	back to the date the original patent issued, but only if those claims are identical with claims in the original patent. With respect to new or amended claims, an infringer’s liability commences only from the date the reissue patent is issued. At issue in this case is Congress’ meaning of the word “identical.” The district court interpreted “identical” to mean “essentially identical,” noting that other courts have interpreted the word “identical” in section 252 in a way which does not limit claim continuity to literally identical claims. It cited Austin v. Marco Dental Products, Inc., 560 F.2d 966, 195 USPQ 529 (9th Cir.1977), cert. denied, 435 U.S. 918, 98 S.Ct. 1477, 55 L.Ed.2d 511 (1978) and Akron Brass and Austin permitted changes in a reissue patent’s claims, however, only if without substance. In Akron Brass, a reissued claim substituted the word “qutlet” for the word “inlet” in the original claim. Since it was already clear what was intended, the court there noted, substitution of “outlet” for “inlet” in no way enlarged or modified the substance of the claim. In Austin, the court found a claim in the reissued patent “identical” to one in the original patent where a modification was made to “make more precise the language used without substantive changes in the claims.” 560 F.2d at 973, 195 USPQ at 534. ' Since we are not asked to, we do not have to
2436	"the United States ""the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."" U.S. Const., Art. VI, cl. 2. Put simply, federal law preempts contrary state law. ""Our inquiry into the scope of a [federal] statute's pre-emptive effect is guided by the rule that the purpose of Congress is the ultimate touchstone in every pre-emption case."" Altria Group, Inc. v. Good, 555 U.S. 70, 76, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008) (internal quotation marks omitted). A state law is preempted where ""Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law,""  as well as ""where, under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,"" Crosby v. National Foreign Trade Council, 530 U.S. 363, 373, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) (brackets and internal quotation marks omitted). We agree with the Fourth Circuit's judgment that Maryland's program sets an interstate wholesale rate, contravening the FPA's division of authority between state and federal regulators. As earlier recounted, see supra, at 1292, the FPA allocates to FERC exclusive jurisdiction over ""rates and charges ... received ... for or in connection with"" interstate wholesale sales. § 824d(a). Exercising this authority,"
4007	also point to Rueckert’s deposition testimony which establishes that he has used an Ultra to drydock his boat, Ginger Snapper. (See Rueckert Dep. at 160-162, Pl.’s Ex. 18, ECF No. 274^.) Considering this evidence, there is no genuine issue of material fact concerning whether or not Defendant has driven a craft onto an Ultra. Consequently, Defendant has directly infringed the '833 patent and is liable for direct infringement under § 271(a). Second, Plaintiffs also show direct infringement by Zeppelin’s customers. Direct infringement of a patented method may be established through different actors performing different steps of a method. See, e.g., Metabolite Laboratories, Inc. v. Laboratory Corp, of America Holdings (d.b.a. LabCorp), 370 F.3d 1354, 1364 (Fed.Cir.2004); see also In Metabolite, the Federal Circuit found that there was sufficient circumstantial evidence in the record to find that various physicians, who were non-parties to the suit and performed only the second step of the method, directly infringed the method claim at issue and therefore, the defendant could be held liable for inducing infringement. Id; see also Moleculon, 793 F.2d 1261 at 1272 (holding that although method claims could only be directly infringed by non-party puzzle-users who attempted to solve the Rubic’s cube puzzle, and not by the defendant that had made the accused puzzles, defendant was liable for inducing infringement.). In the instant case, Plaintiffs have shown the existence of direct infringement by Defendant’s customers who drive crafts onto Ultras. There is
2309	severe and medically determinable physical or mental impairment; (3) has such an impairment that meets or equals one of the listed impairments and meets the duration requirements; (4) can perform his past relevant work, in light of his residual capacity; and (5) can make an adjustment to other work, in light of his residual functional capacity, age, education, and work experience. Id. § 404.1520(a)(4). A claimant is not disabled unless he has a severe impairment. Id. § 404.1520(a)(4)(ii), (c). A severe impairment is an impairment or combination thereof that significantly limits the claim ant’s physical or mental ability to do basic work activities. Id. § 404.1520(c). The determination of whether the claimant suffers from a severe impairment acts as a filter. Thus, while a claim is denied if the claimant does not suffer from a severe impairment, the finding of any severe impairment, regardless of whether it qualifies as a disability or results from a single impairment or combination thereof, is sufficient to satisfy the second step of the SSA’s sequential analysis. Id. Nonetheless, beyond the second step, the ALJ must consider the entirety of the claimant’s limitations, regardless of whether they are individually disabling. See id.; Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir.1984). The ALJ found that Mr. Griffin suffered from the severe impairment of degenerative disc disease, which was all that the second step of the SSA’s disability analysis required. See Jamison, 814 F.2d at 588. The
4076	the totality of the circumstances in determining whether the accused was subject to custodial interrogation. United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir.1985). Relevant factors to consider in making the determination include the accused’s freedom to leave the scene, and the purpose, place, and length of the interrogation. Id. The circumstances under which the appellant was interviewed, as discussed above, supra p. 283, clearly indicate that he was not in custody. The District Court properly refused to exclude Hasse’s testimony on this ground. 2. Fed.R.Evid. 404(b) Under Fed.R.Evid. 404(b), evidence of other wrongs is not admissible to prove the defendant’s bad character, but may be admissible for other purposes, such as proof of intent, knowledge, or plan. See The District Court admitted Hasse’s testimony for the purpose of showing intent and a plan on the part of the appellant that encompassed both Paul Havard and the victims named in the indictment. Trial Transcript at 388. Lanier contends that this was error because Havard is not mentioned in the indictment. Evidence of other wrongs is admissible if (1) an issue is raised on which evidence of other crimes may be received; (2) the evidence is relevant to that issue; (3) the evidence is clear and convincing; and (4) the probative worth outweighs any prejudicial impact. United States v. Young, 618 F.2d 1281, 1289 (8th Cir.), cert. denied, 449 U.S. 844, 101 S.Ct. 126, 66 L.Ed.2d 52 (1980). The trial
2511	relative sizes of the parties. While it would have been error for the court to have relied exclusively on the size of the parties in determining the equities between the parties, the district court did not do so. The court did not merely take note of the parties’ sizes, but rather considered the impact of a denial of a preliminary injunction to Bell & Howell and a grant of a preliminary injunction to Keystone. The court determined that Bell & Howell would sustain only minimal damage if a preliminary injunction did not issue, and that Keystone would be put out of business if a preliminary injunction did issue. This is a proper factor to be considered, see  and its use does not constitute an abuse of discretion. However, the fact that Keystone is “small” and could be put out of business if a preliminary injunction issues does not insulate it from the issuance of a preliminary injunction if the other three preliminary injunction factors are sufficient to tip the scale in Bell & Howell’s favor. Id. Small parties have no special right to infringe patents simply because they are small. We do agree with Bell & Howell that the district court’s determination that the declining microfiche jacket market favored Keystone was legal error and hence an abuse of discretion. The district court noted: “According to Richard Bramley, plaintiffs Vice President of Operations, CD ROM
4291	the formulation of a generally applicable principle or as a proper criterion for the disposition of this particular case. Courts exist to serve the parties, and not to serve themselves, or to present a record with respect to dispatch of business. Complaints heard as to the law’s delays arise because the delay has injured litigants, not the courts. For the court to consider expedition for its own sake “regardless” of the litigants is to emphasize secondary considerations over primary. If, in speaking of the public interest in speedy trials, the court could be regarded as making special reference to patent litigation, see, e. g., Bresnick v. United States Vitamin Corp., 2 Cir., 1943, 139 F.2d 239, 242; . 661, 665, 64 S.Ct. 268, 88 L.Ed. 376, that interest was centered in North Carolina. A trial there was inevitable in any event. That suit was the principal one, and North Carolina was the primary forum in which to try — not only because it was first, but because of the number of substantial parties before the court, and the time and effort which had been spent in preparation. See Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 3 Cir., 1951, 189 F.2d 31, 34-35, affirmed 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200; Northern Ins. Co. of New York v. Grone, D.C.M.D.Pa.1954, 126 F.Supp. 457, 458; cf. Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 1952, 342 U.S. 180, 183-184, 72 S.Ct.
794	extent that plaintiff claim to the Inconstitutionality of Section 1782 was completely ignored by this Court... ” Finally, plaintiff asserts that certain findings in the Court’s Opinion and Order in support of the fee award, constitute grounds for recusal. Plaintiff then concludes: “Plaintiff attribute attitude of District Judge to his pro-se status.” An examination of plaintiff’s affidavit for disqualification shows that it is legally insufficient. It contains conclusory allegations devoid of sufficient facts. It fails to set forth adequate and specific circumstances to support the allegation that the undersigned judge is personally biased or prejudiced, or that the undersigned judge’s impartiality might reasonably and objectively be questioned. In Re United States, 666 F.2d 690 (1st Cir.1981); Home Placement Service, Inc. v. Providence Journal Company, 739 F.2d 671 (1st Cir.1984). Thus, a party cannot subjectively say that a judge is prejudiced and thereby, ipso facto, disqualify a judge. Instead, facts must be presented that, assuming their truth, would lead a reasonable person to believe that the judge’s impartiality or fairness may be questioned. U.S. v. Cowden, 545 F.2d 257 (1st Cir.1976); cert. den. 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585; Blizard v. Frechette, 601 F.2d 1217, 1220 (1st Cir.1979). “... appellant argues that the Judge’s recitation of record support for all of his less-than-complimentary findings of fact demonstrates a subjective, self-justifying approach to the section 455(a) issue where an objective evaluation of the appearance created by
2902	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). IV. EAC further argues that the plan was not proposed in good faith as required by 11 U.S.C. § 1325(a)(3) (1982). This court has not given a comprehensive definition to “good faith” as used in Chapter 13. See In Estus, supra, however, the court listed a number of factors it considered relevant to the good faith analysis. The Code has since been amended to include 11 U.S.C. § 1325(b). This section's “ability to pay” criteria subsumes most of the Estus factors and allows the court to confirm a plan in which the debtor uses all of his disposable income for three years to make payments to his creditors. Thus, our inquiry into whether the plan “constitutes an abuse of the provisions, purpose or spirit of Chapter 13,” Estus, 695 F.2d at 316, has a more narrow focus. The bankruptcy court must look at factors such as whether the debtor has stated his debts and expenses accurately; whether he has
138	against the United States for money damages arising out of “personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under the circumstances where the United 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. 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,
4852	by rejecting Dr. Piasecki’s opinion recommending that Withrow have the option of standing and sitting at will. We reject Withrow’s contention because the ALJ specifically indicated that Dr. Piasecki’s opinion was accorded partial weight and included the standing and sitting at will option in the residual functional capacity (RFC) determination. Dr. Piasecki’s heavy lifting limitation, moreover, was included in the ALJ’s hypothetical to the vocational expert. The ALJ provided specific and legitimate reasons for giving little weight to the opinions of physicians Drs. Baird and Chung regarding Withrow’s standing and walking limitations. As to Dr. Baird’s opinion, the ALJ reasonably determined that this opinion was contradicted by the evidence in the record and by Withrow’s own statements. See Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (stating that if the ALJ determines that the subjective complaints of the claimant are not credible, this is a sufficient reason for discounting a physician’s opinion upon which the complaints are based). As to Dr. Chung’s opinion, the ALJ reasonably determined that Withrow’s statements describing his activities of daily living indicated that Withrow was able to stand and walk to a greater extent than Dr. Chung generally outlined. See Ghanim v. Colvin, 763 F.3d 1154,
1765	Guidelines Manual § 2A6.1(a)(l), and an additional six-level increase “[i]f the offense involved any conduct evidencing an intent to carry out such threat,” U.S. Sentencing Guidelines Manual § 2A6.1(b)(l). In the comment to the guideline, the Sentencing Commission instructs the district court to consider both (1) conduct that occurred prior to 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. 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
1529	"a pension plan that has an unfunded vested liability. Moreover, ERISA calculates withdrawal liability according to when the employer withdraws from the pension plan. (emphasis added). . The Act provides different methods for computing withdrawal liability. Each method involves allocating the plan’s unfunded vested benefits among the participating employers. Unfunded vested benefits are defined as the actuarial present value of all nonforfeitable benefits under the plan, minus the value of the plan’s assets. 29 U.S.C. §§ 1391; and 1393(a)(1). . This observation is echoed in the case law. ""lT]he parties to a [collective bargaining agreement] may freely determine the extent of the employer’s obligation to contribute to a fund, including the exact date of withdrawal."" . Section 1392(c) has not been discussed frequently, but where it has been addressed, it has typically been construed narrowly. See Pension Trust Fund of Philadelphia and Vicinity v. Fed. Exp. Corp., No. 80-304, 1995 WL 791371 at *8 n. 3 (D.Del. Dec. 27, 1995). . Courts addressing the application of § 1392(c) have done so most often where a conveyance of assets to or other dealings with subsidiaries are suggestive of bad faith. See e.g., Sherwin-Williams Co. v. N.Y. State Teamsters Conference Pension, Retirement Fund, 158 F.3d 387 (2d Cir,1998)(stating that weak financial status of subsidiary made avoid or evade motive more likely); Santa Fe Pacific Corp. v. Central States, Southeast and Southwest Areas Pension Fund, 22 F.3d 725, 729"
2409	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 .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 he was qualified for the positions, insofar as a high school diploma or its equivalent was required. A fair reading of the
4018	Guard’s action (1) violated his associational rights under the First Amendment; (2) violated his Fifth Amendment right to due process; and (3) was in violation of the APA. The district court granted defendants’ motion to dismiss. See Menkes v. Dep’t of Homeland Sec., 402 F.Supp.2d 204, 210 (D.D.C. 2005). The court addressed each of Menkes’s three claims in turn, beginning with the APA challenge. Although recognizing that there is a strong presumption of reviewability under the APA, the court explained that APA review is not available if agency action is “committed to agency discretion by law.” See 5 U.S.C. § 701(a)(2). A matter is committed to agency discretion when there is a lack of judicially manageable standards to guide meaningful review. The court reasoned that the regulations, by specifically giving the Director sole authority to make determinations about the need for non-association pilots, failed to provide a judicially manageable standard by which to review such a decision. Thus, whether additional pilots were required — or, alternatively, whether the Association was providing adequate pilotage service — were questions within the unreviewable discretion of the agency. The district court also disposed of Menkes’s constitutional claims. With respect to Menkes’s First Amendment association claim, the court concluded that “defendants do not require the plaintiff to join the [Association] as a condition to employment,” 402 F.Supp.2d at 209-10, noting that the Coast Guard had allowed Menkes to serve as a pilot from 2001 to 2003 without
4384	the issue that its restrictive covenants are reasonable in scope. During the hearing, Plaintiff argued that the 60-mile radius included in the covenant to not compete is necessary because it encompasses its market area, and it argued that the 6-month non-compete period is necessary to allow it to transition its current customers to a new account executive. The non-disclosure and non-solicitation are limited to one-year in length. The non-solicitation agreement is limited to customers with whom Olson had contact while employed by Plaintiff. See McRand, Inc. v. van Beelen, 138 Ill.App.3d 1045, 93 Ill.Dec. 471, 486 N.E.2d 1306, 1315 (1985) (explaining that non-solicitation agreements are reasonable only if they are limited to customers with whom former employees had conduct); Finally, during the hearing, Defendants asserted that they are not in violation of the covenant restricting disclosure of information. For all of the reasons, the Court concludes that Plaintiff has some likelihood of success in demonstrating that the covenants are reasonable in scope, do not overly restrict Defendant Olson, and not likely to injure the public. Because the Court has concluded that the restrictive covenants are supported by adequate consideration, it concludes that Plaintiff is likely to succeed on the merits of its breach
663	does not arise where a regulation removes all economically viable use of the property. Removal of all use indicates a fully compensable “categorical taking” of the property. Lucas, — U.S. at-, 112 S.Ct. at 2893; Florida Rock, 18 F.3d at 1568. The third criterion — the extent to which the regulation interferes with the properly owner’s expectations — limits recovery to owners who can demonstrate that they bought their property in reliance on the nonexistence of the challenged regulation. One who buys with knowledge of a restraint assumes the risk of economic loss. Concrete Pipe & Prods., Inc. v. Construction Laborers Pension Trust for S. Cal., — U.S. -, ---, 113 S.Ct. 2264, 2291-92, 124 L.Ed.2d 539 (1993); In such a case, the owner presumably paid a discounted price for the property. Compensating him for a “taking” would confer a windfall. Finally, the Constitution recognizes a distinction between a temporary and a permanent taking. U.S. Const., amend. V; First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). Simply declaring a regulation that takes property invalid does not grant a constitutionally sufficient remedy. First English, 482 U.S. at 319, 107 S.Ct. at 2388; Yuba Natural Resources, Inc. v. United States, 821 F.2d 638, 641-42 (Fed.Cir.1987). Thus, property owners cannot sue for a temporary taking until the regulatory process that began it has ended. This is because they would not know
3180	Circuit found so unsatisfactory as to reverse those district court judgments. The standard of review is quite deferential, but there is no valid basis to support the State court’s rejection of Petitioner’s claim when Petitioner offered undisputed evidence that Bossier Parish, with a 20% black population and employing an entirely subjective appointment procedure, appointed zero black foremen between 1965 and 1989. That evidence (the State now concedes) established a prima facie case under Castaneda (the relevant “clearly established Federal law”) and its progeny, and the State presented no evidence (in the State court proceedings) to rebut that case. When the decision is assessed in light of the record the State court had before it, as required in a no-federal-hearing case by  it is both incorrect and an objectively unreasonable application of Castaneda, Campbell and related Supreme Court precedent. When the decision is reviewed with the benefit of the evidence the State submitted at the federal hearing, the same result must obtain. The Supreme Court precedents in' this field compel that relief be granted on this issue despite the lack of prejudice to the Petitioner and the overwhelming evidence of his guilt. Fifth Circuit precedent, although now of reduced importance under the AEDPA, has interpreted and applied the relevant Supreme Court decisions in this area in a fashion that also indicates relief must be granted. Ineffective Assistance of Counsel: No Motion to Quash Although the undersigned’s recommendation on
3001	was barred by virtue of his failure to apply for a 74-lot subdivision; it relied on Williamson County. As we have explained, Williamson County and our other ripeness decisions do not impose further obligations on petitioner, for the limitations the wetland regulations imposed were clear from the Council’s denial of his applications, and there is no indication that any use involving any substantial structures or improvements would have been allowed. Where the state agency charged with enforcing a challenged land-use regulation entertains an application from an owner and its denial of the application makes clear the extent of develop ment permitted, and neither the agency nor a reviewing state court has cited noncompliance with reasonable state-law exhaustion or pre-permit processes, see  federal ripeness rules do not require the submission of further and futile applications with other agencies. B We turn to the second asserted basis for declining to address petitioner’s takings claim on the merits; When the Council promulgated its wetlands regulations, the disputed parcel was owned not by petitioner but by the corporation of which he was sole shareholder. When title was transferred to petitioner by operation of law, the wetlands regulations were in force. The state court held the postregulation acquisition of title was fatal to the claim for deprivation of all economic use, 746 A. 2d, at 716, and to the Penn Central claim, 746 A. 2d, at 717. While the first holding was couched in terms of
1185	the litigation “would require the resolution of many difficult and complex issues,” would “entail considerable additional expense,” and would “likely involve weeks, perhaps months, of trial time.” Taifa, 846 F.Supp. at 727. The court concluded that the settlement represented “an outcome at least comparable, if not far superior, to that which plaintiffs might achieve by proceeding to trial.” Id. at 727-28. We concur and find no abuse of discretion here. We also find that the district court did not abuse its discretion when it determined that the amount of opposition to the proposed settlement did not compel its rejection. Id. at 728. Only thirteen per cent of the class submitted written objections in response to the notice of settlement. Compare We are satisfied that the court properly considered and took into account all of the written objections filed with the court during the course of this litigation up to approval of the settlement. Taifa, 846 F.Supp. at 728. Given that the complaint in this case sought, in effect, to compel the veiy elimination of the MCC, we are not surprised that some of the prisoners would object to any proposed settlement that contemplated the continued existence of the MCC. Nevertheless, we agree with the district court that the settlement “achieves significant improvements or reforms” despite the fact that it may not provide
2938	into two issues for consideration: (i) whether a conflict of interest existed, which compromised defense counsel’s representation of petitioner and (ii) whether defense counsel’s representation was so lacking as to be ineffective assistance of counsel. In resolving this controversy, it is important to keep two basic principles in view. First, federal habeas corpus is not mere appellate review, and relief is granted only for violation of federal constitutional rights. Second, habea's corpus is a civil action in which petitioner carries the burden of proof in withstanding the strong presumption of the constitutionality of state judicial proceedings. Dillon v. Downes, 401 F.Supp. 1240 (W.D.Va.1975). To obtain relief, petitioner must prove by a preponderance of the evidence that his constitutional rights were denied.  cert. den., 380 U.S. 981, 85 S.Ct. 1346, 14 L.Ed.2d 274 (1965). A. Conflict of Interest Petitioner Durham alleges that David G. Simpson, one of the attorneys who conducted his 1972 trial, labored under a loyalty to another person, which caused Simpson to compromise his representation of petitioner. Attorney Simpson had originally been appointed in 1964 to defend Otha Howard, who on the basis of petitioner’s confession had been indicted along with petitioner for the Double Toll Gate slayings. The charges against Howard were nolle prossed, apparently because the Commonwealth’s Attor ney became convinced that petitioner had lied in his confession when he named Howard as the killer. Simpson was subsequently appointed in 1965 to represent petitioner, and Simpson and
1138	final order appealable under § 1291 nor an injunction appealable under § 1292(a) (1), it follows that the appeal must be Dismissed. . See and compare Baltimore Contractors v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233; Morgantown v. Royal Insurance Co., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347; Ettelson v. Metropolitan Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176; Enelow v. New York Life Insurance Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440; Shanferoke Coal & Supply Corporation of Delaware v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583; Lummus Co. v. Commonwealth Oil Refining Co., 2 Cir., 297 F.2d 80; Ferguson v. Tabah, 2 Cir., 288 F.2d 665; Glen Oaks Utilities, Inc. v. City of Houston, 5 Cir., 280 F.2d 330; Arny v. Philadelphia Transportation Co., 3 Cir., 266 F.2d 869; Thibodaux v. Louisiana Power & Light Co., 5 Cir., 255 F.2d 774, reversed, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058; United Gas Pipeline Co. v. Tyler Gas Service Co., 5 Cir., 247 F.2d 681; Day v. Pennsylvania Railroad Co., 3 Cir., 243 F.2d 485; Council of Western Electric Technical Employees-National v. Western Electric Co., 2 Cir., 238 F.2d 892. . Council of Western Electric Technical Employees-National v. Western Electric Co., 238 F.2d 892 at 894.
4148	addressed in order. (1) Is the claimant presently unemployed? (2) Is the claimant’s impairment “severe”? (3) Does the impairment meet or exceed one of a list of specific impairments? (4) Is the claimant unable to perform his or her former occupation? (5) Is the claimant unable to perform any other work within the economy? An affirmative answer leads either to the next step or, on steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than step 3, stops the inquiry and leads to a determination that the claimant is not disabled. 20 C.F.R. § 404.1520 (1983). Once a claimant has demonstrated an impairment of sufficient severity to prevail at step 4, At that fifth and final step Secretary must consider all the claimant’s physical and mental impairments (Regs. §§ 404,-1561, 416.961), the claimant’s age (Regs. §§ 404.1563, 416.963), education (Regs. §§ 404.1564, 416.964) and work experience (Regs. §§ 404.1565 and .1568, 416.965 and .968). Toward that end the AU typically looks to the “Grid,” medical-vocational guidelines (found at 20 C.F.R. Subpart P, Appendix 2) that balance the claimant’s physical limitations against the other relevant factors (Regs. §§ 404.1569, 416.969). Before doing so the AU must determine what type of work a claimant is capable of
531	question presented, as a matter of first impression for this Court, is whether a civilian may be prosecuted in federal court for conduct on a United States military installation overseas. For many years, it was standard practice to try civilians who committed crimes while accompanying the military in military courts martial. See, e.g., Joseph W. Bishop, Jr., JUSTICE UNDER FlRE: A STUDY OF MILITARY Law 55-111 (1974). However, in a series of cases beginning with Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957), the Supreme Court ruled this practice unconstitutional with respect to offenses' committed during peacetime. See id.; Kinsella, v. United States ex rel. Singleton, 361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960); McElroy v. United States ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1960); see also United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955). Since Reid and its progeny, representatives of the armed forces, other executive branch officials, government commissions, members of Congress, and academic commentators, among others, have noted the existence of a “jurisdictional gap” — that is, the lack of any congressional authorization to try civilians who commit crimes while accompanying the military overseas in civilian courts of the United States. See infra notes 17-20 and accompanying text. On more than thirty occasions, Congress itself has considered, but failed to act on,
364	requests a Certificate of Appealability (COA); however, because his petition was filed prior to the effective date of the AEDPA his application must be construed as a request for a certificate of probable cause (CPC). Lindh v. Murphy, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The standards for issuing a CPC and the AEDPA-required COA are identical. See Lucas v. Johnson, 132 F.3d 1069 (5th Cir.1998); Muniz v. Johnson, 132 F.3d 214 (5th Cir.1998). Blankenship v. Johnson, 106 F.3d 1202 (5th Cir.1997), opinion withdrawn and superseded on rehearing by, 118 F.3d 312 (5th Cir.1997). . 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). . 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). . See . Hogue v. Johnson, 131 F.3d 466 (5th Cir.1997). . Dr. Lett otherwise concluded. . Barber v. State, 737 S.W.2d 824 (Tex.Crim.App.1987). . Barber v. State, 757 S.W.2d 359 (Tex.Crim.App.1988), cert. denied, Barber v. Texas, 489 U.S. 1091, 109 S.Ct. 1559, 103 L.Ed.2d 861 (1989). . Dr. Griffith, permitted to testify about Barber's ■ future dangerousness during the punishment phase, testified that Barber did not suffer from any form of mental illness, but he did have a sociopathic anti-social personality disorder. He testified that a sociopathic personality was characterized by: (1) repeated confrontations with authority; (2) mental laziness preventing success in school; (3) inability to plan for the future; (4) inability to develop useful skills necessary
2323	for January 1989 through July 1989 were never transmitted to the credit union, resulting in a total of $1,400.00 received by appellant, from which no loan payments were made. The car, which had been sold to a third party, was ultimately repossessed because of appellant’s failure to make those payments. During the providence inquiry, appellant acknowledged that he had appropriated that money to his own personal use and that it should have been applied on the car loan. He expressly agreed that the total amount misappropriated to his own use was $1,400.00. Record of Trial at 52, 53 and 54. Before this Court, citing U.S. v. Searcy, 24 MJ 943 (ACMR 1987), U.S. v. Borner, 25 MJ 551 (AFCMR 1986)  appellant now contends that these facts will not support the offense of wrongful appropriation of the other Coast Guardsman’s money because this was a mere creditor/debtor relationship, not the proper subject of larceny or wrongful appropriation. Furthermore, he asserts that any debt owed by appellant was to the credit union which took appropriate remedial action through the mechanism of repossession of the automobile. We disagree with his conclusion that these facts do not constitute the offense of wrongful appropriation. In Part IV of the Manual for Courts-Martial, 1984, the various punitive articles of the Uniform Code of Military Justice are discussed. Paragraph 46 deals with larceny and wrongful appropriation. In subparagraph c, those offenses are explained and includes the following with
3567	a city can give away its sanitation department to the Muslims, its police department to the Jews or its schools to the Catholics in an exclusive sweetheart deal. Birdsall and Chatterton are entitled to qualified immunity from the Establishment Clause claims for a very basic reason independent of whether approving the deal here was clearly 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); 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
4937	"sense because ""Congress clearly chose not to have the Rule 23 standards apply to [statutory] class actions [such as those under the FLSA]"" by adopting not a ""commonality"" or ""predominance"" requirement, but rather a finding that the collective plaintiffs are ""similarly situated."" Thiessen , 267 F.3d at 1105. Holding otherwise would ""effectively ignore Congress' directive."" Id. Thus, we have previously concluded that, whereas a class action ruling is grounded in the various procedural provisions found in Rule 23, a collective action under the FLSA hinges on ""whether the plaintiffs who have opted in are in fact 'similarly situated' to the named plaintiffs."" Zavala , 691 F.3d at 537 (citing Myers , 624 F.3d at 555 ); see also ""). In practice, determining whether plaintiffs are ""similarly situated"" under the FLSA involves considering all relevant factors, such as, ""whether the plaintiffs are employed in the same corporate department, division, and location; whether they advance similar claims; whether they seek substantially the same form of relief; and ... [whether they have] individualized defenses."" Zavala , 691 F.3d at 536-37. Although we acknowledge that some of the factors and evidence necessary to satisfy the prerequisites of Rule 23 and § 216(b) may overlap and, as a consequence, our rulings with respect to"
3312	the early phase of an investigation can be unclear, we have resisted adoption of rigid standards for determining when a prosecutor’s inquiry ripens into a grand jury investigation. In particular, we have rejected suggestions that an investigation be deemed pending only -if (1) the grand jury actually hears testimony, (2) the grand jury plays an active role in the decision to issue the subpoena, or (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”); 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,
1482	of survival. The original claims are dead. The statute permits, however, the claims of the reissue patent to reach back to the date the original patent issued, but only if those claims are identical with claims in the original patent. With respect to new or amended claims, an infringer’s liability commences only from the date the reissue patent is issued. At issue in this case is Congress’ meaning of the word “identical.” The district court interpreted “identical” to mean “essentially identical,” noting that other courts have interpreted the word “identical” in section 252 in a way which does not limit claim continuity to literally identical claims. It cited v. Elkhart Brass Manufacturing Co., 353 F.2d 704, 147 USPQ 301 (7th Cir.1965). Akron Brass and Austin permitted changes in a reissue patent’s claims, however, only if without substance. In Akron Brass, a reissued claim substituted the word “qutlet” for the word “inlet” in the original claim. Since it was already clear what was intended, the court there noted, substitution of “outlet” for “inlet” in no way enlarged or modified the substance of the claim. In Austin, the court found a claim in the reissued patent “identical” to one in the original patent where a modification was made to “make more precise the language used without substantive changes in the claims.” 560
3081	Holy Family Hosp., 121 F.3d 537, 541 (9th Cir.1997); Williams v. Channel Master Satellite Sys., 101 F.3d 346, 349 (4th Cir.1996) (Holding as a matter of law that a 25-pound lifting limitation does not constitute a disability); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir.1996). Other courts have held that even lesser amounts were not substantial limitations. See Marinelli v. City of Erie, Pa., 216 F.3d 354, 364 (3rd Cir.2000) (10 pounds); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 644 (2nd Cir.1998) (10-20 pounds); Helfter v. United Parcel Service, Inc., 115 F.3d 613, 617-18 (8th Cir.1997) (10-20 pounds); McKay v. Toyota Motor Mfg., US.A., Inc., 110 F.3d 369, 373 (6th Cir.1997) (20 pounds); Piascyk v. City of New Haven, 64 F.Supp.2d 19, 29-31 (D.Conn.1999) (15 pounds), aff'd 216 F.3d 1072 (2nd Cir.2000) (Table case); Gerdes v. Swift-Eckrich, 949 F.Supp. 1386, 1400 n. 5 (N.D.Jowa 1996) (10 pounds) aff'd 125 F.3d 634 (8th Cir.1997). Recognizing that a lifting restriction alone would not suffice, Plaintiff has offered Figueroa’s declaration, which the Court finds contains only bald assertions and conclusory statements, and fails to meet Plaintiffs specific burden of production in ADA “working” cases. The first obstacle that the Figueroa declaration faces is it conclusion: that Plaintiff is “virtually unemployable” in the manual labor field. This conclusion is made with casual disregard for statements by Plaintiff that she performed her employment at Hilton as
3335	(1986). Thus, it is difficult to understand how the appellants could develop evidence on the issue except from government witnesses. . Because of our result, we need not specially address appellants’ other challenges to the convictions on counts 5 and 6 though in fact we pass upon them in considering count 4. . Inasmuch as Perrone’s motion for acquittal was granted at the end of the government’s case he was not mentioned as a possible conspirator. Of course, the underscoring of portions of the charge was done by us as the charge was oral. We do not suggest that the district judge emphasized these portions. . The judge reserved judgment on the motion. The government concedes this was an error. We find that the error was harmless. In any event the prejudice to a defendant from reservation on a motion for acquittal is wholly distinct from the prejudice appellants assert here. Fed.R.Crim.P. 29(a) is construed to require that the judge grant a motion for acquittal at the close of the government’s case if the evidence is insufficient to sustain a conviction because if the court reserves on the motion the defendant may risk having to decide whether to offer evidence and thereby waive his claim that the government’s case was insufficient. Neary, 733 F.2d at 219. . We also reject Shamy’s challenges to the judge’s denial of his pretrial motion to dismiss based on prosecutorial misconduct before the grand jury,
2527	"past practices in his regard). . The FAA applies to all transactions ""involving commerce,” which means, inter alia, commerce between different states or between a state and a foreign country. See 9 U.S.C. §§ 1, 2. Plaintiffs are Mississippi residents. J.C. Penney is incorporated in Delaware and its principal place of business is in Texas. Monogram extended credit to plaintiffs from its principal place of business in Georgia, and GE, which is incorporated in New York, subsequently extended credit to plaintiffs from its principal place of business in Utah. Moreover, ""[n]o elaborate explanation is needed to make evident the broad impact of commercial lending on the national economy or Congress' power to regulate that activity pursuant to the Commerce Clause.” The court therefore finds (and none of the parties disagree) that the FAA applies. . In Ms. Koehler's Supplemental Declaration, she avers that the Robertsons made purchases on and after April 4, 2001, and that monthly account statements were sent to their address of record, the same address where the Notice and New Agreement purportedly were sent. However, she does not indicate that the Rob-ertsons made payments in response to these account statements. Indeed, it is unclear from her declaration and from the Complaint what was going on between December 1999 and October 2004, when the Robertsons received a call from GE that they were delinquent on their account and owed $222.22. . Defendants argue"
2521	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 that Monogram or GE ever received any returned mail from the Robertsons. See, e.g.,  motion to amend denied, 331 F.Supp.2d 1354 (M.D.Ala.2004); Hoefs v. CACV, 365 F.Supp.2d 69, 73 (D.Mass.2005); Johnson v. Arrow Fin’l Servs., LLC, 2006 WL 2170663, at * 3 (N.D.Ill. Sept. 15, 2006). In addition, there is no evidence that the Robertsons continued receiving account statements at the same address where the Notice and New Agreement purportedly were sent, and thereafter continued making payments on their account. See, e.g., Battels v. Sears Nat’l Bank, 365 F.Supp.2d 1205, 1209 n. 3 & 1213 (M.D.Ala.2005); Hoefs, 365 F.Supp.2d at 73. There has also been no showing that Monogram’s or GE’s records of plaintiffs’ account reflected that the Notice or New Agreement were mailed to them. See, e.g., Taylor, 325 F.Supp.2d at 1311; Kurz v.
339	the Chapter 12 plan, to repay the lenders in full and retain the collateral. Bank claims it and other unsecured creditors are not receiving the amount they are entitled under § 1225(a)(4), which requires that a plan cannot be confirmed unless the unsecured claims are paid the amount they would receive under a Chapter 7 liquidation. In addition, the bank argues that the action of the debtors indicate a lack of good faith under § 1225(a)(3). This Court concludes, as a matter of law, that creating exempt property by borrowing against non-exempt property and granting liens on the non-exempt property, prior to filing Chapter 12, is not bad faith and is not forbidden by the Code. See: In re: Johnson, 8 B.R. 650 (Bkrtcy.Ct.S.D.1981). See also Notes of Committee on the Judiciary, Senate Report 95-989, comments on 11 U.S.C. § 522. If converting non-exempt assets to exempt assets is not fraudulent, there still remains the question of whether the plan has been filed in good faith. This requires an analysis of the plan and the assets available for distribution if this case was a liquidation. In Chapter 7, the annuity principal and income would be exempt, but debtors would have lost their operation through liquidation. The Chapter 12 plan proposes payment of approximately $904,000 on debts of $1,055,000 over 20 years. The allowed secured claims will be paid in full and the allowed unsecured claims may receive some
2661	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 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 grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party’s failure to object is excused by the court for good cause shown. Fed.R.Civ.P. 33(b)(4). Interrogatory number 1 seeks specific information about the ground composition through which Plaintiff believed the pilot hole would be drilled and the material and/or ground composition actually encountered by ZD. In response, Plaintiff objected on the ground that the interrogatory was unduly burdensome and stated that “details
835	"false designation claims and Liquid Glass’s defense of fair use must fail. In addition to its infringement and false designation claims, Porsche also alleges a"" dilution claim against Liquid Glass. Dilution refers to the “lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of-(1) competition between the owner of the famous mark and other parties, or (2) likelihood of confusion, mistake or deception.” 15 U.S.C. § 1127. To prevalí on its claim of dilution, Porsche need only show that its marks are “famous” and that Liquid Glass’s use of the Porsche trademarks and trade dress is likely to cause dilution. 15 U.S.C. § 1125(c)(1); Because Liquid Glass does not dispute that Porsche’s marks are famous-the more difficult determination in the two-prong test-Porsche must only show that the advertisements in question diluted or blurred the value of its marks. Without addressing Porsche’s dilution claim directly, Liquid Glass seems to argue that dilution would not occur because Porsche’s image would not be disparaged or tarnished by either what Liquid Glass believes to be tasteful magazine ads or the video, which, while containing scenes of a naked woman taking a shower, is supposedly so discreet that it could only be deemed “PG-13 or PG.” PI. Opp. Br. at 16. This court need not reach the issue of whether Liquid Glass’s advertisements either in print or on video are"
1539	during an emergency is the authority to deviate from and Air Traffic Control (“ATC”) clearance, even when in controlled airspace. When an ATC clearance has been obtained, no pilot in command may deviate from that clearance, except in an emergency, unless he obtains an amended clearance____ 14 C.F.R. § 91.75(a). Except in an emergency no person may, in an area in which air traffic control is exercised, operate an aircraft contrary to an ATC instruction. 14 C.F.R. § 91.75(b). 37. Such deviation authority includes refusing to comply with an ATC clearance if complying with that clearance would endanger the safety of the aircraft. In re N-500L Cases, 691 F.2d 15 (1st Cir. 1982); New Hampshire Ins. Delta Air Lines, Inc. v. United States, 561 F.2d 381, 392 (1st Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978). 38. Air traffic controllers are required to comply with the mandatory provisions of the Air Traffic Control Manual FAA 7110.-65D to provide for the safe, orderly, and expeditious flow of traffic. 14 C.F.R. § 65.45(a). An emergency may be declared by either the pilot or by personnel of a Federal Aviation Administration facility. Air Traffic Control Manual, FAA 7110.65D, Section 9-15. 39. In the “forced handoff”, the Radar Controller never advised the local controller that the plane was returning to the field, nor that communications had deteriorated to the point of being unintelligible. Although the deterioration
4216	restrictions directly affects the Plaintiffs. Therefore, because a statute has a retroactive effect under Landgraf only when it negatively impacts a party’s expectations or rights, statutory restrictions as to the amount and availability of attorney's fees will not generally raise retroactivi1y problems. See Landgraf v. USI Film Prods., 511 U.S. 244, 276-78, 114 S.Ct. 1483, 1503, 128 L.Ed.2d 229 (1994). . In Landgraf, the Court noted several additional examples of new statutes whose application to pending cases was proper. These included statutes whose plain language unambiguously requires application to pending cases, see United States v. Schooner Peggy, 1 Cranch [5 U.S.] 103, 2 L.Ed. 49 (1801); statutes authorizing or affecting the propriety of prospective relief, see statutes conferring or ousting jurisdiction, see Bruner v. United States, 343 U.S. 112, 72 S.Ct. 581, 96 L.Ed. 786 (1952); and statutes revising procedural rules, see Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). See Landgraf v. USI Film Prods., 511 U.S. 244, 272-76, 114 S.Ct. 1483, 1501-02, 128 L.Ed.2d 229 (1994) (collecting cases). . The district court ruled that if it had applied the fee limitations of § 803(d), it would have awarded counsel for Plaintiffs the maximum hourly rate available. We express no opinion as to the appropriateness of such an award. The district court may, of course, reconsider the award on remand. See Barber v. Kimbrell’s, Inc., 577
478	decision to base the margin of dumping on the rate determined in the fair value investigation as the best information available is supported by substantial evidence in the record and is otherwise in accordance with law? STANDARD OF REVIEW In reviewing challenges to administrative reviews this Court must sustain the ITA’s determination unless it is found to be “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516(b)(1)(B) (1982). See Seattle Marine Fishing Supply Co. v. U.S., — CIT-, 679 F.Supp. 1119, 1125 (1988). Substantial evidence has been held to be more than a “mere scintilla”, but sufficient to reasonably support a conclusion. See Also Smith-Corona Group v. U.S., 713 F.2d 1568, 1571 (Fed.Cir.1983). Because a reviewing court must accord due weight to an agency’s interpretation of a statute it administers, this Court will defer to the agency’s interpretation, provided it is “sufficiently reasonable”. See American Lamb Co. v. U.S., 785 F.2d 994, 1001 (Fed.Cir.1986). Furthermore, so long as the agency’s methodology and procedures are reasonable means of effectuating the statutory purpose, and the agency’s conclusions are supported by substantial evidence on the record, the Court will accept the sufficiency of the agency’s investigation and will not question its methodology. Ceramica Regiomontana, supra, 636 F.Supp. at 966. At the same time, the Court will not permit the agency to contravene or ignore the intent of
1671	an equal number of lawyers in tho Judge Advocate General’s Department. McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049. Cf. Carter v. Roberts, 177 U.S. 496, 20 S.Ct. 713, 44 L.Ed. 861; Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 48 L.Ed. 236; Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640; Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225; French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692. Contra Sanford v. Robbins, 5 Cir., 115 F.2d 435. 5 S.Ct. 542, 28 L.Ed. 1005. Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436; Ex parte Hans Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. Cf. Rosborough v. Rossell, 1 Cir., 150 F.2d 809; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; and Amrine v. Tines, 10 Cir., 131 F.2d 827. Title 30 U.S.C.A. § 1511. “As to number (article 40). No person shall, without his consent, be tried a second time for the same offense; but no proceeding in which an accused has been found guilty by
4313	Opinion by Lawrence, J. In accordance with stipulation of counsel that the electrotype plates are similar in all material respects to those the subject of D. 1088), the claim of the plaintiff was sustained.
2904	“ability to pay” criteria subsumes most of the Estus factors and allows the court to confirm a plan in which the debtor uses all of his disposable income for three years to make payments to his creditors. Thus, our inquiry into whether the plan “constitutes an abuse of the provisions, purpose or spirit of Chapter 13,” Estus, 695 F.2d at 316, has a more narrow focus. The bankruptcy court must look at factors such as whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentation to mislead the bankruptcy court; or whether he has unfairly manipulated the Bankruptcy Code. See Estus, 695 F.2d at 317; In re Johnson, 708 F.2d 865, 868 (2d Cir.1983); In re Rimgale, 669 F.2d 426, 432 (7th Cir. 1982); see also 5 Collier on Bankruptcy H 1325.04[2], [3]. Although the bankruptcy court erroneously concluded that the inquiry into good faith ended with the determination that Zellner had committed all of his disposable income to the plan, we believe that the court’s factual findings implicitly support a finding that there was no abuse of the bankruptcy laws. See Wegner, supra, at 1322. The bankruptcy court was satisfied with the accuracy of Zellner’s testimony as to his income and expenses, and EAC did not present evidence, beyond mere speculation, of any errors in the figures. Moreover, the court recognized Zellner’s special circumstances and concluded that his itemized expenses were necessary for
2479	enforcement. The only reference to the 1855 reservation is in the definitions section of the hunting, fishing, and wild rice ordinances. See 11 M.L.B.S.A. § 2001(n). This reference facially relates to the landmark Minnesota v. Mille Lacs Band of Chippewa Indians case. Such a limited reference is insufficient to indicate an intent to enforce all of the Mille Lacs Band ordinances on the land within the 1855 boundaries. The County complains it has been injured in its ability to protect public safety, citing concerns over civil regulatory and traffic laws, and zoning regulations. It insists, therefore, that it needs this Court’s clarification of tribal land boundaries. The Tenth Circuit Court of Appeals considered this issue in  in which the State of New Mexico sought a declaratory judgment establishing the scope of its jurisdiction over a company operating on reservation land. Id. at 871-72. New Mexico claimed its “direct concern[ ] with the applicability of its laws and regulations not only as to the Company, but derivatively to the community of approximately 15,000 non-Indian persons who will ultimately live and do business in the non-Indian community” was sufficient to create an actual case or controversy. Id. at 374. The appellate court did not agree, holding that absent evidence that Indians were refusing to comply with state law, no case or controversy existed. Id. at 376-77. The same principle holds here; the County’s mere interest in the proper enforcement
945	a requirement that the defendant have no more than one criminal history point. See 18 U.S.C. § 3553(f). The District Court concluded that Hernandez was ineligible for safety valve relief as a consequence of a prior drug conviction that resulted in a Youthful Offender Adjudication (YOA) under New York law and that it lacked discretion not to count this conviction in determining the appropriate criminal history. Familiarity with the relevant facts, procedural history and issues raised on appeal is presumed. Hernandez raises three issues. First, he contends that the District Court erroneously concluded that it did not have the discretion, under the Federal Sentencing Guidelines and this Court’s decisions in United States v. Matthews, 205 F.3d 544 (2d Cir.2000), and  to choose to omit his YOA and that he was therefore improperly deprived of safety valve relief. We reject this contention. The Guidelines plainly require that unexpunged convictions be counted in criminal history. In United States v. Matthews, we held that New York’s youthful offender adjudications are not considered to be “expunged sentences” under the Guidelines. Shortly thereafter, we determined that a youthful offender adjudication counts as a conviction when calculating criminal history under § 4A1.1 of the Guidelines. United States v. Driskell, 277 F.3d at 154-55. Section 4A1.2(d)(2)(B) directs District Court judges to “add 1 point under § 4Al.l(c) for each adult or juvenile sentence imposed within five years of the defendant’s commencement of the instant offense not covered in
1676	S.Ct. 230, 55 L.Ed. 225; French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692. Contra Sanford v. Robbins, 5 Cir., 115 F.2d 435. See, e. g. Ex parte Bigdow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005. Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436; Ex parte Hans Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. Cf. Rosborough v. Rossell, 1 Cir., 150 F.2d 809; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; 59 S.Ct. 442, 83 L.Ed. 455; and Amrine v. Tines, 10 Cir., 131 F.2d 827. Title 30 U.S.C.A. § 1511. “As to number (article 40). No person shall, without his consent, be tried a second time for the same offense; but no proceeding in which an accused has been found guilty by a court-martial upon any charge or specification shall be held to be a trial in the sense of this article until the reviewing and, if there be one, the confirming authority shall have taken final action upon the case. “No authority shall return a record of trial to any court-martial for reconsideration of— “(a) An acquittal; or “(b) A finding of not guilty of any specification; or “(c) A finding of
3122	"workers’ compensation claim was filed. . Since the Court ""may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action,” the mislabelling of the action is of no import. Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir.2002). See also Scholastic Entm't, Inc. v. Fox Entm’t Group, Inc., 336 F.3d 982, 985 (9th Cir.2003). . At the hearing on this motion, plaintiffs counsel also repeatedly raised the issue that, in other ERISA cases, Northwest and its counsel have not raised this defense. A defense on the basis of subject-matter jurisdiction is never waived, however. Ashcroft v. Iqbal, - U.S. --, 129 S.Ct. 1937, 1945, 173 L.Ed.2d 868 (2009), citing Even if defendants had failed to raise the issue earlier in this case, the Court would be obligated to consider the issue. In a related analytical error, plaintiff's counsel repeatedly cites to unpublished district court cases from outside this circuit, most recently in her ex parte application for permission to lodge supplemental briefs, where ERISA claims proceeded against airline employee benefit plans without mentioning the RLA and its jurisdictional impact. See, e.g., Carr v. American Gen. Assurance Co., Civil No. 08-645(DSD/JJG), 2009 WL 2461726 (D.Minn. Aug. 10, 2009). Since these cases do not discuss the RLA and its effects at all, they have neither precedential nor persuasive value on the instant issue. . Although Northwest"
3706	allegation of additional-facts, the plaintiff should be afforded leave to amend. Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.1990) (citations omitted). B. 12(b)(1) Legal Standard Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for “lack of subject-matter jurisdiction.” Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court’s subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 358 (9th Cir.1996). A federal court is presumed to lack jurisdiction in a particular-case unless the contrary affirmatively appears: Gen. Atomic Co. v. United Nuclear Corp., 655 F.2d 968, 968-69 (9th Cir.1981). A challenge to subject matter jurisdiction may be facial or factual. 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
965	position. C. Equitable Subordination. Section 510(c)(1) provides, in part, that the bankruptcy court may “under principles of equitable subordination, subordinate for purposes of distribution ... all or part of an allowed interest to all or part of another allowed interest_” Friedman argues that appellees conduct in this case dictates that their lien be subordinated to the claims of other estate creditors. Equitable subordination requires that: (1) the claimant who is to be subordinated have engaged in 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); 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
3310	undisturbed were those of appellants for obstruction of justice and conspiracy to obstruct justice based on their attempts to cover-up the events relating to the diversion of funds from the proceeds of the property purchase by the city. II. Obstruction of Justice A. The obstruction of justice statute provides that whoever “corruptly ... influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined ... or imprisoned ... or both.” 18 U.S.C. § 1503. The parties agree that the penden-cy of some sort of judicial proceeding, which in this case could only be a grand jury investigation, is a necessary prerequisite for a conviction for violation of 18 U.S.C. § 1503. See They disagree, however, over whether the three grand jury subpoenas secured by Weisenbeck prior to production of the letter and closing statement on May 7, 1985 are sufficient to establish that there was a pending grand jury investigation which appellants could have obstructed. When appellants’ attorneys attempted to cross-examine Weisenbeck about the pend-ency of the grand jury investigation, the trial judge barred much of their inquiry as irrelevant as she believed that if a grand jury was sitting at the time the subpoenas were issued, a judicial proceeding was pending as a matter of law. While the appellants do not dispute that a grand jury was sitting at the time Weisenbeck secured the subpoenas, they argue that inquiry
4982	Corp. v. City of Oak Forest, 680 F.3d 512, 516 (7th Cir. 2010). Because Davidson’s injury is traceable to WAP I rather than WAP II, she has no standing to assert the injuries caused by WAP II against the unnamed class members, WAP II argues. Plaintiff counters this argument 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 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
3360	where there is a likelihood of confusion by shoppers, Hills Bros. Coffee, Inc. v. Hills, Supermarkets, Inc., 428 F.2d 379 (2d Cir. 1970). . Courts have framed relief differently even when the threat of confusion has been much the same. In Hat Corporation of America v. D. L. Davis Corp., 4 F.Supp. 613 (D.Conn.1933), the court granted an absolute injunction restraining the use of the name “Dobbs” on hats. Yet in Stetson v. Stetson, 85 F.2d 586 (2d Cir.), cert. denied, 299 U.S. 605, 57 S.Ct. 232, 81 L.Ed. 446 (1936), the district court determined, and the court of appeals affirmed that a “Notice of Disclaimer” would suffice to dissipate public confusion. . See also Max Factor & Co. v. Factor, 226 F.Supp. 120, 121-22, 125 (S.D.Cal.1963); Champion Spark Plug Co. v. Champion, 23 F.Supp. 638, 640-41 (E.D.Mich. 1938); and cases cited in Pike, Personal Names as Trade Symbols, 3 Mo.L.Rev. 93, 113-14 (1938). . For a general discussion of the business functions of a personal name, see 3 Callmann, Unfair Competition, Trademarks, and Monopolies, § 83.3(a)(1) pp. 90-92 (3d Ed. 1969). . In National Distillers Products Corp. v. K. Taylor Distilling, supra, the court restrained the defendant from using “Taylor” in its corporate name or in any of its whiskey labels or advertising matter, unless accompanied by a statement plainly and specifically stating that the defendant is “neither the successor to nor connected with
1106	Tenth Circuit, two cases have been decided, each opinion having been written by Judge Orie L. Phillips. The first case is that of Flores v. Brueesselbaeh, supra, wherein it was stated that ■where the Surveyor-General of New Mexico by Act of Congress recommended confirmation of the Tierra Amarilla Grant to certain individuals, and the grant was approved by Act of Congress, the Congress thereby conclusively confirmed the title to the grant in such individual as a private land grant, and Congress’ action in that regard is final and not subject to judicial review. The Flores case, as heretofore stated, set forth the elements which must be established before adverse possession can be adjudged. The second case is that of The gist of this decision is that the Act of Congress confirming private land claims in the New Mexico Territory, as recommended by the Surveyor-General thereof, including Mexican private land grant to the claimant thereof individually and without condition, qualification or limitation, was final and conclusive on the Federal courts as to the validity and the character and the nature of such grant as a private land grant, rather than as a community grant within the territorial statute for management, control and the government of such grants. In viewing the evidence and finding the facts to be as hereinbefore stated, and in view of the unanimity of decisions between the State courts of New Mexico, the Supreme Courts of this District and Circuit,
2601	Services of Boston, Inc., supra, 434 F.Supp. at 180 and 183; see SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 190-191, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963). Like Rule 10b-5, the Investment Advisers Act must “be liberally construed to effectuate its remedial purposes, and * * * that purpose may be served only by allowing an overinclusive recovery to a defrauded class if the unavailability of the class device renders the alternative a grossly underinclusive recovery.” Blackie v. Barrack, supra, 524 F.2d at 906 n. 22. Finally, “ ‘[t]he categories of “omission” and “misrepresentation” are not mutually exclusive,’ ” Cameron v. E. M. Adams & Co., 547 F.2d 473, 477 n. 3 (9 Cir. 1976), quoting  and the ambiguity of the dividing line (illustrated in this case) makes it appropriate to treat both kinds of misinformation the same. One justification for a 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
1437	is likely to escape before a warrant can be obtained for his arrest.” The government has not responded to this argument, and it appears from the record that Westover’s claim is most likely valid. While INS agents may have had probable cause to arrest Westover by the time they took her into custody, there is no evidence that Westover was likely to escape before a warrant could be obtained for her arrest. We do not condone the agents’ conduct, which appears from the record to be in direct violation of the statute. Given that Fourth Amendment violations do not constitute grounds for invalidating removal proceedings, though, this mere statutory argument on similar grounds cannot give Westover a basis for relief. See .C. § 1357(a)(2) does not void subsequent deportation hearing). Whether evidence obtained from a statutorily invalid arrest should be admitted in an alien’s removal hearing is a more difficult question, cf. Navia-Duran v. INS, 568 F.2d 803, 809-811 & n. 7 (1st Cir.1977) (excluding coerced confession but not deciding whether INS agent had violated 8 U.S.C. § 1357(a)(2) or the effect any such violation might have), but the BIA did not consider any evidence from the time of Westover’s arrest. B. Effect of 8 U.S.C. § 1255(i) Aliens who, inter alia, have worked in the United States without authorization, are in unlawful immigration status, have failed to maintain lawful status, or have violated the terms
781	an award of attorney’s fees. Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). Defendants filed their application for fees and a hearing thereon was set for September 4, 1984, following denials of plaintiff’s post judgment motions. On August 28, 1984, plaintiff filed a motion to disqualify the undersigned judge on the grounds of personal bias and prejudice against plaintiff “or in favor of any adverse party.” I. TIMELINESS AND SUFFICIENCY OF AFFIDAVIT. We start with the proposition that it is the primary duty of the judge against whom an affidavit of bias or prejudice is filed to pass on the legal sufficiency of the facts alleged in the affidavit, and its timeliness. To safeguard the judiciary from frivolous attacks on its dignity and integrity, affidavits of disqualification for bias are to be strictly construed for form, timeliness and sufficiency. Radamacher v. City of Phoenix, 442 F.Supp. 27 (D.C.Ariz.1977); Bumpus v. Uniroyal Tire Co., 385 F.Supp. 711 (D.C.Pa.1974); Town of East Haven v. Eastern Air Lines, Inc., 304 F.Supp. 1223 (D.C.Conn.1969); U.S. v. Moore, 405 F.Supp. 771 (D.C.W.Va.1976). A. TIMELINESS. The motion to recuse comes after judgment was entered and post trial motions were denied. The Opinion and Order dismissing the complaint was filed on July 10, 1984, and judgment was entered thereon on July 20, 1984. The motion for recusal was filed on August 28, 1984, subsequent to this Court’s order of August
2212	to return to work. In that circumstance, to say that he has done everything necessary to obtain the benefits makes some sense. However, the plan is written to apply to all disabled persons, including those who may eventually return to work. The latter would accrue imputed years of service.for the years during which they were disabled, but the imputed service would cease when they become able to return to work. In that circumstance, the plan makes better sense only if each year of imputed service is accrued as it passes. In order to continue the accrual, the person must continue to be disabled. The situation bears some similarity to the one set out in When the Dixie Engine plan terminated, Blessitt had not yet reached normal retirement age. He argued, however, that his retirement benefit should be based on the future years of service he would have performed under the plan up to his retirement age because “this is the retirement benefit he expected to receive when he retired....” The argument was soundly rejected. Arndt’s case involves imputed, not actual, years of service, but, without intending to be insensitive to Arndt’s plight, we find his case is not significantly different from the rejected claim in Blessitt. So long as the plan is in effect and he remains disabled, he would continue to accrue years of service. In Blessitt’s case, so long as the'plan was in
2528	"unclear from her declaration and from the Complaint what was going on between December 1999 and October 2004, when the Robertsons received a call from GE that they were delinquent on their account and owed $222.22. . Defendants argue — based on the choice of law provision contained in the New Agreement — that Georgia law applies, rather than Mississippi law. However, the court agrees with plaintiffs that because defendants have not established that the New Agreement was ever entered into, the choice of law provision contained within the New Agreement does not govern. Indeed, the cases cited by defendants in support of the proposition that Georgia law applies — Bank One, N.A. v. Coates, 125 F.Supp.2d 819 (S.D.Miss.2001) and In Overstreet, the existence and validity of the parties' contract as a whole was not at issue; the issue was whether the arbitration clause contained within that contract was unconscionable. Thus, the court stated, ""[a]s a result, at least for the purposes of our analysis, the validity of the Georgia choice of law provision applicable to the parties' contract has not been called into question. Therefore, we see no reason to disregard the parties' agreement to apply Georgia law to their contract.” Overstreet, 462 F.3d at 411-12. And in Coates, the original cardmember agreement (that was amended to include an arbitration clause) contained an Ohio choice-of-law provision and there was no challenge to the validity of"
2459	"See United States v. Mille Lac Band of Chippewa Indians, 229 U.S. 498, 33 S.Ct. 811, 57 L.Ed. 1299 (1913). Shortly after this decision, the United States purchased land for the Mille Lacs Band and made allotments to"" it and its members. The 4,000 acres purchased at that time are held in trust, and are not disputed here. In 1990, the Mille Lacs Band filed a lawsuit which casts its shadow over the present matter. By joining with several other Bands, they sought a declaratory judgment to establish entitlement to continued implied hunting and fishing rights originally guaranteed in the 1837 Treaty. Nine years later, the United States Supreme Court ruled in their favor, and in  found that the 1837 Treaty protected the their hunting and fishing rights. Notwithstanding the finality of the Supreme Court’s decision, there still remain a number of unresolved issues between the Mille Lacs Band and neighboring landowners. It is also appropriate to recognize that, over the past few years, the Mille Lacs Band has opened two highly successful casinos, and has used revenues therefrom to acquire additional land. During this time, the Mille Lacs Band leaders have referred to a possible reassertion of their claim to land within the 1855 reservation boundaries. This claim has exacerbated relations between the Mille Lacs Band and its nearby neighbors, who brought this case. Plaintiffs ask the Court to declare that"
3794	of an ordinance and that ordinance is subsequently repealed or amended, the repeal or amendment may be viewed as a form of voluntary cessation by the governmental entity of the “offending conduct.” Despite the exception for voluntary cessation, however, the constitutional challenge is usually still rendered moot in the event of a repeal or amendment because the law presumes that governmental entities will not enact unconstitutional laws. Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1310 (11th Cir.2000); Troiano v. Supervisor of Elections, 382 F.3d 1276, 1283 (11th Cir.2004). If there is a substantial likelihood that the law will be reenacted, however, the case will proceed despite the amendment. cf. Deja Vu, 274 F.3d at 387. And, if a plaintiffs constitutional challenges to an ordinance remain valid despite an amendment to the ordinance challenged, there is no reason to find the claim moot. “[T]he ‘superseding statute or regulation moots a case only to the extent that it removes challenged features of the prior law. To the extent that those features remain in place, and changes in the law have not so fundamentally altered the statutory framework as to render the original controversy a mere abstraction, the case [is] not moot.’ ” Coalition for Abolition, 219 F.3d at 1310 (quoting Naturist Soc’y, Inc. v. Fillyaw, 958 F.2d 1515, 1520 (11th Cir.1992)). Orange County argues that the replacement of “or other
4338	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 definition of the class, whether there is any evidence of collusion between class counsel and counsel for the government, and whether class members have had adequate notice and opportunity to be heard on the proposed settlement. See Thomas v. Albright, 139 F.3d at 231; Durrett v. Housing Authority of City of Providence, 896 F.2d 600, 604 (1st Cir.1990); Mars Steel v. Continental Ill. Nat. Bank and Trust, 834 F.2d 677, 683 (7th Cir.1987); Osher v. SCA Realty I, Inc., 945 F.Supp. at 304. 1. Timing of Settlement and Extent of Discovery Completed Some of the objectors maintain that settlement came too early and that class counsel undertook insufficient discovery in this case before settling it. A review of the history of the case, however, reveals that “[tjhere has been a literal mountain of discovery provided and reviewed.” Transcript of Hearing of March 2, 1999 at 170 (Comments of Mr. J.L. Chestnut). Less than three months after the case was filed, the Court ordered the USDA to open its files to plaintiffs within fifteen days. On the fifteenth day, the government provided plaintiffs with ten boxes of documents containing approximately 35,000 to 40,000 pages of
3867	PER CURIAM: Jeffery Scott Bonneville, Texas prisoner # 1244488, proceeding pro se and in forma pauperis (IFP), appeals the dismissal of his 42 U.S.C. § 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. 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
2597	no reason to believe that this was done on any widespread basis. Performance Chart No. 1 contains representations whose materiality can be determined on a class-wide basis because they were not significantly modified, elaborated, or explained by a variety of other oral and written representations. The total mix of information about past performance was relatively constant. Accordingly, the Court finds that common questions of materiality—“a mixed question of law and fact,” TSC Industries, Inc. v. Northway, Inc., supra, 426 U.S. at 450, 96 S.Ct. at 2132-2133— predominate over individual questions. ii. Reliance In order to recover damages, a plaintiff in an action under the Investment Advisers Act must prove that he relied on the material misinformation which the defendant fraudulently disseminated. see Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 153-154, 92 S.Ct. 1456, 31 L.Ed.2d 741 (1972) (reliance requirement in 10b-5 actions). Common issues of reliance predominate over the individual issues. This finding of predominance is based in part on the presumption of reliance by an investor on a material misrepresentation or omission of a material fact. The Court has already found that the issue of materiality presents predominating common questions. See pp. 259-261, supra. The law is settled that in cases “involving primarily a failure to disclose [material information], positive proof of reliance is not a prerequisite to recovery” because reliance is inferred from the materiality of the misleading omission. Id., at 153, 92 S.Ct.
4328	relief. See id. at 95. The decision to certify the class pursuant to Rule 23(b)(3) was made largely in order to allow class members to opt out of the class if they wanted to pursue their remedies individually either before the USDA or by separate court action. The Court already has determined that a class exists and that the class meets the four criteria of Rule 23(a) of the Federal Rules of Civil Procedure. See Pigford v. Glickman, 182 F.R.D. at 346-50. Because the Court has certified the class under Rule 23(b)(3) of the Federal Rules of Civil Procedure, it also must ensure that the separate and additional requirements of (b)(3) are satisfied before approving the proposed settlement. See Thomas v. Albright, 139 F.3d 227, 234 (D.C.Cir.) (requirements of predominance and superiority in subsection (b)(3) are additional to requirements of subsection (a) which apply to all class actions), cert, denied, — U.S. —, 119 S.Ct. 576, 142 L.Ed.2d 480 (1998). Rule 23(b)(3) requires the Court to find (1) that questions of law or fact common to members of the class predominate over questions affecting only individual members, and (2) that a class action is “superior to other available methods for the fair and efficient adjudication of the controversy.” Rule 23(b)(3), Fed.R.Civ.P. It
2107	A subsidiary question is raised, however, in declaring the reasonableness of respondent’s determination. That inquiry focuses on the appropriate standard of review against which such reasonableness is to be measured. While neither party has urged adoption 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); 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
512	past that hurdle, the integration mandate does not apply because the denial of employment services does not place any plaintiff at risk of institutionalization; (3) plaintiffs’ claims improperly seek to require defendants to provide a service that the state does not and cannot provide, namely integrated employment in a community business; and (4) plaintiffs’ claims improperly seek to impose a certain standard of care on the state’s provision of employment services. A. Employment Claims Under Title II In their Reply, defendants seek dismissal of the ADA claim on the basis that plaintiffs are raising an “employment claim” not cognizable under Title II of the ADA. Plaintiffs rely on  cert. denied, 531 U.S. 1189, 121 S.Ct. 1186, 149 L.Ed.2d 103 (2001), which upheld dismissal of a Title II claim premised upon an allegation that the state refused to accommodate his visual impairment and then terminated him. Based on a contextual reading of the structure of the ADA, the Ninth Circuit concluded that Congress had “unambiguously expressed its intent that Title II not apply to employment” and granted “no weight” to the Attorney General’s implementing 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
969	Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Issues of material fact are “genuine” only if they require resolution by a trier of fact. See id. at 248, 106 S.Ct. at 2510. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. See id. at 247-48, 106 S.Ct. at 2510. If the evidence is such that a reasonable fact-finder could find in favor of the nonmoving party, summary judgment should not be granted. See id.; see also Dixon v. State Farm Fire & Casualty Co., 799 F.Supp. 691 (S.D.Tex.1992) (noting that summary judgment is inappropriate if the evidence could lead to different factual findings and conclusions). Determining credibility, weighing evidence, and drawing reasonable inferences are left to the trier of fact. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. Procedurally, the.party moving for summary judgment bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrates the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553; see also Fed.R.Civ.P. 56(c). The burden then shifts to
2150	MEMORANDUM OPINION CHARLES R. SIMPSON, III, District Judge. This matter is before the court on cross-motions for summary judgment on the claim of the plaintiff, 500 Associates, Inc., to recoup expenses under a provision of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9607(a)(4)(B). A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 151-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties’ differing
2216	of Mass. Enterprises. Thereupon the stockholders endorsed and transferred said shares to the purchaser, thus completing the transaction. The total amount paid by the purchaser for these shares was the same as the amount that had been agreed upon orally as the purchase price for the land. In petitioner’s income tax return for 1959 no gain was reported with regard to the sale of the stock. Then as now it took the position that this was a sale by the stockholders, not the petitioner. The Tax Court- upheld the Commissioner of Internal  the Court said: “The incidence of taxation depends upon the substance of a transaction. The tax consequences which arise from gains from a sale of property are not finally to be determined solely by the means employed to transfer legal title. Rather, the transaction must be viewed as a whole, and each step, from the commencement of negotiations to the consummation of the sale, 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
2806	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 in personam maritime claims. See 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
2704	"Grant in favor of the Plaintiffs [i.e. Debtors]."" (Emphasis added.) Debtors appear to assume that the bankruptcy court intended not merely to deny Ventura's motion for summary judgment but to grant affirmative relief to Debtors. They argue on this appeal that Ventura was bound to appeal this alleged ruling within ten days. See Fed. R. Bankr.P. 8002(a). We reject Debtors’ argument. Even if we were to assume that the bankruptcy court intended to grant affirmative relief to Debtors (and without suggesting that the bankruptcy court intended to do so or properly could do so), such a ruling would not be final because an accounting and a determination of damages remained for trial. See generally See also Lindblade v. Knupfer (In re Dyer), 322 F.3d 1178, 1186 n. 10 (9th Cir.2003) (citing with approval authority that order establishing liability under § 362(h) but not quantifying damages is not final). . We dismissed debtors’ appeal for lack of prosecution. . Ventura argued before the bankruptcy court that there is no jurisdiction under Section 362(h) to award damages in this Second Case for a stay violation in the First Case. Ventura has not raised that argument on this appeal, and although we have an independent obligation to determine if we lack jurisdiction we are satisfied that the bankruptcy"
4326	American farmers “learned the hard way that though the rules and the law may be colorblind, people are not.” Transcript of Hearing of March 2, 1999, at 173. Any farmer who believed that his application to those programs was denied on the basis of his race or for other discriminatory reasons theoretically had open to him a process for filing a civil rights complaint either with the Secretary of Agriculture or with the Office of Civil Rights Enforcement and Adjudication (“OCREA”) at USDA. USDA regulations set forth a detailed process by which these complaints were supposed to be investigated and conciliated, and ultimately a farmer who was unhappy with the outcome was entitled to sue in federal court under ECOA. See All the evidence developed by the USDA and presented to the Court indicates, however, that this system was functionally nonexistent for well over a decade. In 1983, OCREA essentially was dismantled and complaints that were filed were never processed, investigated or forwarded to the appropriate agencies for conciliation. As a result, farmers who filed complaints of discrimination never received a response, or if they did receive a response it was a cursory denial of relief. In some cases, OCREA staff simply threw discrimination complaints in the trash without ever responding to or investigating them. In other cases, even if there was a finding of discrimination, the farmer never received any relief. In December of 1996, Secretary of Agriculture Dan Glickman appointed
740	deliberations and its constituency. First, he charges, the jury discussed matters not in evidence. Explicitly, he refers to his rumored beating of a guard in a jail delivery attempt on a prior occasion, and his wife’s defense testimony in the criminal trial of another. For proof, Downey adverts to the testimony of several jurors at his coram vobis hearing. The State urges that jury deliberations are wrapped in a mantle of privilege, and jurors cannot be called to impeach their verdict. In controversy here, however, is not the nature of the mental processes of each juror in reaching the verdict, nor is it proposed that jurors testify as to their impression of the impact of particular evidence on the deliberations. 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
897	to a viable claim for •breach of fiduciary duty by Defendants. Furthermore, even if Defendants acted improperly by failing to timely provide Plaintiff with information she requested, including the decision on her appeal, Plaintiff may not recover because she was not a beneficiary to the Plan and was not entitled to the Plan benefits. IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment (Doc. 86) is GRANTED. IT IS FURTHER ORDERED that Plaintiffs Motion for Summary Judgment (Doc. 99) is DENIED. IT IS SO ORDERED. . Doc. 54-1 at 4-5. .Id. at 5. . Doc. 79 at 20-28. . Id. at 20-21. . Fed.R.Civ.P. 56(a). . City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir.2010). . Liberty Lobby, Inc., 477 U.S. 242, 248, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). . Adler, 144 F.3d at 670 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671); see also Kannady v. City of Kiowa, 590
1763	"Cantrell v. Great Republic Ins. Co., 873 F.2d 1249, 1255 (9th Cir.1989) (finding that removal was untimely and that plaintiff's addition of a plaintiff and defendant did not change the nature of the action and did not restart the removal clock); Samura v. Kaiser Found. Health Plan, Inc., 715 F.Supp. 970, 972 (N.D.Cal.1989) (where an initial complaint was removable, subsequent events do not make it ""more removable” or ""again removable”) (citations omitted); Jeffrey M. Goldberg & Assoc. v. Collins, Tuttle & Co., 739 F.Supp. 426, 430 (N.D.Ill.1990) (finding that the addition of a ""new tortious interference claim” that did not change the basic legal theory in an initially removable complaint did not restart the removal clock); . See, e.g., Hibbs v. Consolidation Coal Co., 842 F.Supp. 215, 216 (N.D.W.Va.1994) (initially non-removable action was removed within thirty days of amendment to the complaint, though case had been ongoing in state court for a year). . See Objections at 10; Plaintiffs' Reply to Defendant Shell Oil Company's Response to Plaintiffs’ Objections to Magistrate Judge's Report and Recommendation re Plaintiffs’ Motion to Remand (""Reply Mem.”) at 6-7. . Motion for Remand at 2, 8-9. . Shell Oil Company’s Opposition to Plaintiffs’ Motion"
4196	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 institution” is a “generic term describing prisons, jails, reformatories and other places of correction and detention.” Id. at 344. And, “house of correction” is defined as a “prison for the reformation of petty or juvenile offenders.” Id. Congress did not add any language limiting the scope of these words to adult facilities. Rather, Congress prefaced the phrase with the word “any.” In a similar context, the Supreme Court has noted that “the word ‘any’ has an expansive meaning.” Therefore, we must construe the phrase to include all jails, prisons, and correctional facilities, including those housing juveniles. See id. (construing the statutory phrase “any other term of imprisonment” as referring to “all terms of imprisonment”). Further, the language “or other correctional facility,” is broad and inclusive, rather than exclusive. Therefore, the plain, meaning of the statutory language suggests that juvenile detention facilities should be included within the scope of the phrase “jail, prison, or other correctional facility.” We acknowledge that Congress placed the attorney’s fees limitations provision, applicable to prisoners confined to “jail, prison, or other correctional facility,” into Title 42, and that § 1997
4957	which in turn includes appropriate inodes for active maps and the like.’ [Citation omitted.] On disk, the volinfo block contains pointers to a plurality of fsinfo blocks, including one for the active file system and fsinfo blocks for each PCPI. [Citation omitted.] '720 Patent File History, March 7, 2007 Amendment at 7-8 (emphasis added). These statements to the PTO make clear that NetApp viewed the preamble as comprising the critical limitation that distinguished its invention from the prior art. See Halliburton Energy Serv., Inc. v. M-I LLC, 514 F.3d 1244, 1246 (Fed.Cir.2008) (patentee correctly conceded that the preamble at issue was limiting because the patentee had relied on the preamble to distinguish prior art during prosecution). NetApp’s reliance on 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
4398	coverage dispute and to facilitate resolution of the pending state court matter. The Law The Declaratory Judgment Act provides that “any court of the United States, upon the tiling of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such a declaration.” 28 U.S.C. § 2201(a). The Fifth Circuit requires a district court faced with this situation to balance on the record the purposes of the Declaratory Judgment Act and the factors relevant to the abstention doctrine when exercising its discretion. Travelers Ins. Co. v. Louisiana Farm Bureau Federation, Inc. 996 F.2d 774, 778 (5th Cir.1993) (citing Rowan Companies, Inc. v. Griffin, 876 F.2d 26, 28-29 (5th Cir.1989)). The Supreme Court in  explained how district courts should use discretion to abstain from entertaining a declaratory judgment action: [I]n deciding whether to enter a stay, a district court should examine the scope of the pending state court proceeding and the nature of defenses open there. This inquiry, in turn, entails consideration of whether the claims of all parties in interest can satisfactorily be adjudicated in that proceeding, whether necessary parties have been joined, whether such parties are amenable to process in that proceeding. 515 U.S. at 283, 115 S.Ct. 2137 (internal citations omitted). The Supreme Court reasoned that when another suit “involving the same parties and presenting opportunity for ventilation of the same state law issues is pending in
226	before plaintiffs entered into any contractual relation with the Government for the assembly of such units. There are a multitude of cases which sustain the principle that, as an indispensable condition precedent to liability for interference with the performance of one’s contract, there not only must be knowledge of the contract, but there must be an intentional interference therewith. Robins Dry Dock & Repair Co. v. Flint, 1927, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290; Baruch v. Beech Aircraft Corp., 10 Cir., 1949, 175 F.2d 1; New York Trust Co. v. Island Oil & Transport Corp., 2 Cir., 1929, 34 F.2d 649; The Federal No. 2, 2 Cir., 1927, 21 F.2d 313; upp. 497, 513, reversed oh other grounds, 2 Cir., 1936, 85 F.2d 61; Tipton v. Burson, 1951, 73 Ariz. 144, 238 P.2d 1098; Dewey v. Kaplan, 1937, 200 Minn. 289, 274 N.W. 161; Brink v. Wabash R. Co., 1901, 160 Mo. 87, 60 S.W. 1058, 53 L.R.A. 811; see Twitchell v. Glenwood-Inglewood Co., 1915, 131 Minn. 375, 155 N.W. 621; see Cat’s Paw Rubber Co. v. Bario Leather & Findings Co., D.C.S.D.N.Y., 1951, 12 F.R.D. 119, 121; Phillips v. Belding Heminway, D.C.S.D.N.Y., 1943, 50 F.Supp. 1015, 1019; see Prosser, Torts 991-996 (1941); 30 Am.Jur. Interference § 22; Note, 26 A.L.R.2d 1227, 1246. This is also the view adopted by the American Law Institute. See Restatement, Torts, § 766, comment d. Plaintiffs’ contention as set forth
2897	EAC’s argument only if it means that EAC would receive more money in a Chapter 7 liquidation than it will receive from the series of payments provided for in the Chapter 13 plan. EAC has provided no evidence to this court or the district court to establish that it would have received a greater amount had it received its pro rata share of the $6,000. Furthermore, our comparison of the two amounts indicates that EAC would have received less in a Chapter 7 liquidation. Since the bankruptcy court’s error had no effect on the application of the best interests of creditors test, EAC suffered no prejudice by the ruling. Thus, we conclude that the error was harmless. See II. EAC next argues that the debt is a long-term debt under 11 U.S.C. § 1322(b)(5) (1982) and that such debts are excepted from a section 1328 discharge. Section 1322(b)(5) permits a Chapter 13 plan to provide for curing any default on a debt that has its last payment due after the due date of the final payment under the plan by allowing the debtor to extend the length of the repayment period beyond the amount of time allowed under a Chapter 13 plan. A debtor may, but is not required to, provide for his long-term debts by using this provision. Zellner’s plan did not provide for curing a default on his student loan,
2813	authority to give or rent a portion of City Hall to some nongovernmental organization at the discretion of the Mayor. Likewise, under Tennessee statute, T.C.A. §§ 12-229 through 12-234, a municipality may have under limited conditions authority to sell and convey title to or lease property or buildings to “not for profit corporations” where they are “in the interests of the municipality in the judgment of the governing body,” but this relates to financing of new improvements and structures for such limited purposes. The Court also is of the opinion there is no inherent constitutional right to compel public officials to open municipal buildings to the public for use as an office even in the exercise of free speech and assembly. Danskin v. San Diego Unified School Dist., 28 Cal.2d 536, 171 P.2d 885 (1946); State ex rel. Tubbs v. City of Spokane, 53 Wash. 2d 35, 330 P.2d 718 (Wash., 1958). This is a different privilege entirely from the rights guaranteed under the First and Fourteenth Amendments to the exercise of free speech and assembly without unlawful abridgement in public places, streets, parks, and halls by private individuals or groups. We respectfully reject the defendants’ argument that the Mayor’s program of patriotism, by its very nature, is in effect a public purpose or governmental function, and consequently requires no legislative authority for use of City Hall space. “Public purpose” has been appropriately defined in Pack v. Southern Bell Telephone & Telegraph
3825	possession of Alprazolam and for failure to identify himself as a fugitive from justice, and there is no indication that the present drug conspiracy included any drug other than cocaine. Accordingly, the probation officer correctly determined that Balleza’s prior convictions each counted for one criminal history point, giving Balleza a criminal history category of II. See United States v. Garza, No. 94-41339, 1995 WL 534842 at *5 (5th Cir. Aug. 14, 1995) (unpublished); see also 5th Cir. R. 47.5.3. As the district court ruled that Balleza’s criminal history category was the non-existent one and a half, any error committed by the district court in calculating Balleza’s criminal history category was in Balleza’s favor and was, therefore, harmless to Balleza. See Balleza asserts that his sentence was substantively unreasonable because it was substantially greater than the sentences of co-defendants who were more culpable than he was. Balleza argues that his sentence was unreasonably high because his criminal history category was incorrectly determined to be II and because he received a two-level enhancement for being convicted of money laundering. He maintains that the long sentence he received was unwarranted because he exercised no discretion in his activities and merely followed orders given by co-defendants via telephone. He asserts that he was only 18 years old at the time of the offense and that nothing in his background or role
4303	dismiss on terms, Diamond v. United States, 5 Cir., 1959, 267 F.2d 23, 25, certorari denied 361 U.S. 834, 80 S.Ct. 85, 4 L.Ed.2d 75, the intendment of Rule 41(a) (2) is primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions. 5 Moore, Federal Practice ¶ 41.05 (2d ed. 1951). Whether, and on what terms, a dismissal without prejudice may be granted, is a matter left initially to the trial court’s discretion. Larsen v. Switzer, 8 Cir., 1950, 183 F.2d 850, 851; see Shaffer v. Evans, 10 Cir., 1958, 263 F.2d 134, 135, certiorari denied 359 U.S. 990, 79 S.Ct. 1119, 3 L.Ed.2d 978; d 43, 45-46; Lyman v. United States, 1 Cir., 1944, 138 F.2d 509, certiorari denied 320 U.S. 800, 64 S.Ct. 429, 88 L.Ed. 483. But that does not excuse the failure to exercise any discretion, see Martin v. Graybar Electric Co., supra, 266 F.2d at page 203; cf. Grivas v. Parmelee Transp. Co., 7 Cir., 1953, 207 F.2d 334, 338, certiorari denied 347 U.S. 913, 74 S.Ct. 477, 98 L.Ed. 1069; Harvey Aluminum, Inc. v. American Cyanamid Co., D.C.S.D.N.Y. 1953, 15 F.R.D. 14, 18, or save from reversal an unpermitted exercise. We have already expressed our belief that the court did not even purport to exercise discretion. But were we to assume that it did, the reasons given — that Alamance had brought the suit,
4265	of Chief Justice Warren in Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 98 L.Ed. 884 (1954) and that of his fellow-Californian Justice Stephen J. Field in “liberty of contract” cases of an earlier day, such as Butcher’s Union, etc., Co. v. Crescent City Co., 111 U.S. 746, 757, 4 S.Ct. 652, 28 L.Ed. 585 (1884), and Powell v. Com. of Pennsylvania, 127 U.S. 678, 691-692, 8 S.Ct. 992, 32 L.Ed. 253 (1888). Field’s views, expressed as dissent in the Slaughter-House Cases, 16 Wall. 36, 106, 109-111, 21 L. Ed. 394 (1873), received majority acceptance in Allgeyer v. State of Louisiana, 165 U.S. 578, 589-591, 17 S.Ct. 427, 41 L.Ed. 832 (1897). Reaching its apogee in  the dogma of liberty to pursue common callings without regulation was generally believed to have been overthrown in Nebbia v. People of State of New York, 291 U.S. 502, 523, 527, 536, 54 S.Ct. 505, 78 L.Ed. 940 (1934), and West Coast Hotel Co. v. Parrish, 300 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
2419	disability rating will make it difficult for petitioner to receive medical care from the Veterans Administration. Respondent, however, suggests that this problem is easily solved : Captain Lynes, after his release from active duty, could . . . seek any necessary treatment at civilian hospitals. If, after release from active duty, Captain Lynes incurs medical expenses which he would not have incurred had he been separated by reason of service-connected physical disability and if it is subsequently determined that he should have been so separated, there is precedent in the Court of Claims for recovery of medical expenses to which Captain Lynes would not have been put had he been separated as unfit by reason of a service-connected physical disability. We express no opinion on the availability of relief in the Court of Claims under these circumstances. But even assuming such relief is available, we conclude that to put petitioner to the expense and uncertainty of such a course of action would constitute irreparable harm, both intrinsically and as a deterrent to seeking medical care in the civilian world when needed. Harm to Other Parties and the Public Interest From the record thus far made in this case, it seems clear that little harm to either the Army or the general public interest will result from petitioner’s retention in service. In fact, it would be extremely difficult for the Army to argue that petitioner is unable to perform his
921	"Id. § 6.108. . Doc. 86-15 ¶ 2. . Tex. Fam.Code Ann. § 2.302. . Id. § 1.101; Doc. 79 at 20. . Doc. 54-1 at 4-5. . Doc. 99 at 24. . 29 U.S.C. § 1132(a)(3). . Arocho v. Goodyear Tire & Rubber Co., 88 F.Supp.2d 1175, 1185 (D.Kan.2000). . Id. at 1185 (quoting Varity Corp. v. Howe, 516 U.S. 489, 515, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996)). . Id. (citing cases). . Id. (alteration omitted) (quoting Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610 (5th Cir.1998)). . See id at 1186. (""Goodyear fulfilled its fiduciary obligation of discharging its duties ‘in accordance with the documents and instruments governing the plan.' ”); see also "
4026	regarding the changed conditions from the 2003 to 2004 navigation season, and on remand it will be obliged to do so. The district judge dismissed appellant’s constitutional contentions for failure to state a claim. We think that was at least premature. Menkes’s First Amendment claim depends on the assumption that the Coast Guard was attempting to force him to join the Association as a condition of employment. As we understand his position, even granting a preference to pool members would constitute such compulsion. Although he never indicates what expressive conduct by the Association he finds objectionable, he does argue that forcing him to join the Association is a First Amendment violation. For this point, he relies primarily on Abood stands for the proposition that the government may not compel an employee to subsidize the political (i.e., non-representational) speech of his or her labor union- — although, under previous Supreme Court case law, compulsory union membership is permitted as a condition of employment. Appellant seeks to extend the Abood principle to his situation by arguing that the government cannot force him to join an expressive, private organization as a condition of employment with the government. Before grappling with this First Amendment issue, however, we would like to see how the Coast Guard responds to our remand order on appellant’s APA claim. Conceivably, this question will be mooted. Finally, appellant’s Fifth Amendment due process claim
4725	the MCA for the motor carrier exemption to apply. Under the MCA, a motor carrier is defined as a person “providing motor vehicle transportation for compensation.” 49 U.S.C. § 13102(14). A motor private carrier “means a person, other than a motor carrier, transporting property by motor vehicle when — (A) the transportation is as provided in section 13501 of this title; (B) the person is the owner, lessee, or bailee of the property being transported; and (C) the property is being transported for sale, lease, rent, or bailment or to further a commercial enterprise.” Id. § 13102(15). Additionally, during the period of Plaintiffs employment, from 2010 to 2012, the MCA has applied only to vehicles over 10,000 pounds. See .N.Y.2015) (explaining the amendments that have been made to the statutory text, and noting that 2005 and 2008 amendments provided that the MCA exemption “does not apply to motor vehicles that weigh 10,000 pounds or less”). Defendants contend, and Plaintiff does not dispute, that AAA Carting is a motor private carrier. (See Defs.’ Mem. 10; see generally Pl.’s Mem.) Moreover, the evidence set forth by Defendants is that “AAA Carting’s garbage trucks all weigh well in excess of 10,000 pounds, including the one driven by Plaintiff.” (Cartalemi Decl. ¶ 8; see also. id. Ex. A (AAA Cart ing Vehicle Schedule) (providing the gross vehicle weights of Defendants’ trucks).) Plaintiff does not dispute this fact, nor does Plaintiffs
4344	telephone numbers for the facilitator and for class counsel to the extent that anyone had any questions. Third, the Court gave objectors ample opportunity to present their objections to the Consent Decree. As noted above, the Court considered all of the written objections that were filed and provided objectors with an opportunity to present their objections orally at the fairness hearing. While the Court denied a request for an evidentiary hearing made by one group of objectors, see Order of March 11, 1999, the Court is not obligated to hold an evidentiary hearing, especially in view of the fact that it accepted apd considered affidavits in place of testimony. See Jones v. Nuclear Pharmacy, Inc., 741 F.2d 322, 325 (10th Cir.1984);  cert. denied sub nom, Coyne v. Weinberger, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); cf. United States v. Cannons Engineering Corp., 899 F.2d 79, 93-94 (1st Cir.1990). Finally, because the Court has received a number of objections, it is clear that class members do not unanimously support the settlement. It is significant, however, that there are relatively few objections to the settlement in comparison with the size of the class. See Thomas v. Albright, 139 F.3d at 232. This is a large class. As of March 26, 1999, 16,559 farmers had requested claims packages from the facilitator, and the facilitator already has received 1686 completed claim packages. By contrast, only 85 farmer class members have elected to
944	statutorily mandated minimum sentences if several requirements are met, including a requirement that the defendant have no more than one criminal history point. See 18 U.S.C. § 3553(f). The District Court concluded that Hernandez was ineligible for safety valve relief as a consequence of a prior drug conviction that resulted in a Youthful Offender Adjudication (YOA) under New York law and that it lacked discretion not to count this conviction in determining the appropriate criminal history. Familiarity with the relevant facts, procedural history and issues raised on appeal is presumed. Hernandez raises three issues. First, he contends that the District Court erroneously concluded that it did not have the discretion, under the Federal Sentencing Guidelines and this Court’s decisions in  and United States v. Driskell, 277 F.3d 150 (2d Cir.2002), to choose to omit his YOA and that he was therefore improperly deprived of safety valve relief. We reject this contention. The Guidelines plainly require that unexpunged convictions be counted in criminal history. In United States v. Matthews, we held that New York’s youthful offender adjudications are not considered to be “expunged sentences” under the Guidelines. Shortly thereafter, we determined that a youthful offender adjudication counts as a conviction when calculating criminal history under § 4A1.1 of the Guidelines. United States v. Driskell, 277 F.3d at 154-55. Section 4A1.2(d)(2)(B) directs District Court judges to “add 1 point under § 4Al.l(c) for each adult or juvenile sentence imposed within five years of
619	. Order for Additional Briefs (Docket No. 308). . Debtors’ Supplemental Hearing Brief (Docket No. 313); Bank of the West’s Additional Brief Regarding 1) Legal Authority Supporting the Validity of a Waiver of California Anti-Deficiency Statutes by a Guarantor and 2) Applicability of Colorado Law (Docket No. 314). . In re Richter, 478 B.R. 30, 40 (Bankr.D.Colo.2012). . Id. (quoting Wilson v. Broadband Wireless Int’l Corp. (In re Broadband Wireless Int’l Corp.), 295 B.R. 140, 145 (10th Cir. BAP 2003)). . See Debtors' Objection. . See Bank’s Response. . Richter, 478 B.R. at 40; see also In re Lenz, 110 B.R. 523, 525 (D.Colo.1990). . Id. at 40-41 (internal citations omitted). . See ). . Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc., 532 F.3d 1063, 1077 n. 12 (10th Cir.2008). . Haggard v. Spine, 2009 WL 1655030, at *3 (D. Colo. June 12, 2009) (not reported in F.Supp.2d); see also Wood Bros. Homes, Inc. v. Walker Adjustment Bureau, 198 Colo. 444, 601 P.2d 1369 (1979). In full, Restatement (Second) of Conflict of Laws § 187 states: (1) The law of the state chosen by the parties to govern their contractual rights
167	appears from the record to indicate that the payments in question were made under duress and protest. I am inclined to the opinion that this objection would have been sound, had it been made prior to the passage of the Revenue Act of 1924. * * * jjje theory of the action against the collector was that the payment had been exacted under duress, and for that reason a protest accompanying the payment was a condition precedent to a right of action against him. Fox v. Edwards (C. C. A.) 287 F. 669, 34 A. L. R. 973; Coffey v. Exchange Bank (C. C. A.) 296 F. 807. Nor is there anything in the ease of  The question raised by the defendant here becomes startlingly cogent. Judge Thomas in his opinion decided that section 1014(a) of the Revenue Act of 1924, by the force of its amendment, permitted the action to be maintained in behalf of the taxpayer and said: “I am of the opinion that this language changes the rule theretofore prevailing, and that an action may now. be maintained against a collector for the recovery of income taxes 'erroneously paid, regardless of protest.” I am somewhat loath to differ from my associate in his view of the
3388	MEMORANDUM Toney August Schomer appeals from the sentence imposed upon the revocation of supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Schomer contends that the district court violated Fed.R.Crim.P. 32.1(b)(2)(B) and his right to due process by engaging in an ex parte conversation with a probation officer who confirmed the allegations against him. We need not reach the issue whether the district court committed error because any alleged error would be harmless in light of the fact that Schomer admitted the violations. See United States v. Daniel, 209 F.3d 1091, 1094 (9th Cir.2000). Schomer’s contention that the imposition of a sentence upon supervised release based on judicial findings violates Huerta-Pimental, 445 F.3d 1220, 1224 (9th Cir.2006). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
4075	testimony is not admissible because Hasse did not give him Miranda warnings prior to questioning. Lanier also argues that Hasse’s testimony was evidence of other bad acts, and as such is not admissible under Fed.R.Evid. 404(b). 1. Miranda Warnings Appellant contends that because he was a suspect in Hasse’s investigations at the time of the interview with Hasse, he was entitled to receive Miranda warnings prior to being questioned. The mere focus of an investigation on an individual, without more, is insufficient to trigger a need for the warnings. United States v. Jones, 630 F.2d 613, 615 (8th Cir.1980). Rather, a reviewing court should consider the totality of the circumstances in determining whether the accused was subject to custodial interrogation. Relevant factors to consider in making the determination include the accused’s freedom to leave the scene, and the purpose, place, and length of the interrogation. Id. The circumstances under which the appellant was interviewed, as discussed above, supra p. 283, clearly indicate that he was not in custody. The District Court properly refused to exclude Hasse’s testimony on this ground. 2. Fed.R.Evid. 404(b) Under Fed.R.Evid. 404(b), evidence of other wrongs is not admissible to prove the defendant’s bad character, but may be admissible for other purposes, such as proof of intent, knowledge, or plan. See United States v. Pierce, 792 F.2d 740, 743 (8th Cir.1986). The District Court admitted Hasse’s testimony for the purpose of showing intent and a plan
1970	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 d.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.
2297	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. 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
2162	as no mention is made of this subsection in any of its briefs. Additionally, it has not responded to the defendant’s argument seeking summary judgment on this aspect of the claim. . Summary judgment was granted on 500 Associates’ various state law claims (Dns 25, 26) and on its claim to rescind the sales contract for the property (DN 87, 88). It appears that VAC has abandoned its CERCLA recovery counterclaim. It has moved for summary judgment on the cost recovery claim against it and for dismissal of the complaint. VAC has been found 100% responsible for the characterization and remediation of the contamination, and liability for the releases has been assessed. . Cited within this Circuit in 
2266	Generally, environmental compliance costs which arise from the debtor’s pre-petition conduct are treated as general unsecured claims. Dant and Russell, 853 F.2d at 709; In re Great Northern Forest Products, Inc., 135 B.R. 46, 60-61 (Bankr.W.D.Mich.1991); In re Kent Holland Die Casting & Plating, Inc., 125 B.R. 493, 503 (Bankr.W.D.Mich.1991). However, courts have found an exception to this general rule when the pre-petition environmental contamination also poses an identifiable and imminent harm in the post-petition period which requires the expenditure of funds to contain or remediate the problem. In re Conroy, 24 F.3d 568 (3d Cir.1994); In re Chateaugay Corp., 944 F.2d 997, 1010 (2d Cir.1991); In re Wall Tube & Metal Products Company, 831 F.2d 118, 123-24 (6th Cir.1987); A number of courts which have found that post-petition costs of remedi-ating a pre-petition environmental injury are properly classified as administrative expenses, rely on Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986). See, In re Wall Tube & Metal Products Company, 831 F.2d at 123-24; In re Conroy, 24 F.3d at 570. PLC argues that the holdings in Midlantic and Conroy definitively establish that the Bankruptcy Code does not provide a safe haven for polluters, and consequently, costs expended to remediate environmental pollution should be treated as an administrative expense. It further contends that In re Torwico Electronics, 8 F.3d 146, 151 (3d Cir.1993) makes it abundantly clear that
2606	plaintiffs’ proposal, which would give each client the value of the decline, if any, in the value of his portfolio during the damage period. This formula seems to make CIS liable for losses due not to its alleged fraudulent conduct but to a general decline in the stock market, and the compensatory purpose of the implied cause of action under the Investment Advisers Act has led courts to limit a client’s recovery to actual damages. Rolf v. Blyth, Eastman Dillon & Co., Inc., 570 F.2d 38, 49 & n. 22 (2 Cir. 1978); see Abrahamson v. Fleschner, supra, 568 F.2d at 878-879; cf. Green v. Occidental Petroleum Corp., 541 F.2d 1335, 1342 (9 Cir. 1976) (Sneed, J., concurring).  is distinguishable. The plaintiffs in Gottreich alleged that they would have stayed out of the stock market if the defendants had not fraudulently persuaded them that securities were not risky, so the market decline was precisely the injury which they sought to avoid, which the defendants’ conduct exposed them to, and for which they were entitled to recover. Here, plaintiffs allege they were fraudulently induced to use a different investment adviser than they otherwise would have, and although the Court can assume (at least in the absence of proof to the contrary) that plaintiffs’ portfolios would have done no worse than indexes of securities of risk and return consistent with plaintiffs’ investment objectives, it cannot assume that they would
1152	policy on joinder of offenses may provide advantages to the accused as well as the Government, he, not the Court, is better able to judge whether those advantages outweigh for him the disadvantages of postponement of trial on the original charges. However, preference as to a particular course of proceeding is not the frame of reference for the Court. The Manual provision is only a statement of policy; the speedy disposition of charges for which an accused is confined is a command of Congress. When a provision of the Manual collides with a provision of the Uniform Code, the former must yield to the latter. United States v. Smith, 13 U.S.C.M.A. 105, 32 C.M.R. 105 (1962); We conclude, therefore, that the intercession of a new charge does not automatically authorize deferment of the trial of the original charges for which the accused had been confined. As more than 90 days elapsed before the accused was brought to trial on the original charges, and he did not, as noted earlier, request delay, and no extraordinary reasons justified delay, the Burton presumption was operative, and the original charges should have been dismissed.” The commission of intervening offenses and the preferral of additional charges may, in a particular case, amount to such an extraordinary circumstance as to justify delay beyond 90 days in bringing an accused to trial. United States v. Huddleston, 50 C.M.R. 99 (A.C.M.R.1975); United States v. O’Neal, 48
4468	entire evidence is left with the definite and firm conviction that a mistake has been committed. DISCUSSION Section 1307(c) provides that on request by a party-in-interest, after notice and a hearing, the court may dismiss a case under Chapter 13 or convert the case to a Chapter 7 case, whichever is in the best interests of the creditors and the estate, for cause. For Chapter 13 cases, § 1307(c) specifically enumerates ten circumstances in which a court may convert or dismiss a case. Although lack of good faith is not specifically enumerated as “cause,” it is well established that lack of good faith (or bad faith) is “cause” for dismissal or conversion of a Chapter 13 case under § 1307(c). See Leavitt, 171 F.3d at 1224; Ho, 274 B.R. at 877; In re Dicey, 312 B.R. 456, 458 (Bankr.D.N.H.2004); Fleury, 294 B.R. at 5; and In re Virden, 279 B.R. 401, 407 (Bankr.D.Mass.2002). Courts differ in their approach to determining a debtor’s good faith, but the majority favor a totality of the circumstances test to determine whether a debtor lacked good faith in filing a Chapter 13 petition for purposes of § 1307(c). The United States Bankruptcy Appellate Panel for the First Circuit originally did not adopt a totality of the circumstances approach to determine lack of good faith, but instead advocated an examination of only the circumstances relevant to the debtor’s proposed plan and post-filing conduct. See In
614	* * “A short and simple solution to this question is, that this document was executed in contemplation of death and for the -very purpose of avoiding the tax liability here asserted with respect thereto. It was executed within a little more than three months prior to decedent’s death and after the various other transactions and incidents hereinabove referred to. The same considerations which lead to the conclusion that those transactions were made in contemplation of death apply with even stronger force to the execution of this document.” We think the Board of Tax Appeals was correct in holding the trust property properly includible in the decedent’s gross estate for inheritance taxation. Affirmed. . . 606, 56 S.Ct. 604, 80 L.Ed. 879; Allen v. Trust Co., 1946, 326 U.S. 630, 636, 66 S.Ct. 389, 90 L.Ed. 367.
2405	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  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).
3807	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, 120 S.Ct. 1382; Barnes, 501 U.S. at 565, 571, 572, 111 S.Ct. 2456, the Eleventh Circuit has suggested that requiring more in the way of clothing may violate the fourth prong of O’Brien. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, 337 F.3d 1251, 1273-74 (11th Cir.2003); see also R.V.S., 361 F.3d at 413; cf. Fantasyland Video, Inc. v. County of San Diego, 373 F.Supp.2d 1094, 1116-19 (S.D.Cal.2005) (holding that an ordinance requiring pasties and G-strings “plus” did not violate the narrow tailoring requirement of O’Brien where the ordinance required covering over the anal cleft or cleavage and not the buttocks). Section 3-129(6) requires a dancer — before she can permissibly engage in certain explicit dance movements — to fully cover her buttocks and the lower portion of her breasts, which requires 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
3477	obtained a statement from a fellow serviceman in an attempt to reopen his claim. It is the issue of whether this evidence is “new and material” that is before the Court. The “new” evidence is a statement executed in October 1989 by Mr. C.D. Ezell, averring that he noted a “fungus infection” of the appellant’s feet in 1944 during the time he and the claimant served together in the Army. The Board found this evidence to be “new” but not “material” and accordingly refused to reopen the claim. Before deciding not to reopen the claim, however, the Board thoroughly and carefully reviewed this new evidence in the context of all the evidence, both new and old.. Citing this Court’s decision in  the Board found that there was no reasonable possibility that this statement, based as it was on recall of some 45 years, would change the result. This evidence, in the Board’s view, was “not as convincing as the veteran’s service medical records and discharge examinations which show no skin condition of the feet. Similarly, no skin condition of the feet was shown during a reemployment examination in November 1945 ...” Harry B. Kates, BVA 92-_, at 5 (Jan. 10, 1992). Accordingly, the Board found the “new” evidence not “material” and denied “the benefit sought on appeal.” ANALYSIS The Board’s 1989 decision, which denied appellant’s claim for fungal infection of his feet, was final and could be reopened only upon the presentment
1886	contract rates, for which it bargained, just because its return in other years was excessive. In Permian, the Supreme Court rejected a variety of offsets imposed on the Commission by the Court of Appeals, which otherwise would have supported Gillring’s argument here. See 390 U.S. at 826-827, 88 S.Ct. 1344. Surely such a dramatic shift in regulatory philosophy would have been signalled by more than ambiguous language in an ordering paragraph. Finally, while not strictly controlling, the filed rate doctrine, reflecting a statutory bias in favor of retroactive rate reductions but not retroactive rate increases, was a consideration the Commission could take into account in interpreting Opinion No. 595. See 15 U.S.C.A. § 717d(a) (1976); cf. Equity In ordering a refund, the Commission is to explore and give due weight to considerations of equity. Continental OH Co. v. FPC, 378 F.2d 510, 532 (5th Cir. 1967), cert. denied sub nom. Austral Oil Co. v. FPC, 391 U.S. 917, 88 S.Ct. 1801, 20 L.Ed.2d 655 (1968). The statute allows refunds but does not require them. 15 U.S.C.A. § 717c(e). The ultimate balance of equitable consideration is committed to the Commission’s discretion. Placid Oil Co. v. FPC, 483 F.2d 880, 905 (5th Cir. 1973), affirmed, Mobil Oil Corp. v. FPC, 417 U.S. 283, 94 S.Ct. 2328, 41 L.Ed.2d 72 (1974). Gillring asked the Commission to allow the offset on grounds
3362	Courts have framed relief differently even when the threat of confusion has been much the same. In Hat Corporation of America v. D. L. Davis Corp., 4 F.Supp. 613 (D.Conn.1933), the court granted an absolute injunction restraining the use of the name “Dobbs” on hats. Yet in Stetson v. Stetson, 85 F.2d 586 (2d Cir.), cert. denied, 299 U.S. 605, 57 S.Ct. 232, 81 L.Ed. 446 (1936), the district court determined, and the court of appeals affirmed that a “Notice of Disclaimer” would suffice to dissipate public confusion. . See also R. W. Rogers Co. v. Wm. Rogers Mfg. Co., 70 F. 1017 (2d Cir. 1895); Max Factor & Co. v. Factor, 226 F.Supp. 120, 121-22, 125 (S.D.Cal.1963); and cases cited in Pike, Personal Names as Trade Symbols, 3 Mo.L.Rev. 93, 113-14 (1938). . For a general discussion of the business functions of a personal name, see 3 Callmann, Unfair Competition, Trademarks, and Monopolies, § 83.3(a)(1) pp. 90-92 (3d Ed. 1969). . In National Distillers Products Corp. v. K. Taylor Distilling, supra, the court restrained the defendant from using “Taylor” in its corporate name or in any of its whiskey labels or advertising matter, unless accompanied by a statement plainly 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.”
3938	who paid finance charges during the period of September 17, 1969, to January 7, 1974, plaintiff cardholders brought this case against Deposit Guaranty National Bank and its wholly owned subsidiary, Consurve, Inc., d/b/a BankAmericard Center. In the normal sequence of the BankAmerica card’s use, plaintiffs bought merchandise or services from merchants who had previously contracted with the bank to permit such credit purchases. The merchant would then sell the credit instrument to the bank at a discount. Thereafter, the bank billed the cardholder and charged interest on the unpaid balance, if the balance owed was not paid within a certain time frame. The process for com putation of the charges to the credit card holders was described by the Fifth Circuit as follows: During the period in question, the bank made a monthly service charge of Vk% on the unpaid balance of each account. However, each customer was allowed 30 days within which to pay his account without any service charge; if payment was not received within that time, the computer added to the customer’s next bill Vk% of the unpaid portion of the prior bill, which was shown as a new balance. This is the charge contended to be usurious. Thus, if a customer brought merchandise and the charge slip for this was received by the bank
4740	is whether a private cause of action was implied by Congress. In determining whether a private cause of action is implicit in a federal statute, the Supreme Court has explained that the ultimate question is whether Congress intended to create a private right of action when enacting the statute. Virginia Bankshares, Inc. v. Sandberg, — U.S. —, 111 S.Ct. 2749, 2763-64, 115 L.Ed.2d 929 (1991); Karahalios v. National Fed’n of Fed. Employees, 489 U.S. 527, 109 S.Ct. 1282, 1286, 103 L.Ed.2d 539 (1989); Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 536, 104 S.Ct. 831, 838, 78 L.Ed.2d 645 (1984); Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981); California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981); Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 91, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979); Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). Various factors have been considered by the
4663	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., Still, the restrictions on his freedom do not necessarily equate his condition during any interrogation with Miranda custody. While the suspect in a case just like Miranda may well feel that the only way to end the pressure on him is to answer the questions, the usual circumstances of someone serving prison time following a conviction characteristically save him from any such apprehension; so long as he is not threatened with harsher confinement than normal until he talks, he knows that the worst that can happen to him will be his return to prison routine, and that he will be back on the strept (in most cases) whether he answers questions or refuses. See Shatzer,
4028	"Menkes had failed to show that a second pilotage pool was necessary in District One. . Section 401.720(b) reads in full: (b) When pilotage service is not provided by the association authorized under [the Act] because of a physical or economic inability to do so, or when the Certificate of Authorization is under suspension or revocation under § 401.335, the Director may order any U.S. registered pilot to provide pilotage service. 46 C.F.R. § 401.720(b). . In addition, appellant raises a substantive due process claim. We consider this argument insubstantial. The Coast Guard's actions, even if mistaken, do not amount to a ""conscience shocking” abuse of executive power that violates the substantive component of the Due Process Clause. See . In addition, the large price of Association membership, $60,000, might suggest that members expect at least a preference in assignment; on the other hand, the membership stake could reflect only an equity interest in boats and equipment. The record does not tell us which is the case. . If the Coast Guard’s view of adequacy of supply changed in 2004, an explanation would have to include specific comparisons. . Appellant's prayer for relief asks, inter alia, that he be ""ma[d]e whole” for his lost employment opportunities, but it is unclear on what basis he seeks such a remedy. . Wasserman may have been attempting to unilaterally convert a Sindermann case to a Roth case"
787	442 F.Supp. 27 (D.C.Ariz.1977); Bumpus v. Uniroyal Tire Co., 385 F.Supp. 711 (D.C.Pa.1974); Town of East Haven v. Eastern Air Lines, Inc., 304 F.Supp. 1223 (D.C.Conn.1969); U.S. v. Moore, 405 F.Supp. 771 (D.C.W.Va.1976). A. TIMELINESS. The motion to recuse comes after judgment was entered and post trial motions were denied. The Opinion and Order dismissing the complaint was filed on July 10, 1984, and judgment was entered thereon on July 20, 1984. The motion for recusal was filed on August 28, 1984, subsequent to this Court’s order of August 22, 1984, scheduling a hearing on defendant’s application for attorneys’ fees. In order to disqualify a judge, a timely objection must be made, otherwise the objection is Accordingly, a motion for disqualification is untimely and becomes moot when filed after judgment. Kent v. Regional Office of Am. Friends Service Committee, 497 F.2d 1325, 1330 (9th Cir. 1974); Weber v. Coney, 642 F.2d 91, 92 (5th Cir.1981); U.S. v. Hall, 424 F.Supp. 508, affmd., 536 F.2d 313; Davis v. Cities Service Oil Co., 420 F.2d 1278 (10th Cir.1970). Plaintiffs motion filed 19 days after entry of Judgment is clearly untimely. B. SUFFICIENCY OF AFFIDAVIT. Plaintiff’s affidavit is a mixture of conclusory allegations, legal arguments, hearsay speculations, non sequiteurs, and irrelevant matters. Plaintiff
1536	evidence of the standard of care among all pilots. Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178, 1180-81 (5th Cir.1975). 31. The Manual essentially repeats the contents of the FAR regarding pilot responsibility and authority during an emergency. 440. PILOT RESPONSIBILITY AND AUTHORITY a. The pilot in command of an aircraft is directly responsible for and is the final authority as to the operation of that aircraft. In an emergency requiring immediate action, the pilot-in-command may deviate from any rule in the FAR, Subpart A, General, and Subpart B, Flight Rules, to the extent required to meet that emergency. (FAR-91.-3(b)). 32. N27PR was involved in a Part 135 operation, described by the First Circuit in  and as such could not, pursuant to 14 C.F.R. §§ 135.3, 135.99(a) and 135.109, be operated by less than a minimum flight crew of two pilots. 33. Both pilots were required to be aboard for the operation of N27PR, and as seen in Federal Express, supra, at 837, both crewmembers were responsible for knowing the airport runway layout and operation of the aircraft in both normal and emergency conditions. 34. Pursuant to the certification standards of both pilots found in 14 C.F.R. § 61.63(d)(3)(i) and Subparts G and H of Part 135, both pilots had previously been trained, tested, and certified for their multiengine rating to meet the requirements for conducting flight in N27PR after the loss of one engine. 35.
2029	5, 1992)) (noting in the supplementary information: “The chaotic circumstances of combat, however, preclude the maintenance of detailed records. Consequently, the Secretary has determined that when service department records indicate that the veteran engaged in combat or was awarded a combat citation and the claimed stressor is related to the combat experience, further development to document the occurrence of the claimed stressor i[s] unnecessary” (emphasis added)); 58 Fed.Reg. 29,109 (final rule May 19, 1993) (noting in the supplementary information that § 3.304(f) is “fully consistent” with “the provisions of 38 U.S.C. § 1154(b)”). This specific application of section 1154(b) is a significant omission from the VA regulations governing PTSD cases, and that omission needs to be corrected by the Secretary. See  separate views). Of course, section 1154(b) does not require the acceptance of a veteran’s assertion that he was engaged in combat with the enemy; it would be tautological to conclude that it did. See Irby v. Brown, 6 Vet.App. 132, 136 (1994) (section 1154(b) cannot be applied to appellant’s PTSD claim until BVA first finds that appellant has engaged in combat). The determination of combat status is a question to be decided on the basis of the evidence of record in each case. See West, 7 Vet.App. at 76 (whether veteran was engaged in combat with enemy is determined through receipt of certain recognized military citations or other supportive evidence); 57 Fed. Reg. 34,536. Thus, in this case, if
2143	this is largely immaterial to a final determination of this case. The separate guard rail in Malloy is undoubtedly more complex in construction than that in Davis, but it certainly serves as a supplemental fastener to the felt or fabric covering. The remaining features of the Davis patent are so clearly covered by prior arts that it is unnecessary to discuss them in this opinion. It is the conclusion of this Court that the Davis patent represents an assembly of old elements taken from prior arts relating to allied types of construction and, while undoubtedly a beneficial and successful improvement, does not involve the exercise of inventive faculty; thus the patent is invalid. Little need be said with respect to the alleged infringement even if the Court is in error as to the validity of the patent. The separate guard rail constructed by defendants is not placed on top of the carpet and, to this extent, does not serve as a supplemental fastener. The fastening of the carpet by defendants is through the medium of glue or cement. The carpet does not lean against the guard rail. To hold that an infringement exists merely because the edge of the carpet extends to the inside edge of the guard rail, or to similarly rule that careless application of the glue in some instances has caused the carpet to “stick” to the guard rail thereby permitting the guard
4793	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); 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 the confrontation is to be considered; while Coleman, supra, 399 U.S. at 5-6, 90 S.Ct.
62	trier of fact to judge the credibility of the witnesses. Fors, 259 B.R. at 136; TriCounty Credit Union v. Leuang (In re Leuang), 211 B.R. 908, 909 (8th Cir. BAP 1997). Where the evidence is susceptible to two permissible views, the trial court’s choice between the two cannot be clearly erroneous. Fors, 259 B.R. at 135-36. If the trial court’s account of the evidence is plausible in light of the entire record, an appellate court cannot substitute its judgment for that of the trier of fact. Id. at 136. DISCUSSION Pursuant to 11 U.S.C. § 523(a)(6), a discharge does not discharge an individual from a debt for willful and malicious injury. In this context, the term willful means deliberate or intentional. Hobson Mould Works, Inc. v. Madsen (In re Madsen), 195 F.3d 988, 989 (8th Cir.1999); Fischer v. Scarborough (In re Scarborough), 171 F.3d 638, 641 (8th Cir.1999), cert. denied, 528 U.S. 931, 120 S.Ct. 330, 145 L.Ed.2d 258 (1999); Johnson v. Fors (In re Fors), 259 B.R. 131, 136 (8th Cir. BAP 2001). The injury, and not merely the act leading to the injury, must be deliberate or intentional. Geiger, 523 U.S. at 61-62, 118 S.Ct. at 977. Malice requires conduct which is targeted at the creditor, at least in the sense that the conduct is certain or almost certain to cause financial harm. Madsen, 195 F.3d at 989; Scarborough, 171 F.3d at 641;
1649	any refugee. 8 U.S.C. § 1158(a) (2000). The INA 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) (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); 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
4531	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); 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 in a personal remedy.” 813 F.2d 1539, 1542 (9th Cir. 1987). For that reason, the Court held the EEOC’s enforcement action was not mooted by a private plaintiffs lawsuit and settlement based on the sáme facts. Id. at 1543 (“[The private plaintiffs] settlement does not moot the EEOC’s right of action seeking injunctive relief to protect employees as a class and to deter the employer from discrimination.”). Goodyear Aerospace Corp. involved a previous suit by an individual
1665	assume court-martial jurisdiction in these cases. “3. The accused is at present in confinement in the Third U. S. Army Stockade, but will be delivered upon request to such i>laco as you may designate. “For tho Commanding General:” The views of counsel for the petitioner coincide with those of the three Judge Advocates who constituted the Board of Review while tho views of the respondent appear to be supported by at least an equal number of lawyers in tho Judge Advocate General’s Department. McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049. Cf. Carter v. Roberts, 177 U.S. 496, 20 S.Ct. 713, 44 L.Ed. 861; Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 48 L.Ed. 236;  749, 51 L.Ed. 1084, 11 Ann.Cas. 640; Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225; French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692. Contra Sanford v. Robbins, 5 Cir., 115 F.2d 435. See, e. g. Ex parte Bigdow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005. Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436; Ex parte Hans Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. Cf. Rosborough v. Rossell, 1 Cir., 150
2752	Grids. IV The court will remand the case for further proceedings. When the Council after the first hearing vacated the ALJ’s decision and pointed out its patent inadequacies, the Council remanded for a further hearing before “an” ALJ. This court now directs that the further proceedings be held before a different ALJ. In so directing the court need not accept the characterizations by plaintiffs counsel of the propensities of ALJ Jacobs. It is enough that he has been twice reversed, once by the Council and once by this court. The court has the power to require that the hearing be before a different ALJ without any intellectual commitment to a result. See Kendrick v. Sullivan, 784 F.Supp. 94, 103 (S.D.N.Y. 1992); The ALJ shall grant plaintiffs request to subpoena Dr. Simon to testify at the hearing. V Case remanded for further proceedings consistent with this opinion. So ordered.
4074	a miscarriage of justice may have occurred. Because we find no abuse of discretion, we decline to overturn the District Court’s decision. C. Admissibility of Hasse’s Testimony Lanier argues that Hasse’s testimony is not admissible because Hasse did not give him Miranda warnings prior to questioning. Lanier also argues that Hasse’s testimony was evidence of other bad acts, and as such is not admissible under Fed.R.Evid. 404(b). 1. Miranda Warnings Appellant contends that because he was a suspect in Hasse’s investigations at the time of the interview with Hasse, he was entitled to receive Miranda warnings prior to being questioned. The mere focus of an investigation on an individual, without more, is insufficient to trigger a need for the warnings. Rather, a reviewing court should consider the totality of the circumstances in determining whether the accused was subject to custodial interrogation. United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir.1985). Relevant factors to consider in making the determination include the accused’s freedom to leave the scene, and the purpose, place, and length of the interrogation. Id. The circumstances under which the appellant was interviewed, as discussed above, supra p. 283, clearly indicate that he was not in custody. The District Court properly refused to exclude Hasse’s testimony on this ground. 2. Fed.R.Evid. 404(b) Under Fed.R.Evid. 404(b), evidence of other wrongs is not admissible to prove the defendant’s bad character, but may be admissible for other purposes, such as proof
4435	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. Accordingly, the plaintiffs have failed to allege scienter with respect to any defendant and their claim pursuant to Section 10(b) and Rule 10b-5 claim must also be dismissed on this basis. Y. The plaintiffs also allege that the individual defendants are liable under Section 20(a) of the Exchange Act, which provides: Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable ... unless the controlling person acted in good faith and did not directly or indirectly induce the act or
64	evidence is susceptible to two permissible views, the trial court’s choice between the two cannot be clearly erroneous. Fors, 259 B.R. at 135-36. If the trial court’s account of the evidence is plausible in light of the entire record, an appellate court cannot substitute its judgment for that of the trier of fact. Id. at 136. DISCUSSION Pursuant to 11 U.S.C. § 523(a)(6), a discharge does not discharge an individual from a debt for willful and malicious injury. In this context, the term willful means deliberate or intentional. Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 977, 140 L.Ed.2d 90 (1998); Hobson Mould Works, Inc. v. Madsen (In re Madsen), 195 F.3d 988, 989 (8th Cir.1999);  cert. denied, 528 U.S. 931, 120 S.Ct. 330, 145 L.Ed.2d 258 (1999); Johnson v. Fors (In re Fors), 259 B.R. 131, 136 (8th Cir. BAP 2001). The injury, and not merely the act leading to the injury, must be deliberate or intentional. Geiger, 523 U.S. at 61-62, 118 S.Ct. at 977. Malice requires conduct which is targeted at the creditor, at least in the sense that the conduct is certain or almost certain to cause financial harm. Madsen, 195 F.3d at 989; Scarborough, 171 F.3d at 641; Waugh v. Eldridge (In re Waugh), 95 F.3d 706, 711 (8th Cir.1996); Barclays Amer./Bus. Credit, Inc. v. Long (In re Long), 774 F.2d 875, 881 (8th Cir.1985); Fors, 259 B.R. at 136. In
2711	property of the debtor[J” 11 U.S.C. § 102(2). Therefore, although Ventura’s ad valorem taxes are not Debtors’ personal liability they are still a claim against the bankruptcy estate. . See Dewsnup v. Timm, 502 U.S. 410, 416-17, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992) and Johnson v. Home State Bank, 501 U.S. 78, 82-84, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991). . Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991). . Alan N. Resnick & Henry J. Sommer, Collier on Bankruptcy § 506.06(l)(a) (15th ed.2005). . Emphasis added. . The Bankruptcy Court did not necessarily err. My point is that because of mootness, it does not matter whether it erred. . Ivory), 70 F.3d 73, 75 (9th Cir.1995)).
310	or lessee in advance of his or her signing such contract or agreement, such contract or agreement may be revoked at the option of the purchaser or lessee within two years from the date of such signing.” 15 U.S.C. § 1703(c). Where a purchaser properly exercises his or her ILSFDA revocation rights under § 1703(c), “such purchaser or lessee shall be entitled to all money paid by him or her under such contract or agreement.” 15 U.S.C. § 1703(e); see also Taylor, 561 F.Supp.2d at 1271 (recognizing that § 1703(c) authorizes a purchaser to revoke a purchase agreement within two years if a property report is required and was not furnished to the purchaser in advance of agreement’s execution); It is undisputed in this case that all eight plaintiffs exercised their putative revocation rights within two years after signing their respective Purchase Agreements. If the Project is not exempt from the ILSFDA, then those revocation notices are valid and effective, in which case plaintiffs are entitled to terminate those agreements, recover their earnest money deposits, and walk away. If, however, the Project is exempt, then plaintiffs’ revocation letters lack legal force because plaintiffs possessed no statutory right to rescind their transactions with Sanibel for want of
1238	negotiator testified that he intended the parent to be bound by the contract. Id. at *21; cf. D’Antonio, 2008 WL 582354, at *7 (holding, without mentioning any “alter ego” principles, that non-signatory was not liable on breach of its subsidiary’s contract when the plaintiffs did not sufficiently allege that the parent manifested an intent to be bound). Furthermore, under a similar theory, nonsignatories may be held liable for breach of contract, without being “alter egos,” if their actions show that they are in privity of contract or that they assumed obligations under the contract. See Impulse Mktg. Group v. Nat’l Small Bus. Alliance, Inc., No. 05-CV-7776, 2007 WL 1701813, at *5-6 (S.D.N.Y. June 12, 2007) (applying New York law); In ESI, the plaintiff sought to hold a non-signatory, which was alleged to be in a joint venture with the signatories, liable to a written contract between the plaintiff and the signatories. ESI, 61 F.Supp.2d at 73. The court stated that under New York law, a “non-signatory to a contract can be named as a defendant in a breach of contract action only if the party is in privity with the plaintiff or has assumed the obligations of the contract.” Id. Focusing on the allegations that the nonsignatory had “attended meetings ... and participated in the negotiations and drafting” of the contract, the court found that the plaintiff had stated a claim under New York law for
2880	each of the four Special Agents disclosed their personal observations and investigations during a two-week surveillance period “there was put before the Commissioner” sufficient evidence to establish probable cause to justify the issuance of the search warrant. “In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. “ ‘The substance of all the definitions’ of probable cause ‘is a reasonable ground for belief of guilt.’ McCarthy v. DeArmit, 99 Pa.St. 63, 69, quoted with approval in the Carroll opinion [0, 69 L.Ed. 543], 267 U.S. at 161 [45 S.Ct. at 288]. And this ‘means less than evidence which would justify condemnation’ or conviction, as Marshall, C. J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348 [3 L.Ed. 364]. Since Marshall’s time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where ‘the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162 [45 S.Ct. 280, 69 L.Ed.
4389	with the majority that the Order of the District Court dated September 30, 1971, insofar as the claim of Nathaniel James is concerned, is not clearly erroneous and, under Rule 52(a) of the Federal Rules of Civil Procedure, should be affirmed. In reaching his determination of discrimination against the plaintiff, James, the District Court relied heavily on the raw personal data submitted by said plaintiff and apparently paid limited attention to the objective evaluations of plaintiff, James’, abilities proffered by the School Superintendent, an expert in the management of school affairs. I would be remiss if I failed to state, at this point, my complete agreement with the principle so wisely advanced by Judge Bore-man in his dissent in As a preamble to my reasons for my partial dissent in this case, I feel that a brief recitation of the facts upon which I have posited my dissent is in order. In February, 1966, an action entitled Boomer v. Beaufort County Board of Education was instituted in the United States District Court for the Eastern District of North Carolina, seeking an Order permanently enjoining any racially discriminatory practices by the defendant in the operation of its public schools. In June, 1967, the North Carolina Teachers Association, (hereafter, NCTA), an organization composed
2907	"administrative review of an antidumping duty order on imports of certain corrosion-resistant carbon steel flat (""CORE"") products from the Republic of Korea (""Korea""). See Certain Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea: Notice of Final Results of the Thirteenth Admin. Review, 73 Fed.Reg. 14,220 (Mar. 17, 2008) (""Final Results""). Previously, the court denied relief on one of plaintiff’s claims, which challenged the Department’s construction of section 771(35) of the Tariff Act of 1930, 19 U.S.C. § 1677(35) (2006), to allow application of ""zeroing,"" i.e., the deeming of the sales a respondent makes in the United States at prices above normal value to have individual dumping margins of zero rather than negative margins. At the same time, the court granted defendant’s request for a voluntary remand on the issue raised by plaintiff’s other claim in this case, which contested the application of Commerce’s ""model-match"" methodology in the thirteenth review. Id. at —, 645 F.Supp.2d at 1309-10. In this second claim, Union challenged Commerce’s model-match methodology, under which Commerce compared Union’s U.S. sales of painted CORE products to Union’s home market sales, which included not only painted CORE products but also ""laminated"" CORE products, i.e., CORE products coated with a plastic film made of polyethylene terephthalate (""PET"") or polyvinyl chloride (""PVC""). Br. in Supp. of the Mot. of Pl. Union Steel for J. Upon the Agency R. 3 (""Pl.’s Br.""). In making that comparison, the"
1048	proscription of partial-birth abortion. (Compl.lffl 49-52.) Plaintiffs also challenge the Act on the grounds that it: (1) contains an inadequate life exception; (2) defines the term “partial-birth abortion” so broadly as to also ban D & E and induction termination — other methods of second trimester abortion involving vaginal delivery of the fetus — and thus imposes an undue burden on a woman’s right to reproductive choice; (3) is impermissibly vague in defining the banned conduct; (4) fails to serve a legitimate state interest; and (5) violates women’s right to equal protection guaranteed by the Fifth Amendment. (Id. ¶¶ 53-60.) If Plaintiffs are correct on any one of these grounds, the Act is unconstitutional and must be permanently enjoined. See, e.g., Planned Parenthood Fed’n of Am. v. Ashcroft, 320 F.Supp.2d 957, 960, 1034-35 (N.D.Cal.2004). On November 5, 2003, hours after the Act was signed into law, the Court held a hearing on Plaintiffs’ application for a temporary restraining order. The following day, the Court granted Plaintiffs’ application and temporarily restrained enforcement of the Act through November 21, 2003. See National Abortion Federation v. Ashcroft, 287 F.Supp.2d 525, 526 (S.D.N.Y.2003). On November 10, 2003, the Government requested that the Court consolidate the proceedings on the preliminary and permanent injunctions, and set a hearing date within 120 days to permit a period of expedited discovery. Plaintiffs consented to this proposal, provided that they were permitted to
4290	“regardless of private interest.” We cannot accept this statement either as the formulation of a generally applicable principle or as a proper criterion for the disposition of this particular case. Courts exist to serve the parties, and not to serve themselves, or to present a record with respect to dispatch of business. Complaints heard as to the law’s delays arise because the delay has injured litigants, not the courts. For the court to consider expedition for its own sake “regardless” of the litigants is to emphasize secondary considerations over primary. If, in speaking of the public interest in speedy trials, the court could be regarded as making special reference to patent litigation, see, e. g., d 239, 242; Mercoid Corp. v. Mid-Continent Investment Co., 1944, 320 U.S. 661, 665, 64 S.Ct. 268, 88 L.Ed. 376, that interest was centered in North Carolina. A trial there was inevitable in any event. That suit was the principal one, and North Carolina was the primary forum in which to try — not only because it was first, but because of the number of substantial parties before the court, and the time and effort which had been spent in preparation. See Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 3 Cir., 1951, 189 F.2d 31, 34-35, affirmed 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200; Northern Ins. Co. of New York v. Grone, D.C.M.D.Pa.1954, 126 F.Supp. 457, 458; cf. Kerotest Mfg. Co. v.
2946	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  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. See also Annot., “Circumstances Giving Rise to Conflict of Interest Between or Among Criminal Codefendants Precluding Representation by Same Counsel,” 34 A.L. R.3d 470 (1970). Petitioner has the burden of proving by a preponderance of the evidence that his constitutional rights were abridged in the state court, Post v. Boles, supra, and in reviewing the state records and transcripts, this court cannot perceive the existence of a conflict of interest in Simpson’s representation of petitioner. The cases that petitioner cites are distinguishable from the instant case, and this court holds
2191	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); 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
959	fourteen hundred pages, only selected portions of the trial transcript are provided. The trial court’s oral opinion, from which we might more specifically discern both the basis for its extensive findings, and the portions of the record on which it relied to arrive at those findings, is absent. As the record presently exists, we would be justified in affirming the decision below on the basis that Friedman has not made reference to nor supplied us with those portions of the record indicating the commission of clear error. Cf. Southwest Administrators, Inc. v. Lopez, 781 F.2d 1378 (9th Cir.1986) (appeal dismissed for appellant’s failure to provide trial transcript.). An appellate court is not obligated to search the record for error. Nevertheless, we have reviewed the record provided to us in order to determine whether the trial court’s findings meet the clearly erroneous standard. B. Insider Status. Friedman seeks to avoid appellees’ lien as a preferential transfer under § 547. One essential element of a preferential transfer is that the transfer must have occurred (A) on or within 90 days before the date of the filing of the petition; or (B) between ninety days and one year before the date of the filing of the petition, if [the transferee] creditor at the time of such transfer was an insider ... § 547(b)(4)(A), (B). Here it is undisputed that the transfer complained of occurred when appellees recorded their lien on August 5,
3381	that the Court’s opinion suggests that if single-family residents do not need to get special use permits, then any regulation which requires group homes for children to go through the special use permit process violates the Fair Housing Act. The City asserts that such a finding would invalidate zoning ordinances nationwide. The City, however, reads the Court’s ruling too broadly. Only group homes in which residents meet the FHA familial status definition are entitled to the same zoning treatment as single-family residences. The Court has not ruled whether such homes are subject to state licensing regulations. The City also cites FHA cases which uphold limits on the number of persons who may occupy a single-family residence. See cities need not assert specific reason for choosing number of unrelated person used to define “family”); Smith & Lee Assoc., Inc. v. City of Taylor, 102 F.3d 781, 792 (6th Cir.1996) (ordinance defining “family” as including six or fewer unrelated persons is not alone proof of discriminatory animus against handicapped residents). But as plaintiff points out, the cases upon which the City relies address ordinances which set out the number of unrelated individuals who can reside in a single family residential zone, and address whether such zoning—as applied—discriminates against
4369	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 law court may, by written opinion, answer. Under 4 M.R.S.A. § 57, the Court may certify a question of state law to the Supreme Judicial Court if it finds that there is no clear, controlling state-law precedent. See In addition, certification is only appropriate if there is no dispute as to the material facts, and the Supreme Judicial Court’s answer to the proposed state law question will, “in at least one alternative, be determinative of’ the federal cause. Lovell v. One Bancorp., 614 A.2d 56, 57 (Me.1992); see also Hiram Ricker & Sons v. Students Intern. Meditation Soc., 342 A.2d 262, 264 (Me.1975). Plaintiff asserts that certification of Defendant’s proposed question is unnecessary and inappropriate because there is no uncertainty as to how the Supreme Judicial Court 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
1494	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, plaintiff’s failure to state a claim under ERISA is not sufficient basis for the dismissal of plaintiff’s cause of action. Although plaintiff’s claims are framed as state causes of action, they also implicitly plead causes of action under ERISA. See Plaintiff’s state law claim for breach of contract can thus be considered an action to recover benefits owed or to enforce employee rights under 29 U.S.C. § 1104(a)(1)(B) or § 1132. B. Standard of Review Plaintiff argues that the Court should apply a de novo standard of review to Hartford’s determination regarding the entitlement of the plaintiff to disability benefits. Hartford maintains that because the question presented by Prince’s claim is factual in nature, i.e. whether Prince’s disability prevents him from engaging in any work for which he is, or may be, qualified, the appropriate standard of review is whether Hartford’s determination with respect to Prince is arbitrary and capricious. Until the Supreme Court’s decision in Firestone Tire & Rubber Co.
4140	two and a half ton truck failed to look carefully as he made a turn ... Far from being a malingerer, she has worked hard to be ‘productive’ again.” 189 F.Supp.2d at 54. The court awarded Kane noneconomic losses consisting of past injuries, conscious pain and suffering, and loss of the enjoyment of life in the amount of $700,000.00, and future injuries, conscious pain and suffering, and loss of enjoyment of life, in the amount of $500,000.00. In In that case, Mrs. Goldstein suffered multiple severe fractures to the right side of her body (id. at 179) and was admitted to the hospital for surgery, where she remained for twelve days. Id. After she was released from the hospital, Mrs. Goldstein was directly admitted to a rehabilitation center where she remained for five weeks and engaged in physical therapy twice a day. Approximately one month later, she returned to the center for an additional one-month stay. Id. at 182. In the case at bar, the court has compared the facts of Dockery’s case to the facts of Robinson, Kane and Goldstein, and the relevant court cases therein, to find that Dockery is entitled to an award of $400,000.00
1314	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 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 that duty to a defendant-employee; (3) and the defen dant-employee breached the duty through his own fault and lack of ordinary care. Canter v. Koehring Co., 283 So.2d 716, 721 (La.1973), superseded on other grounds by statute, La.Rev.Stat. Ann. § 23.1032 (1998). See also In re 1994 Exxon Chem. Fire, 558 F.3d 378, 385-86 (5th Cir.2009) (noting that Canter’s multi-part test is used to determine whether an employee is individually liable to third
271	York, 1999 WL 782509, *8-9 (S.D.N.Y.1999) (bare allegation that police knew of perjured grand jury testimony insufficient to proceed to trial). Plaintiff argues that, because plaintiff and defendant give markedly different accounts of the events that led up to plaintiffs arrest, the issue of probable cause must be decided by the jury. The cases plaintiff relies on for the argument uniformly involve arrests without warrants. See, e.g., Murphy v. Lynn, 118 F.3d 938, 945 (2d Cir.1997); Weyant v. Okst, 101 F.3d 845, 855 (2d Cir.1996); Richardson v. City of New York, 2006 WL 2792768 (E.D.N.Y.2006); Taylor v. City of New York, 2006 WL 1699606 (S.D.N.Y.2006); Kirk v. Metropolitan Transp. Authority, 2001 WL 258605 (S.D.N.Y.2001); La-Grange v. Ryan, 142 F.Supp.2d 287 (N.D.N.Y.2001); These cases are inapplicable here because plaintiff was arrested subsequent to an indictment and pursuant to an arrest warrant, which presumptively establishes probable cause for the arrest. Not only is there a presumption of probable cause arising from the indictment and arrest warrant, but also the undisputed facts in this case as to the information known to the arresting officers established ample probable cause. UC # 3159 identified plaintiff from a compilation of mug shots as the person who, at the time of the identification, had sold him drugs on three occasions. After the mug shot identification, the same person sold UC # 3159 drugs two other times prior to the arrest. UC # 3159 observed that the name given to him
4485	(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 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 (1989). In order to satisfy the “strong inference” test without direct knowledge of
2509	Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (in banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577, 38 USPQ2d 1461 (1996). The first step, claim construction, is a question of law, which we review de novo. Id. at 979, 34 USPQ2d at 1329. We proceed accordingly. Bell & Howell argues that the district court erred in construing the expression “integrally bonded ... free of adhesive.” Specifically, Bell & Howell argues that this expression means that the ribs adhere to the panels by themselves without the use of a separate layer of adhesive. Bell & Howell asserts that this construction is supported by the intrinsic evidence, viz., the patents’ specifications - and file histories, see  and that the district court, despite this evidence, improperly relied on the expert testimony of McCarley and Muzzy to construe the expression otherwise. Keystone responds that the court’s construction was reasonable. In support,' Keystone notes that both experts agreed that the term “integrally bonded” means that the rib and panel material must be “integrated,” ie., mixed at the molecular level, and that nothing appears in the intrinsic evidence to suggest that the inventor intended to impart an extraordinary meaning to this phrase. Keystone also argues that the district court does not have to make a final interpretation of the claims to deny a preliminary injunction, and that, at this stage of the litigation, we should determine only
3933	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 988); 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 been discharged from a job during the time that his postal application was pending. Accordingly, plaintiff was not otherwise qualified for the position of PTF mail carrier. Defendants would not have offered plaintiff employment had they known of his omission of the A & P warehouse job and his failure to inform
102	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  it should come as no surprise that Executive action cannot be contrary to law. Moreover, the cases that establish the principle of substantial deference have involved questions concerning the admittance or exclusion of aliens who have never been lawfully admitted to the United States. See id. (exclusion of an unadmitted and nonresident alien); Bertrand v. Sava, 684 F.2d 204, 211 (2d Cir.1982) (decision not to parole unadmitted alien). Here, the plaintiff class consists of aliens who have been lawfully admitted to the United States. As LPRs, their legal status has been altered and their rights enhanced. While we think the Executive still enjoys discretion when dealing with these individuals, we believe that the exer
1427	first by the plaintiff herein, seeking relief from the actions of the coastal commissions, and since the state action will by necessity involve substantially the same questions as the federal action, this federal action should be dismissed. This Court, however, feels that the cases in this area do not require dismissal of the instant action. On the contrary, in view of the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them, defendants’ motion to dismiss to avoid duplicative litigation must be denied. Generally, as between state and federal courts, the rule is that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the federal court having jurisdiction. While there are circumstances which permit the dismissal of a federal suit due to the presence of concurrent state proceedings, these circumstances are exceptional. Colorado River Water Cons. Dist. v. United States, supra, 424 U.S. at 818, 96 S.Ct. 1236. The instant action, however, does not involve circumstances which would place it out of the ordinary. The Colorado River Water case involved two actions to adjudicate respective rights to water in certain rivers and their tributaries in Colorado. An action was originally filed by the United States in federal court and another action was later filed in state court by one of the defendants in the prior federal suit. The United States was served in
3405	in an arbitrary or capricious manner. The Judges’ upward adjustment, based on Music Choice’s planned channel expansion from 46 to 300 channels, warrants greater attention. Under the second Section 801(b) factor, providing fair return and fair income, the Judges found a 1% upward adjustment appropriate to compensate for an expected increased use of copyrighted works. Final Determination, 78 Fed.Reg. at 23,059-60. Music Choice argues that there was no record evidence that an upward adjustment was warranted based on Music Choice’s planned channel expansion. MC Br. 40-42. Music Choice maintains that the Section 114 license is a public performance license, not a use license, and that mere transmission without a corresponding listener does not constitute a performance. MC Reply 20 (citing Thus, Music Choice argues, the fact that it will transmit additional channels does not necessarily mean that there will be additional performances of sound recordings. Music Choice posits 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
4817	actual robbery. The requested instruction was properly rejected. Defendant Willis contends that the failure of the Government to transcribe the grand jury proceedings was in violation of his Fifth Amendment rights to be indicted by a grand jury and to due process of law, and his Sixth Amendment right to confront the witnesses against him. It is established that no minutes of the grand jury proceedings were kept. Thus acceptance of this argument would require dismissal of the indictment. This court has consistently, and recently, held that the recording of grand jury proceedings, at least in the absence of a prior request therefor, is permissive and not mandatory. See United States v. Thore-sen, 428 F.2d 654, 666 (9th Cir. 1970); Jack v. United States, 409 F.2d 522, 524 (9th Cir. 1969); and Loux v. United States, 389 F.2d 911, 916 (9th Cir. 1968). We decline to re-examine these decisions. Affirmed. . All of those witnesses had previously inspected groups of photographs in an effort to identify the robbers, but with little success. Defendants raise no question here concerning the validity of the photo-identification procedures. There had been no lineup, although the three defendants had all been available for at least a month. . See also, United States v. Wade, 388 U.S. 218, 241-243, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) ; Gilbert v. California, 388 U.S. 263, 269-274, 87 S.Ct. 1951, 18 L.Ed. 2d 1178 (1967). . It should
1752	"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 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 a double design.”); Pack v. AC & S, 838 F.Supp. 1099, 1102 (D.Md.1993) (finding that removal pursuant to section 1442(a) was timely when filed within thirty days of date when plaintiffs served defendant with information that specific ""steam turbine generators manufactured at the Baltimore Shipyards were the subject of the litigation” providing defendant ""with sufficient"
4036	SUMMARY ORDER Petitioner Sunil Kumar Jassi, a native and citizen of India, seeks review of the April 2, 2010, order of the BIA, affirming the December 17, 2009, decision of Immigration Judge (“IJ”) Barbara A. Nelson, which denied his motion to rescind. In re Sunil Kumar Jassi, No. [ AXXX XXX XXX ] (B.I.A. Apr. 2, 2010), ajfg No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City Dec. 17, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case. We review the denial of a motion to rescind an in absentia order for abuse of discretion. See 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
4292	the public interest in speedy trials, the court could be regarded as making special reference to patent litigation, see, e. g., Bresnick v. United States Vitamin Corp., 2 Cir., 1943, 139 F.2d 239, 242; Mercoid Corp. v. Mid-Continent Investment Co., 1944, 320 U.S. 661, 665, 64 S.Ct. 268, 88 L.Ed. 376, that interest was centered in North Carolina. A trial there was inevitable in any event. That suit was the principal one, and North Carolina was the primary forum in which to try — not only because it was first, but because of the number of substantial parties before the court, and the time and effort which had been spent in preparation. See d 31, 34-35, affirmed 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200; Northern Ins. Co. of New York v. Grone, D.C.M.D.Pa.1954, 126 F.Supp. 457, 458; cf. Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 1952, 342 U.S. 180, 183-184, 72 S.Ct. 219, 96 L.Ed. 200. Indeed, quite possibly the North Carolina court could have enjoined Burlington’s affirmative pressing of the Massachusetts case for trial. See Martin v. Graybar Electric Co., 7 Cir., 1959, 266 F.2d 202, 203-205; Barber-Greene Co. v. Blaw-Knox Co., 6 Cir., 1957, 239 F.2d 774, 778; cf. Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., supra, 342 U.S. at pages 184-185, 72 S.Ct. at pages 221, 222; Dwinell-Wright Co. v. National Fruit Product Co., 1 Cir., 1942, 129 F.2d 848, 852.
2461	Third, they claim sovereign immunity bars the action. Fourth, they claim plaintiffs’ failure to join the United States in this action is a failure to join an indispensable party. Before addressing the merits of their motion, the Court must consider the posture of the motion. The First National Bank of Milaca argues that dismissal, not summary judgment, is the proper remedy for a non-justiciable suit. PL Opp’n Mem. at 8 (citing Fed.R.Civ.P. 12(b)). While the Court agrees that if plaintiffs lack standing dismissal is the proper remedy, it finds defendants have properly raised justiciability arguments through their summary judgment motion. Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 329, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999); Defendants are foreclosed from filing a motion to dismiss, having already interposed an answer. Fed.R.Civ.P. 12(b) (“A motion making any [12(b) ] defenses shall be made before pleading if a further pleading is permitted.”); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1361 (Supp. 2002) (“Motions raising [a lack of subject matter defense] may be considered by the court even when interposed after the responsive pleading has been filed, although technically [it is] no longer [a] Rule 12(b) motionf ]•”)• Therefore, because a motion to dismiss is proeedurally barred, the Court employs the traditional summary judgment analysis to evaluate standing. Under this rubric, plaintiffs must establish a genuine
1798	"F.3d 703, 706-07 (7th Cir. 2018). We give due weight, as we must, to a trial court's assessment of the officers' credibility and the reasonableness of their inferences. Ornelas v. United States , 517U.S. 690, 700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (requiring reviewing courts to review findings of historical fact only for clear error and give due weight to factual inferences drawn by resident judges and local law enforcement officers); Howard , 883 F.3d at 707 (holding the same). ""Because the resolution of a motion to suppress is a fact-specific inquiry, we give deference to credibility determinations of the district court, who had the opportunity to listen to testimony and observe the witnesses at the suppression hearing."" We examine first whether the officers reasonably suspected that Richmond was engaged in criminal activity, and second whether Milone's search behind the screen door eclipsed a constitutional boundary. A. Reasonable Suspicion of Unlawful Activity A limited intrusion into an individual's privacy is permitted under the Fourth Amendment where the police have reasonable suspicion to believe criminal activity is afoot. See Terry , 392 U.S. at 30, 88 S.Ct. 1868 ; United States v. Baskin , 401 F.3d 788, 791 (7th Cir. 2005). Reasonable suspicion exists when an officer can point to "" 'specific and articulable facts which, taken together with rational inferences from those facts[,] reasonably warrant that intrusion.' "" Baskin , 401 F.3d at 791"
83	certain limitations on the number of aliens who are eligible to receive LPR status. 8 U.S.C. § 1151(a). Aliens who are eligible for LPR status fall within three general categories: (1) those with close relatives who are U.S. citizens or LPRs, see 8 U.S.C. § 1153(a), (2) those who possess skills or talents that are sought by U.S. employers, see id., and (3) those who are refugees or asylees, see generally 8 U.S.C. §§ 1157, 1158, 1159. Additionally, those aliens who fall within the first two categories must possess a valid immigrant visa and state whether they intend to remain permanently in the United States in order to qualify for LPR status. See 8 U.S.C. §§ 1181, 1201, 1202(a); see also LPRs must register with the INS and provide certain personal information and their fingerprints. 8 U.S.C. § 1302. Once registered the INA mandates that these aliens “shall be issued a certificate of alien registration or an alien registration receipt card” in accordance with regulations prescribed by the Attorney General. 8 U.S.C. § 1304(d); see also 8 C.F.R. § 264.1 et seq. (regulations for fingerprinting and registration of aliens in the United States). The INS regulations provide for the issuance of either of two registration forms to LPRs— the Form 1-151 or Form 1-551. Form I-151 registration cards were issued to LPRs prior to June 1987. Since that time, LPRs have been issued the 1-551
3419	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. 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. 04-9034) (Mar. 7, 2005). Under these facts, Terrell cannot show substantial prejudice. C. Booker When a defendant fails to object to an error before the district court, we review the argument for plain error. United States v. Rodriguez, 398 F.3d 1291, 1300-01 (11th Cir.), petition for cert. filed, (No.04-1148) (Feb. 23, 2005).
862	as to declarations by Conroy outside the presence of Butler. . 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), made retroactive in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968). . In each instance when Conroy’s statements were testified to, the court, following Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), which was in effect when this case was tried, instructed the jury that Conroy’s admissions were received only as against him and were to be disregarded in determining Butler’s guilt or innocence. The instruction was repeated in the court’s charge. . See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) ; United States ex rel. Siegel v. Lennox, 460 F.2d 690 (3d Cir. 1972) ; United States ex rel. Ross v. La Vallee, 448 F.2d 552 (2d Cir. 1971) ; Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971) ; United States ex rel. Joseph v. LaVallee, 415 F.2d 150 (2d Cir. 1969), cert. denied, 397 U.S. 951, 90 S.Ct. 976, 25 L.Ed.2d 133 (1970) ; United States ex rel. Dukes v. Wallack, 414 F.2d 246 (2d Cir. 1969). . Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972) ; see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). . Cf. United States ex rel.
1258	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 Marsh is therefore barred by the Eleventh Amendment from bringing a § 1983 suit against the Bureau with respect to either the 1999 or the 2005 discharge gratuity. In addition, his complaint alleged no facts indicating that either Kent or Sobt acted to prevent the 2005 discharge gratuity from being issued or that they had any responsibility for or involvement in the decision not to issue the gratuity. Upon careful review of the district court order and the pleadings, and upon consideration of the brief, we find no reversible error. For the foregoing reasons, we affirm the district court’s dismissal of Marsh’s complaint for failure to state a claim pursuant to § 1915(e)(2)(B)(ii). AFFIRMED. . Appellant’s request for
4814	the assistance of counsel. It is no more a critical stage of the prosecution than is fingerprinting. Defendant Jackson contends that the trial court erred in refusing to give his requested accessory-after-the-fact instruction. Jackson argues that the evidence would have supported a jury finding that Jackson knew the bank robbery had been committed and that he wilfully assisted the offenders in order to hinder their apprehension. But, Jackson urges, the jury, if properly instructed, could have found that he did not engage in the robbery. Jackson was not charged with a violation of 18 U.S.C. § 3, accessory after the fact, which is a separate and distinct crime from bank robbery with a gun, with which he was charged. See  later vacated on other grounds, 387 F.2d 348 (9th Cir. 1967). There was substantive evidence connecting Jackson with the actual robbery. The requested instruction was properly rejected. Defendant Willis contends that the failure of the Government to transcribe the grand jury proceedings was in violation of his Fifth Amendment rights to be indicted by a grand jury and to due process of law, and his Sixth Amendment right to confront the witnesses against him. It is established that no minutes of the grand jury proceedings were kept. Thus acceptance of this argument would require dismissal of the indictment. This court has consistently, and recently, held that the recording of grand jury proceedings, at least in the absence of a
3131	U.S.C. § 105. See Hon. Nancy C. Dreher, Hon. Joan N. Feeney and Michael S. Stepan, Esq., Bankruptcy Law Manual, Volume 1 § 2:22 (2012-1), p. 197. Section 105 establishes that “the court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [the Bankruptcy Code].” 11 U.S.C. § 105(a). The “doctrine of necessity” finds its origin in nineteenth-century railroad receivership cases, along with the doctrine of the “six-month rule”. See B & W Enter. Inc. v. Goodman Oil Co. (In re B & W Enter. Inc.), 713 F.2d 534, 536 (9th Cir.1983) (discussing the origins of the doctrine of necessity and the parallel doctrine called the “six months rule”); The two similar doctrines developed coetaneously. Railroad receiverships in the late 1800’s recognized an equitable rule of priority, known as the “six months rule”, which authorized receivers to pay the unpaid claims of “operating creditors” arising within the six-month period immediately preceding the receivership case. Alan N. Resnick, The Future of the Doctrine of Necessity and ‘Critical-Vendor Payments in Chapter 11 Cases, 47 B.C.L.Rev. at 186; Russell A. Eisenberg & Frances F. Gecker, The Doctrine of Necessity and Its Parameters, 73 Marq. L.Rev. 1, 4 (1989); Andrew J. Currie & Sean McCann, Hold on to Those Payments, Critical Vendors: Capital Factors v. Kmart, 22-Jun Am. Bankr.Inst. J. 1 at *34 (2003).
3053	"the RWQCB's adjustment of the remediation standard for PCBs. The 1998 CAO did not require remediation action at levels of 4.6 mg/kg or less. The 2004 CAO required remediation levels to “non-detectable” amounts. . Although off-site sources and tidal influences on the 60-Inch drain were suggested as causes for the ongoing significant levels of PCBs in that drain, the evidence was at best inconclusive. . The Gore Factors are a list of factors from a failed proposal to amend CERCLA made by then-Representative Al Gore, as the basis of allocating liability. Boeing, 207 F.3d at 1187. . A focus on the assessment fault is also reflected in two of the ""critical factors”. enumerated by Judge Torres (""the Torres Factors"") in ., “Facility” is defined as “any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft” or ""any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” 42 U.S.C. § 9601(9)(A) and (B). . TDY made no serious effort to demonstrate that the Government should be liable as an ""arranger” under CERCLA. An “arranger” under 42 U.S.C. § 9607(a)(3) is “any person who by"
4601	"” 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.” 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 — even if he at one time retaliated against critics in the manner alleged, there is insufficient proof the threat continues — is not persuasive. If"
4997	claim the Referee disallowed as a secured claim but allowed only as a general unsecured claim, upon the ground that the mortgage had not been timely “filed” as required by Section 443.460 RSMo 1949, V.A.M.S., and the decisions construing the same, and to review and reverse that order petitioner has brought this petition for review. Though Section 443.460 RSMo 1949, V.A.M.S., does not fix a definite time for the filing of a chattel mortgage to make it good against innocent purchasers, lienors and trustees in bankruptcy, the Missouri courts and Federal courts dealing with the problem have uniformly held that the mortgage, to be so effective, must be filed promptly. These cases are collected in v. Kahn, 8 Cir., 203 F.2d 449. In the latter case it was held that withholding of the mortgage from record for five business days, when all the parties resided in or near the city in which the Recorder’s office was maintained, was too long, and rendered the mortgage void as to subsequent innocent purchasers, lienors, etc. Here, all the parties resided, and were doing business, in Kansas City, where the Recorder’s office is located. It, therefore, must be held, and in fact is conceded by petitioner, that the mortgage was not filed promptly enough to make it valid against subsequent innocent purchasers, lienors, etc., under Section 443.460. RSMo 1949, V.A.M.S., as construed by the cases cited. But
3666	income of Pollock actually belonged to the distributors. We believe that the district judge’s ruling that the first group of exhibits was inadmissible, if erroneous at all, amounted to mere harmless error which had no effect on the substantial rights of Pollock. The judge exhibited a great deal of liberality in permitting Pollock to testify and introduce evidence supporting his defense. All of the material contained in the first group of excluded exhibits was before the jury for its consideration through the testimony of Pollock and his accountant and other exhibits introduced by Pollock that were admitted into evidence. United States v. Shavin, 320 F.2d 308 (7th Cir.), cert. denied, 375 U.S. 944, 84 S.Ct. 349, 11 L.Ed.2d 273 (1963);  cert. denied, 369 U.S. 802, 82 S.Ct. 641, 72 L.Ed.2d 549 (1962). In addition, the district judge properly excluded Pollock’s exhibits relating to the civil litigation. In so doing, he stated: I don’t think we can start dumping into the laps of the jury that whole civil case. This man and company [Pollock and Vilter] have been litigating now, * * * for five years, and this [civil] trial lasted twenty-six days, and we can’t incorporate that trial by reference to this trial. We agree that the terms of the stipulation would have no relevancy unless the issues and proceedings in the civil litigation were considered in detail by the jury. Such an undertaking would have constituted a significant departure
2132	way of settlement have been effected in these two cases is of little moment as the Court recognizes the expense of litigation in such matters, all of which tends to promote settlements. In a preliminary motion plaintiffs asserted that defendants were estopped to deny the validity of the patent because of pri- or recognition in North Carolina, but District Judge Williams determined this issue adversely to plaintiffs. It is well settled that courts must scrutinize the “claim” as allowed by the Patent Office to determine the nature of the invention, which should be read in light of the specification and drawings, and that courts have no right to enlarge a patent beyond the scope of its claim. 279, 24 L.Ed. 344; National Machine Corp. v. Benthall Machine Co., 4 Cir., 241 F. 72; Wire Wheel Corp., etc. v. Budd Wheel Co., 4 Cir., 288 F. 308; Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 37 S.Ct. 416, 67 L.Ed. 871; Victor Cooler Door Co. v. Jamison Cold Storage Door Co., 4 Cir., 44 F.2d 288. The “claim” must also be 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
3987	2009. The Motion to Value and the avoidance of CitiMortgage’s junior lien came later. The Valuation Order, which stripped CitiMortgage’s lien and rendered its claim unsecured, was entered on October 22, 2009. Until that point, CitiMortgage was operating in this case as a secured creditor. Secured creditors in a chapter 13 case may, but are not required to, file a proof of claim. See Rule 3002(a). Such creditors may choose not to participate in the bankruptcy case and look to their liens for satisfaction of the debt. Brawders v. Cnty. of Ventura (In re Brawders), 503 F.3d 856, 872 (9th Cir.2007). Secured liens pass through bankruptcy unaffected. Long v. Bullard, 117 U.S. 617, 620-21, 6 S.Ct. 917, 29 L.Ed. 1004 (1886); In re Brawders, 503 F.3d at 872. However, if the lien is avoided and the formerly secured creditor failed to file a secured claim prior to the claims bar date, the creditor' may file a proof of claim within 30 days after the order avoiding the lien becomes final. See Rule 3002(c)(3); Prestige Ltd. P’ship-Concord v. E. Bay Car Wash Partners (In re Prestige Ltd. P’ship-Concord), 234 F.3d 1108, 1118 (9th Cir.2000); Zebley v. First Horizon Home Loans (In re Ong), 469 B.R. 599, 601 (Bankr.W.D.Pa.2012). The exception under Rule 3002(c)(3) permits a creditor like CitiMortgage, whose unsecured claim arises as the result of an order invalidating its secured claim, to file a proof of
4096	correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Art. 59(a), UCMJ. Sufficiency of Evidence In his first and third assignments of error, the appellant argues that the evidence of record is factually and legally insufficient to support his conviction for rape or for making a false official statement. The test for legal sufficiency requires this court to review the evidence in the light most favorable to the Government. In doing so, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the evidence is legally sufficient. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560; Without question, with regard to both offenses, that standard is met in this case. The test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, this court is convinced of the accused’s guilt beyond a reasonable doubt. Turner, 25 M.J. at 325. In resolving the question of factual sufficiency, we have carefully reviewed the record of trial, the briefs of counsel, and have given no deference to the factual determinations made at the trial level. Based on that review we are convinced beyond a reasonable doubt of the appellant’s guilt of both the rape and the false official statement. The appellant stands convicted of raping
1289	on Collum’s future filings in the district court. See Fed. RApp. P. 4(a)(1)(A) (30 days to file NOA in civil case), (a)(4)(A)(vi) (time to file appeal runs for all parties from entry of order disposing of motion for relief under Rule 60 if motion is filed no later than 28 days after judgment is entered). We further find no reason to disturb the district court’s final postjudgment order. See Sanders v. Clemco Indus., 862 F.2d 161, 169-70 (8th Cir.1988) (review of denial of Rule 60(b) motion presents only question whether district court abused its discretion in denying relief from judgment; if movant fails to present reasons not previously considered by district court, that alone is controlling factor against granting motion); cf. We thus affirm. See 8th Cir. R. 47B. . The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska.
4619	a subsequent loan for the purpose of enabling the ship to continue a voyage, which was agreed to be repaid from the proceeds of the freight earned and to become due from the Standard Oil Company. The funds to which appellants had looked for repayment of their loans, as evidenced by -the written understandings, were subsequent to the making of the loans, paid into the United States District Court for the Southern District of New York, and there, in several admiralty and interpleader suits, lawfully distributed by orders of the court to other creditors. Appellants did not share in this distribution. Standard Oil Co. v. Defense Plant Corp. et al., D.C., 57 F.Supp. 13;  145 F.2d 766. With one exception, appellants did not make the loans in question, or enter into agreements for extension of their payment, on the obligation of the vessel; they relied solely on its earnings. Such reliance on the earnings as security for the loans amounts to a waiver of lien on the vessel. ' Nor can liability be enforced on the claims of appellants on the theory that the written obligations evidencing the debts are Respondentia Bonds. The agreement for repayment of the loans lacks most of the essentials of those archaic instruments, the use of which has passed, with other appurtenances and trappings of romance of days now remote, when masted ships rode the waters of strange
2673	whole testimony I find that the returns, the waiver, and the payment were not voluntarily made. No question is made but that the burden of showing his right to recover rests upon the plaintiff. The plaintiff testified in his own behalf. He did not produce account books. The nature of any books of account kept by him was not clearly shown, nor is it shown but' that such records or books as he did keep were shown the deputy collectors when they visited his place of business in 1926. The defendant did not, other than by objection upon the trial, ask their production. Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; 46 S. Ct. 619, 70 L. Ed. 1059. The plaintiff’s testimony concerning his income as well as the items and accounts of his expenditures on the whole was satisfactory and convincing. It appeared to the court that in the matter of expenditures, where he had nothing in the nature of a voucher to support the item, he understated or estimated rather than overstated such amounts. A notable instance of this is found in his claim of expenditure for gas and oil for the two years, he having vouchers for part of the year 1925 but none for the prior year. No attempt was made at cross-examination of plaintiff as to the particular items, either of income or expenditares, nor did the defendant
4354	change was not reflected in the revised Consent Decree that was filed by the parties on March 19, 1999, but the parties have since filed a corrected page 21 of the revised Consent Decree so that the Monitor in fact will be required to provide copies of the report to the Court. See Notice of Filing of April 9, 1999. . The Third Circuit has adopted a nine-factor test for determining the fairness of a settlement of a class action, see Girsh v. Jepson, 521 F.2d 153 (3rd Cir.1975), while the Tenth Circuit has adopted a four factor test, see Gottlieb v. Wiles, 11 F.3d 1004, 1014 (10th Cir.1993), and the Eleventh Circuit has developed a six factor test. See Other circuits, including ours, have not imposed such rigid sets of factors, instead recognizing that the relevant factors may vary depending on the factual circumstances. See Thomas v. Albright, 139 F.3d at 231; Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375-76 (9th Cir.1993), cert. denied sub nom. Reilly v. Tucson Elec. Power Co., 512 U.S. 1220, 114 S.Ct. 2707, 129 L.Ed.2d 834 (1994). To the extent that tire factors enumerated by the other circuits are at all relevant to the determination of whether this Consent Decree is fair, adequate and reasonable, however, the Court has considered and addressed those factors in this Opinion. . The Court has received written objections or comments from the following organizations: Black Farmers and
1813	"373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (holding a Terry search ""must be strictly limited to that which is necessary for the discovery of weapons""). ""The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence ...."" Adams v. Williams , 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). We have similarly held that, under Terry , an officer may conduct a protective search for weapons of an individual's person, ""and area within his control,"" if "" 'a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.' "" . at 27, 88 S.Ct. 1868 ). A protective search for weapons ""is a vital tool to serve the 'immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.' "" Id . at 1061 (quoting Terry , 392 U.S. at 23, 88 S.Ct. 1868 ). Richmond points to various decisions involving impermissible searches which he contends mandate reversal. First, he invokes Florida v. Jardines , in which the Supreme Court assessed the permissibility of a police search on a front porch. 569 U.S. at 3-5, 133 S.Ct. 1409. In that"
2604	simple task because records for each class member still exist and because calculation of the dollar value of a portfolio at the beginning and end of the damage period for an investor would be relatively straightforward. This approach seems preferable to plaintiffs’ proposal, which would give each client the value of the decline, if any, in the value of his portfolio during the damage period. This formula seems to make CIS liable for losses due not to its alleged fraudulent conduct but to a general decline in the stock market, and the compensatory purpose of the implied cause of action under the Investment Advisers Act has led courts to limit a client’s recovery to actual damages. see Abrahamson v. Fleschner, supra, 568 F.2d at 878-879; cf. Green v. Occidental Petroleum Corp., 541 F.2d 1335, 1342 (9 Cir. 1976) (Sneed, J., concurring). Gottreich v. San Francisco Investment Corp., 552 F.2d 866, 867 (9 Cir. 1977), is distinguishable. The plaintiffs in Gottreich alleged that they would have stayed out of the stock market if the defendants had not fraudulently persuaded them that securities were not risky, so the market decline was precisely the injury which they sought to avoid, which the defendants’ conduct exposed them to, and for which they were entitled to recover. Here, plaintiffs allege they were fraudulently induced to use a different investment adviser than they otherwise would have, and although
2353	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 physician, with its extra weight, and any substantial evidence to the contrary remains the responsibility of the fact-finder. Schisler v. Heckler, 787 F.2d at 81 (citing Bluvband, 730 F.2d at 892-93; Aponte v. Secretary of HHS, 728 F.2d 588, 591 (2d Cir.1984); Mongeur v. Heckler, 722 F.2d 1033,1039 n. 2 (2d Cir.1983); The merits of the treating physician rule are not at issue in the present case. This panel is bound by our prior decisions. While the Secretary understandably might disagree with the rule, he has made no attempt to take the issue to the Supreme Court. He also denies that he is following a policy of nonacquiescence, Stieberger, 801 F.2d at 36, and vigorously professes to follow the rule in adjudicating all disability claims. See Schisler, 787 F.2d at 83. Notwithstanding this seemingly broad area of agreement, the AU’s decision made no express, implied, or even oblique reference to the treating physician rule. That he discounted Dr. Mulbury’s opinion (while misstating Dr. Quinn’s) is evidenced only by his conclusion that
2252	capital assets and would frustrate congressional intent. Petitioners allege that the “entire purpose of the new alternative minimum tax adopted in the Revenue Act of 1978 and in effect in 1980 * * * was to encourage investment in capital * * * assets”, and to include the NOL in computing the AMT “defeats Congress's original purpose in first enacting the alternative minimum tax”. Petitioners misconstrue the legislative history. The “entire purpose” of the AMT is not, as petitioners contend, merely to encourage capital investment. The reason for the AMT is to promote tax equity by ensuring that capital gains are subject to a reasonable amount of tax and to require wealthy taxpayers to pay at least some tax. See, e.g.,  affg. T.C. Memo. 1985-199; H. Rept. 95-1445, at 123 (1978), 1978-3 C.B. (Vol. 1) 297. Petitioners are correct in asserting that Congress enacted the AMT provisions in 1978 because it felt the previous add-on minimum tax “has adversely affected capital formation and that the purpose for which the present minimum tax was enacted can be accomplished better, in the case of capital gains, by the implementation of an alternative minimum tax on capital gains”. H. Rept. 95-1445, supra, 1978-3 C.B. (Vol. 1) 296. However, that is not to say that the AMT exists solely to encourage capital investment. Rather, Congress enacted the AMT because it felt the AMT accomplished the purpose for which the add-on minimum tax was enacted,
3383	781, 792 (6th Cir.1996) (ordinance defining “family” as including six or fewer unrelated persons is not alone proof of discriminatory animus against handicapped residents). But as plaintiff points out, the cases upon which the City relies address ordinances which set out the number of unrelated individuals who can reside in a single family residential zone, and address whether such zoning—as applied—discriminates against handicapped persons. Defendant also argues that even if the City’s ordinances facially discriminate against Keys residents on the basis of family 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 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
4738	Visa argues that no express or implied private cause of action exists under Section 471 for an alleged violation of the statute. Because Section 471 does not contain any remedy or enforcement provision, the question is whether a private cause of action was implied by Congress. In determining whether a private cause of action is implicit in a federal statute, the Supreme Court has explained that the ultimate question is whether Congress intended to create a private right of action when enacting the statute. Virginia Bankshares, Inc. v. Sandberg, — U.S. —, 111 S.Ct. 2749, 2763-64, 115 L.Ed.2d 929 (1991); Karahalios v. National Fed’n of Fed. Employees, 489 U.S. 527, 109 S.Ct. 1282, 1286, 103 L.Ed.2d 539 (1989); Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 536, 104 S.Ct. 831, 838, 78 L.Ed.2d 645 (1984); Middlesex County Sewage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981); Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981); California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981); Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 91, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442
4439	of the disposition of the particular matter in the court below. Thus, Congress enacted 28 U.S.C. § 1292, an exception to § 1291, which provides for interlocutory appeals in a specified group of cases. Subsection 1292(a)(3) vests jurisdiction in the courts of appeals to hear [ijnterlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed. 28 U.S.C. § 1292(a)(3). It is upon this provision that appeal in the instant case is premised. As noted, § 1292(a)(3) is an exception to the general rule of finality stated in § 1291, and as such, it is to be construed narrowly. Seattle-First Nat’l Bank v. Bluewater Partnership, 772 F.2d 565, 568 (9th Cir.1985); Hollywood Marine, Inc. v. M/V ARTIE JAMES, 755 F.2d 414, 416 (5th Cir. 1985). The provision was enacted in 1926, well before the merger of the rules of law and admiralty, and with a specific set of circumstances animating Congress’ concern to provide an interlocutory appeal. In admiralty, trials were traditionally bifurcated. First, there would be a trial before the court on the issue of liability. If there was a finding of liability, there would then be a separate hearing before a special master to ascertain damages. These damages hearings were often both lengthy and costly. Congress intended 28 U.S.C. § 1292(a)(3) to permit parties to appeal the
4472	determine whether a debtor lacked good faith in filing a Chapter 13 petition for purposes of § 1307(c). The United States Bankruptcy Appellate Panel for the First Circuit originally did not adopt a totality of the circumstances approach to determine lack of good faith, but instead advocated an examination of only the circumstances relevant to the debtor’s proposed plan and post-filing conduct. See In re Keach, 243 B.R. 851, 856 (1st Cir. BAP 2000). However, in the five years since the Panel’s decision in Keach, the bankruptcy courts in this circuit have expanded Keach’s examination of the debtor’s lack of good faith to include both pre-petition and post-petition conduct of the debtor. See Dicey, 312 B.R. 456; Fleury, 294 B.R. 1; and Virden, 279 B.R. 401. The Panel then implicitly adopted the totality of the circumstances test to determine lack of good faith by affirming a bankruptcy court’s decision granting a Chapter 7 trustee’s motion to reconvert a Chapter 13 to Chapter 7, for cause, based on the totality of circumstances test. See Cabral, 285 B.R. at 573-74. Thus, the majority of the bankruptcy judges in this circuit have followed the totality of the circumstances approach. We explicitly adopt the totality of the circumstances test and conclude that the obligation of good faith is imposed on the debtor at two stages of a Chapter 13 proceeding. First, a debtor must file the Chapter 13 petition in good faith. See In re Love,
2568	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. 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, 98 S.Ct. 1099; Dellenbach v. Letsinger, 889 F.2d 755, 759 (7th Cir.1989), cert. denied, 494 U.S. 1085, 110 S.Ct. 1821, 108 L.Ed.2d 950 (1990). Judge Rieckhoff is entitled to absolute judicial immunity if his actions meet a two-part test: first, the acts must be within the judge’s jurisdiction;
2596	information about past performance is the individual CIS or broker representative with whom a class member dealt. Contrary to defendants’ suggestion, oral representations by those representatives concerning the performance of specific selected CIS-managed portfolios do not significantly affect the alleged representations concerning the average overall performance of CIS growth-oriented accounts between 1967 and 1971 in Performance Chart No. 1. Representatives of defendants do not appear to have made oral representations about past performance over this four-year period which differed materially from those in the Chart. In addition, there is some evidence that the sales pitches of salesmen were standardized at least to a limited degree, and that evidence further decreases the likelihood of predominating individual questions. See A second potentially significant source of other information about past performance is the other two performance charts distributed during the class period. Those charts contain different information about CIS’s past performance, and plaintiffs implicitly concede that the information in Performance Chart No. 3 is accurately and fairly presented. However, there is no substantial evidence that a significant number of investors received more than one performance chart. Even if a significant number of investors received Performance Charts No. 2 or 3 in addition to Performance Chart No. 1, the materiality of the first chart would present predominating common ques tions for that group. Another table summarizing performance of CIS-managed portfolios for various periods between June 1967 and December 1970 was
1949	with respect to those portions of Count I at issue, the allegations that the Johnsons and Rosinski improperly disposed or caused to be disposed of the contents of drums of hazardous waste, a fair reading of Count I indicates that the drums of wastes, acquired by Envirotek in the course of its business as a treatment and storage facility for hazardous wastes, would indeed constitute hazardous waste under RCRA. See Hamling v. United States, supra. It will be the Government’s burden to establish, in fact, that the drums contained a substance that was hazardous, as defined under RCRA, and that the Defendants knew that the drums contained a substance that posed a potential threat to others or the environment. See cert. denied,—U.S.-, 114 S.Ct. 1649, 128 L.Ed.2d 368 (1994). In its bill of particulars, dated April 2, 1992, the Government specified that 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
1635	First Amendment.” 374 U.S. at 226, 83 S.Ct. at 1574. The Abington Court held a statutory requirement of daily Bible readings unconstitutional though the statute exempted those whose parents requested such exemption. The evil faced by our forefathers and prohibited by the Constitution is that “whenever government * * * allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs.” Engel v. Vitale, supra, 370 U.S. at 431, 82 S.Ct. at 1267. The Supreme Court has again and again condemned exactly the practice which the named officials of Alabama now seek to effect. School District of Abington v. Schempp, supra; 67 S.Ct. 504, 91 L.Ed. 711; Engel v. Vitale, supra ; Cantwell v. Connecticut, supra; Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292; People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649; McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982; West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. In People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. at 227, 68 S.Ct. at 473, the Court stated, “the Constitution * * * prohibited the Government common to all
4833	November 2, 1988. Holly Farms thus acquired the protection of Tennessee’s BCA and CSAA. Holly Farms qualifies as an “offeree company” under the IPA. Elaine A. McReynolds is the Commissioner of the Tennessee Department of Commerce and Insurance. Charles W. Burson is the Attorney General of the State of Tennessee. III. Plaintiffs’ Challenge is Ripe Holly Farms asserts that this action is not ripe for decision. Tyson’s offer contains several conditions. Holly Farms argues that this Court will have issued an advisory opinion should any one of these conditions ultimately not be met. Precedent precludes this argument. Courts routinely reach the merits of actions challenging less than all the impediments to the success of a tender offer. See, e.g.,  aff'd in part and vacated in part on other grounds, 811 F.2d 414 (8th Cir.1987) (adjudicating poison pill and Minnesota takeover statute where offer subject to six conditions). Most of the precedent that guides this Court’s analysis below would not exist if Holly Farms correctly states the law. Holly Farms is covered by the IPA and has opted into the ACPA. Tyson’s challenge to the Tennessee Acts is ripe. IV. Commerce Clause Analysis of the Tennessee Acts This action involves a tender offer for a corporation organized under the laws of a state other than Tennessee. This Court limits its analysis and holding to the Tennessee statutes as they apply in this case. This Court therefore takes no position on the
2523	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 that Monogram or GE ever received any returned mail from the Robertsons. See, e.g., Taylor v. First N. Amer. Nat’l Bank, 325 F.Supp.2d 1304, 1311 (M.D.Ala.2004), motion to amend denied, 331 F.Supp.2d 1354 (M.D.Ala.2004); Johnson v. Arrow Fin’l Servs., LLC, 2006 WL 2170663, at * 3 (N.D.Ill. Sept. 15, 2006). In addition, there is no evidence that the Robertsons continued receiving account statements at the same address where the Notice and New Agreement purportedly were sent, and thereafter continued making payments on their account. See, e.g., Battels v. Sears Nat’l Bank, 365 F.Supp.2d 1205, 1209 n. 3 & 1213 (M.D.Ala.2005); Hoefs, 365 F.Supp.2d at 73. There has also been no showing that Monogram’s or GE’s records of plaintiffs’ account reflected that the Notice or New Agreement were mailed to them. See, e.g., Taylor, 325 F.Supp.2d at 1311; Kurz v. Chase Manhattan Bank, 319 F.Supp.2d 457, 464 (S.D.N.Y.2004); Marsh, 103 F.Supp.2d at 917. Nor is there
686	view the fact that the account from which the funds used to purchase the securities were withdrawn was styled ‘Public Garage, M. S. Drybrough, Owner,’ and Dry-brough’s testimony that the funds therein were the property of Marion exclusively, as insufficient to establish that these funds were in reality her separate property. * * * We be lieve that the account was kept in Marion’s name only as a mere formalism, which existed solely to alter tax liabilities.” 42 T.C. at 1051, 1052. In considering the factual issue involved, the Tax Court was not required to accept as true Drybrough’s testimony even though not directly contradicted, and could weigh the inherent incredibility of his total claims against his spoken words. Hasson v. Commissioner of Internal Revenue, 239 F.2d 778, 782 (CA 6, 1956); Wood v. Commissioner of Internal Revenue, 338 F.2d 602, 605 (CA 9, 1964). The courts must scrutinize with special care the dealings between husband and wife, especially where, as here, the husband appeared to have carte blanche to use what he claims was his wife’s money. Fouke v. Commissioner, 2 B.T.A. 219, 220-221 (1925). Drybrough had the burden of overcoming the presumption of validity of the Commissioner’s determination respecting his alleged income tax deficiencies. Bishop v. Commissioner of Internal Revenue, 342 F.2d 757, 759 (CA 6, 1965); Hallabrin v. Commissioner of Internal Revenue, 325 F.2d 298, 305 (CA 6, 1963). We
964	atmosphere and at arm’s length. EMB therefore does not support Friedman’s position. C. Equitable Subordination. Section 510(c)(1) provides, in part, that the bankruptcy court may “under principles of equitable subordination, subordinate for purposes of distribution ... all or part of an allowed interest to all or part of another allowed interest_” Friedman argues that appellees conduct in this case dictates that their lien be subordinated to the claims of other estate creditors. Equitable subordination requires that: (1) the claimant who is to be subordinated have engaged in 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 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.
1613	mind— or he may, even foolishly, reject his lawyer’s advice — and waive his privilege. If he does not, it is less clear than the Government says that Karp will be forbidden to call him to the stand and invite the jury to draw inferences from his failure to testify. As noted earlier, the Government relies upon United States v. Maloney, supra, for its conclusion that this tactic is a forbidden weapon in Karp’s defense. But that authority stands at most for the point that the prosecution may not call a witness knowing he will plead the privilege against self-incrimination and having only the purpose of generating an inference adverse to the defense. Cf. Namet v. United States, supra; There is at least some basis in principle and authority for supposing that a defendant is not similarly inhibited. In De Luna v. United States, 308 F.2d 140, 141, 1 A.L.R.2d 969 (5th Cir. 1962), it was held that: “If an attorney’s duty to his client 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
1163	ILANA DIAMOND ROVNER, Circuit Judge. Plaintiffs are a class of prisoners at the Maximum Control Complex (“MCC”), a Westville, Indiana correctional facility. They brought this action to challenge the legality of their assignment to the MCC as well as the conditions of their confinement. They asserted violations of Indiana statutes, the Indiana Constitution and the United States Constitution. After lengthy negotiations, a settlement was reached as to the injunctive relief sought by plaintiffs. A magistrate judge recommended approval of the settlement and the district court agreed, approving the settlement in an order entered February 11, 1994. See Five prisoners (“objecting members”) appeal from this order, arguing that the district court abused its discretion in approving the settlement. We disagree, however, and accordingly affirm the district court’s February 11, 1994 order approving the settlement. I. Plaintiffs filed this action in Indiana state court, but defendants thereafter removed it to federal district court where the court certified the case as a class action “for purposes of injunctive relief’ pursuant to Fed.R.Civ.P. 23(b)(2). As certified, the class includes “all persons who, as of May 4, 1992, and thereafter in the future, are confined or will be confined in the Maximum Control Complex in Westville, Indiana.” Plaintiffs’ state law claims were subsequently remanded to state court. When the MCC opened in 1991, the
752	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 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 v. Commonwealth, 193 Va. 449, 450, 69 S.E.2d 336, 337-338 (1952), construes Section 19.1-259 (formerly Section 19-232 of the 1950 Code of Virginia) in a manner consistent with Blockburger v. United States, supra, 284
510	U. S. 286, 301, 15 S. Ct. 118, 123, 39 L. Ed. 153, the Supreme Court said: « * * ■ * Granting the witnesses to be of the highest character, and never so conscientious in their desire to tell only the truth, the possibility of their being mistaken as to the exact device used, which, though bearing a general resemblance to the one patented, may differ from it in the very particular which makes it patentable, is such as to render oral testimony peculiarly untrustworthy; particularly so if the testimony be taken after the lapse of years from the time the alleged anticipating device was used. * * * ” In the case of olve the difficulty and aid the speed. But there is not a single written record, letter, or specification of prior date to Eibel’s application that discloses any such discovery by any one, or the use of the pitch of the wire to aid the speed of the machine. The oral evidence on this point falls far short of being enough to overcome the presumption of novelty from the granting of the patent. The temptation to remember in such eases
241	for the still. This building was also owned by the David Realty Co. . See United States v. Two Lots of Ground, etc., 183 F.Supp. 355 (E.D.Pa. 1960). . Abe Markowitz was one of a group of defendants who were tried on a charge of conspiring to violate the Internal Revenue Laws of the United States, in violation of the provisions of 18 U.S.C.A. § 371. A judgment of acquittal was entered as to Markowitz. See United States v. Markowitz, 176 F.Supp. 681 (E.D.Pa. 1959). David Realty Corporation was not a party to this criminal action. . See United States v. Two Lots of Ground, etc., 194 F.Supp. 312, 313 (E.D. Pa. 1961). . See, e. g., Jacquard Knitting Mach. Co. v. Ordnance Gauge Co., 95 F.Supp. 902, 905 (E.D. Pa.1951). . See United States v. Markowitz, supra, 176 F.Supp. at pp. 686-687. . The court held in the Burch case that the principles of res judicata and collateral estoppel were not a bar to the forfeiture action because the criminal action involving the defendant was on a charge of conspiracy, not on the substantive acts [see pp. 6 and 7 of 294 F.2d 1 (5th Cir. 1961)]. It is noted that the criminal indictment against Markowitz was on the conspiracy charge, not on the substantive facts. . See, also, United States v. LaFranca, 282 U.S. 568, 575, 51 S.Ct. 278, 75 L.Ed. 551 (1931). .
3928	appropriate. The court further notes that if the mov-ant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law, then the opposing party assumes the burden to come forward with “specific facts showing that there is a genuine issue for trial.” Cities Service, 391 U.S. at 270, 88 S.Ct. at 1583. Mere allegations or denials in the non-movant’s pleadings will not meet this burden. B. The court must analyze plaintiff’s employment discrimination claims under the standards established by the Supreme Court in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1989). For purposes of handicap discrimination, the Burdine test requires that (1) [t]he plaintiff must establish a prima facie case by showing that he was an otherwise qualified handicapped person apart from his handicap, and he was rejected under circumstances which gave rise to the inference that his rejection was based solely on his handicap; (2) Once plaintiff establishes his prima facie case, defendants have the burden of going forward and proving that plaintiff was not an otherwise qualified handicapped person, that is one who is able to meet all of the program’s requirements in spite o/his handicap, or that his rejection from the program was for reasons other than his handicap. Harris, 873 F.2d at 932 (emphasis in original) (citing
3346	this court said in Societé Vinicole de Champagne de Mumm, 143 F.2d 240, 241 (2d Cir. 1944), to prohibit an individual from using his true family surname is to “take away his identity: without it he cannot make known who he is to those who may wish to deal with him; and that is so grievous an injury that courts will avoid imposing it, if they possibly can.” When confusion is likely, however, there must obviously be some limitation on an individual’s unrestricted use of his own name. Thus, a second comer may not use any name, mark or advertisement indicating that he is the successor of another corporation or that his goods are the products of that corporation. Yet, he may retain a limited use of the family name even though goodwill has been conveyed to the plaintiff. Herring-Hall-Marvin Safe Co. v. Hall’s Safe Co., 208 U.S. 554, 558, 28 S.Ct. 350, 52 L.Ed. 616 (1908). As Justice Holmes commented in Herring-Hall: “The name of a person or a town may have become so associated with a particular product that the mere attaching of that name to a similar product, without more, would have all the effect of a falsehood. ... An absolute prohibition against using the name would carry trade-marks too far. Therefore the rights of the two parties have been reconciled by allowing the use, provided that an explanation is attached. ...
1958	In Count III, the nature of the spent solvents was changed by the application of dry heat. Defendants do not disagree that spent solvents are F-listed hazardous wastes. In both instances, the Defendants are alleged to have permitted these substances to escape into the ground. Comparing the allegations of the Indictment with the facts as stipulated in Recticel, there does not appear to have been any creation of a post-use mixture of a solid waste at Defendants’ Envirotek operation necessitating reference to the invalidated “mixture” rule in order to find that the solid waste, ie., the spent solvent, is a listed hazardous waste. The importance of this distinction is further demonstrated by the reference in the Recticel Recommendation to 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,
3	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. 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
956	In re UVAS Farming Corp., 89 B.R. 889, 892 (Bankr.D.N.M.1988); In re Taylor, 29 B.R. 5, 7 (Bankr.W.D.Ky.1983); 2 Collier on Bankruptcy 11101.30, at 101-72 (15th ed. 1990). We review the bankruptcy court’s findings of fact for clear error. In re Torrez, 63 B.R. 751, 753 (9th Cir.BAP 1986), affd 827 F.2d 1299 (9th Cir.1987). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be clearly erroneous.  which observes that in certain circumstances it may be more accurate to consider the determination of insider status as a mixed question of fact and law. In responding to the argument that summary judgment was improper because insider status is a factual determination, Schuman states: The Panel agrees that the insider determination might be considered a ‘question of fact’ in the sense that it is made on a case-by-case basis, after the consideration of various factors. Nevertheless, where the underlying facts are undisputed, a trial court is free, on a motion for summary judgment, to determine whether the established facts satisfy the statutory standard. In this sense, it would be more accurate to consider the insider determination as a
4469	on request by a party-in-interest, after notice and a hearing, the court may dismiss a case under Chapter 13 or convert the case to a Chapter 7 case, whichever is in the best interests of the creditors and the estate, for cause. For Chapter 13 cases, § 1307(c) specifically enumerates ten circumstances in which a court may convert or dismiss a case. Although lack of good faith is not specifically enumerated as “cause,” it is well established that lack of good faith (or bad faith) is “cause” for dismissal or conversion of a Chapter 13 case under § 1307(c). See In re Cabral, 285 B.R. 563, 573 (1st Cir. BAP 2002); Leavitt, 171 F.3d at 1224; Ho, 274 B.R. at 877; Fleury, 294 B.R. at 5; and In re Virden, 279 B.R. 401, 407 (Bankr.D.Mass.2002). Courts differ in their approach to determining a debtor’s good faith, but the majority favor a totality of the circumstances test to determine whether a debtor lacked good faith in filing a Chapter 13 petition for purposes of § 1307(c). The United States Bankruptcy Appellate Panel for the First Circuit originally did not adopt a totality of the circumstances approach to determine lack of good faith, but instead advocated an examination of only the circumstances relevant to the debtor’s proposed plan and post-filing conduct. See In re Keach, 243 B.R. 851, 856 (1st Cir. BAP 2000). However, in the five years since the Panel’s decision in Keach,
598	necessarily be different no matter how the standards of review are labeled. That does not mean that such decisions escape exacting scrutiny, for, as this court has stated in a similar context: “This exercise need be no less searching and strict in its weighing of whether the agency has performed in accordance with the Congressional purposes, but, because it is addressed to different materials, it inevitably varies from the adjudicatory model. The paramount objective is to see whether the agency, given an essentially legislative task to perform, has carried it out in a manner calculated to negate the dangers of arbitrariness and irrationality in the formulation of rules for general application in the future. . We do not understand Congress to have in this instance nullified this approach for all purposes by directing substantial evidence review. As noted above, that provision is important as an indication of how we should approach certain kinds of questions and what kind of record we should demand of the Secretary. But it is surely not to be taken as a direction by Congress that we treat the Secretary’s decision making under OSHA as something different from what it is, namely, the exercise of delegated power to make within certain limits decisions that Congress normally makes itself, and by processes, as the courts have long recognized and accepted, peculiar to itself. A due respect for the boundaries between the legislative
2706	for lack of prosecution. . Ventura argued before the bankruptcy court that there is no jurisdiction under Section 362(h) to award damages in this Second Case for a stay violation in the First Case. Ventura has not raised that argument on this appeal, and although we have an independent obligation to determine if we lack jurisdiction we are satisfied that the bankruptcy court did have jurisdiction to award such damages and therefore we have jurisdiction to review that award on appeal. This is not a case in which there are concurrent bankruptcy proceedings involving different debtors, where the actions of one bankruptcy court might impinge on the jurisdiction of the other, or violate principles of comity. See, e.g.,  293 B.R. 89 (D.Conn.2003)). Rather, there is only one pending bankruptcy case involving the Debtors, who have asked the bankruptcy court to determine the res judica-ta effect of an order in a different case. Courts do this all the time. See Valley Nat. Bank of Arizona v. A.E. Rouse & Co., 121 F.3d 1332, 1335-36 (9th Cir.1997) (proper remedy if second court erred in not giving res judica-ta effect to first court’s judgment is to appeal second court’s determination, not collateral attack in third court). Moreover, these Debtors returned to the very same bankruptcy court (although a different bankruptcy judge). We have no difficulty in concluding that the bankruptcy court in the
3955	(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. 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. She also advances a claim for negligent infliction of emotional distress. Navis-tar seeks summary judgment on all claims. Kariotis seeks summary judgment on the COBRA and the FMLA claims. The Court will address the ADA, the ADEA, and the ERISA claims first and the remaining claims in turn. A. The ADA the ADEA, and the ERISA Kariotis, admittedly, has no direct evidence that unlawful discrimination of any form played a role in Navistar’s decision to terminate her. Accordingly, she proceeds under the indirect method of proof or three-step model enunciated in McDonnell
1552	an examination of the totality of the circumstances (the so-called “Zimmer” factors): (1) The minority group must be sufficiently large and geographically compact to constitute a (voting) majority in a single-member district; (2) The minority group must be politically cohesive; and (3) The minority must demonstrate that the white majority votes sufficiently as a bloc to enable the majority to usually defeat the cohesive minority’s preferred candidate. While satisfying these threshold factors does not prove a violation of Section 2, failure to establish all of them may eliminate the necessity to even conduct a totality of the circumstances examination. Monroe v. City of Woodville, Miss., 881 F.2d 1327 (5th Cir.1989), on petition for rehearing, 897 F.2d 763 (5th Cir.1990); Although the Fifth Circuit has apparently not yet squarely so held, it seems rather clear that the majority population with which Thornburg v. Gingles is concerned is a voting majority, not simply a population majority. The Court of Appeals has at least implied that the single-member district which is created must contain at least a voting age majority of the minority group. See Houston v. Haley, 859 F.2d 341 (5th Cir.1988), vacated on other grounds, 869 F.2d 807 (1989), (where the court referred to this issue as “critical”); Brewer v. Ham, 876 F.2d 448, 452 (5th Cir.1989); Overton v. City of Austin, 871 F.2d 529, 542 (5th Cir.1989), Jones, J., concurring. This court concludes that in order to be viable under
455	stipulated that the same should be maintained when he stated that “only the net gain or loss resulting from the operation of the corporation’s business under the terms of the contract should be shown in the taxpayer’s individual return. The corporation is required to file a return in which the items of its income and expenditures should be properly reported * * Looking at the whole record and after carefully analyzing the facts in the several cases cited by respondent and petitioner, we have come to the conclusion that the corporate entity may not here be disregarded and that petitioner was entitled to carry over to 1944 the capital loss sustained when the stock of the corporation became worthless. Decision will be entered wider Rule 50.
658	regulation interferes with distinct investment-backed expectations of the property owner. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631 (1978). These criteria define the events that comprise a regulatory taking claim. Thus, in this case, this court must examine these criteria to discern the events triggering the six-year statute of limitations. The first criterion — the character of the governmental action — examines the challenged restraint under the lens of state nuisance law. If the regulation prevents what would or legally could have been a nuisance, then no taking occurred. The state merely acted to protect the public under its inherent police powers. Here the courts must inquire into the degree of harm created by the claimant’s prohibited activity, its social value and location, and the ease with which any harm stemming from it could be prevented. Id. If state nuisance law does not justify the restraint, the court must proceed to the remaining criteria. The second criterion — the economic impact of the regulation on the claimant — is designed to insure that not every restraint on private property results in a takings claim. This concern evolved into the threshold requirement that a claimant show that the Government denied him “economically viable use” of his land. Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106
4392	no standing in a court of equity to complain against it; one may not stand by and make no objection to a proceeding in court with the anticipation that if it results favorably the benefits will be accepted, but that if it results unfavorably objections will be made.” 31 C.J.S. Estoppel § 115a, page 602. Furthermore, a party may not complain of error which he himself induced the Court to commit by his silence or acquiescence (Harris v. Jackson, (D.C.Okl.) 30 F.Supp. 185, 187), nor may a party voluntarily submit himself to an Order of a Court one day and avoid said Order the next day when its application proves more distasteful than  Additionally, it is well established that even the most sacrosanct constitutional rights may be waived if such waiver is voluntarily, knowingly, and intelligently made. (D. H. Overmyer Co., Inc. of Ohio v. Frick Co., 405 U.S. 174, 185, 92 S.Ct. 775, 31 L.Ed.2d 124). Applying the aforesaid legal principles, it seems logical to me that the NCTA, having taken no steps to advise the District Court in Boomer II that the information or statistics presented in the defendant’s report of December 31, 1968, perverted the goal of elimination of racial discrimination or ran counter to the specific intendments of the court’s Order of August 5, 1968, should be estopped from relitigating an identical issue based solely on the identical statistics contained in
471	usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.” I do not believe a ease can be found in the books, decided by any court administering the common law, or administering a jurisprudence founded on the common law, which holds that punishment for crime may be inflicted or imposed in any other manner than by orderly trial in a court of justice of competent jurisdiction. Counsel for the defendants cite and place their chief reliance on the case of 29 S. Ct. 671, 53 L. Ed. 1013. But in my opinion that ease is distinguishable from the one in hand, though I confess it goes farther in upholding the exercise of administrative powers than any other case to which my attention has been directed. The Immigration Act of March 3, 1903 (32 Stat. 1233), prohibited the bringing in of any alien afflicted with a loathsome or dangerous contagious disease, and section 9 of the act provided: “That it shall be unlawful for any person, including any transportation company other than railway lines entering the United States from foreign contiguous territory, or the owner, master, agent, or consignee of any vessel to bring to the United States any alien afflicted with a
1151	others that have come to our attention since Johnson convince us that while the Manual policy on joinder of offenses may provide advantages to the accused as well as the Government, he, not the Court, is better able to judge whether those advantages outweigh for him the disadvantages of postponement of trial on the original charges. However, preference as to a particular course of proceeding is not the frame of reference for the Court. The Manual provision is only a statement of policy; the speedy disposition of charges for which an accused is confined is a command of Congress. When a provision of the Manual collides with a provision of the Uniform Code, the former must yield to the latter. United States v. Davis, 11 U.S.C. M.A. 407, 29 C.M.R. 223 (1960). We conclude, therefore, that the intercession of a new charge does not automatically authorize deferment of the trial of the original charges for which the accused had been confined. As more than 90 days elapsed before the accused was brought to trial on the original charges, and he did not, as noted earlier, request delay, and no extraordinary reasons justified delay, the Burton presumption was operative, and the original charges should have been dismissed.” The commission of intervening offenses and the preferral of additional charges may, in a particular case, amount to such an extraordinary circumstance as to justify delay beyond 90 days in bringing an accused
4934	"isn't a good reason to have different standards for the certification of the two different types of action, and the case law has largely merged for the standards, though with some terminological differences ... [and] so we can, with no distortion of our analysis, treat [both Rule 23 and FLSA actions] as if [they] were a single class action.""); Thiessen v. Gen. Elec. Capital Corp. , 267 F.3d 1095, 1105 (10th Cir. 2001) (opining that there is ""little difference in the various approaches"" for evaluating Rule 23 and FLSA certifications). On the other hand, other courts have concluded that ""[t]here [are] fundamental, irreconcilable difference[s]"" between Rule 23 class actions and FLSA collective actions that preclude treating them as interchangeable. For example, in a Rule 23 action ""each person within the [class] description is considered to be a class member and, as such is bound by the judgment ... unless he has 'opted out' of the suit[,]"" but [u]nder ... [the FLSA,] no person can become a party plaintiff and no person will be bound by or may benefit from the judgment unless he has affirmatively 'opted into' the class[.]"" Id. (citations omitted). The Supreme Court has also noted differences between Rule 23 class actions and FLSA collective actions, such as the fact that although ""a putative class acquires an independent legal status once it is certified under Rule 23 [,] [u]nder the FLSA ... 'conditional certification'"
428	"affirming the bankruptcy court’s grant of summary judgment in favor of appellees, VACATE the injunction, REINSTATE the escrow, and REMAND the case to the district court, and by reference to the bankruptcy court, for further proceedings consistent with this opinion. Costs shall be borne by appellees. . We have previously considered issues arising from Cajun's bankruptcy proceeding on several occasions, and we therefore summarize only those facts necessary for the disposition of this appeal. See Mabey v. Southwestern Elec. Power Co. (In re Cajun Elec. Power Coop., Inc.), 150 F.3d 503 (5th Cir. 1998), cert. denied, - U.S. -, 119 S.Ct. 2019, 143 L.Ed.2d 1031 (1999); United States v. Cajun Elec. Power Coop., Inc. (In re Cajun Elec. Power Coop., Inc.), 109 F.3d 248 (5th Cir. 1997); Cajun Elec. Power Coop., Inc. v. Central La. Elec. Coop., Inc. (In re Cajun Elec. Power Coop., Inc.), 74 F.3d 599 (5lh Cir. 1996). . Section 105(a) states that a bankruptcy court “may issue any order, process, or judg ment that is necessary or appropriate to carry out the provisions” of the Bankruptcy Code. . Section 502(b)(2) provides that a bankruptcy court shall determine the amount of a creditor's claim as of the date of the filing of the bankruptcy petition, and ""shall allow such claim in such amount, except to the extent that ... such claim is for unmatured"
3357	not mean that we must inevitably affirm the district court’s decision. See Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1197 (2d Cir. 1971) (Friendly, J.) (. . . Congress would scarcely have made orders granting or refusing temporary injunctions an exception to the general requirement of finality as a condition to appealability . . . if it intended appellate courts to be mere rubber-stamps save for the rare cases when a district judge has misunderstood the law or transcended the bounds of reason). Carroll v. American Federation of Musicians, 295 F.2d 484, 488-89 (2d Cir. 1961). In trademark cases, a preliminary injunction will lie where there is a likelihood of confusion by shoppers, . Courts have framed relief differently even when the threat of confusion has been much the same. In Hat Corporation of America v. D. L. Davis Corp., 4 F.Supp. 613 (D.Conn.1933), the court granted an absolute injunction restraining the use of the name “Dobbs” on hats. Yet in Stetson v. Stetson, 85 F.2d 586 (2d Cir.), cert. denied, 299 U.S. 605, 57 S.Ct. 232, 81 L.Ed. 446 (1936), the district court determined, and the court of appeals affirmed that a “Notice of Disclaimer” would suffice to dissipate public confusion. . See also R. W. Rogers Co. v. Wm. Rogers Mfg. Co., 70 F. 1017 (2d Cir. 1895); Max Factor & Co. v. Factor, 226 F.Supp. 120, 121-22, 125 (S.D.Cal.1963); Champion
821	then would be left to pursue in state court. There would be no way for Nelson to pursue such state law claims, other than through a lawsuit where the defendant is Ace Steel and Recycling, Inc., d/b/a Cow Country Equipment. Nelson would have no way of serving a fictitious name, other than serving either the registered agent or an officer of Ace Steel. See SDCL § 15 — 6—4(d)(1). After all, it is Ace Steel that operates Cow Country Equipment and uses the fictitious name of Cow Country Equipment as part of its operations. Ace Steel urges this Court to apply the test of whether Ace Steel and Cow Country Equipment are a single entity. See 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
2569	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, 98 S.Ct. 1099;  cert. denied, 494 U.S. 1085, 110 S.Ct. 1821, 108 L.Ed.2d 950 (1990). Judge Rieckhoff is entitled to absolute judicial immunity if his actions meet a two-part test: first, the acts must be within the judge’s jurisdiction; second, these acts must be performed in the judge’s 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
2615	as class actions in order to realize the savings of resources of courts and parties that Rule 23 is designed to facilitate. But see City of San Jose v. Superior Court, 12 Cal.3d 447, 115 Cal.Rptr. 797, 808-809, 525 P.2d 701 (1974) (California law). Class representatives must press all claims which can be prosecuted on a class basis, but they need not and should not press for certification of claims that are unsuitable for class treatment. When class members have both individual claims and class claims, the latter should be prosecuted on a class basis unless the individual and class claims are difficult to separate or unless the class members have an interest in controlling the prosecution of all claims. See Here, a fraud claim based on the first Chart is easily separated from a non-suitability claim, and there is no apparent interest of any significant number of absent members in individually controlling the fraud claim based on the first Chart. Nor does the Lion litigation in the District of Maryland, the only other pending or terminated lawsuit against CIS based on the allegedly fraudulent nature of that Chart, indicate that class prosecution of this fraud claim is inappropriate or that concentrating the litigation of this claim against CIS in this forum is undesirable. The fact that ten other lawsuits have been brought against CIS has uncertain significance. It is not clear how large an incentive each former client
4756	OPINION EN BANC COFFIN, Senior Circuit Judge. A jury found defendant Daniel Tavares guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The statute makes it a crime for any person “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ... possess in or affecting commerce, any firearm or ammunition.” At trial, defendant offered to stipulate to the fact that he had such a prior conviction. The prosecutor refused to accept the stipulation. On the basis of our decisions in United States v. Collamore, 868 F.2d 24 (1st Cir.1989), and  the court allowed the prosecutor to introduce, in addition to the fact of the prior conviction, evidence of its nature — larceny of a firearm. A panel of this court, two members concluding that under Collamore and Donlon the district court did not err in allowing the government to reject the stipulation and one member concluding the contrary, unanimously agreed that “the precise issue in our case was not the subject of a focused discussion in the prior decisions, that the issue is an important and recurring one, and that en banc consideration of the issue is appropriate.” The full court accordingly granted rehearing and entertained further briefing and argument. We now conclude that the district court abused its discretion in
4622	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 . 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 to expect that he may have an answer within a convenient time, having regard to the circumstances of the caso. La Ysabel [1812], 1 Hods. 273. To hypothecate the cargo, the master must communicate with the owner, if possible. The Nuova Loanse [1852], 17 Jur. 263; The Cassa Marittima of Genoa [1877], 2 App.Gas. 156; The Hamburg, Brown. & Lush. 253, 273 P.C. [1864] ; The Julia Blake, 1882, 107 U.S. 418, 2 S.Ct. 692, 27
4915	"667 F.3d 273, 297 (3d Cir. 2011). Accordingly, we will analyze the two elements together, with particular focus on the more stringent predominance requirement. See, e.g., In re LifeUSA , 242 F.3d at 144 (evaluating the predominance and commonality requirements together) (citing Amchem Products , 521 U.S. at 623-24, 117 S.Ct. 2231 ). At the class certification stage, the predominance requirement is met only if the district court is convinced that ""the essential elements of the claims brought by a putative class are 'capable of proof at trial through evidence that is common to the class rather than individual to its members.' "" Gonzalez v. Corning , 885 F.3d 186, 195 (3d Cir. 2018) ; In practice, this means that a district court must look first to the elements of the plaintiffs' underlying claims and then, ""through the prism"" of Rule 23, undertake a ""rigorous assessment of the available evidence and the method or methods by which [the] plaintiffs propose to use the evidence to prove"" those elements. Marcus , 687 F.3d at 600 (citing In re DVI, Inc. Sec. Litig. , 639 F.3d 623, 630 (3d Cir. 2011) ). ""If proof of the essential elements of the [claim] requires individual treatment, then class certification is unsuitable."" Newton v. Merrill Lynch, Pierce, Fenner & Smith Inc. , 259 F.3d 154, 172 (3d Cir. 2001) (citation omitted). To satisfy their wage-and-hour claims,"
2952	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 (1976). A federal habeas corpus petitioner seeking relief on the grounds of court-appointed counsel’s incompetence has the burden of proving a constitutional defect,  and petitioner in the instant case has substantially failed to convince this court that Simpson and Tisinger were incompetent. Petitioner challenges the adequacy of Simpson’s opening statement, and respondent maintains that the opening statement is a matter of trial tactics. This court agrees with respondent. The matter of trial tactics and the attorney’s judgments are beyond this court’s review. Tompa v. Commonwealth, 331 F.2d 552 (4th Cir. 1964); Franklin v. Conway, 391 F.Supp. 1233 (W.D. Va.1975), aff’d 546 F.2d 579 (4th Cir. 1976). Petitioner attacks his attorneys’ failure to put on a defense in that no witnesses were called to testify on petitioner’s behalf. However, based on a professional judgment, counsel’s decision not to call witnesses does not deprive a defendant of
2872	been a robbery in progress or a murder attempt and he had entered to prevent the execution of the crime or to apprehend the assailant no one would question his right to have done so. At the time the officer made this observation he had not yet closely approached the front door. Applying the objective test, the Court finds that his failure to observe the two-family character of the dwelling demanded by reason of the two doorbells and two mailboxes immediately adjacent to the front door was yet excusable. Moreover, while this Court is inclined to believe that police officers generally have no right to intrude upon the front porch of a private home in the dead of night (see  the fact that the porch involved here was a common area to a multiple-family dwelling may well serve to avoid that ruling. (See United States v. Freeman, 426 F.2d 1351, 1353 (9th Cir.1970)). Although unable to find any direct authority for its conclusion the Court is of the opinion that officers observing a crime being committed may act to terminate its commission and that that is what the officer did in the instant case. The Court reaffirms its prior holding that the search warrant was invalid; it finds however that the arrest of the defendants in the instant case and the seizure of narcotics from the immediate presence of the defendants and from the table in the living room was
436	"public utility commission's consideration of a rate decrease based on the suspension of debt service or to terminate a commission’s establishment of an escrow for such funds, and the decision therefore does not affect our resolution of that issue in this appeal. . Section 105(a) gives bankruptcy courts the equitable power to issue any order ""that is necessary or appropriate to carry out the provisions” of the Bankruptcy Code, and it is in this section that bankruptcy courts find their genera] equitable powers. See Omni Mfg., Inc. v. Smith (In re Smith), 21 F.3d 660, 665 (5 th Cir. 1994). Those powers, however, ""have their limits,” id., and ""can only be exercised within the confines of the Bankruptcy Code.” see Southmark Corp. v. Grosz (In re Southmark Corp.), 49 F.3d 1111, 1116 (5th Cir.1995) (stating that § 105(a) ""does not authorize the bankruptcy courts to create substantive rights that are otherwise unavailable under applicable law,” or ""to act as roving commissions to do equity”) (internal quotation marks omitted); In re Fesco Plastics Corp., 996 F.2d 152, 154 (7th Cir. 1993) (""Under this section, a court may exercise its equitable power only as a means to fulfill some specific Code provision. By the same token, when a specific Code section addresses an issue, a court may not employ its equitable powers to achieve a result not contemplated by the Code.”) (citations omitted). . We emphasize"
704	"of its loss from other sources: ""The Company shall not be liable for loss under this Policy if at the time of loss there is any other insurance which would attach is this insurance had not been effected, except that this insurance shall apply only as excess and in no event as contributory insurance, and then only after all other insurance has been exhausted.” . 690 F.2d 459 (5th Cir.1982). . Id. (citing Equitable Fire & Marine Ins. Co. v. Allied Steel Constr. Co., 421 F.2d 512, 514 (10th Cir.1970)). . Id. (citing City of Barre v. New Hampshire Ins. Co., 136 Vt. 484, 396 A.2d 121, 122-23 (1978)) (emphasis added). . Id. . Compare v. Royal Indem. Co., 635 F.2d 379 (5th Cir. Unit A Jan.1981) (holding that all risk policy did cover loss when concrete dome collapsed as a result of faulty construction of styrofoam form over which concrete was poured). . 690 F.2d at 462. . Couch on Insurance 3d, § 148:59, at 148-104 (1998) (citing City of Barre, 136 Vt. 484, 396 A.2d 121). . Equitable Fire & Marine Ins. Co., 421 F.2d 512. . City of Barre, 136 Vt. 484, 396 A.2d 121. . U.S. Indus., 690 F.2d at"
910	279 F.3d at 904. . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). . Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir.2000) (quoting Adler, 144 F.3d at 670-71); see Kannady, 590 F.3d at 1169. . City of Herriman, 590 F.3d at 1181. . Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006). . Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). . Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). . Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). . . Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991). . Calia v. Werholtz, 426 F.Supp.2d 1210, 1214 (D.Kan.2006) (citing Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir.1992)). . 29 U.S.C. § 1132(a)(1)(B). . Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). . Kimber v. Thiokol Corp., 196 F.3d 1092, 1097 (10th Cir.1999). . Doc. 86 at 8. . 29 U.S.C. § 1132(a)(1). . 29 U.S.C. § 1002(8). . Doc. 54-1 at 4-5. . See Restatement (Second) of Conflict of Laws § 283 (1971); see also Grabois v. Jones, 77 F.3d 574, 576 (2d Cir.1996) (explaining that federal courts ordinarily apply state law to determine who
2021	accepting or rejecting each one. However, the BVA decision contains another defect, discussed below, that supersedes the reason-or-bases error with respect to the PTSD diagnoses. Because it is clear that the Board doubted the adequacy of the PTSD diagnoses in this case, specifically, the sufficiency of the claimed stressors, the Board was required to comply with the retum-for-clarification requirement in applicable VA regulatory provisions discussed in part II.B.1.a., above. The Board is not free to disregard VA regulations. See Sutton v. Brown, 9 Vet.App. 553, 568-69 (1996) (citing Morton v. Ruiz, 415 U.S. 199, 232, 94 S.Ct. 1055, 1073, 39 L.Ed.2d 270 (1974), Vitarelli v. Seaton, 359 U.S. 535, 538, 539-40, 79 S.Ct. 968, 971-72, 972-73, 3 L.Ed.2d 1012 (1959), and In any event, because the sufficiency of the stressors to support a PTSD diagnosis and the adequacy of the veteran’s symptomatology are medical questions, the Board was not free to reject uncontradicted, unequivocal medical diagnoses of record — by Dr. Singh, Dr. Robinson, or Mr. Young — that are presumed to have found the veteran’s stressors and symptoms to be sufficient to support the PTSD diagnosis and in this case did specifically find the veteran’s war-experience stressors sufficient to warrant a PTSD diagnosis, without first returning the reports to the original examiner(s) for clarification in accordance with applicable VA regulatory provisions discussed in part II.B.l.a., above, and then relying on independent medical evidence providing a basis
1241	"Chun Affidavit is a complaint Plaintiffs propose to file in this case (""the Proposed Complaint”). The Court will consider the allegations in the Proposed Complaint, which has not been filed, only to the extent that they clarify Plaintiffs’ breach of contract claim and the amount in controversy. . N.Y. C.P.L.R. § 305(b) provides that ""[i]f the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default.” N.Y. C.P.L.R. § 305(b). . The Whitaker court noted that in Murphy  the Supreme Court held that ""the removal period could only be triggered by formal service of process,” but did not address ""whether a pleading other than a complaint can constitute the initial pleading under section 1446(b).” Whitaker, 261 F.3d at 202. . U.S.E. Prods., Ltd. v. Marvel Enterprises, Inc., 314 F.Supp.2d 213 (S.D.N.Y.2004), which Plaintiffs rely on heavily, is distinguishable. In U.S.E., the plaintiffs filed a summons with notice asserting breach of contract, without any specification as to what contract was at issue. See id. at 214. The court stated that the defendant ""apparently ha[d] some idea of the nature of th[e] lawsuit because its petition for removal identifies the contract which it believes is”"
546	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  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 & n. 84, 56-57 (1992); see also, e.g., Susan S. Gibson, Lack of Extraterritorial Jurisdiction over Civilians: A New Look at an Old Problem, 148 Mil. L.Rev. 114,134 (1995). We reject the Erdos holding for several reasons. First and foremost, the Erdos Court failed to apply the proper canon of statutory construction. As noted, the Supreme
1495	(N.D.Ga.1983). Plaintiff’s state law claim for breach of contract can thus be considered an action to recover benefits owed or to enforce employee rights under 29 U.S.C. § 1104(a)(1)(B) or § 1132. B. Standard of Review Plaintiff argues that the Court should apply a de novo standard of review to Hartford’s determination regarding the entitlement of the plaintiff to disability benefits. Hartford maintains that because the question presented by Prince’s claim is factual in nature, i.e. whether Prince’s disability prevents him from engaging in any work for which he is, or may be, qualified, the appropriate standard of review is whether Hartford’s determination with respect to Prince is arbitrary and capricious. Until the Supreme Court’s decision in  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
1878	gas in the Texas Gulf Coast Area for each year back to 1959. The Commission ordered Gillring Oil Company, which had charged prices in excess of those ceilings during 1960-1968, to refund the excess. Gillring brought a declaratory action seeking to offset the refund by the extent to which the rates it charged during 1959-60 and 1968-1971 were below the al lowable ceiling. The Commission denied Gillring’s request, and this review proceeding followed. Deferring to the Commission’s reasonable construction of Opinion 595, and to its discretion in considering the equities of a refund order, we affirm the Commission’s decision. Area Rates Opinions No. 595, 45 F.P.C. 674 (1971), and No. 595-A, 46 F.P.C. 827 (1971), affirmed,  had their genesis in the Supreme Court’s landmark decision, Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954). In that case the Court, by finding that the Commission had a statutory duty to regulate the rates of some 3,000 independent producers of natural gas, thrust on the Commission a task it was then unequipped to handle. See Permian Basin Area Rate Cases, 390 U.S. 747, 756-758, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). To expedite its docket, the Commission largely abandoned individual ratemaking, and began setting prices according to geographical areas. In 1968, the Supreme Court upheld the first area rate case to reach it. Permian, supra. The contract involved in this dispute came into existence
4843	or in the voting rights attendant to the shares so transferred to weigh in its balance against the substantial burden that Oklahoma’s [control share statute] places on interstate commerce.”) B. The IPA The IPA applies to offers for corporations having “substantial assets” in Tennessee and that are either incorporated in or have their principle offices in Tennessee. Tenn.Code Ann. § 48-35-102(7) (1988). This Court finds that the IPA violates the Commerce Clause to the extent it regulates offers for foreign corporations. The burden the statute imposes on interstate commerce is excessive compared to the local benefits the IPA produces. The IPA minimally advances local interests. The IPA makes no distinction between resident and nonresident shareholders of foreign corporations. Cf. 985) (distinguishing MITE because Minnesota Act at issue applied only when 20% of target’s shareholders were Minnesota residents). Yet Tennessee has an interest in protecting Tennessee shareholders only. See CTS, 107 S.Ct. at 1651 (a state “has no interest in protecting nonresident shareholders of nonresident corporations.”) The IPA provides little help to shareholders to the extent it duplicates the disclosure requirements of the Williams Act. But to the extent the IPA diverges from federal law its protections are speculative. MITE found unconstitutional an Illinois statute similar to the IPA. The MITE Court agreed with the court below that “the disclosures required by the Illinois Act which go beyond those mandated by the Williams Act and the regulations pursuant to it may
28	which Coverage E applies than the applicable limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.” Prior to the decision of the Supreme Court of Arkansas in the Wallace case, the federal courts in Arkansas and the Court of Appeals for the Eighth Circuit had held in at least two cases that policy provisions identical or similar to the provision contained in defendant’s policy were void as violative of Ark.Stats. § 66-4003. Robey v. Safeco Ins. Co. of America, W.D.Ark., 270 F.Supp. 473, aff’d 8 Cir., 399 F.2d 330; Childers v. Southern Farm Bureau Casualty Ins. Co., E.D.Ark., 282 F.Supp. 866; cf. In Wallace, supra, the Arkansas Supreme Court held that the anti-stacking provision of the policy there in suit did not violate the Arkansas statute. In seeking to distinguish the Wallace case from this case counsel for plaintiff urges that there both of the policies involved had been issued by the same company whereas here the policies were issued by different companies. The distinction drawn by counsel is factually valid, but this Court has not read and does not read Wallace so narrowly. The language of the final paragraph of the Wallace opinion dealing with the purpose of the statute and its reference to Robey and to Maryland Casualty Co. v. Howe, 106 N.H. 422, 213 A.2d 420 (p. 229 of 245 Ark.), indicate
3302	Affirmed by unpublished PER' CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Loretta Meredith appeals the district court’s criminal judgment sentencing her to one year and one day of imprisonment for conspiring to knowingly and corruptly attempt to obstruct, influence, and impede an official proceeding, in violation of 18 U.S.C. § 1512(c)(2) and (k) (2012). In accordance with  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,
1192	"is rescinded. . Objecting members apparently rely here on Indiana Code §§ 11-11-5-6 and 7 (1993), which provide for five and thirty day status review, under certain circumstances, for prisoners subject to disciplinary segregation. As noted above, however, upon transfer to the MCC, a prisoner’s segregation status, if any, be it “administrative” or ""disciplinary,” is rescinded. . Indiana Code § 11-10-1-6 provides, in relevant part, that: “Sec. 6. The department shall, at least annually, review, in accord with sections 2 and 3 of this chapter, every committed offender not on parole to determine the appropriateness of his current classification and assignment and to make a classification-assignment decision based upon that review...."" . We note here that in  the Supreme Court recently observed that state created liberty interests protected by the Due Process Clause ""will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” (citations omitted). . We note that prior to the October 12, 1993 settlement hearing, counsel for plaintiff class supplied the district court with copies of all prisoner comments they had received. The court also reviewed all comments received directly from prisoners prior to the October 12, 1993 hearing as well"
2392	merits in Huffman, supra. However, the Court refused to pass on the merits, because it believed that the federal court was barred from intervening in the state proceedings. The Court now remands this case for further consideration in light of Huffman, supra, and Sosna v. Iowa, 419 U. S. 393 (1975). But I think it clear that even if Huffman was correctly decided, see 420 U. S., at 613 (Brennan, J., dissenting), it does not govern this case. Here, the prosecuting authorities expressly agreed to submit to federal-court jurisdiction, and they do not in this Court argue that the District Court could not have enjoined the state proceedings even if it believed them unconstitutional. Thus, any reliance on the principles of  has been waived. See Sosna v. Iowa, supra, at 396 n. 3. I need not reach the question of whether the Ohio scheme constitutes an impermissible prior restraint upon books never judicially determined to be obscene, because I believe that suppression even of specific books adjudicated obscene in nuisance proceedings is unconstitutional. Ohio defines obscenity as follows: “(A) Any material or performance is ‘obscene’ if, when considered as a whole and judged with reference to ordinary adults, any of the following apply: “(1) Its dominant appeal is to prurient interest; “(2) Its dominant tendency is to arouse lust by displaying or depicting nudity, sexual excitement, or sexual conduct in a way which tends to represent human beings as mere objects of
4264	Cited in Appellant’s Brief in Roman, pp. 79-87, In this connection, it is interesting to note the resemblance between the language of Chief Justice Warren in Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 98 L.Ed. 884 (1954) and that of his fellow-Californian Justice Stephen J. Field in “liberty of contract” cases of an earlier day, such as Butcher’s Union, etc., Co. v. Crescent City Co., 111 U.S. 746, 757, 4 S.Ct. 652, 28 L.Ed. 585 (1884), and Powell v. Com. of Pennsylvania, 127 U.S. 678, 691-692, 8 S.Ct. 992, 32 L.Ed. 253 (1888). Field’s views, expressed as dissent in the Slaughter-House Cases, 16 Wall. 36, 106, 109-111, 21 L. Ed. 394 (1873), received majority acceptance in Reaching its apogee in Loehner v. State of New York, 198 U.S. 45, 53, 25 S.Ct. 539, 49 L.Ed. 937 (1905), the dogma of liberty to pursue common callings without regulation was generally believed to have been overthrown in Nebbia v. People of State of New York, 291 U.S. 502, 523, 527, 536, 54 S.Ct. 505, 78 L.Ed. 940 (1934), and West Coast Hotel Co. v. Parrish, 300 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
1663	be held in the immediate vicinity of the alleged offenses. In order to accelerate tho prompt trial of these offenses, it is requested that you assume court-martial jurisdiction in these cases. “3. The accused is at present in confinement in the Third U. S. Army Stockade, but will be delivered upon request to such i>laco as you may designate. “For tho Commanding General:” The views of counsel for the petitioner coincide with those of the three Judge Advocates who constituted the Board of Review while tho views of the respondent appear to be supported by at least an equal number of lawyers in tho Judge Advocate General’s Department. McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049. Cf. 20 S.Ct. 713, 44 L.Ed. 861; Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 48 L.Ed. 236; Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640; Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225; French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692. Contra Sanford v. Robbins, 5 Cir., 115 F.2d 435. See, e. g. Ex parte Bigdow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005. Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436; Ex parte Hans Nielsen, 131 U.S. 176, 9
3887	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 factors must be considered: 1. A likelihood that the parties seeking the stay will prevail on the merits of the appeal; 2. The movant will suffer irreparable injury unless the stay is granted; 3. Other parties will suffer no substantial harm if the stay is granted; 4. The public interest will not be harmed if the stay is granted. accord, In re White Motor Corp., 25 B.R. 293, 297 (N.D.Ohio 1982); In re Great Barrington Fair and Amusement, Inc., 53 B.R. 237, 239 (Bkrtcy.D.Mass.1985); Hunter v. S.K. Austin Co. (In re Beck), 26 B.R. 945, 946 (Bkrtcy.N.D.Ohio 1983); In re Hotel Associates, Inc., 7 B.R. 130, 131-32 (Bkrtcy.E.D.Pa.1980); Cf. Unsecured Creditors’ Committee v. DeLorean (In re DeLorean Motor Co.), 755 F.2d 1223, 1228 (6th Cir.1985) (four factors regarding grant or denial of preliminary injunction); Hamlin Testing Laboratories, Inc. v. United States Atomic Energy Comm’n, 337 F.2d 221, 222 (6th Cir.1964) (factors to be considered respecting motion to stay administrative order pending judicial review). Based upon this Court’s decision on the merits of the appealed orders, including a reconsideration of
4072	intentionally engaged in a scheme to defraud under section 2314. With regard to the second element of section 2314, Lanier maintains that the evidence demonstrates only that each victim used interstate commerce voluntarily. However, Lanier traveled with several of the victims to Ohio in order to introduce them to McLane. The evidence is sufficient to support an inference that Lanier induced others to travel in interstate commerce in order to further the loan scheme. 3. Aiding and Abetting The elements of aiding and abetting are (1) that the defendant associated himself with the unlawful venture; (2) that he participated in it as something he wished to bring about; and (3) that he sought by his actions to make it succeed. By traveling to Ohio and California, explaining the mechanics of the loan scheme to the victims, reassuring them about the refundability of their deposits, and sending loan applications and advance fees through the mail, Lanier associated himself with, participated in, and sought to further the loan scheme. B. Motion for a New Trial Appellant contends that he is entitled to a new trial because the verdict is against the weight of the evidence. When a motion for a new trial is made on the ground that the verdict is contrary to the weight of the evidence, the district court must weigh the evidence and evaluate the credibility of the witnesses, and will set aside the verdict only if the evidence
4365	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); 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 principal place of business of a corporation at the time the complaint is filed. S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 414 n. 2 (3d Cir.1999). Simply because a company’s principal place of business may have been in a
644	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.” This is in point, because the defendant was by order of court permitted to plead to the merits after default. Substantially the same rule is laid down in the case of Martin’s Administrator v. Baltimore & Ohio Railroad Co., 151 U. S. 673, 14 S. Ct. 533, 38 L. Ed. 311. Judge Reed, of Iowa, in the case of Co. v. Hunter (C. C.) 60 F. 305, both passed upon this question. These cases are in accord, and in his opinion Judge Sanborn says that the act “which requires the petition for removal to be filed in the state court ‘at the time, or any time before, the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff,’ is imperative, and requires the petition to be filed within the time fixed by the statute (where the statute fixes it), or within the
3056	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 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.”
326	violation, whichever shall first expire. Since UCB brought this action some eighteen months after the alleged discovery, application of § 25506 could conceivably bar its suit. . Section 338 provides in part: Within three years: 4. An action for relief on the ground of fraud or mistake. The cause of action in such case not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. The present action was probably timely under the provisions of this section. . 15 U.S.C. § 78j(b). . 17 C.F.B. § 240.10b-5. . 15 U.S.C. §§ 77a-77aa. See, e. g., Douglass v. Glenn E. Hinton Investments, Inc., 440 F.2d 912, 914 (9th Cir. 1971) ; . Douglass, supra, note 5, at 914. See Sackett v. Beaman, 399 F.2d 884, 890 890 (9th Cir. 1968). See also UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 703-05, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) ; Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 90 L.Ed. 743 (1946). . Faced with analogous choices, other circuits have recently chosen the securities statute of limitations rather than that of general fraud. See Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972) ; Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). But
1668	views of counsel for the petitioner coincide with those of the three Judge Advocates who constituted the Board of Review while tho views of the respondent appear to be supported by at least an equal number of lawyers in tho Judge Advocate General’s Department. McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049. Cf. Carter v. Roberts, 177 U.S. 496, 20 S.Ct. 713, 44 L.Ed. 861; Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 48 L.Ed. 236; Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640; Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225; French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965; 25 L.Ed. 538; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692. Contra Sanford v. Robbins, 5 Cir., 115 F.2d 435. See, e. g. Ex parte Bigdow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005. Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436; Ex parte Hans Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. Cf. Rosborough v. Rossell, 1 Cir., 150 F.2d 809; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; and Amrine v. Tines, 10 Cir., 131 F.2d 827. Title 30 U.S.C.A. §
3049	operator ‘make the relevant decisions’ regarding the disposal of hazardous wastes ‘on a frequent, typically day-to-day, basis’.” Lockheed, 35 F.Supp.3d at 121, citing City of Wichita, Kansas v. Trustees of APCO Oil Corp. Liquidating Trust, 306 F.Supp.2d 1040, 1055 (D.Kan.2003) (collecting cases). Applying the Bestfoods definition of an operator under CERCLA, TDY did not establish that the Government functioned as an operator at the Site. See generally Lockheed, 35 F.Supp.3d at 150 (operations in performance of government contracts or subcontracts and the government’s pervasive influence over the general activities at a. site does not alone make the government an operator under CERCLA), citing Coeur D’Alene Tribe v. Asarco Inc., 280 F.Supp.2d 1094, 1127-30 (D.Idaho 2003) (same), and The Government’s liability at this Site was as a’“past owner of facilities.” TDY’s liability was as an “owner of facilities” and “operator.” Viewing each party in the context of those roles the Court considers to what extent the Government and TDY should each be held accountable for the Site ■ contamination.' 3. The Contribution, Involvement and Care of the Parties .. The contaminants at issue in this case entered the environment as a result of manufacturing operations, ■ maintenance and disposal policies and procedures, and storage practices on the Site. The contamination occurred over the span of decades. The hazardous- nature of the contaminants was generally unknown for many of those years. For example, TDY’s disposal of chlorinated solvents into
2022	of the stressors to support a PTSD diagnosis and the adequacy of the veteran’s symptomatology are medical questions, the Board was not free to reject uncontradicted, unequivocal medical diagnoses of record — by Dr. Singh, Dr. Robinson, or Mr. Young — that are presumed to have found the veteran’s stressors and symptoms to be sufficient to support the PTSD diagnosis and in this case did specifically find the veteran’s war-experience stressors sufficient to warrant a PTSD diagnosis, without first returning the reports to the original examiner(s) for clarification in accordance with applicable VA regulatory 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; 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
3517	Wainwright to concurrent 46-month prison terms, to be followed by 5 years of supervised release. Wainwright appeals, and in a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel raises issues concerning the reasonableness of Wainwright’s prison sentence. We review a sentence for reasonableness, affording a presumption of reasonableness if the sentence is within a correctly calculated Guidelines range. See Rita v. United States, — U.S. —, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007) (approving presumption of reasonableness for sentences within advisory Guidelines range). Upon careful review of the record, we conclude that the district court correctly calculated Wainwright’s advisory Guidelines imprisonment range and reasonably sentenced him within that range. See After reviewing the record independently under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no non-frivolous issues for appeal. Accordingly, we affirm, and we grant counsel leave to withdraw. . The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District Court for the Western District of Missouri.
3954	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. 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. She also advances a claim for negligent infliction of emotional distress. Navis-tar seeks summary judgment on all claims. Kariotis seeks summary judgment on the COBRA and the FMLA claims. The Court will address the ADA, the ADEA, and the ERISA claims first and the
1862	with intent to distribute heroin, and possession with intent to distribute cocaine, all in violation of 21 U.S.C. § 841(a). The jury found Eaton guilty of a single count of possession with intent to distribute phenmetrazine. II. CONTENTIONS ON APPEAL Eaton contends that (1) the court’s instruction on constructive possession misstated the law and substantially prejudiced Eaton; (2) the prosecution’s cross-examination of Eaton on his arrest record exceeded the permissible scope of examination; and (3) the prosecution should not have been permitted to cross-examine Eaton on his prior drug use. III. STANDARD OF REVIEW All of the issues raised by Eaton relate to the conduct of the trial. These matters are committed to the sound discretion of the trial court. United States v. Elders, 569 F.2d 1020, 1026 (7th Cir.1978) (scope and extent of cross-examination is within the trial court’s discretion). We use the abuse of discretion standard in reviewing the trial court’s rulings on these issues. IV. CONSTRUCTIVE POSSESSION INSTRUCTION Eaton argues that the court’s illustrations given in conjunction with its constructive possession instruction confused the jury on the requirement that one must have both the power and the intention to exercise dominion and control over an object to have constructive possession. The instruction given reads as follows: The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly
334	Cir. 1972) ; Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). But see Charney v. Thomas, 372 F.2d 97 (6th Cir. 1967). However, they have also determined that the adopted state statute shall only run in accordance with the federal law which decrees that the statute does not begin to run until the fraud is, or should be, discovered. Parrent, supra at 128; Vanderboom, supra at 1240. Accord Janigan v. Taylor, 344 F.2d 781 (1st Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). See also Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946) ;  . See J. I. Case Co. v. Borak, 377 U.S. 426, 431-32, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) ; SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963). . See Azalea Meats, Inc. v. Muscat, 386 F.2d 5, 8 (5th Cir. 1967) ; Beefy Trail, Inc. v. Beefy King Int’l, Inc., 348 F.Supp. 799, 803 (M.D.Fla.1972). . See note 7, supra. . See note 1, supra. . See note 7, supra. . However, even if Congress is so disposed, it may wait until it receives The American Law Institute’s proposed Federal Securities Code. Professor Louis Loss, the reporter for the project, currently estimates that the ALI Code will reach Congress in 1976
1033	@ 12% = $334,320; $867,405 + 334,320 = $1,201,725; $1,201,725 -h 13,300,000 = .0903553 or 9.035%. Boulders, 164 B.R. at 106, n. 5 Although Boulders involved only two tranches, and was decided in a different business era with different prevailing rates and percentages of loan to value, there is no conceptual obstacle to further blending the rate comprised not only of standard and mezzanine rates, but perhaps of a third equity return rate as well, as necessary, where it becomes unrealistic to believe that any lender will loan up to a very high percentage or even 100% of value. See Reehl and Milner, Cram Down Interest Rates: The Quest Continues, 30 Cal. Bankr. J. at 22, 26, citing Boulders,  7 B.R. 653 (Bankr.N.J.1980). Both the debtor and the bank in their briefs accept the blended rate approach in concept. The parties differ primarily in their percentage allocation between a “market rate” initial tranche, inclusion of a second “mezzanine” rate and the proportion at an equity rate, and upon where those lines should be drawn and/or the rates assigned to each tranche. Of course, whether a “market” rate is given for the initial 65% or only up to 50%, whether three tranches are used or only two, and the respective rates adopted for each element and valuations of collateral, will affect profoundly the resulting “blended” rate. In the end, everything depends on the
2455	were engaged in diversion of denatured alcohol. Under these circumstances, the appellees were justified in the suspicion that the permittee was simply-selling to itself and using the Mohank Sales Company as a method of diversion for illegal purposes. Driscoll v. It is argued that section 4, title 2, of the National Prohibition Act (chapter 85, Act Oct. 28,1919, 41 Stat. 305, 309 [27 USCA § 13]), specifically exempts finished toilet preparations from its provisions, and that therefore there is no need for a permit to withdraw specially denatured alcohol. Campbell v. Long & Co., 281 U. S. 610, 50 S. Ct. 415, 74 L. Ed. 1070, and Campbell v. Galeno Chemical Co., 281 U. S. 599, 50 S. Ct. 412, 74 L. Ed. 1063, are cited, but do not support this claim. Specially denatured alcohol is not controlled by the provisions of title 2. It does, however, come under section 13, title 3 (27 USCA § 83). Driscoll v. Campbell, 33 F.(2d) 281 (C. C. A. 2); Elsinore Perfume Co. v. Campbell, 31 F.(2d) 235 (C. C. A. 2). Decree affirmed.
1989	"“derived-from"" rules, in somewhat different form, in 1992. . Given the provisions of 42 U.S.C. § 6976(a)(1), that a petition for review of an action of the Administrator in promulgating any regulation ""may be filed only in the United States Court of Appeals for the District of Columbia ...,"" and ""shall not be subject to judicial review in civil or criminal proceedings for enforcement ...,” the jurisdiction of the court in Goodner Brothers is questioned as to the binding effect in this circuit of its retroactive application of the invalidation of the ""mixture” and ""derived-from"" regulations. The determination of the retroactive effect of judicial review in invalidating a regulation is within the jurisdiction of the D.C.Circuit. See, e.g., Although the denial of the Government's motion to clarify the retroactive effect of the Shell Oil ruling with respect to the ""mixture” rule is subject to the interpretation that retroactive application was intended, nevertheless, as there are persuasive reasons for non-retroactivity, this issue, notwithstanding the holding in Goodner, may, absent a more definitive ruling by the D.C.Circuit, be an open one. . In Count II, the substance processed through the DCI still is described in the Indictment as a ""solvent/water mixture” or a ""contaminated mixture."" Similarly, in Count III, the Government alleged that the Brighton still produced a foam that was vented onto the ground. This foam was described in the Indictment as a ""hazardous waste mixture,” a ""contaminated mixture,” and"
3781	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, 262 (4th Cir.2005) (applying rational basis review to dancing as conduct because it contained no expressive element). Each of the criminal provisions, however, attempts to regulate 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 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
3522	Assistance and Real Property Acquisitions Policy Act, and the Home Investment Partnership Act. Cmty. House II, 654 F.Supp.2d at 1165, 1172. In addition, the district court granted the defendants summary judgment on CHI’s FHA claims for religious 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. 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.
1022	proposals have a vital effect upon the terms and conditions of employment of the employees at the Belle Ayr Mine and therefore constitute mandatory subjects for bargaining. App., at 49a(iii)-(iv). We cannot agree. Whether these clauses are mandatory subjects of bargaining depends on whether they come within the area of “wages, hours and other terms and conditions of employment.” See NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349, 78 S.Ct. 718, 722, 2 L.Ed.2d 823 (1958). Unlike wages and conditions of employment, the scope of the certified bargaining unit is not a mandatory subject and insistence to the point of impasse on restriction or expansion of the bargaining unit is an unfair labor practice.  cert. denied, 397 U.S. 916, 90 S.Ct. 920, 25 L.Ed.2d 97 (1970). The clauses at issue here would require Amax to conduct negotiations on a basis broader than the certified unit. They would require Amax to bargain about wages and other conditions of employment of employees in other units. While the Union has a valid concern in protecting the employees against a shift of production to another mine in order to evade the Union’s standards and wages at Belle Ayr, the clause here refers to all new operations and is much broader than necessary to accomplish this goal. Indeed the clause requires that the agreement be put into effect in toto elsewhere, including the non-economic provisions that have no bearing
2453	alleged to have bgen received by this company from permit holders never reached the company’s place of business, but went to its customers, and 25 per cent, was not bottled, but was placed in drums and shipped out in bulk. The Mohank Sales Company refused to make known to the Treasury Department the names of its customers or the channels of its trade. The appellees concluded that it was a “cover house” and established for the sole purpose of assisting permit holders who were engaged in diversion of denatured alcohol. Under these circumstances, the appellees were justified in the suspicion that the permittee was simply-selling to itself and using the Mohank Sales Company as a method of diversion for illegal purposes. C. A. 2); Solax Drug Co. v. Doran, 27 F.(2d) 522 (C. C. A. 3). The testimony justified .the refusal to grant the 1930 permit. It is argued that section 4, title 2, of the National Prohibition Act (chapter 85, Act Oct. 28,1919, 41 Stat. 305, 309 [27 USCA § 13]), specifically exempts finished toilet preparations from its provisions, and that therefore there is no need for a permit to withdraw specially denatured alcohol. Campbell v. Long & Co., 281 U. S. 610, 50 S. Ct. 415, 74 L. Ed. 1070, and Campbell v. Galeno Chemical Co., 281 U. S. 599, 50 S. Ct. 412, 74 L. Ed. 1063, are cited, but do not support this claim. Specially denatured alcohol is not
3733	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 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 ¶ 345, and has “attempted to sue Plaintiff,” FAC ¶¶ 348-350. The FAC gives no basis for believing
1677	L.Ed. 965; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692. Contra Sanford v. Robbins, 5 Cir., 115 F.2d 435. See, e. g. Ex parte Bigdow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005. Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436; Ex parte Hans Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. Cf. Rosborough v. Rossell, 1 Cir., 150 F.2d 809; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; and Title 30 U.S.C.A. § 1511. “As to number (article 40). No person shall, without his consent, be tried a second time for the same offense; but no proceeding in which an accused has been found guilty by a court-martial upon any charge or specification shall be held to be a trial in the sense of this article until the reviewing and, if there be one, the confirming authority shall have taken final action upon the case. “No authority shall return a record of trial to any court-martial for reconsideration of— “(a) An acquittal; or “(b) A finding of not guilty of any specification; or “(c) A finding of not guilty of any charge, unless the record shows a finding of guilty under a
1564	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. 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, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(i) (2006). In a suit brought pursuant to Title VII, a plaintiff may prove his claim of discrimination indirectly under the burden-shifting
652	The United States Court of Appeals for the Fifth Circuit also found no abuse of discretion. The Fifth Circuit, however, reversed and remanded to determine whether local assurances were available for completion of the Project, and whether section 404(c) prevented it. Crep-pel, 670 F.2d at 575. On remand, the district court found that the Parish’s refusal to assure the revised Project made its completion impossible. Creppel v. United States Army Corps of Eng’rs, No. 77-25, slip op. at 5 (E.D.La. Aug. 13, 1984). The district court therefore ordered the original Project to proceed. Id. The EPA began proceedings on December 17, 1984, to determine whether to block the Project by denying a permit under section 404(c). On August 30,1985, the EPA
2951	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. 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 (1976). A federal habeas corpus petitioner seeking relief on the grounds of court-appointed counsel’s incompetence has the burden of proving a constitutional defect, Day v. Peyton, 303 F.Supp. 221 (W.D.Va.1969), and petitioner in the instant case has substantially failed to convince this court that Simpson and Tisinger were incompetent. Petitioner challenges the adequacy of Simpson’s opening statement, and respondent maintains that the opening statement is a matter of trial tactics. This court agrees with respondent. The matter of trial tactics and the attorney’s
3473	same restriction. Support for the conclusion that § 115(c) of the 1934 Act puts losses on liquidation on the same basis as losses on sales is found in the fact that in 1934 Congress, to prevent avoidance of surtax through liquidation of corporations with large surpluses, amended the section to provide: “Despite the provisions of section 117(a), 100 per centum of the gain so recognized shall be taken into account in computing net income.” See Helvering v. Chester N. Weaver Co., supra; House Report, No. 704, 73rd Cong., 2nd Sess. pp. 29-30. Affirmed. GARRECHT and HANEY, Circuit Judges (concurring in result). ' The facts in this case are so nearly like those in the case of 
977	Orders of the Bankruptcy Court The statutory authorization for Local Rules regarding cases and proceedings under Title 11 of the United States Code is as follows: Each district court may provide that any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the district. 28 U.S.C. § 157(a). As generally understood, this is an authorization for “referr[al]” on stated terms and conditions, and those stated terms and conditions may include regulation of interlocutory appeals within a district, from an order of a bankruptcy court to a judge of the district court. See, e.g., Section 157 was enacted in 1984 and amended in 1986. Rule 201 of the Local Rules of the District Court for the District of Massachusetts is as follows: Pursuant to 28 U.S.C. § 157(a), any and all cases arising under Title 11 United States Code and any and all proceedings arising under Title 11 or arising in or related to a case under Title 11 shall be referred to the judges of the bankruptcy court for the District of Massachusetts. D.Mass.L.R. 201 (effective January 2, 1995). Rule 203, entitled “Bankruptcy Appeals,” authorizes and directs the bankruptcy court to dismiss an untimely appeal, decide motions to extend deadlines, and
1199	factors he believes should have led the District Court to consider the fast-track disparity, but the obvious candidate is § 3553(a)(6), which requires sentencing courts to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” The District Court determined that a disparity between Rondon-Urena’s sentence and that which he would have received in a district with a fast-track program is not “the kind of disparity that 18 U.S.C. § 3553(a) is really looking at when it talks about sentencing disparity.” App. 25. In so finding, the District Court effectively held that a disparity of the sort alleged by Rondon-Urena does not qualify as an unwarranted disparity. IV. In  we considered the precise argument raised by Rondon-Urena, and soundly rejected it. In that case, Sandro Vargas pleaded guilty in the Eastern District of Pennsylvania “to illegally reentering the United States after he was deported following conviction of an aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2).” Id. at 96. Like Rondon-Urena, Vargas argued “that his sentence created an ‘unwarranted disparity5 in light of the ‘fast-track’ programs available to defendants in some other districts.” Id. We rejected Vargas’ argument: [W]e follow the Second and Fourth through Eleventh Circuits and hold that a district court’s refusal to adjust a sentence to compensate for the absence of a fast-track program does not make a sentence unreasonable. In addition, we agree
1391	Southland articulated legitimate, nondiscriminatory reasons for discharging Mr. Ashagre, and Mr. Ashagre failed to prove, by a preponderance of the evidence, that Southland’s reasons were merely pretextual. It is also clear that, with respect to the claim under section 1981, Mr. Ashagre failed to make any showing of purposeful discrimination. See Williams v. DeKalb County, 577 F.2d 248, as modified upon rehearing, 582 F.2d 2, 3 (5th Cir. 1978). In McDonnell Doughs Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) the Supreme Court set out the requirements for a prima facie case of discrimination based on failure to hire. The Fifth Circuit first applied these requirements to a case involving a discharge from employment in The court in Marks found that, to establish a prima facie case of employment discrimination in a discharge, the plaintiff must show that 1) he is a member of a protected class; 2) he was qualified for the job from which he was discharged; 3) he was discharged; and, 4) after he was discharged, his employer filled his position with a non-minority. Id. at 1155. Applying the factors necessary to establish a prima facie case of employment discrimination in discharge to the present ease, it is not contested that Mr. Ashagre is a member of a protected class, that he was qualified for the job from which he was discharged, or that he was discharged. The fourth factor required for
1139	injunction appealable under § 1292(a) (1), it follows that the appeal must be Dismissed. . See and compare Baltimore Contractors v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233; Morgantown v. Royal Insurance Co., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347; Ettelson v. Metropolitan Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176; Enelow v. New York Life Insurance Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440; Shanferoke Coal & Supply Corporation of Delaware v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583; Lummus Co. v. Commonwealth Oil Refining Co., 2 Cir., 297 F.2d 80; Chronicle Publishing Co. v. National Broadcasting Co., 9 Cir., 294 F.2d 744; Glen Oaks Utilities, Inc. v. City of Houston, 5 Cir., 280 F.2d 330; Arny v. Philadelphia Transportation Co., 3 Cir., 266 F.2d 869; Thibodaux v. Louisiana Power & Light Co., 5 Cir., 255 F.2d 774, reversed, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058; United Gas Pipeline Co. v. Tyler Gas Service Co., 5 Cir., 247 F.2d 681; Day v. Pennsylvania Railroad Co., 3 Cir., 243 F.2d 485; Council of Western Electric Technical Employees-National v. Western Electric Co., 2 Cir., 238 F.2d 892. . Council of Western Electric Technical Employees-National v. Western Electric Co., 238 F.2d 892 at 894.
3560	Room Jointly Maintained v. City and County of San Francisco, 784 F.2d 1010, 1015 (9th Cir.1986), as amended, 792 F.2d 124 (9th Cir.1986), we held that leasing public property to a religious organization does not violate the Establishment Clause, as least where the lease was on the same terms as leases offered to commercial tenants. That case did not address whether it would violate the Establishment Clause if such a lease were offered on the same terms as those received by other non-profit tenants. When pressed during oral argument for their best case on this issue, plaintiffs’ counsel cited this case. It does not help them. At least one court has decided such a case. In  the Fourth Circuit considered a school board policy of leasing public facilities for an amount of rent determined by the type of entity. Student organizations and groups primarily benefitting the public did not have to pay rent. Id. at 704. Cultural, civic, and educational groups paid rent at a “noncommercial” rate. Id. For five years churches paid the noncommercial rate, which then escalated to the commercial rate. Id. at 705. The court held that charging churches the same below-market rent as the other non-profit groups would not violate the Establishment Clause, but that charging them commercial rent — which it termed “rent discrimination” — violated the Free Exercise and
231	1946, contract were made for their benefit. It is significant that the Government was not required to hire General Electric engineers to supervise the installation. If it did so, however, then such engineers were to be paid the specified per diem as provided in Section 50 of the contract. This memorandum order should not be unduly extended in attempting to collate the many decisions on the subject of third party beneficiaries. In passing, it may be noted that the Second Circuit disposed of a factual situation far more favorable to the plaintiff than the present one with a terse line, merely holding that the contract provisions there considered were solely for the Government’s benefit. See d 477. The decision of LaMourea v. Rhude, 1940, 209 Minn. 53, 295 N.W. 304, includes examples of incidental beneficiaries which are strikingly comparable to the present situation, and see examples in Restatement of Contracts, Sections 133 to 147. The conflict of laws problem does not appear to be present. Apparently the contract between the Government and defendant was entered into in the State of Colorado and to be performed in the State of Arizona. No decision from either state has been cited which supports plaintiffs’ position herein as a third party beneficiary. Both states apparently recognize that incidental beneficiaries to contracts have no contract rights therein. Cripple Creek State Bank v. Rollestone, 1921, 70 Colo. 434, 202 P. 115; M. E. Smith & Co.
1042	probability of success.” In re Acequia, Inc., 787 F.2d 1352, 1364-65 (9th Cir.1986). The “feasibility” standard has been interpreted as excluding “visionary schemes.” In re Pizza of Hawaii Inc., 761 F.2d 1374, 1382 (9th Cir. 1985). But, possibility of failure is not fatal. Hobson v. Travelstead (In re Travelstead), 227 B.R. 638, 651 (D.Md.1998). The issue is primarily one of fact so long as the debtor presents evidence that it can reasonably accomplish what is promised in the plan. The Code does not require debt- or to prove that success is inevitable or assured, and a relatively low threshold of proof will satisfy § 1129(a)(11) so long as adequate evidence supports a finding of feasibility.  citing In re WCI Cable, Inc., 282 B.R. 457, 486 (Bankr.D.Or. 2002) and In re Sagewood Manor Assocs. Ltd., 223 B.R. 756, 762 (Bankr.D.Nev. 1998); General Elec. Credit Equities, Inc. v. Brice Road Dev. LLC (In re Brice Road Dev. LLC), 392 B.R. 274, 283 (6th Cir. BAP 2008). The Court finds that the plan more likely than not can be performed as promised and that it is therefore feasible and complies with § 1129(a)(ll). 6. Conclusion The debtor’s Second Amended Plan complies with all of the applicable provisions of §§ 1129(a) and 1129(b)(2)(A). The objection will be overruled and the plan will therefore be confirmed, as modified. The interest rate payable to the bank shall be not
588	the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future. Schmid, 13 F.3d at 79 (citations omitted). In some cases, a moderate sanction in the form of the “spoliation inference” is imposed. In such cases, evidence of the destruction of evidence is permitted to be presented to the jury, and the jury may infer that the party destroyed the evidence because the evidence was unfavorable to that party’s case. Schmid, 13 F.3d at 78 (citing, inter alia, ). In other cases, evidence critical to a plaintiffs case is excluded, leading to judgment against the plaintiff. See Schmid, 13 F.3d at 79 n. 2 (compiling cases). The source of a district court’s authority to impose a sanction for the spoliation of evidence is open to some dispute. One view is that the sanction arises from the district court’s inherent authority to sanction parties, while another view is that the sanction arises from the substantive law of the state. Schmid, 13 F.3d at 78. The law of Pennsylvania does not appear to differ materially from federal law. Id. Regardless, the discussion in Schmid specifically points out that, under federal law, the imposition of a sanction for spoliation of
3255	Rejection Damage Claims Are Not Barred by Their Failure to Exhaust the Grievance and Arbitration Procedures of the Rejected Contract. U.S. Truck contends that laid off employees were required to exhaust their remedies under the grievance and arbitration procedures of the rejected contract, which it voluntarily continued until approximately April 15, 1983. Only one employee, Joann Drew, grieved her layoff and received a grievance award. The federal common law of labor contracts favors contractual grievance procedures and arbitration as the means to resolve contractual labor disputes. Republic Steel Corporation v. Maddox, 379 U.S. 650, 653, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965). Thus, failure to exhaust contractual grievance remedies generally bars an employee’s suit under 29 U.S.C. § 185. Id.; An important exception to this rule, however, applies here. An obvious situation in which the employee should not be limited to the exclusive remedial procedures established by the contract occurs when the conduct of the employer amounts to a repudiation of those contractual procedures. Cf. Drake Bakeries v. Bakery Workers, 370 U.S. 254, 260-263 [82 S.Ct. 1346, 1350-1352, 8 L.Ed.2d 474 (1962)]. See generally 6A Corbin, Contracts § 1443 (1962). In such a situation (and there may of course be others), the employer is estopped by his own conduct to rely on the unexhausted grievance and arbitration procedures as a defense to the employee’s cause of action. Id. at 185, 87 S.Ct. at 914.
4436	the defendants’ motion to dismiss is granted. The Clerk is directed to enter judgment dismissing this action and closing the case. SO ORDERED. . Noski served as BoA’s Chief Financial Officer until June, 2011, at which point he became Vice Chairman of BoA. When Noski became Vice Chairman, Thompson became Chief Financial Officer. . BoA’s stock in fact rose slightly on both April 27, 2011 and April 28, 2011. (Def.s' Mot. in Supp. of Def. Mot. to Dismiss at 10.) . The plaintiffs contend that the alleged omissions were quantitatively material because BoA’s potential $10 billion loss exceeded its net income in fiscal years 2008 through 2010. The plaintiffs do not allege that any qualitative factors support materiality. See The plaintiffs’ claim fails on many levels. First, the potential liability to AIG was part of the potential risk from its enormous sales of MBS, a significant part of which were in default or severely delinquent and that was in fact disclosed. Moreover, the plaintiffs fail to compare the AIG suit to a like term on 'BoA’s financial statements. The plaintiffs concede that BoA was not required to accrue a $10 billion reserve for the AIG suit and acknowledge that BoA’s liability for the claim could range from zero to ten billion dollars. Given that the upper limit of this loss range is purely speculative,
1845	Triad asserts that these materials are worth $6,148,081.74. Over the defendant’s objection the court permitted evidence at trial regarding whether the agency had accepted the parts and work in process, but segregated the valuation question pending the outcome of the trial on the default issue. DISCUSSION Jurisdiction In a motion in limine filed shortly before trial, plaintiff sought to preclude “further proof by defendant under the Contract Disputes Act.” The predicate for that motion was that, because defendant had dropped the basis for default stated in the termination letter, no other ground could now be interposed, as the CO’s decision is the jurisdictional prerequisite to suit. The court rejected that motion without opinion. The denial was supported by  which held that subsequently discovered fraud can be used to justify a default termination. Implicit in this court’s denial of the motion in limine is the conclusion that the Morton holding is not limited to cases involving pre-CDA contracts, as plaintiff suggests. The relief that plaintiff sought in the motion in limine was a limitation on the govern- merit’s proof of its CDA claims, i.e., termination and return of unliquidated progress payments. The full implication of plaintiffs argument has now become manifest in plaintiffs post-trial briefing and in post-trial oral argument. Plaintiff in effect is urging the dismissal of its complaint. As it explains: This case came to the court on the basis of a government CDA claim premised upon the contracting
2648	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 have been the object of state discrimination, to develop and use a system that will result in a fair cross section of qualified persons in the community being placed on the jury rolls and to follow a procedure which will not operate to discriminate in the selection of jurors on racial grounds. Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34, 57, 73 (concurring opinion) ; Brooks v. Beto, 5 Cir., 1966, 366 F.2d 1; There seems to be no controversy as to the constitutional and statutory principles — the question involved is the application of these principles to the facts disclosed in the record. Cf. Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). That is the problem here, and the difficulty is that we do not have all the facts which appellant alleges are necessary to a decision in this case — facts which he asserts would assist us in deciding whether there has been a violation of his constitutional rights so as to require setting aside of the judgment of conviction. Appellant states that the census figures of the counties composing
4388	of the allowance of attorneys’ fees, the majority opinion affirms the Order of the District Court. Although I have the greatest respect for the wide and varied experience of the majority of this panel in matters similar to that here involved, I find myself unable to agree with all aspects of the majority opinion, and I, therefore, respectfully dissent from that part of the majority opinion which sustains the District Court’s determination that the defendant-appellant, Beaufort County Board of Education, has discriminated in the employment and assignment of black teachers in its school system. Recognizing that a prima facie case of racial discrimination in employment may be established by statistics, patterns, practices, and general policies, In reaching his determination of discrimination against the plaintiff, James, the District Court relied heavily on the raw personal data submitted by said plaintiff and apparently paid limited attention to the objective evaluations of plaintiff, James’, abilities proffered by the School Superintendent, an expert in the management of school affairs. I would be remiss if I failed to state, at this point, my complete agreement with the principle so wisely advanced by Judge Bore-man in his dissent in Massie v.
1171	difficult jurisdictional issues and proceed directly to the merits where there is no practical difference in the outcome. See e.g., Norton v. Mathews, 427 U.S. 524, 532, 96 S.Ct. 2771, 2775, 49 L.Ed.2d 672 (1976); Safeco Life Insurance Company v. Musser, 65 F.3d 647, 650 (7th Cir.1995); Rekhi v. Wildwood Industries, Inc., 61 F.3d 1313, 1316 (7th Cir.1995); Tisza v. Communications Workers of America, 953 F.2d 298, 300 (7th Cir.1992); United States v. Parcel of Land, 928 F.2d 1, 4 (1st Cir.1991); Browning-Ferris Industries of South Jersey, Inc. v. Muszynski, 899 F.2d 151, 154-60 (2d Cir. 1990). We believe it is prudent to do so here. III. Federal courts naturally favor the settlement of  cert. denied, 478 U.S. 1004, 106 S.Ct. 3293, 92 L.Ed.2d 709 (1986); Metropolitan Housing Development Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1013 (7th Cir.1980); Armstrong v. Board 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
1747	"of whether the statutory phrase 'or otherwise' hints at some other proper means of receipt of the initial pleading”) (citing Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354-55, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999)). . 28 U.S.C. § 1446(b) (emphasis added). . Moore's ¶ 107.30[3][a][ii]. Accord Lovern v. General Motors Corp., 121 F.3d 160, 162 (4th Cir.1997) (""The statute does not preclude defendants from removing a case where their discovery of the grounds of federal jurisdiction is belated because facts disclosing those grounds were inadequately or mistakenly stated in the complaint.”). . Yankee Bank for Fin. & Sav., FSB v. Hanover Square Assocs.-One Ltd. P’ship, 693 F.Supp. 1400, 1411 (N.D.N.Y.1988) (quoting . See Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92, 100-01, 18 S.Ct. 264, 42 L.Ed. 673 (1898) (interpreting congressional intent in providing for removal and stating, ""[t]he reasonable construction of the act of Congress, and the only one which will prevent the right of removal, to which the statute declares the party to be entitled, from being defeated by circumstances wholly beyond [the defendant’s] control, is to hold that the incidental provision as to the time must, when necessary to carry out the purpose of the statute, yield to the principal enactment as to the right” and that the statute permits and requires ""the defendant to file a petition for removal as soon as the action assumes"
2891	Under the “best interests of creditors” test of Chapter 13, a plan should not be confirmed if the property to be distributed under the plan is less than the amount each allowed unsecured creditor would be paid if the debtor’s estate were liquidated under Chapter 7. 11 U.S.C. § 1325(a)(4). EAC argues that because a student loan is not dischargeable under Chapter 7, EAC would have been entitled to payment in full, thus, the loan should not be discharged under Chapter 13. The simple fact that a loan that is nondischargeable under Chapter 7 does not make it nondischargeable under Chapter 13. The district court correctly rejected this argument. See In re Estus, 695 F.2d 311, 314 n. 5 (8th Cir.1982); In re Kitchens, 702 F.2d 885, 887 n. 2 (11th Cir. 1983); In re Akin, 54 B.R. 700, 702 (Bkrtcy.D.Neb.1985). The relevant issue is whether a creditor would in fact receive more in a Chapter 7 liquidation than it will under the proposed Chapter 13 plan. To determine this, the bankruptcy court mus. value the estate property, taking into account those assets that would be beyond the reach of the creditors in a Chapter 7 liquidation. If any creditor would receive more in a liquidation, the plan may not be confirmed. Thus, even if the loan could not have been discharged under Chapter 7, that does not mean that EAC would actually have been paid in a liquidation. If a
3942	limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this chapter_ (Emphasis added). Thus, section 85 plainly provides that a national bank may charge interest at the rate allowed by the laws of the state in which the bank is located. Marquette National Bank of Minneapolis v. First of Omaha Service, 439 U.S. 299, 99 S.Ct. 540, 54 5, 58 L.Ed.2d 534 (1978). A determination of the rate of interest allowed by state law has been accomplished by reference to the state court’s interpretation of the state’s constitution and statutes. First National Bank in Mena v. Nowlin, 509 F.2d 872, 876 (8th Cir.1975), citing As such, 12 U.S.C. § 85 does not merely incorporate the numerical rates established by the state, but adopts and encompasses the entire body of case law interpreting the state’s limitation of usury. Nowlin, 509 F.2d at 876. Under § 75-17-1, et seq., Miss.Code Ann. (1972 and its supplement), each provision of the statute establishes a maximum interest rate for various types of loan or credit transactions. Allied Chemical Corporation v. MacKay, 695 F.2d 854, 857 (5th Cir.1983). Plaintiffs rely on the Mississippi Code of 1942, as amended, Section 36, Laws 1966, Chapter 317, Section 1, effective from and after passage (approved June 15, 1966), which stated that: The legal rate of interest on
3168	without merit. After conducting evidentiary hearings, held in accordance with the July 7, 1994 Order of this Court, the trial court did not err in its denial of defendant’s application for post-conviction relief. The rights of the defendant were not prejudiced by the trial court’s failure to provide written or transcribed reasons for its denial of the defendant’s application for post-conviction relief. (Tr.2062)(emphasis added) The Supreme Court of Louisiana denied writs without comment. (Tr.2065) When the final state habeas decision is silent or ambiguous, such as the writ denial in this case, the federal court must “look through” to the last clear and explained state-court decision to determine whether the adjudication was on the merits or rested on a procedural bar. It could be argued that the trial judge’s adoption of the reasons in the prosecutor’s memorandum relied, at least in the alternative, on the procedural bar, but his ruling was not clear or express in that sense. The appellate court’s decision, which is the one that controls under Ylst, begins by flatly reject ing the claim for lack of merit. There is no hint that the appellate court denied relief based on a procedural deficiency, and it certainly cannot be said that the State court “clearly and expressly” rested its decision on any such independent state law grounds. Accordingly, there is no ground for a procedural bar defense. C.A Prima Facie Case To establish a prima
4490	[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 In order to satisfy the “strong inference” test without direct knowledge of the defendant’s state of mind, the Second Circuit has indicated two approaches by which scienter may be adequately pled. “The first approach is to allege facts establishing a motive to commit fraud and an opportunity to do so.” In re Time Warner, 9 F.3d at 269. “The second approach is to allege facts constituting circumstantial evidence of either reckless or conscious behavior” from which an intent or scienter may be inferred. Id. Therefore, in the instant motion, plaintiff has adequately pled scienter with sufficient particularity if the complaint either establishes defendants’ motive for committing fraud and an
4063	"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). . . 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) (concluding that debt was nondischargeable when a broker deprived a customer of his property by deliberately disposing of it); State Farm Fire & Cas. Co. v. Edie (In re Edie), 314 B.R. 6, 17 (Bankr.D.Utah 2004) (discussing destruction of property by fire cases under § 523(a)(6) and concluding that where the defendant intended to cause injury to property by fire, then willful and malicious intent to injure is proven under §"
1848	asserted fraud by the contractor in certifying the training of its solderers, that issue was abandoned by the government prior to trial. Instead, the government attempted to sustain the default on two other grounds. The first was that the contractor had falsified the results of leak tests performed on the TVPCs. The second was that Triad fraudulently concealed from MICOM its discovery that the wrong type of soldering flux may have been used on completed units. Fraud taints everything it touches. Carrier Corp. v. United States, 328 F.2d 328, 164 Ct.Cl. 666, 678 (1964). Consequently, proof of fraud by clear and convincing evidence is a ground for default termination. Joseph Morton Co., 757 F.2d at 1278-79; see Fraud is sufficient to vitiate acceptance of delivered contract goods. See Universal Sportswear Inc. v. United States, 180 F.Supp. 391, 145 Ct.Cl. 209, 214 (1959). On this basis, defendant seeks confirmation of the decision to default terminate, as well as return of payments made in excess of the value of completed units accepted. The government also raises as a defense a special plea in fraud pursuant to 28 U.S.C. § 2514 (1988). The effect of this provision is to forfeit claims tainted by fraud. Such fraud consists of knowingly or recklessly making false statements with intent to deceive. Ingalls Shipbuilding, Inc. v. United States, 21 Cl.Ct. 117, 122 (1990). The defense must be established
803	(Emphasis added.) Id., at 1220. Accordingly, disqualification is not required if an allegation that a judge might not be impartial is only speculative, conclusory, spurious, or vague. Smith v. Pepsico, 434 F.Supp. 524 (S.D.Fla.1977); Mavis v. Commercial Carriers, 408 F.Supp. 55 (C.D.Cal. 1975); Wounded Knee Legal Defense Offense Committee v. F.B.I., 507 F.2d 1281 (1974). In short, when an affidavit of prejudice does not meet the requirements imposed by 28 U.S.C. § 144 or 28 U.S.C. § 455, the Judge has no obligation to disqualify himself. U.S. v. Anderson, 433 F.2d 856 (8th Cir.1970). As a matter of law, the trial judge is equally obligated not to recuse himself when the facts do not give support to a charge of  cert. den. 405 U.S. 955, 92 S.Ct. 1173, 31 L.Ed.2d 232; U.S. v. Devlin, 284 F.Supp. 477 (1968). Plaintiff, a disgruntled and pertinacious litigant, seeks a review of the Court’s Opinion and Order filed on July 10, 1984. The foregoing is apparent from plaintiff’s affidavit closing remarks, to wit: “... so the District Court erred in his [sic] remarks against plaintiff in 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
2072	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  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
3889	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 factors must be considered: 1. A likelihood that the parties seeking the stay will prevail on the merits of the appeal; 2. The movant will suffer irreparable injury unless the stay is granted; 3. Other parties will suffer no substantial harm if the stay is granted; 4. The public interest will not be harmed if the stay is granted. In re Baldwin United Corp., 45 B.R. 385, 386 (Bkrtcy.S.D.Ohio 1984); accord, In re White Motor Corp., 25 B.R. 293, 297 (N.D.Ohio 1982); Hunter v. S.K. Austin Co. (In re Beck), 26 B.R. 945, 946 (Bkrtcy.N.D.Ohio 1983); In re Hotel Associates, Inc., 7 B.R. 130, 131-32 (Bkrtcy.E.D.Pa.1980); Cf. Unsecured Creditors’ Committee v. DeLorean (In re DeLorean Motor Co.), 755 F.2d 1223, 1228 (6th Cir.1985) (four factors regarding grant or denial of preliminary injunction); Hamlin Testing Laboratories, Inc. v. United States Atomic Energy Comm’n, 337 F.2d 221, 222 (6th Cir.1964) (factors to be considered respecting motion to stay administrative order pending judicial review). Based upon this Court’s decision on the merits of the appealed orders, including a reconsideration of the governing statutory provisions and applicable bankruptcy rules discussed in this and the court’s earlier bench opinion, it appears extremely' unlikely that the debtor will prevail
4928	"Supreme Court's decision in Swint v. Chambers County Commission , 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), we concluded that pendent appellate jurisdiction is restricted to two circumstances: (1) ""inextricably intertwined"" orders or (2) ""review of [a] non-appealable order where it is necessary to ensure meaningful review of [an] appealable order."" CTF Hotel Holdings, Inc. v. Marriott Int'l, Inc. , 381 F.3d 131, 136 (3d Cir. 2004) (citing E.I. DuPont , 269 F.3d at 203 ). ""Issues are 'inextricably intertwined' only when the appealable issue 'cannot be resolved without reference to the otherwise unappealable issue.' "" Invista S.A.R.L. v. Rhodia, S.A. , 625 F.3d 75, 88 (3d Cir. 2010) (quoting ""[T]he existence of an ... appealable order [does not] confer pendent appellate jurisdiction over an otherwise unappealable order just because the two orders arise out of the same factual matrix ..."" even if considering the orders together may be encouraged under ""considerations of efficiency."" Hoxworth v. Blinder, Robinson & Co. , 903 F.2d 186, 209 (3d Cir. 1990). ""[T]he pendent appellate jurisdiction standard is not satisfied when we are confronted with two similar, but independent, issues, and resolution of the non-appealable order would require us to conduct an inquiry that is distinct from and 'broader' than the inquiry required to resolve solely the issue over which we properly have appellate jurisdiction."" Myers v. Hertz Corp. ,"
3810	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 unclothed breast of any female person[.]” AEC § 3-129(9). While the First Amendment protects the expressive element contained in erotic dancing, the Court has been unable to find any case law affording that protection to intentional touching between workers and patrons, even if that touching may occur during part of an expressive performance. Indeed, section 3-129(9) is less restrictive than the “no touch” provision upheld in Hang On, 65 F.3d at 1253 (prohibiting all physical contact between dancers and customers); and Krontz v. City of San Diego, 136 Cal.App.4th 1126, 39 Cal.Rptr.3d 535, 544 (2006). It is also less restrictive than physical buffer and stage height requirements that have been routinely upheld. Gammoh v. City of La Habra, 395 F.3d 1114, 1127-28 (9th Cir.2005); Fantasy Ranch, 459 F.3d at 555-56; Deja Vu, 274 F.3d at 396-98; Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1061 (9th Cir.1986). In Hang On, the Fifth Circuit Court of Appeals held that the Arlington “no touch” provision did not restrict any First Amendment interests of either the dancer or the customer. 65 F.3d at 1253-54. “[I]ntentional contact between a nude [or clothed] dancer and a bar patron is conduct beyond the expressive scope of
1835	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” in Rwanda because of changed country conditions. Because Murangwa’s claims that he suffered past persecution, is eligible for humanitarian asylum relief and was deprived of due process were not exhausted, we lack jurisdiction. 8 U.S.C. § 1252(d)(1); see Sun v. Ashcroft, 370 F.3d 932, 944 n. 18 (9th Cir.2004) (discussing exhaustion in the context of constitutional challenges). II Murangwa argues that his family’s sufferings, the warning from his sister Marie Grace and the conditions in Rwanda, both past and present, compel the conclusion that his fear of future persecution is well-founded. We disagree. The claim that individuals with whom Murangwa’s father did business may want to silence him to prevent him from reporting their criminal acts is largely speculation and does not arise from a protected ground. Moreover, the conditions in Rwanda have changed markedly since the early and mid-1990’s. The new Rwandan government is Tutsi-controlled and, with the United Nations, has been actively seeking
4927	"City Sav., F.S.B. , 28 F.3d 376, 382 (3d Cir. 1994)as amended (Aug. 29, 1994) (citation omitted). Following the Supreme Court's decision in Swint v. Chambers County Commission , 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), we concluded that pendent appellate jurisdiction is restricted to two circumstances: (1) ""inextricably intertwined"" orders or (2) ""review of [a] non-appealable order where it is necessary to ensure meaningful review of [an] appealable order."" CTF Hotel Holdings, Inc. v. Marriott Int'l, Inc. , 381 F.3d 131, 136 (3d Cir. 2004) (citing E.I. DuPont , 269 F.3d at 203 ). ""Issues are 'inextricably intertwined' only when the appealable issue 'cannot be resolved without reference to the otherwise unappealable issue.' "" Soc'y for Testing & Materials v. Corrpro Companies, Inc. , 478 F.3d 557, 580-81 (3d Cir. 2007) (citations omitted) ). ""[T]he existence of an ... appealable order [does not] confer pendent appellate jurisdiction over an otherwise unappealable order just because the two orders arise out of the same factual matrix ..."" even if considering the orders together may be encouraged under ""considerations of efficiency."" Hoxworth v. Blinder, Robinson & Co. , 903 F.2d 186, 209 (3d Cir. 1990). ""[T]he pendent appellate jurisdiction standard is not satisfied when we are confronted with two similar, but independent, issues, and resolution of the non-appealable order would require us to conduct an inquiry that is distinct from and 'broader' than the"
595	of Birmingham, 239 F.3d 1199 (11th Cir.2001). Although Gamba contends his termination was in retaliation for having requested leave under FMLA, the City’s position that he was terminated after numerous documented instances of unsatisfactory job performance is well-supported by the record. Gamba was given, and does not dispute that he received, several written notices of problems in his job performance during his probationary period. The district court noted that Gamba “produced virtually no evidence in response” except to point to the temporal relationship between the leave request and his termination. Where the employer produces significant evidence of the employee’s poor performance, it is not enough that the request for leave and the termination are closely related in time. Having carefully reviewed the briefs and the record, and finding no error in the district court’s order granting summary judgment, we conclude that the judgment is due to be AFFIRMED.
3585	been implemented, and he does not allege that either. Of course it is possible that, being uncounseled, he didn’t know he had to allege an injury to himself, and merely took for granted that the court would assume that, of course, he is a smoker. So if we affirmed the dismissal of the suit with prejudice on the ground of lack of standing, we would be barring him on the basis of what may well be a pleading error rather than a fatal deficiency in the suit. Unless the plaintiff has standing, a court cannot reach the merits of his case. But there is an exception for the frivolous case. A frivolous case does not engage the jurisdiction of the court. Crowley Cutlery Co. v. United States, 849 F.2d 273 (7th Cir.1988). So frivolousness is an alternative jurisdictional ground for dismissal to lack of standing. Beauchamp’s case is frivolous. We can imagine that the sudden withdrawal of an addictive substance like tobacco might be employed as a form of torture by police or guards, but that is not alleged and with the Supreme Court having just held that prison officials may have a constitutional duty to protect inmates from high levels of ambient cigarette smoke, Helling v. McKinney, — U.S. -, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993), a prison could hardly be thought to be violating the Constitution by restricting smoking in the manner
2942	conflict of interest. Therefore, respondent avers that petitioner was not denied the effective assistance of counsel. The Sixth Amendment’s guarantee of the right to counsel is a fundamental constitutional safeguard which is vital in protecting the criminal defendant’s right to a fair trial. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The right to counsel was explicitly extended to state proceedings in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (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  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.
4056	"1-2. . Id. at 2. . Fed.R.Civ.P. 56(c); see also Diaz, 289 F.3d at 674 (""[T]he non-movant- must either establish the existence of a triable issue of fact under Fed.R.Civ.P. 56[ (c) ] or explain why he cannot ... under Rule 56[ (d) ].”). . Fed.R.Civ.P. 56(e)(2). . Fed.R.Civ.P. 56(e)(3). . See, e.g., Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) (""Although a 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)). . . 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"
2893	distributed under the plan is less than the amount each allowed unsecured creditor would be paid if the debtor’s estate were liquidated under Chapter 7. 11 U.S.C. § 1325(a)(4). EAC argues that because a student loan is not dischargeable under Chapter 7, EAC would have been entitled to payment in full, thus, the loan should not be discharged under Chapter 13. The simple fact that a loan that is nondischargeable under Chapter 7 does not make it nondischargeable under Chapter 13. The district court correctly rejected this argument. See In re Estus, 695 F.2d 311, 314 n. 5 (8th Cir.1982); In re Johnson, 787 F.2d 1179, 1181 (7th Cir.1986); In re Kitchens, 702 F.2d 885, 887 n. 2 (11th Cir. 1983); The relevant issue is whether a creditor would in fact receive more in a Chapter 7 liquidation than it will under the proposed Chapter 13 plan. To determine this, the bankruptcy court mus. value the estate property, taking into account those assets that would be beyond the reach of the creditors in a Chapter 7 liquidation. If any creditor would receive more in a liquidation, the plan may not be confirmed. Thus, even if the loan could not have been discharged under Chapter 7, that does not mean that EAC would actually have been paid in a liquidation. If a debtor has little or no non-exempt assets in his estate, liquidation under Chapter 7 does not put the creditor in any
3518	reasonableness, affording a presumption of reasonableness if the sentence is within a correctly calculated Guidelines range. See Rita v. United States, — U.S. —, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007) (approving presumption of reasonableness for sentences within advisory Guidelines range). Upon careful review of the record, we conclude that the district court correctly calculated Wainwright’s advisory Guidelines imprisonment range and reasonably sentenced him within that range. See United States v. Two Shields, 497 F.3d 789, 795-96 (8th Cir.2007) (defendant overcomes presumption of reasonableness if district court failed to consider relevant factor that should have received significant weight, gave significant weight to improper or irrelevant factor, or weighed appropriate factors in clearly erroneous way). After reviewing the record independently under  we have found no non-frivolous issues for appeal. Accordingly, we affirm, and we grant counsel leave to withdraw. . The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District Court for the Western District of Missouri.
4065	“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). . . See, e.g., McIntyre v. Kavanaugh, 242 U.S. 138, 141, 37 S.Ct. 38, 61 L.Ed. 205 (1916) (concluding that debt was nondischargeable when a broker deprived a customer of his property by deliberately disposing of it); State Farm Fire & Cas. Co. v. Edie (In re Edie), 314 B.R. 6, 17 (Bankr.D.Utah 2004) (discussing destruction of property by fire cases under § 523(a)(6) and concluding that where the defendant intended to cause injury to property by fire, then willful and malicious intent to injure is proven under § 523(a)(6)). .Doc.31.
1378	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). 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 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
1793	and, in any event, rivets are not permanent fasteners because they can be removed. In support of its contention that rivets are removable, plaintiff offers the affidavit of its Vice President of Engineering, Lawrence J. Cammuso. Mr. Cammu-so asserts that “rivets may be removed by using a drill with a drill bit, a rivet removal tool and other tools” and that the rivets used in the accused device “could readily be removed and replaced both during manufacturing and in the field.” Exhibit 2 to Plaintiffs Response at ¶ 19. Once removed, however, the rivets are not reusable; the pump assembly must therefore be reattached using new rivets or bolts and nuts. Id. at ¶ 21. Like the Court in  this court need not confront the existential question of whether any fastener can truly be considered permanent. As the Court noted, and the parties in this case agree, a “rivet-made permanent connection is of course not ‘infinitely’ permanent, because a rivet can be broken.” Id. at 1365. The common, ordinary meaning of removable or removably, however, does not include breaking what is meant to be a permanent connection. The court’s understanding that rivets are considered permanent connections is reinforced by the extrinsic evidence. See Exhibit 2(A) to Defendant’s Motion at 318 (“[r]ivets are permanent shear fasteners”); Exhibit 2(B) to Defendant’s Motion at 824 (“The most common method of permanent or semipermanent mechanical joining is by riveting.”) (emphasis in original). The intrinsic difference
475	water holes, bolt holes and combustion openings. It consists of sheets of thin copper with a thin copper binding-shell of ’ about the same thickness as that of the sheets. Appellant admits ' that it is substantially identical with the Chrysler all metal laminated gasket, used in 1926 and 1927, on Chrysler’s marine racing boat high compression engines. However, appellant contends that that use was not proved to have been a public commercial use. We start with the presumption of validity of the claim because of its allowance by the Patent Office. This, however, is substantially weakened by the fact, that the Chrysler use, if proved, was not before the Patent Office when the claim, was allowed. The McCord Radiator and Manufacturing Company, is appellant’s present licensee. During 1926 and 1927, and for a. long time prior thereto, it supplied the Chrysler Corporation with its requirements, for copper asbestos gaskets, that is to say, the asbestos constituted the filling of the-copper shell. These were then universally used, and are still universally used by-. Chrysler in all of its automobile motors.. In 1926 Mr. Walter P. Chrysler became: interested in racing boats. The Chrysler-Corporation thereupon, in 1926 and 1927,. designed, reduced to practice, commercially used under quite severe tests, and sold-. Chrysler marine engines in racing boats. They were equipped with all laminated, gaskets having a binding shell around the waterways and combustion openings. The; whells were about .015 of an
3603	debtor in payment for property being deeded to the District, and the Board assumed CERCLA “arranger” liability for the disposal of waste pursuant to 42 U.S.C. § 9607(a)(3), whereas the District is the owner of the property. A municipality may be liable as a potentially responsible party if it arranges for the disposal of hazardous substances. B.F. Goodrich Co., 958 F.2d at 1198 (“CERCLA expressly includes municipalities, states and other political subdivisions within its definition of persons who can incur such liability under § 9607.”). The concept of “arranger” liability requires a nexus between the potentially responsible party and the disposal of the hazardous substance, which is the obligation to exercise control over the hazardous waste disposal. The Board’s control and the other factors of joint interest lend weight to the efficacy of the indemnification. That the District issued the indemnity to the debtor, whereas the Board is the claimant, does not detract from the fact that if the Board’s late claim is allowed to be filed and is later sustained, the debtor will be able to look to the District for indemnification. The result will be a wash, but additional time, effort and legal fees will be incurred to reach this result, which will further delay the prompt confirmation of the debtor’s proposed plan of reorganization. CONCLUSIONS OF LAW 1. This court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. §§
1457	for two disabilities (the actual site and the protected site) when 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. 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
180	The controversy arises because the Commission’s abandonment order took effect pending our consideration of No. 14975. Panhandle has thus terminated its deliveries to Michigan Consolidated and is currently delivering the abandonment gas to its resale customers pursuant to the order here under review. Michigan Consolidated asks us to direct the Commission to require Panhandle to resume delivery to Michigan Consolidated forthwith. The Commis sion opposes this request, without stating its reasons, while Panhandle contends that, even though the instant order is set aside, the Commission should be free to maintain the status quo. Cf. American Broadcasting Co. v. Federal Communications Comm., 1951, 89 U.S. App.D.C. 298, 307, 191 F.2d 492, 502; .App.D.C. 358, 363, 231 F.2d 517, 522. Ordinarily, Michigan Consolidated would be entitled to retain the gas until it is abandoned by a valid order of the Commission. In allowing the abandonment to take effect, we cautioned the parties that they “acted at their own risk.” There is no reason apparent to us why the gas should not be returned to Michigan Consolidated pending final approval of an abandonment. But, as a court we are not equipped to allocate gas between competing parties. We are not aware, for instance, of all the physical, financial and equitable considerations which may affect the interest of those the Act was intended to protect — the ultimate gas consuming public. Hence we cannot assess where the balance of hardship would lie if the
2508	of the presumptions and burdens that will inhere at trial, it will likely prove that Keystone infringes its patents. See New England Braiding Co. v. AW. Chesterton Co., 970 F.2d 878, 882-83, 23 USPQ2d 1622, 1625-26 (Fed.Cir.1992). If Bell & Howell clearly established a likelihood of success, it was entitled to a rebuttable presumption that it would be irreparably harmed if a preliminary injunction were not to issue. Polymer Techs., 103 F.3d at 973, 41 USPQ2d at 1188. Literal infringement involves a two-step determination: the proper construction of the asserted claim and a determination whether the claim as properly construed reads on the accused product or method. The first step, claim construction, is a question of law, which we review de novo. Id. at 979, 34 USPQ2d at 1329. We proceed accordingly. Bell & Howell argues that the district court erred in construing the expression “integrally bonded ... free of adhesive.” Specifically, Bell & Howell argues that this expression means that the ribs adhere to the panels by themselves without the use of a separate layer of adhesive. Bell & Howell asserts that this construction is supported by the intrinsic evidence, viz., the patents’ specifications - and file histories, see Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1581-82, 39 USPQ2d 1573, 1576-77 (Fed.Cir.1996), and that the district court, despite
3771	judicial review and foregoing what he or she believes to be constitutionally protected activity in order to avoid ... [sanctions].”) The County does argue, however, that Plaintiff lacks third-party standing to litigate the rights of its danc ers by challenging the substantive criminal provisions of the AEC. (Def.’s Mem. at 8-9.) Third-party standing is an exception to the prudential requirement that a party must litigate its own rights and interests and not those of a third party. See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1251-52 (5th Cir.1995). A party may assert a third party’s rights if they share a close relationship, Craig v. Boren, 429 U.S. 190, 195, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (bartender and customers); if the third party is unlikely or unable to defend his or her rights in court, Barrows v. Jackson, 346 U.S. 249, 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
3393	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 States. If it were not, every suit to establish title to land in the central and western states would so arise, as all titles in those states are traceable back to those laws.” In .R.2d 987, 990, this court used simi-Iar language wherein it was said: “* * * In order for a suit to be one arising under the laws of the United States within the meaning of the removal statute, it must really and substantially involve a dispute or controversy in respect of the validity, construction, or effect of such laws, upon the determination of which the result depends. A right or immunity created by the laws 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
189	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. 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,
2863	to describe the premises with particularity, . . . there was no showing at any stage of the State court proceedings, and there has been no showing to date, that 1 Thomas Park appeared to be a multiple unit dwelling. The State court record indicates, to the contrary, that there was only one door from the outside, which opened into a hallway which gave access to the entire house. There has been no showing that the police officers knew or should have known from its physical appearance that 1 Thomas Part was a multiple dwelling house when they applied for the warrants . . .. [emphasis supplied] . Two companion cases, United States v. Ramos, 282 F.Supp. 354 (S.D.N.Y.1968), and  have been cited by the Government in support of its position on this point. The search warrant alleged to be defective in those cases authorized the search of “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,
4965	a purely subjective phrase like ‘aesthetically pleasing,’ a court must determine whether the patent’s specification supplies some standard for measuring the scope of the phrase. Thus, we next consult the written description.” 417 F.3d at 1351. The court determined that the written description failed to set forth “an objective way to determine whether an interface screen is ‘aesthetically pleasing.’ ” Id. at 1352. “[Wjhile the description of an embodiment provides examples of aesthetic features of screen displays that can be controlled by the authoring system, it does not explain what selection of these features would be ‘aesthetically pleasing.’ ” Id. Sun also argues that the claims are indefinite because they do not distinguish the prior art, citing d at 1253 (determining that claim term “fragile gel” was indefinite because “the specification does not distinguish how the ‘fragile gels’ claimed in the '832 patent performed differently than the disclosed prior art-how much more quickly the gels broke when stress was imposed or how much more quickly the gels reformed when stress was removed”). Sun contends that because the '720 patent specification offers no guidance for determining what systems meet the “increasing” limitation, under NetApp’s construction, the '720 patent claims read on the prior
4535	clear that the Secretary does have a unique, distinct, and separate public interest, duty and responsibility in bringing this ERISA action to enforce the trustees’ fiduciary obligations and duties, to ensure public confidence in the private pension system that provides billions of dollars of capital for investments affecting federal tax revenues and interstate commerce, and most importantly, to protect the income of the retired workers and beneficiaries. Further, the Secretary of Labor has a separate interest when he intervenes so-as to prevent the establishment of harmful legal precedent as well as to ensure uniformity in the enforcement and application of ERISA laws. Id. at 696, See also Herman v. S. Carolina Nat. Bank, 140 F.3d 1413, 1424 (11th Cir.1998) (same) (citing Donovan v. Cunningham, 716 F.2d 1455, 1462-63 (5th Cir.1983). The Supreme Court has addressed' the situation where the government seeks in-junctive relief which is potentially duplica-tive of relief already afforded to a private party. In United States v. Borden Co., the Supreme Court-held a private plaintiffs injunctive relief did not bar the federal government from bringing suit for. injunc-tive relief under the Clayton' Act, 15 U.S.C. § 25. 347 U.S. 514, 520, 74 S.Ct. 703, 98 L.Ed. 903 (1954). The district court had held the violations described in the government’s complaint and shown at thfe trial were, “for the most part, old violations .. -.- [and] the [private injunction] assure[d], as completely as any decree can assure, that there will
2989	which provides benefits to the public as a whole as opposed to individual or private interests.” CRMP § 130A(l). This time petitioner appealed the decision to the Rhode Island courts, challenging the Council’s conclusion as contrary to principles of state administrative law. The Council’s decision was affirmed. See App. 31-42. Petitioner filed an inverse condemnation action in Rhode Island Superior Court, asserting that the State’s wetlands regulations, as applied by the Council to his parcel, had taken the property without compensation in violation of the Fifth and Fourteenth Amendments. See id., at 45. The suit alleged the Council’s action deprived him of “economically, beneficial use” of his property, ibid., resulting in a total tak ing requiring compensation under He sought damages in the amount of $3,150,000, a figure derived from an appraiser’s estimate as to the value of a 74-lot residential subdivision. The State countered with a host of defenses. After a bench trial, a justice of the Superior Court ruled against petitioner, accepting some of the State’s theories. App. to Pet. for Cert. B-l to B-13. The Rhode Island Supreme Court affirmed. 746 A. 2d 707 (2000). Like the Superior Court, the 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,
2683	at 290) but such factual issues can become mixed with legal issues. Whether a contract is ambiguous is a matter of law, which we review de novo. Miller v. United States (In re Miller), 253 B.R. 455, 458 (Bankr.N.D.Cal. 2000) (“Miller I ”) (citing cases), aff'd, 284 B.R. 121 (N.D.Cal.2002) (“Miller II”). In this case we need not decide which standard applies to interpretation of the Plan because we would reach the same result whether we reviewed the bankruptcy court’s interpretation for clear error or de novo. Whether adequate notice has been given for purposes of due process in a particular instance is a mixed question of law and fact that we review de novo. V.DISCUSSION There is no question that Ventura violated the automatic stay by sending the Tax Lien Notice. The question is what damages are appropriate, if any. The bankruptcy court held Ventura partly responsible for Debtors’ legal fees and the costs associated with resolving their disputes with Bank, including some of the costs of refinancing their House to repay Bank what it had paid Ventura. The bankruptcy court also awarded Debtors $12,905.00 based on its view that Ven-tura’s lien had been reduced to $9,350.00 by the res judicata effect of the Plan and by Section 1327, which states in full: § 1327. Effect of confirmation (a) The provisions of a confirmed plan bind the debtor and each creditor, whether or
3010	question whether the application of a particular regulation to particular property “goes too far.” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922). Further, the state of regulatory affairs at the time of acquisition is not the only factor that may determine the extent of investment-backed expectations. For example, the nature and extent of permitted development under the regulatory regime vis-a-vis the development sought by the claimant may also shape legitimate expectations without vesting any kind of development right in the property owner. We also have never held that a takings claim is defeated simply on account of the lack of a personal financial investment by a postenactment acquirer of property, such as a donee, heir, or devisee. Cf. Courts instead must attend to those circumstances which are probative of what fairness requires in a given case. If investment-backed expectations are given exclusive significance in the Penn Central analysis and existing regulations dictate the reasonableness of those expectations in every instance, then the State wields far too much power to redefine property rights upon passage of title. On the other hand, if existing regulations do nothing to inform the analysis, then some property owners may reap windfalls and an important indicium of fairness is lost. As I understand it, our decision today does not remove the regulatory backdrop against which an owner takes title to property from the purview of the Penn Central inquiry. It simply restores balance to
3620	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 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 playing the video — on Eason’s ability to take Kuykendall through every step of what the video showed or to impeach Kuykendall based on his memory of the evening. Eason argues that the video was important because it would
3798	v. County of Maricopa, 384 F.3d 990, 1019-21 (9th Cir.2004) (applying strict scrutiny to ordinance proscribing the movements of dancers in adult entertainment establishments); Schultz v. City of Cumberland, 228 F.3d 831, 843-44, 846-48 (7th Cir.2000) (applying strict scrutiny to fondling statute that was a content-based restriction on expressive conduct because it only applied to adult establishments “based on the content of the materials they sell or display”); Centerfolds, Inc. v. Town of Berlin, 352 F.Supp.2d 183, 193-94 (D.Conn.2004) (applying strict scrutiny to an ordinance virtually identical to the AEC’s pre-amendment ordinance); Score, 319 F.Supp.2d 1224 (applying O’Brien in a facial overbreadth challenge of a simulated sexual conduct provision that precluded touching the sex organs or anus); see also Giovani Carandola, 396 F.Supp.2d at 652-53 (applying O’Brien to ordinance that restricted erotic movements including fondling or touching certain body parts); Brownell, 190 F.Supp.2d at 488-92 (applying O’Brien to erotic touching provision). Applying the O’Brien standard, the definition of SSA pertaining to fondling that is prohibited by section 3-129(3) is constitutionally infirm because it unnecessarily places a substantial burden on protected expression. O’Brien’s first prong is easily satisfied because the County certainly has the constitutional power to enact the challenged ordinance pursuant to its police power. Pap’s A.M., 529 U.S. at 296, 120 S.Ct. 1382; Barnes, 501 U.S. at 567, 111 S.Ct. 2456. As the preamble states, the ordinances were enacted “in the interest of the health, peace, safety, morals,
2674	MEMORANDUM AND ORDER SEALS, District Judge. Plaintiffs applied to the Comptroller of the Currency for permission to organize a new national bank pursuant to the provisions of 12 U.S.C. § 21 et seq. The Comptroller denied the application, and plaintiffs, alleging that the denial was “illegal, arbitrary, capricious and unfairly discriminatory,” filed in this court an action to compel the Comptroller to grant the charter or “to state the terms upon which plaintiffs’ application will be granted.” The Comptroller’s response asserted that denial of an application for a na tional bank charter is a matter committed by Congress to the Comptroller’s exclusive discretion and therefore, not subject to judicial review. In a Memorandum and Order dated October 28, 1970,  it was held that this court has jurisdiction to consider the Comptroller’s denial of plaintiffs’ charter application and that plaintiffs are included within that class of persons whose interest is sufficient to permit them to maintain such an action. By virtue, however, of the unquestionably great discretion committed to the Comptroller, the court was constrained to limit the scope of plaintiffs’ available discovery. Thus, plaintiffs have not been permitted either to depose the Comptroller or to require him to answer interrogatories. Furthermore, it was required that plaintiffs, in order to prevail, clearly demonstrate that the Comptroller exercised his discretion “in excess of his statutory grant of power, acted arbitrarily or capriciously, abused his discretion, or unlawfully discriminated in violation of the
3298	no impact on case involving sentence imposed as result of statutory minimum). Alarcon’s pro se argument that his guilty plea was not knowing or voluntary is not cognizable in this appeal, see United States v. Villareal-Amarillas, 454 F.3d 925, 932 (8th Cir.2006) (claim that guilty plea was not knowing and intelligent was not cognizable on direct appeal where defendant did not attempt to withdraw guilty plea in district court); United States v. Murphy, 899 F.2d 714, 716 (8th Cir.1990) (claim that guilty plea was involuntary must first be presented to district court and is not cognizable on direct appeal); and his claim that his counsel was ineffective is more properly raised in a motion under 28 U.S.C. § 2255, see By his guilty plea, Alarcon has waived any non-jurisdictional challenge to his prosecution, see Smith v. United States, 876 F.2d 655, 657 (8th Cir.1989) (per curiam), and he cannot challenge the drug quantity used for sentencing because he stipulated to the amount in his plea agreement, cf. United States v. Nguyen, 46 F.3d 781, 783 (8th Cir.1995) (defendant who explicitly and voluntarily exposes himself to specific sentence may not challenge that punishment on appeal). Having reviewed the record in accordance with Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw and deny Alarcon’s motions. The judgment of the district court is affirmed. .
1174	Musser, 65 F.3d 647, 650 (7th Cir.1995); Rekhi v. Wildwood Industries, Inc., 61 F.3d 1313, 1316 (7th Cir.1995); Tisza v. Communications Workers of America, 953 F.2d 298, 300 (7th Cir.1992); United States v. Parcel of Land, 928 F.2d 1, 4 (1st Cir.1991); Browning-Ferris Industries of South Jersey, Inc. v. Muszynski, 899 F.2d 151, 154-60 (2d Cir. 1990). We believe it is prudent to do so here. III. Federal courts naturally favor the settlement of class action litigation. E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 888-89 (7th Cir.1985), cert. denied, 478 U.S. 1004, 106 S.Ct. 3293, 92 L.Ed.2d 709 (1986); Metropolitan Housing Development Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1013 (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);
122	including whether, when and how to investigate or apprehend fugitives, are subject to the discretionary function exception. They contend that the  in support of this contention. The Federal Defendants further argue that the United States is liable neither for Anderson’s alleged negligence in disconnecting Sampson’s call, nor for the FBI’s alleged negligence in training or supervising Anderson because, under Massachusetts law, a private person would not be liable in like circumstances. Alternatively, the Federal Defendants argue that the complaint does not establish that the United States owed McCloskey a duty of care. They cite Leidy v. Borough of Glenolden, 277 F.Supp.2d 547, 569-70 (E.D.Pa.2003), in support of the proposition that there is no general duty to protect victims of crimes. For their part, the Plaintiffs assert that, in the context of a motion to dismiss, it
4111	"time on appeal. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). Furthermore, the Feggestads concede that they never visited the Atlantis website and that they did not read the Terms and Conditions before filing their lawsuit. Moreover, all of their arguments to satisfy this prong of the ""reasonable communicativeness” test are baseless. . The Feggestads also fault the district court for ignoring the fact that they had never visited the Atlantis before. They argue, citing to district court cases, that a plaintiff must have the opportunity to reject a forum selection clause ""with impunity.” While there is some language in the dissenting opinion in Shute to support such a stringent requirement, see t. 1522, 1529, 113 L.Ed.2d 622 (Stevens, J. dissenting), the binding precedent set out in Krenkel does not provide that a plaintiff can reject a forum selection clause ""with impunity.” Moreover, reversal here would make sense only if we required the district court to have made a finding that rejection ""with impunity” was possible, because the district court plainly found that the Feggestads had the opportunity to reject the agreement. ., Additionally, the Feggestads have not demonstrated inconvenience or unfairness, that the chosen law would deprive them of a remedy, or that enforcement of the forum selection clause would contravene public policy. See Lipcon, 148 F.3d at 1296."
3653	all of his work in Texas. Id. at 832, 835. The Indiana wage statute explicitly limits employers covered by the statute to those in Indiana, but does not so limit employees. In contrast, the Illinois Wage Act, by its language, limits employers and employees under the Wage Act to those in Illinois. See 820 ILCS 115/1. Thus, the Indiana statute is an example of how Illinois could have worded the Wage Act if it had wanted to include out-of-state employees within its purview. In contrast to the Indiana statute, Pennsylvania’s Wage Payment and Collection Law (‘Wage Payment Law”) does not define “employee” but defines “employer” as any entity or agent or officer of an entity employing any person in Pennsylvania. See In Killian, the defendants argued that the Wage Payment Law applied only to employment occurring in Pennsylvania, and because plaintiffs were never based in Pennsylvania and were not Pennsylvania residents, they could not bring a claim under the statute. Id. The court agreed. Noting that there was “scant legislative history” to guide it, the court looked at prior federal and state decisions that stated that the Wage Payment Law’s purpose was to offer protection to workers to whom wages were owed. Id. at 942. The court rejected plaintiffs’ argument that the Wage Payment Law was enacted to regulate the conduct of employers who employ persons within Pennsylvania. Id. It stated that the language of the cases reflected the “clear consensus” that
4141	to the facts of Robinson, Kane and Goldstein, and the relevant court cases therein, to find that Dockery is entitled to an award of $400,000.00 for past pain and suffering, and loss of enjoyment of life. In addition, Dockery must live with the aftermath of the accident and the pain and reduced quality of life to which he testified at trial, and should not be penalized for an early return to work, despite his pain, in an attempt to be productive and to provide for his family. Accordingly, the court awards Thomas Dockery $200,000.00 for future pain and suffering, and loss of enjoyment of life. The award for future pain and suffering must be reduced to its present value. See see also N.Y. C.P.L.R. 5041(e) (“[T]he period of time used to calculate the present value for damages attributable to pain and suffering shall be ten years or the period of time 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
4810	put them on notice that the room was still occupied. The only item seized in that room was found in a trash can. Under the evidence we conclude that the room was then vacant. Defendants thus may not complain of the search of that room and the seizure of an item from a trash can therein. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); United States v. Kress, 446 F.2d 358 (9th Cir. 1971). The other items seized at the motel and later received in evidence were taken from a trash can outside Rooms 19 and 20. What a person knowingly exposes to the public is not a subject of Fourth Amendment protection. When defendants placed articles in this public trash can outside the room, they surrendered their privacy with regard to those articles. See United States v. Minker, 312 F.2d 632, 634 (3d Cir. 1962). See also, Wattenburg v. United States, 388 F.2d 853, 857 (9th Cir. 1968). After being arrested at the motel on April 28, 1970, for failure to register as an ex-felon, defendant Jackson was transported to the Phoenix Police Department. An officer then removed several strands of hair from Jackson’s head for the purpose of expert comparison with hair samples found in the stocking remnants seized at the motel and in a stocking mask found in the alley adjacent to the bank.
829	the care and attention expected of consumers when making a purchase; (4) the length of time defendant has used the mark without actual confusion arising; (5) the intent of the defendant in adopting the mark; (6) the evidence of actual confusion; (7) whether the goods, though not competitive, are marketed through the same channels of trade and advertised through the same media; (8) the extent to which the targets of the parties’ sale efforts are the same; (9) the relationship of the goods in the minds of the public because of the similarity of function; (10) other facts suggesting that the consuming public might expect the prior owner to manufacture a product in the defendant’s market. No single factor is determinative and not all are appropriate in every case. Versa Products Co., Inc. v. Bifold Co. (Mfg.) Ltd., 50 F.3d 189, 202 (3d Cir.1995), cert. denied, 516 U.S. 808, 116 S.Ct. 54, 133 L.Ed.2d 19 (1995). In terms of strength and similarity, Liquid Glass concedes that it used Porsche’s trademarks and trade dress in its advertisements, knowing full well that those marks are “strong” and have developed “distinct recognition.” PI. Opp. Br. at 21. The relative inexpensiveness of car cleaning products also weighs in Porsche’s favor because consumers would not
3565	"have known that those actions would result in government indoctrination or in violations of the FHA. REVERSED and REMANDED. . For convenience, we refer to all of the Plaintiffs-Appellees collectively as “CHI.” We refer to Boise City and the Boise City Council collectively as ""the City.” We refer to the mayor, the Boise City Council members, and the two municipal employees collectively as “the individual defendants.” . CHI argues perfunctorily that we should not consider the legislative immunity question because the individual defendants ""did not assert legislative immunity in their Answer.” CHI's one-sentence argument on how it was prejudiced is woefully insufficient, and CHI has waived the argument by failing adequately to brief it. . Simply to adopt our previous analysis on this issue would be improvident. We now have the benefit of an expanded record on summary judgment, rather than the limited record we had in the preliminary injunction appeal. . CHI argues that the correct annual rent comparison between the two leases is the $1 per year the BRM paid versus the $125,000 in rent CHI reported to the City from the occupants of Community House. CHI ignores the fact that when the City was receiving this rent, it was also expending over $200,000 annually to fund operations at Community House. Once the BRM took over, the City was able to save that money and use it for other projects."
2559	had existed before; it merely waived the procedural right of the parties to have their claims to the escrow fund adjudicated in the Virginia court. The parties were at liberty to waive this right. Harris v. Avery Brundage Co., 305 U.S. 160, 164, 59 S.Ct. 131, 83 L.Ed. 100, rehear. den., 305 U.S. 674, 59 S.Ct. 247, 83 L.Ed. 437, aff’g. In re Tax Service Association v. Avery Brundage Co., 95 F.2d 373 (7th Cir. 1938); MacDonald v. Plymouth County Trust Co., 286 U.S. 263, 267, 52 S.Ct. 505, 76 L.Ed. 1093 (1932). The waiver was effective to permit the exercise of summary jurisdiction by the court even though the escrow fund had been attached in the state action. See Carney v. Sanders, 381 F.2d 300, 302 n. 3 (5th Cir. 1967); O’Dell v. United States, 326 F.2d 451, 455, 456 (10th Cir. 1964); cf. Schumacher v. Beeler, 293 U.S. 367, 55 S.Ct. 230, 79 L.Ed. 433 (1934); 5 Remington on Bankruptcy (5th ed. 1953) § 2200. The appellants rely upon In re Consolidated Container Carriers, Inc., 385 F.2d 362 (3rd Cir. 1967). In that case the court sustained an objection to the summary jurisdiction of the bankruptcy court over a fund that had been attached in a state action. The court pointed out, however, that at least one and possibly both of the objecting parties had “steadfastly refused to consent to the bankruptcy
3354	to the District Court with a suggestion that it request the submission of appropriate proposed orders from the parties and that it enter an order in the light of this opinion in language adequate to make possible a contempt proceeding if its decree is violated. The order is affirmed in part, modified in part, and remanded for further proceedings in accordance with this opinion. . The grant or denial of a preliminary injunction is customarily within the discretion of the district court, and the decision will not be disturbed on review unless there has been an abuse of that discretion. See State of New York v. Nuclear Regulatory Commission, 550 F.2d 745, 750-51 (2d Cir. 1977); 7 Moore’s Federal Practice f| 65.-04[2], at 65-47 to 65-49, fi 65.21 at 85 (Supp. 1976-77). This, of course, does not mean that we must inevitably affirm the district court’s decision. See Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1197 (2d Cir. 1971) (Friendly, J.) (. . . Congress would scarcely have made orders granting or refusing temporary injunctions an exception to the general requirement of finality as a condition to appealability . . . if it intended appellate courts to be mere rubber-stamps save for the rare cases when a district judge has misunderstood the law or transcended the bounds of reason). Carroll v. American Federation of Musicians, 295 F.2d 484, 488-89 (2d Cir. 1961).
2531	PER CURIAM. This appeal involves the question of whether a $95,000 judgment debt in favor of the judgment creditor (plaintiff-appellee, the widow of the decedent) for the shooting of her husband by defendant-appellant (the bankrupt), is dischargeable under the bankruptcy act, 11 U.S.C. § 523(a)(6). The bankruptcy court discharged the debt. District Judge Robert L. Taylor reversed, holding that the bankruptcy court should have applied the doctrine of collateral estoppel and should not have relitigated the issues determined against the bankrupt in an action between the same parties in a State Court. We affirm the district court, 6 B.R. 731, on authority of Upon motion of the appellant, and with the consent of the appellee, the appeal was submitted to this court on briefs without oral argument. Appellant (the bankrupt) shot the husband of appellee in the abdomen in a barroom altercation in Knoxville, Tennessee. The victim lived for approximately six weeks in the intensive care unit at the University of Tennessee Memorial Hospital, where he accrued medical bills in the amount of approximately $60,000 before his death. Appellant was charged with murder and entered a plea of voluntary manslaughter after plea negotiations. The widow filed a civil action against appellant in the Circuit Court of Knox County, Tennessee, for the wrongful death of her husband, charging that appellant (the bankrupt) “willfully, unlawfully, maliciously
4921	"how Plaintiffs have shown that knowledge of the purported policy can be imputed to Citizens. Such a barebones analysis, without citations to specific, factual support in the record, simply does not permit a reviewing court to conclude that the District Court in fact undertook the ""rigorous"" review mandated by our precedents. Moreover, it is unclear how the District Court reconciled contradictory testimony and other evidence explicitly undermining Plaintiffs' assertion that Citizens maintained a companywide ""policy-to-violate-the policy."" For example, not only were Plaintiffs' experiences confined to interactions with specific managers in distinct offices, but their statements are dissimilar and oftentimes ambiguous, reflecting in many instances nothing more than typical workplace concerns about MLO work ethic and effectiveness. See, e.g., ). For instance, Illinois MLO Valerie Dal Pino testified that, although her manager informed her and other MLOs that ""overtime needed to be preapproved by [a] manager,"" Dal Pino specifically stated that she was never instructed by her managers not to record ""all of the hours that [she] worked in a work week[.]"" (App. 2308, 51:9-12; 53:13-22). Similarly, Rhode Island MLO Cheryl Roach testified that she was instructed to ""request pre-approval"" before seeking overtime payment, but was never ""den[ied] permission to work more than 40 hours."" (Id. at 1909, 73:5-29). The same is true for several other Plaintiffs, including Ohio MLO"
2494	are highly conjectural, and a decision on these abstracted claims is unwarranted. See Cass County, 570 F.2d at 741-42 (connecting boundary decisions to disputes over taxing authority, criminal jurisdiction, and fishing and hunting rights cases). Plaintiffs cite a number of cases where courts have resolved land disputes through declaratory judgment, but none of them are analogous to this case. In each of the cited cases, there were concrete and specific incidents involving reservation boundaries and sovereignty. See id.; Yankton Sioux Tribe v. South Dakota, 796 F.2d 241 (8th Cir.1986) (conversion and declaratory action arising from non-Indian harvesting on a reservation lake). Plaintiffs ask the Court to focus on the Rosebud Sioux Tribe litigation. See  aff'd 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977). That suit sought a declaration of the original reservation boundaries intact after the defendant county exercised both civil and criminal jurisdiction over tribe members. 430 U.S. at 585, 97 S.Ct. 1361, 51 L.Ed.2d 660. In City of New Town v. United States, 454 F.2d 121 (8th Cir.1972), plaintiff, a North Dakota municipality, sought declaratory relief in the wake of particularized challenges to municipal authority. Even if plaintiffs have tracked the pleadings filed in those cases, their having done so does not make this dispute ripe. The distinction is pristine: Rosebud Sioux and City of New Town presented ripe factual disputes; this one does not. The cited cases involved explicit efforts
1971	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 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
3973	2014, but Schlegels did not appeal that order. Schlegels timely appealed the Dismissal Order on March 21, 2014. II.JURISDICTION The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(2)(A). We have jurisdiction under 28 U.S.C. § 158. III.ISSUE Did the bankruptcy court abuse its discretion in dismissing Schlegels’ bankruptcy case for failure to complete plan payments within five years? IV.STANDARDS OF REVIEW A court’s interpretation and application of a local rule is reviewed for an abuse of discretion. United, States v. Heller, 551 F.3d 1108, 1111 (9th Cir.2009). We review the bankruptcy court’s dismissal of a chapter 13 bankruptcy case under any of the enumerated paragraphs of § 1307(c) for abuse of discretion. A bankruptcy court abuses its discretion if it applied the wrong legal standard or its findings were illogical, implausible or without support in the record. TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832 (9th Cir.2011). Y. DISCUSSION The bankruptcy court did not abuse its discretion when it dismissed the Schlegels’ chapter 13 bankruptcy case for failing to complete their plan payments within the five-year period. Before we turn to the merits of the bankruptcy court’s decision to dismiss Schlegels’ chapter 13 case, we address an argument they raise regarding whether the court properly deemed the Motion to Dismiss as “uncontested.” The caption of the Dismissal Order, which appears to be a form order submitted by Trustee, reads:
3232	Inc., 105 L.R.R.M. 2762 (BNA) (N.D.Ohio 1978), aff'd, 620 F.2d 303 (6th Cir.1980). The Court concludes that these cases are inapposite because they concern claims for breach of expressly modified provisions arising from the employer’s post-modification conduct. Most of these cases decide whether the modification itself was a breach of the duty of fair representation, or an unfair labor practice, or a breach of contract. They do not apply to a claim for contract breach which accrued before a modification or a new agreement. More applicable are the cases which apply the common law doctrine of accord and satisfaction in the labor setting. See, e.g., Keppard v. International Harvester Co., 581 F.2d 764 (9th Cir.1978); Under these circumstances, it is clear that it is federal substantive law which controls resolution of the contractual dispute. [Textile Workers Union of America v.] Lincoln Mills, 353 U.S. [448] at 456-57, 77 S.Ct. [912] at 917-18 [1 L.Ed.2d 972 (1957)]. In the absence of controlling federal law principles, however, we may look for guidance to general common law principles, including the substantive law of the state in which the contract arose. These borrowed principles in this context, of course, are “absorbed as federal law” and become the federal common law 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
3562	holding that “rent discrimination” based on religion was unconstitutional — a reasonable official would not have known that the BRM lease violated the Establishment Clause. When the City undertook its RFI/RFP process, the BRM was the only entity that proposed to purchase Community House. Given that no other non-profit organizations were willing or able to keep the doors of the shelter open, the decision to lease the building to the BRM was reasonable. 2. The $2 Million Sale Price With respect to the option to purchase, case law before 2005 suggested that, generally, a sale of public property to a religious organization for less than market value would likely violate the Establishment Clause. See, e.g., Southside Fair Hous. Comm. v. City of New York, 928 F.2d 1336, 1348-49 (2d Cir.1991) (sale constitutional where party paid market value, land was transferred for private use, and property did not appear connected to the city in any way). But no case in the Ninth Circuit or elsewhere had held that a below-market sale would be unconstitutional where the organization also executed an important city policy and saved the city money — the situation with which we are confronted here. The City did not give the BRM a gift; in fact, it
3149	a viable argument that excluding inmates from emergency time credits because of their status as violent or repeat offenders violates the Equal Protection Clause, the Due Process Clause, or the Eighth Amendment. First, the magistrate’s recommendation properly concluded that violent or repeat offenders are not a suspect class; that the Act must therefore bear only a rational relationship to a legitimate state interest to withstand equal protection review; and that the Act is indeed rationally related to legitimate penological concerns. Keeton v. Oklahoma, 32 F.3d 451 (10th Cir.1994). Second, the magistrate’s recommendation also properly determined that Appellant, whose ineligibility under the Act was never in dispute, has no constitutionally protected liberty interest in shortening his sentence through emergency time credits. Cf. Thus, Appellant has no viable claim to any specific due process procedures. Lastly, the magistrate judge correctly rejected Appellant’s assertion that remaining in overcrowded prison conditions without the benefit of emergency time credits constitutes cruel and unusual punishment. Absent allegations of “deliberate indifference” by prison officials and of a “specific deprivation” of a “human need,” an Eighth Amendment claim based on prison conditions must fail. Wilson v. Seiter, 501 U.S. 294, 303-05, 111 S.Ct. 2321, 2326-27, 115 L.Ed.2d 271 (1991). Accordingly, we AFFIRM the judgment of the district court for the reasons set forth more fully in the magistrate’s recommendation, which the district court adopted in full. The
694	Ramos’s behalf was to file a motion before the Nebraska court to set aside Ramos’s drug conviction, relying on the authority conferred by Neb.Rev.Stat. § 29-2264. That court granted the motion in an order dated March 10, 2003, stating that “the adjudication previously entered by this Court is hereby set aside and nullified, and the Court further orders that all civil disabilities and disqualifications imposed as a re- suit of said adjudication are hereby removed.” After that date, proceedings continued before Immigration Judge (IJ) James R. Fujimoto, who sits on the Chicago immigration bench. Ramos, his lawyer, the witnesses, and the government’s lawyer participated by teleconference from Council Bluffs, Iowa, as we noted in an earlier decision in this matter. See In that opinion, we rejected the government’s argument that venue for this appeal properly lies in the Eighth Circuit rather than this court. Id. at 949. Although the government has now asked us to reconsider that decision, based on a new order issued by Chief Immigration Judge Michael J. Creppy that states that hearings will be presumed to be where the parties and lawyers are located, not where the IJ is, we decline the invitation. Ramos I established the law of the case with respect to venue for this proceeding, and we thus move on to the merits. ' We said earlier that Ramos “participated” in the hearings held in Council Bluffs before the Chicago judge, but one of
1263	make reinstatement unfeasible. Deloach, 897 F.2d at 822; see also Woodhouse v. Magnolia Hospital, 92 F.3d 248, 258 (5th Cir.1996) (reinstatement of the employee was not an abuse of discretion by the trial court); Mitchell v. Sisters of Charity of the Incarnate Word, 924 F.Supp. 793, 803 (S.D.Tex.1996). It is for the court to determine whether a front pay award is appropriate, and to determine the amount. Both the decision to award front pay and the amount awarded are reviewed by an appellate court under an abuse of discretion standard. Deloach, 897 F.2d at 822, 824. The court is allowed to conduct further proceedings as necessary to make the required determinations on an award of front pay. The cases do not indicate that expei*t testimony is necessary to make the correct determinations, although in at least one case an expert was used. Deloach, 897 F.2d at 822-23. Nevertheless, in other cases it appears that expert witnesses were not utilized. Instead, the court adduced from the evidence the relevant factors, calculated the amount, and entered judgment therein. See, e.g., Reneau, 945 F.2d at 870 (indicating that testimony on the rate of pay, supplemental income, and relevant length of time provides “substantial evi-dentiary support” for a front pay award); Mitchell, 924 F.Supp. at 804 (calculating front pay for two different plaintiffs, ostensibly without expert testimony). In this case, Plaintiff has not submitted the nature of the testimony that it
2994	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” will require compensation under the Takings Clause. Lucas, 505 U. S., at 1015; see also id., at 1035 (Kennedy, J., concurring); 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,
3499	for the displacement of state law. Id., 487 U.S. at 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. 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.”);
4270	Egan during the meeting. Junior Kreps and Curtis Duininck, both representatives of Buffalo, corroborated Hicks’ testimony by testifying that they did not recall a separate conversation between Hicks and Egan. The administrative law judge, in finding that Egan appeared as a more frank, forthright and truthful witness than Hicks, credited Egan’s version of the meeting and found that Hicks agreed to accept the terms of the employer association contract on August 13. Additionally, the administrative law judge found that Hicks’ refusal to sign a written document incorporating the terms of the negotiated contract constituted a violation of 29 U.S.C. § 158(a)(5) and (1). See NLRB v. Strong, 393 U.S. 357, 361, 89 S.Ct. 541, 21 L.Ed.2d 546 (1969); NLRB v. Ralph Printing & Lithographic Co., 433 F.2d 1058, 1061 (8th Cir. 1970), cert. denied, 401 U.S. 925, 91 S.Ct. 883, 27 L.Ed.2d 829 (1971). Petitioner Buffalo argues on this appeal that the factual issues resolved by the credibility findings of the administrative law judge must be reversed. This court has stated, however, that: The rule in this Circuit is that “the question of credibility of witnesses and the weight to be given their testimony” in labor cases is primarily one for determination by the trier of facts, [citations omitted.] This Court is not the place where that question can be resolved, unless it is shocking to our conscience. NLRB v. Morrison Cafeteria Co.
175	of this court. He has insisted that the action should have been brought against the United States, because of the fact that section 24 of the Judicial Code (U: S. Code, title 28, § 41 (20); (28 USCA § 41 (20), provided, to paraphrase it, that ail actions commenced after the passage of the Revenue Act of 1921 for the recovery of taxes illegally assessed and collected shall be brought against the United States in instances where the collector who collected the taxes in suit is either dead or out of office at the time the action is begun. The whole theory of these actions recognizes that the collector is personally liable for taxes erroneously assessed and collected by him. 39 S. Ct. 415, 63 L. Ed. 828. If it could be said properly that Rev. Stat. § 989 (28 USCA § 842), with reference to certificates of probable cause, related only to certificates of probable cause given in behalf of a collector in office at the time the suit is commenced, much force would be given to the defendant’s argument. At all events, it seems to me that the point must be deemed settled, in view of the decision of the Supreme Court in the ease of Smietanka v. Indiana Steel Co., 257 U. S. 1, 42 S. Ct. 1, 66 L. Ed. 99. There the taxes were collected by S. M. Fitch, when a collector of internal revenue, but the
2261	(9th Cir.1988), citing Matter of Baldwin-United Corporation, 43 B.R. 443, 451 (S.D.Ohio 1984); In re Armorflite Precision, Inc., 43 B.R. 14, affirmed 48 B.R. 994 (Bankr.D.Me. 1984); In re Tri-L Corp., 65 B.R. 774 (Bankr.D.Utah 1986) (Administrative expense payments are reserved to those who either help preserve and administer the estate to the benefit of all of the estate’s creditors). The determination of when a claim arises has proved to be a particularly vexing question where an environmental injury which gives rise to liability occurs pre-petition, but the remediation costs are expended post-petition. Generally, environmental compliance costs which arise from the debtor’s pre-petition conduct are treated as general unsecured claims. Dant and Russell, 853 F.2d at 709; In re Kent Holland Die Casting & Plating, Inc., 125 B.R. 493, 503 (Bankr.W.D.Mich.1991). However, courts have found an exception to this general rule when the pre-petition environmental contamination also poses an identifiable and imminent harm in the post-petition period which requires the expenditure of funds to contain or remediate the problem. In re Conroy, 24 F.3d 568 (3d Cir.1994); In re Chateaugay Corp., 944 F.2d 997, 1010 (2d Cir.1991); In re Wall Tube & Metal Products Company, 831 F.2d 118, 123-24 (6th Cir.1987); In re Peerless Plating, 70 B.R. 943, 948-49 (Bankr.W.D.Mich.1987). A number of courts which have found that post-petition costs of remedi-ating a pre-petition environmental injury are properly classified as administrative expenses, rely on Midlantic National Bank v.
3874	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); Bonneville’s claims regarding (1) Dr. Basse’s failure to renew other prescription medications; (2) Dr. Basse’s failure to treat his infected toenail; (3) the State’s failure to award good time credits; and (4) the denial of his right to humane conditions of confinement are raised for the first time on appeal and are factual in nature; therefore, we do not consider them. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.1999) (stating that this court will not allow a party to raise a claim for the first time on appeal). Bonneville’s appeal is without arguable merit and, therefore, frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.1983). Accordingly, the appeal is dismissed as frivolous. See 5th
1248	"280 n. 4).) Regardless, and not that the outcome would differ, the Court will follow the Second Circuit's instruction that Defendants must show “no possibility” of plaintiffs succeeding under current New York state law. See In re Fosamax Prods. Liab. Litig., 09-CV-4061, 2009 WL 3109832, at *2 (S.D.N.Y. Sept. 28, 2009) (“Most courts in this district have applied the 'no possibility' standard rather strictly.” (footnote omitted)); Locicero v. Sanofi-Aventis U.S. Inc., No. 08-CV-489S, 2009 WL 2016068, at *4 (W.D.N.Y. July 10, 2009) (""There is no reason to believe that the Second Circuit inadvertently used the language it did when it articulated the fraudulent joinder standard.” (internal quotation marks omitted)); Stan Winston Creatures, 314 F.Supp.2d at 183 (applying ""legally impossible” standard); only where there is ‘no possibility' of recovery is such a finding warranted.” (citation omitted)); Arseneault v. Congoleum Corp., No. 01-CV-10657, 2002 WL 472256, at *5 n. 4 (S.D.N.Y. Mar. 26, 2002) (disagreeing with Rezulin Products’ interpretation and favoring literal ""no possibility” standard). . Plaintiffs also assert an action to enforce contractual rights. (Chun Aff. Ex. C ¶¶ 167- 171.) This new action is asserted only against RBC, and because RBC is a diverse defendant, additional claims against RBC are immaterial to whether RBCCMC should be excluded based on fraudulent joinder. . It bears noting dial the Second Circuit has held that a ""nonsignatory party may be"
1357	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 at 362. On a factual challenge, the party opposing the motion must produce affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction. Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). Under a factual attack, the court need not presume the plaintiffs allegations are true. accord Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). In the absence of a full-fledged evidentiary hearing, however, disputed facts pertinent to subject matter jurisdiction are viewed in the light most favorable to the nonmoving party. Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1996). Federal courts are courts of limited jurisdiction, adjudicating only cases which the Constitution and Congress authorize. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). An Article III federal court must ask whether a plaintiff has suffered sufficient injury to satisfy the “ease or controversy” requirement of Article III of the U.S. Constitution. To satisfy Article III standing, a plaintiff must allege:
4530	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 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 in a personal remedy.” 813 F.2d 1539, 1542 (9th Cir. 1987). For that reason, the Court held the EEOC’s enforcement action was not mooted by a private plaintiffs lawsuit and settlement based on the sáme facts. Id. at 1543 (“[The private plaintiffs] settlement does not moot the EEOC’s right of action seeking injunctive relief to protect employees as
4746	104 S.Ct. 831, 838, 78 L.Ed.2d 645 (1984); Middlesex County Sewage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981); Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981); California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981); Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 91, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979); Various factors have been considered by the Supreme Court in discerning whether Congress intended a private remedy in a statute that does not expressly provide one. Key factors include the language of the statute itself, the surrounding statutory scheme, and the legislative history and purpose of the statute. Karahalios, 109 S.Ct. at 1286; Thompson, 108 S.Ct. at 516; Northwest Airlines, 451 U.S. at 91, 101 S.Ct. at 1580; Touche Ross & Co., 442 U.S. at 575-76, 99 S.Ct. at 2488-89. An analysis of these factors leads to the conclusion that Congress did not intend a private right of action under Section 471. A. Language of Section 471 The first factor to consider in determining
4041	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 as a matter of discretion due to Jassi’s lack of due diligence. The agency’s ultimate decision regarding whether to rescind an in absentia exclusion order under 8 C.F.R. § 1003.23 is discretionary. See Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005); see also Here, the BIA did not abuse its discretion, as it provided a rational explanation for denying the motion — the 12-year delay in filing. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001); see also, e.g., Zhao Quan Chen v. Gonzales, 492 F.3d 153, 155 (2d Cir.2007) (three-year delay suggested lack of diligence); Cekic v. INS, 435 F.3d 167, 171-72 (2d Cir.2006) (two-year delay suggested lack of diligence); Ali v. Gonzales, 448 F.3d 515, 516-17 & n. 2 (2d Cir.2006) (eleven-year delay suggested lack of diligence). For the foregoing reasons,
2564	OPINION AND ORDER ALLEN SHARP, District Judge. Lamont Hansborough, a prisoner confined at the Elkhart County Jail, submitted a complaint naming Elkhart Superior Court Judge James Reickhoff, Deputy Prosecutor Lawrence Meteiver, and Sheriff Michael Brooks as defendants. Pursuant to 28 U.S.C. § 1915A, the court must review the merits of a prisoner complaint seeking redress from a governmental entity or officer or employee of a governmental entity, and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Courts apply the same standard under § 1915A as when addressing a motion under Fed.R.Civ.P. 12(b)(6) to dismiss a complaint. A claim may be dismissed only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Accordingly, pro se complaints are liberally construed. 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
3147	he is ineligible for the sentence credits provided in the OMahoma Prison Overcrowding Emergency Powers Act, OMa.Stat.Ann. tit. 57, §§ 570-576 (West 1991 & Supp.1994) (“the Act”), enforcement of the Act violates his equal protection and due process rights by excluding him from the group benefitted from the Act, and violates the Eighth Amendment of the United States Constitution by forcing him to remain incarcerated in overcrowded prison conditions. The district court adopted the magistrate’s recommendation and dismissed Appellant’s complaint on Appellee’s motion for summary judgment. Appellant challenges that decision, and we AFFIRM. We review the grant of summary judgment de novo, applying the same legal standard used by the district court under Fed.R.Civ.P. 56(e). Viewing the record in the light most favorable to Appellant, the party opposing the motion, we find no error in the district court’s conclusion that no genuine dispute over a material fact exists, and that Appellees are entitled to judgment as a matter of law. See id. The Act at issue provides that whenever the Oklahoma prison population exceeds ninety-five percent of capacity for more than thirty days, all inmates who are not classified above a medium security level, not incarcerated for a violent offense, and not incarcerated for a “second or subsequent offense,” receive sixty days credit towards their sentences. Okla.Stat.Ann. tit. 57, §§ 572-573. Because Appellant is a subsequent offender incarcerated for a violent offense, he is ineligible
3080	substantial impairment to the major life activity of working. See Thompson v. Holy Family Hosp., 121 F.3d 537, 541 (9th Cir.1997); Williams v. Channel Master Satellite Sys., 101 F.3d 346, 349 (4th Cir.1996) (Holding as a matter of law that a 25-pound lifting limitation does not constitute a disability); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir.1996). Other courts have held that even lesser amounts were not substantial limitations. See Marinelli v. City of Erie, Pa., 216 F.3d 354, 364 (3rd Cir.2000) (10 pounds); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 644 (2nd Cir.1998) (10-20 pounds); Helfter v. United Parcel Service, Inc., 115 F.3d 613, 617-18 (8th Cir.1997) (10-20 pounds); Wooten v. Farmland Foods, 58 F.3d 382, 384-86 (8th Cir.1995) (10-20 pounds); Piascyk v. City of New Haven, 64 F.Supp.2d 19, 29-31 (D.Conn.1999) (15 pounds), aff'd 216 F.3d 1072 (2nd Cir.2000) (Table case); Gerdes v. Swift-Eckrich, 949 F.Supp. 1386, 1400 n. 5 (N.D.Jowa 1996) (10 pounds) aff'd 125 F.3d 634 (8th Cir.1997). Recognizing that a lifting restriction alone would not suffice, Plaintiff has offered Figueroa’s declaration, which the Court finds contains only bald assertions and conclusory statements, and fails to meet Plaintiffs specific burden of production in ADA “working” cases. The first obstacle that the Figueroa declaration faces is it conclusion: that Plaintiff is “virtually unemployable” in the manual labor field. This conclusion is made with casual disregard
244	Jacquard Knitting Mach. Co. v. Ordnance Gauge Co., 95 F.Supp. 902, 905 (E.D. Pa.1951). . See United States v. Markowitz, supra, 176 F.Supp. at pp. 686-687. . The court held in the Burch case that the principles of res judicata and collateral estoppel were not a bar to the forfeiture action because the criminal action involving the defendant was on a charge of conspiracy, not on the substantive acts [see pp. 6 and 7 of 294 F.2d 1 (5th Cir. 1961)]. It is noted that the criminal indictment against Markowitz was on the conspiracy charge, not on the substantive facts. . See, also, United States v. LaFranca, 282 U.S. 568, 575, 51 S.Ct. 278, 75 L.Ed. 551 (1931). . E. g., United States ex rel. Marcus v. Hess, 317 U.S. 537, 549-550, 63 S.Ct. 379, 87 L.Ed. 443 (1943). See, also, United States v. International Building Co., 345 U.S. 502, 73 S.Ct. 807, 97 L.Ed. 1182 (1953). . In the answer, he merely asserts that he is the President of the company; in the pre-trial memorandum he is called only the “principal” stockholder (see Documents Nos. 8 and 16). . His wife owned the remaining 10 shares. . In that case, the Coffey case was carefully distinguished. Noto also that the court, at p. 554 of the decision, stated: “The application of these general ideas to the case of a criminal prosecution followed by a
2698	has personal liability and the term “interest” cover claims against property of the debtor. The term “claim” would refer to debts which would be discharged under § 1328 and the term “interest” would refer to liens or interests in property which would be unaffected by a discharge under § 1328. Work, 58 B.R. at 871. Under this reasoning, a plan that provides for a claim but does not provide for an interest in property securing that claim does not affect the interest of the creditor in the property. The property vests free of the claim, but not free of the interest, which in this case is the lien of Ventura. On this appeal Debtors also cite  and Ivory, 70 F.3d 73. Neither case is contrary to our analysis. In Gregory the Ninth Circuit held that the holder of “a large, unsecured claim” receives adequate notice for purposes of due process when it receives “any notice from the bankruptcy court that its debtor has initiated bankruptcy proceedings” because “it is under constructive or inquiry notice that its claim may be affected, and it ignores the proceedings to which the notice refers at its peril.” Gregory, 705 F.2d at 1123 (emphasis added). The Ninth Circuit’s specific reference to an unsecured claim is important. Unsecured claims invariably are affected by bankruptcy. In contrast, as we have noted, in rem rights generally pass through bankruptcy unaffected. Therefore, unlike unsecured creditors, secured
3152	of Washington, D. C. as defined by the Interstate Commerce Commission, in special and charter sightseeing service, via limousines and buses.” The difference between the authority already held under docket MC-1'10258 and that applied for in MC-110258, Sub-No. 1 is that the Sub 1 application did not restrict the operations to tours originating and terminating in Washington, D. C., and did not restrict the operations to limousines having a capacity of not more than six adult passengers; and permitted the tours to be conducted partially by limousines and partially by buses. In its more important legal aspects, this case is quite similar to the decision of this Court in Norfolk Southern Bus t. 68, 95 L.Ed. 590, where this Court (District Judge Bryan dissenting) sustained an order of the Interstate Commerce Commission removing a “closed-door” restriction, thus permitting a motor common carrier of passengers to improve its service to the public by picking up passengers that formerly were passed by. We think it is necessary to add little to what was said in the opinion in that case, for, in the light of that opinion, the instant suit must be dismissed. There is no force in A. B. and W.’s contentions that the Commission failed to make adequate findings or that those findings were not supported by adequate and substantial evidence. The Commission (quite properly, we think) found that public convenience and necessity require
2916	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); § 5845(a). The shotgun was admitted into evidence and could be inspected by the jury. Its barrel was 10-1/2 inches long and its overall length was only 17 inches. Such characteristics are readily apparent and externally visible. The record is not devoid of evidence of Roberts’s guilt. Roberts’s conviction does not constitute a manifest miscarriage of justice. See Staples, 511 U.S. at 616 n. 11, 114 S.Ct. 1793; Reyna, 130 F.3d at 109 n. 6; Avants, 367 F.3d at 449. Accordingly, the judgment of the district court is AFFIRMED. 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.
3154	for us to add to what was said there. It seems, too, that 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, 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
1145	additional charge (the obstruction of justice offense). On that same date the Article 32 investigation officer was appointed and his report was submitted to the brigade commander on 15 May 1975 (10 days delay). On that same date the charges were forwarded to the staff judge advocate who, in turn, prepared and submitted his pretrial advice to the convening authority. On 16 May 1975, the charges were referred for trial by a general court-martial and the case was set for trial on 22 May 1975. The government contends that the commission of an intervening offense was an extraordinary circumstance which contributed to the delay and automatically authorized deferment of the original charge. (Citing United States v. Johnson, 23 U.S.C.M.A. 397, 50 C.M.R. 279,1 M.J. 101 (1975)). The Government also contends that the appellant’s own interference with the government’s ability to try him should estop him from raising the shield of Article 10 in his own behalf. We disagree. In United States v. Burton, supra, the United States Court of Military Appeals held that: “[A] presumption of an Article 10 violation will 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
1382	is not clear to the Court and it remains unclear how policies related to mental illness are at issue in light of the fact that discovery is confined to the issues raised in the pleadings. , The Court takes judicial notice of the dockets in the cases of Garlick v. County of Kern, Case No.: 1:13-cv-01051 LJO JLT, The Estate of Christopher McDaniel v. County of Kern, Case No.: 1:15-cv-01320 JAM JLT, 2015 WL 7282881 (E.D. Cal. Nov. 11, 2008) and M.M. v. County of Kern, Case No.: 1:16-cv-00376 DAD JLT. The court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid, 201(b); The record of this Court's docket is a source whose accuracy cannot reasonably be questioned, and judicial notice may be taken of court records. Mullis v. United States Bank, Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th. Cir. 1980). , The Court recognizes, as do the Plaintiffs, that this does not mean that no such unconstitutional conduct has occurred within this time period. However, it directly contradicts the statements of Plaintiff's
2338	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 F. 452, 457; Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U.S. 428, 434, 435, 31 S.Ct. 444, 55 L.Ed. 527; Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 63, 43 S.Ct. 322, 67 L.Ed. 523; Donner v. Sheer Pharmacal Corp., 8 Cir., 64 F.2d 217, 221, 222 and cases cited; Strong-Scott Mfg. Co. v. Weller, 8 Cir., 112 F.2d 389, 394. The following language from the case of Trane Co. v. Nash Engineering Co., 1 Cir., 25 F.2d 267, 269, is pertinent here: “The Eibel Case [261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523] certainly admonishes this court to give great weight to the practical results from a claimed invention; to look beyond the paper expression to the state of the art, before and after an alleged invention which is tested in actual practice. Dubilier Condenser Corp. v. New York Coil Co. (C.C.A.) 20 F.2d 723, 725; Minerals Separation v. Hyde, 242
3675	Philadelphia County granted Veal’s request to proceed with a nunc pro tunc petition for allowance of appeal to the Pennsylvania Supreme Court. On February 23, 1998, Veal’s request for allocatur was denied by the Pennsylvania Supreme Court without comment. On July 31,1998, Veal filed this habeas corpus petition. On October 23, 1998, Magistrate Judge Rapoport issued a Report and Recommendation that the petition for writ of habeas corpus be denied. On December 22, 1999, I granted Veal’s request for appointment of counsel. Magistrate Judge Rapoport recommended denying Veal’s petition because Veal “presented the same claims he raised here to the Superior Court. However, he did not seek discretionary review in the Supreme Court in a timely manner. Under the doctrine of  the petitioner’s failure to seek allocatur timely constitutes state procedural default that prevents federal habeas corpus review.” R & R at 5. Therefore, Magistrate Judge Rapoport concluded that Veal’s procedural default bars federal habeas review. See id. at 7. Based upon Judge Tenira’s order, petitioner Veal contends that he did not procedurally default on his claims. In his Amended Objections to the Report and Recommendation, he argues that he followed proper state procedure at the time, when he petitioned the Court of Common Pleas for nunc pro tunc relief. The Commonwealth asserts that Judge Temin’s Order was unlawful, and therefore, Veal failed to file a timely petition for allocatur with the Pennsylvania Supreme Court. Veal counters that Judge Temin’s Order was
3164	describes himself as an American Indian, complains that Bossier Parish officials failed to appoint an African American as a grand jury foreperson within 20 or more years preceding his indictment. This court has seen several similar claims that arose from parishes in this division, and it has granted relief to one African American petitioner in a case from Bossier Parish. See Clarence Hicks v. Cain, 97 CV 2460 (appeal filed by Warden but dismissed voluntarily). B. Procedural Bar The State first argues that the Campbell claim is proeedurally barred because Petitioner did not file a timely motion to quash the indictment as required by Louisiana law. That defense is fatal to most of the foreman-discrimination claims seen by this court. See Williams v. Cain, 125 F.3d 269, 274-75 (5th Cir.1997). This Petitioner also failed to file a timely motion to quash, but his claim is not subject to a procedural bar because the last reasoned state-court decision did not rely on the bar. A procedural bar serves as a defense to a federal petition only when the State court clearly and expressly relied upon the bar in its last reasoned ruling. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991); Foster v. Johnson, 293 F.3d 766, 786 (5th Cir.2002). Petitioner’s original post-conviction application did not challenge the indictment directly. Rather, he complained that his counsel were ineffective for failing to pursue the
3979	rejected debtors’ argument that they had satisfied their obligations under the plan simply because they paid the monthly dollar amount stated in the plan for 60 months. This argument ignored their failure to comply with the other plan terms — to pay any postpetition tax claims and to pay unsecured creditors a dividend of 10%. Id. at 399. The Panel held that debtors’ failure to pay the IRS claim or their unsecured creditors as promised in their confirmed plan constituted a material default warranting dismissal under § 1307(c)(6). Id. at 400. The Panel considered debtors’ failure to object to the IRS’s claim or to seek modification of their plan under § 1329 important in its decision. Id. In another similar case,  the debtors’ plan, confirmed prior to the claims bar date, provided for 36 monthly payments of $2,300 and a dividend of 65% to unsecured creditors. Id. at 333. Had the allowed claims been limited to those scheduled by the debtors, the $2,300 monthly payments would have been sufficient to provide the proposed 65% return to creditors within three years. However, the amounts for filed claims substantially exceeded debtors’ scheduled debts and debtors had not filed any objections to the claims. As a result, the plan failed to pay the 65% dividend by about $15,000. Id. The trustee moved to dismiss debtors’ case under § 1307(c)(6) for a material default in the plan. Debtors responded with a motion for discharge under § 1328(a).
1160	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.” Section 3583 of Title 18 provides that the district court may: revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on postrelease supervision, if the court, pursuant to the Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release, finds by a prepon derance of the evidence that the defendant violated a condition of supervised release, except that a defendant whose term is revoked under this paragraph may not be required to serve on any such revocation more than 5 years in prison
4409	plaintiffs have failed to allege material misstatements or omissions and scienter. Section 10(b), as effectuated by Rule 10b-5, makes it “unlawful for any person ... [t]o make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.” 17 C.F.R. § 240.10b-5(b). To state a claim under Section 10(b) and Rule 10b-5, the plaintiffs must allege that the defendants, in connection with the purchase or sale of securities, made a materially false statement or omitted a material fact, with scienter, and that the plaintiffs’ reliance on the defendants’ action caused injury to the plaintiffs. 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
4300	of defendant’s brief is devoted to arguing that Alamance could have been ready for trial. The question is not whether it was physically possible, but whether it was necessary. While there is no absolute right to dismiss on terms, Diamond v. United States, 5 Cir., 1959, 267 F.2d 23, 25, certorari denied 361 U.S. 834, 80 S.Ct. 85, 4 L.Ed.2d 75, the intendment of Rule 41(a) (2) is primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions. 5 Moore, Federal Practice ¶ 41.05 (2d ed. 1951). Whether, and on what terms, a dismissal without prejudice may be granted, is a matter left initially to the trial court’s discretion. d 850, 851; see Shaffer v. Evans, 10 Cir., 1958, 263 F.2d 134, 135, certiorari denied 359 U.S. 990, 79 S.Ct. 1119, 3 L.Ed.2d 978; Adney v. Mississippi Lime Co. of Missouri, 7 Cir., 1957, 241 F.2d 43, 45-46; Lyman v. United States, 1 Cir., 1944, 138 F.2d 509, certiorari denied 320 U.S. 800, 64 S.Ct. 429, 88 L.Ed. 483. But that does not excuse the failure to exercise any discretion, see Martin v. Graybar Electric Co., supra, 266 F.2d at page 203; cf. Grivas v. Parmelee Transp. Co., 7 Cir., 1953, 207 F.2d 334, 338, certiorari denied 347 U.S. 913, 74 S.Ct. 477, 98 L.Ed. 1069; Harvey Aluminum, Inc. v. American Cyanamid Co., D.C.S.D.N.Y. 1953, 15 F.R.D. 14, 18, or save from reversal an
1546	because of the state’s consent injunction, cannot be filled. As will be seen, infra, this court does not find a Section 2 violation in every district and it is imperative that elections be allowed to proceed free of federal interference in those districts in which no Section 2 violation is found. Throughout the course of this litigation, this court has marched to the solitary beat of its own drum, insisting that if Louisiana’s system for selecting its judges produces violations of Section 2 of the Voting Rights Act, the remedy should be to revise the system, not to make adjustments in a few “guilty” districts which may well need adjusting again in the future. (See, for example, the views expressed at None of the parties — plaintiffs, defendants, or intervenors — have joined the court’s march. Each insists that, as a finding of a Section 2 violation is district specific, so any remedy must also be limited to districts in which specific violations have been found. For reasons stated later, the court concludes that it lacks the power to impose a systemic remedy upon the state and that any remedy is indeed limited to “guilty” districts. Both the parties and the appellate court need to be aware of this court’s findings of fact. If, because of the Fifth Circuit’s resolution of the Texas case, revisions in this court’s conclusions of law are required, so be it. Accordingly, it is imperative that
2406	’... 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 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
1528	"accrued withdrawal liability before the actual withdrawal, beginning at the point where the Fund developed unfunded vested benefits. In its decision in Trustees of Teamsters Pension Trust Fund, of Philadelphia and Vicinity v. Federal Express Corp., No. 86-304, 1995 WL 791371, 1995 U.S. Dist. Lexis 1980, at *24 (D.Del. December 27, 1995), the District Court rejected this position, writing: ""The section of MPPAA that defines withdrawal liability ... does not support this reading.” This court agrees. Section 1381(a) states: ""If an employer withdraws from a multiemployer plan in a corn-píete withdrawal or a partial withdrawal, then the employer is liable to the plan.” (emphasis added). The same interpretation of this section was adopted by the Court of Appeals in ERISA does not impose withdrawal liability on every employer that belongs to a pension plan that has an unfunded vested liability. Moreover, ERISA calculates withdrawal liability according to when the employer withdraws from the pension plan. (emphasis added). . The Act provides different methods for computing withdrawal liability. Each method involves allocating the plan’s unfunded vested benefits among the participating employers. Unfunded vested benefits are defined as the actuarial present value of all nonforfeitable benefits under the plan, minus the value of the plan’s assets. 29 U.S.C. §§ 1391; and 1393(a)(1). . This observation is echoed in the case law. ""lT]he parties to a [collective bargaining agreement] may freely"
789	Moore, 405 F.Supp. 771 (D.C.W.Va.1976). A. TIMELINESS. The motion to recuse comes after judgment was entered and post trial motions were denied. The Opinion and Order dismissing the complaint was filed on July 10, 1984, and judgment was entered thereon on July 20, 1984. The motion for recusal was filed on August 28, 1984, subsequent to this Court’s order of August 22, 1984, scheduling a hearing on defendant’s application for attorneys’ fees. In order to disqualify a judge, a timely objection must be made, otherwise the objection is waived. U.S. v. Hall, 424 F.Supp. 508, affmd., 536 F.2d 313, cert. den., 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285; Accordingly, a motion for disqualification is untimely and becomes moot when filed after judgment. Kent v. Regional Office of Am. Friends Service Committee, 497 F.2d 1325, 1330 (9th Cir. 1974); Weber v. Coney, 642 F.2d 91, 92 (5th Cir.1981); U.S. v. Hall, 424 F.Supp. 508, affmd., 536 F.2d 313; Davis v. Cities Service Oil Co., 420 F.2d 1278 (10th Cir.1970). Plaintiffs motion filed 19 days after entry of Judgment is clearly untimely. B. SUFFICIENCY OF AFFIDAVIT. Plaintiff’s affidavit is a mixture of conclusory allegations, legal arguments, hearsay speculations, non sequiteurs, and irrelevant matters. Plaintiff asserts that attorney Harvey Nachman, a former law partner of the undersigned judge, is at present counsel for the undersigned judge. Plaintiff further alleges that: “Attorney William Estrella,
3270	Finally, the fringe benefit calculations to some degree favor U.S. Truck. The only eligibility requirement for paid holidays under the collective bargaining agreement was that the driver must work the day before the holiday. Exhibit 29 however assumed a requirement that the employee first earn $20,000 for that year before taking holidays or sick days. Under the rejected agreement, vacation pay was pro-rated from an employee’s average pay. Exhibit 29, however, calculated it at the minimum hourly rate, which would be a minimum for the employee’s average pay. The Court concludes that such complex calculations, while necessarily somewhat contrived, do not overstate the value of the Committee’s claim, and most likely understate it. See Mo-Kan Teamsters Pension Fund v. Creason, 716 F.2d 772, 777-78 (10th Cir.1983), cert. denied, 464 U.S. 1045, 104 S.Ct. 716, 79 L.Ed.2d 178 (1984); Heheman v. E.W. Scripps Co., 661 F.2d 1115, 1126 (6th Cir.1981), cert. denied, 456 U.S. 991, 102 S.Ct. 2272, 73 L.Ed.2d 1286 (1982); and United Brotherhood of Carpenters, Local 379 v. Day & Zimmerman, Inc., 531 F.Supp. 696, 700 (E.D.Tex.1982). Therefore, the Court concludes that the total losses calculated in Exhibit 29 are reasonably accurate and the debtor’s objections to the calculations must be rejected. 19. Four Local Unions Are Entitled to Damages For the Debtor’s Violation of the Dues Checkoff Provision of the Rejected Agreement. The Committee presented evidence on behalf of four local unions
3734	the law is now more clearly expressed in the language of the acts of 1924 and 1926, which provide (43 Stat. 275, and 44 Stat. 32 [26 USCA § 960, subd. (g)]) that, where a grantor of a trust reserves the power to revest himself with the title to any of the corpus of the trust, then the income of such part is the income of the grantor. While the act of 1924 is not applicable to the case at bar in the sense that the statute is not retroactive, nevertheless the action of Congress under the circumstances may well be regarded as a clarification of an originally obscure expression of legislative intent. The defendant apparently relies upon It does not appear that that ease was one involving a revocable trust. Furthermore, it was not the donor of the trust corpus who was the plaintiff, but the beneficiary of the income. There was no identification of the settlor and cestui, as is the ease in the present instance. Furthermore, there was no question concerning the reality of the trust, and that is an important and material element in the ease before me. Defendant’s motion to strike out testimony is granted to the following extent: All of the requests are granted with the exception of the first, which is partially granted, to the extent that the plaintiff’s testimony on pages 10, 11, 12, 13, 14, 15, 16, 17, and 18 is stricken
3377	Memorandum and Order (Doc. # 54) filed June 23, 1999, specifically: (1) the Court’s finding that when it denied Keys’ request to operate a Level V group home, the City violated the Fair Housing Act by discriminating against Keys on the basis of familial status; and (2) its further finding that based on the handicapped status of potential residents, the FHA applies. The Court has discretion whether to grant or deny a motion to reconsider. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir.1988). The Court may recognize any one of three grounds justifying reconsideration: an intervening change in controlling law, availability of new evidence, or the need to correct clear error or prevent manifest injustice. See 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
290	MEMORANDUM Phillip Jay Reschly appeals the revocation of his supervised release arising from the sentence imposed following his guilty-plea conviction of importation of marijuana in violation of 21 U.S.C. §§ 952 and 960. We dismiss for lack of jurisdiction. Reschly contends that the district court lacked jurisdiction to revoke his supervised release because the appeal from his conviction was pending before this Court. Reschly has completed serving the sentence imposed as a result of the revocation of his supervised release; accordingly, there ceases to be a justiciable case or controversy. See cf. United States v. Palomba, 182 F.3d 1121, 1123 & n. 3 (9th Cir.1999) (stating that a defendant lacks standing to challenge a completed sentence where he does not challenge the correctness of the underlying conviction). DISMISSED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
1204	issue, could not be liable for those breaches. (Id. at 3-4.) On June 17, 2009, Defendant RBC filed an Answer and asserted counterclaims against Plaintiffs. (Dkt. No. 4.) Plaintiffs timely filed the instant motion on July 17, 2009, and the motion was fully submitted on September 2, 2009. (Dkt. No. 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. 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
3464	"Dep. II”). . See Dep. of Officer Chris Butler at 38 (filed March 24, 1999) (hereinafter “Butler Dep.”). . See id. at 41; Dep. of Kelly Balch at 7 (dated Sept. 23, 1994) (filed March 24, 1999) (hereinafter ""Balch Dep. I.”). . See Butler Dep. at 45. . See id. . See Dep. of Office Greg Mize at 5-7 (filed March 24, 1999) (hereinafter ""Mize Dep.”). . See id. at 28. . See Butler Dep. at 89. . See id. at 97-98. . See Balch Dep. I at 20-21, 23-24; Balch Dep. II at 33-35, 111 (""That's him, he is the one.”). . See Balch Dep. I at 25-26. . See Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir.1998). . . Rankin, 133 F.3d at 1435 (citations omitted). . See id. at 1434. . Brodnicki v. City of Omaha, 75 F.3d 1261, 1264 (8th Cir.1996). . See Rankin, 133 F.3d at 1435 (citations omitted). . See Marx, 905 F.2d at 1507 (“That a defendant is subsequently acquitted or charges are dropped against the defendant is of no consequence in determining the validity of the arrest itself.’’) (citations omitted). . See id. at 1507 (citation omitted). . In a ""show-up,’’ a witness is asked to identify one suspect. . Plaintiff argues that summary judgment is inappropriate because the relevant facts are in dispute. See Pl.’s Resp. to Defs.’ Mot. for Summ. J. at 10. However, Plaintiff fails"
2232	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 Gurs the court stated that the Code does not create any extra “bona fide purchaser” rights for trustees under § 544(a)(3). A trustee must still check the public records and be aware of encumbrances as would any purchaser. See, In re Marino, 813 F.2d 1562, 1565 (9th Cir.1987). Section 549(d) states that an action to recover property may not be commenced after the case has been closed. 11 U.S.C. § 549(d)(2). See, In re Weiman, 22 B.R. 49 (9th Cir. BAP 1982); In re Wilson, 4 B.R. 605 (Bankr.E.D.Wash.1980). Wiley Brooks’ bankruptcy closed almost two years ago. Therefore, even if this court were to find the re-recordation invalid under the facts of this case, the time to avoid
48	"Gonzalez v. Media Elements, Inc., 946 F.2d 157 (1st Cir.1991); Law Enforcement Insurance Co. v. Corcoran, 807 F.2d 38 (2d Cir.1986); Lac D’Amiante du Quebec Ltee v. American Home Assurance Co., 864 F.2d 1033 (3d Cir.1988); Hartford Casualty Insurance Co. v. Borg-Warner Corp., 913 F.2d 419 (7th Cir.1990); Grimes v. Crown Life Insurance Co., 857 F.2d 699 (10th Cir.1988). .Only one federal court has given traction to the Superintendent’s argument that the New York rehabilitation proceedings left the district court without jurisdiction to rule on Gallon’s summary judgment motion. In But in Martin, we squarely refused to adopt that position stating, ""[ajlthough we agree with the district court that this case should be dismissed, we do not think dismissal should be based on lack of subject matter jurisdiction in federal courts.” 910 F.2d at 254-55 (concluding that dismissal under the Burford abstention doctrine was more appropriate). . See n.8 and discussion, supra. . See, e.g., Pioneer Inv. Servs. Co. v. Brunswick Assoc., 507 U.S. 380, 393, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (""If a party is partly to blame for the delay, relief must be sought within one year under [Rule 60(b)(1)] and the party’s neglect must be excusable.""); Claremont Flock Corp. v. Alm, 281 F.3d 297, 299 (1st Cir.2002)."
4910	"23(c)(1)(B), an order granting class certification must include: ""(1) a readily discernible, clear, and precise statement of the parameters defining the class or classes to be certified, and (2) a readily discernible, clear, and complete list of claims, issues or defense to be treated on a class basis."" Wachtel ex rel. Jesse v. Guardian Life Ins. Co. , 453 F.3d 179, 187-88 (3d Cir. 2006). ""Although a motion for class certification presents a discretionary question for a district court, the court 'must clearly articulate its reasons, in part, so we can adequately review the certification decision on appeal under Rule 23(f).' "" Neale v. Volvo Cars of N. Am., LLC , 794 F.3d 353, 369 (3d Cir. 2015) (quoting Our decision in Marcus is instructive on this issue. In that case, after applying the Wachtel standard to the facts at issue, we held that the district court failed to satisfy Rule 23(c)(1)(B) because the court's order, ""[r]ather than set[ting] out its own [class] definition,"" merely stated that ""the New Jersey sub-class is granted"" and then cited to a docket entry for the plaintiff's amended notice of motion for class certification. Marcus , 687 F.3d at 592. While recognizing that the district court and counsel may have ""share[d] [an] understanding of the class definition,"" we nevertheless emphasized that ""post hoc clarification is no substitute for a readily discernible, clear, and precise statement of the parameters defining the class"
3341	v. Wyckoff, Seamans & Benedict, 198 U.S. 118, 25 S.Ct. 609, 49 L.Ed. 972 (1905); Meneely v. Meneely, 62 N.Y. 427 (1875). See McCarthy, Trademarks in Unfair Competition, § 13.3 pp. 459-560 (1973 ed.). With the passage of the Federal TradeMark Act of 1905, 33 Stat. 724, and an increasing commercial reliance on marketing techniques to create name recognition and goodwill, the courts adopted a more flexible approach to the conflicting property interests involved in surname trademark infringement cases. By 1908, the Supreme Court was willing to enjoin the use of a surname unless accompanied by a disclaimer. Herring-Hall-Marvin Safe Co. v. Hall’s Safe Co., 208 U.S. 554, 559-60, 28 S.Ct. 350, 52 L.Ed. 616 (1908). Shortly thereafter, in E. Waterman Co. v. Modern Pen Co., 235 U.S. 88, 35 S.Ct. 91, 59 L.Ed. 142 (1914), the Supreme Court established what has since become a guiding principle in trademark surname cases. Once an individual’s name has acquired a secondary meaning in the marketplace, a later competitor who seeks to use the same or similar name must take “reasonable precautions to prevent the mistake.” L. E. Waterman Co., supra, at 94, 35 S.Ct. at 92. It is, however, difficult to distill general principles as to what are “reasonable precautions” from the Supreme Court’s decisions in Thaddeus Davids and Waterman. In Davids, supra, the Court affirmed without modification a lower court decree enjoining entirely the
3088	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. 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
1683	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. 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.
1991	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  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 injury) or a medical diagnosis (such as with respect to a current disability), competent medical evidence is generally required to fulfill the well-grounded-claim requirement of section 5107(a) that the claim be “possible” or “plausible”. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); see Caluza, supra. Where the determinative issue does not require medical
1748	"of the initial pleading”) (citing Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354-55, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999)). . 28 U.S.C. § 1446(b) (emphasis added). . Moore's ¶ 107.30[3][a][ii]. Accord Lovern v. General Motors Corp., 121 F.3d 160, 162 (4th Cir.1997) (""The statute does not preclude defendants from removing a case where their discovery of the grounds of federal jurisdiction is belated because facts disclosing those grounds were inadequately or mistakenly stated in the complaint.”). . Yankee Bank for Fin. & Sav., FSB v. Hanover Square Assocs.-One Ltd. P’ship, 693 F.Supp. 1400, 1411 (N.D.N.Y.1988) (quoting Wilson v. Intercollegiate (Big Ten) Conference Athletic Assoc., 668 F.2d 962, 965 (7th Cir.1982)). . See H."
58	this practice after filing bankruptcy until Johnson obtained possession of the remaining cattle on December 28, 2001, pursuant to order of the Bankruptcy Court. Johnson filed a complaint seeking a determination that the Debtor’s indebtedness to him as assignee of the Bank constitutes a debt for willful and malicious injury which should be excepted from discharge pursuant to 11 U.S.C. § 523(a)(6). The Bankruptcy Court determined that Johnson satisfied the willful prong of the test but failed to establish malice. Johnson appeals the conclusion that the debt is not for a malicious injury. STANDARD OF REVIEW The determination of whether a party acted maliciously inherently involves inquiry into and finding of intent, which is a question of fact. Johnson v. Fors (In re Fors), 259 B.R. 131, 135 (8th Cir. BAP 2001). Questions of fact are reviewed under the clearly erroneous standard and are not to be reversed unless after reviewing the record the appellate court is left with the definite and firm conviction that a mistake has been committed. Waugh, 95 F.3d at 711; Barclays Am./Bus. Credit, Inc. v. Long (In re Long), 774 F.2d 875, 877 (8th Cir.1985); Fors, 259 B.R. at 135. Due deference shall be given to the opportunity of the trier of fact to judge the credibility of the witnesses. Fors, 259 B.R. at 136; TriCounty Credit Union v. Leuang (In re Leuang), 211 B.R. 908, 909 (8th Cir. BAP 1997). Where the
2765	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 Hamilton aptly summarized the two views as follows: On one side, for example, district courts held that waivers were limited to matters actually communicated between attorney and client in Thorn EMI North America, Inc. v. Micron Technology, Inc., 837 F.Supp. 616, 620-22 (D.Del.1993); Steelcase Inc. v. Haworth Inc., 954 F.Supp. 1195, 1199 (W.D.Mich.1997); and These courts have reasoned that the relevant intent is that of the client, not of the attorney. Thus, reliance on advice of an attorney effects a waiver only regarding information known to the client, which could be relevant in deciding whether the client reasonably relied on the advice of the attorney. On the other side, district courts ordered discovery of opining attorneys’ internal drafts, research notes, and thought processes in Greene, Tweed of Delaware, Inc. v. DuPont Dow Elastomers, L.L.C., 202 F.R.D. 418, 420, 422 (E.D.Pa.2001); Novartis Pharmaceuticals Corp. v. EON Labs Mfg., Inc., 206 F.R.D. 396, 399 (D.Del.2002); Mushroom Associates v. Monterey Mushrooms Inc., 24 U.S.P.Q.2d 1767, 1771 (N.D.Cal.1992); and Handgards, Inc. v. Johnson & Johnson, 413 F.Supp. 926, 929-31
3840	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 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 detainee’s first amendment rights where the state failed to show that the ban served a legitimate governmental objective. Van Cleave’s complaint also alleges that he was released from the county jail on July 6, at 6:00 p.m., however “the Sergeant told [Van Cleave] that [his] money and identification were locked in the safe and no one could
2325	showing the equivalent of Packwood’s dispensing and agitating elements. This resulted in Packwood’s acquiescence in the rejection of three of his proposed claims, all of which were for a dispenser including as an element a plunger with a cup member secured to it, but none of which included agitation means as an element, as did Claim 4. The claim of the application which became Claim 4 of the patent was allowed without criticism or comment. It is of no consequence that, in the course of the proceedings in the Patent Office, the rejection of narrow claims was followed by the allowance of a broader claim. Westinghouse Electric & Mfg. Co. v. Condit Electrical Mfg. Co., 2 Cir., 194 F. 427, 430; 16, 55 S.Ct. 279, 79 L.Ed. 721; See and compare, National Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co., 8 Cir., 106 F. 693, 714. The defendant also contends that Claim 4 must be read in the light of the specification and drawings, and that, when so read, it is apparent that the accused device does not infringe, because the dispensing element attached to the plunger of that device is different. The particular forms of devices described in specifications are to be considered as the forms which are preferred by the inventor. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 418, 28 S.Ct. 748, 52 L.Ed. 1122; National Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co., 8 Cir., 106 F. 693,
67	to the injury, must be deliberate or intentional. Geiger, 523 U.S. at 61-62, 118 S.Ct. at 977. Malice requires conduct which is targeted at the creditor, at least in the sense that the conduct is certain or almost certain to cause financial harm. Madsen, 195 F.3d at 989; Scarborough, 171 F.3d at 641; Waugh v. Eldridge (In re Waugh), 95 F.3d 706, 711 (8th Cir.1996); Barclays Amer./Bus. Credit, Inc. v. Long (In re Long), 774 F.2d 875, 881 (8th Cir.1985); Fors, 259 B.R. at 136. In order to except a debt from discharge under 11 U.S.C. § 523(a)(6), the plaintiff must establish by a preponderance of the evidence that the debt arises from an injury which is both willful and malicious. Scarborough, 171 F.3d at 641; Fors, 259 B.R. at 136. Here, the Bankruptcy Court determined that Johnson established that the debt was for a willful injury but faded to establish that it was for a malicious injury. The issue of willfulness was not appealed. Consequently, the sole issue on appeal is whether the debt was for a malicious injury. Malice requires conduct more culpable than that which is in reckless disregard of the creditor’s economic interests and expectancies. Long, 774 F.2d at 881. The debtor’s knowledge that he or she is violating the creditor’s legal rights is insufficient to establish malice absent some additional aggravated circumstances. Conduct which is certain or almost certain to cause financial
2722	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. Additionally, disposition of this matter might be considerably delayed and the cost multiplied if, at the close of the liability portion of the trial, the parties only then commenced discovery concerning damages. In the present case, defendant has failed to demonstrate that judicial economy will be maximized or that cost to the parties will be minimized by bifurcating the liability and damage portions of this case or that defendant will be prejudiced by failure to bifurcate. See Conclusion Plaintiffs request for leave to add a jury demand to the amended complaint is denied. Plaintiff shall serve his amended complaint within ten days of the issuance of this memorandum and order. Defendant’s motion to bifurcate is denied. The parties shall appear for a status conference in this matter on January 28, 1993 at 11:00 a.m., in courtroom 36. SO ORDERED.
3514	PER CURIAM. James Wainwright pleaded guilty to conspiring to commit bank fraud and other offenses, in violation of 18 U.S.C. §§ 371, 1349, and bank fraud, in violation of 18 U.S.C. § 1344. At sentencing, the district court determined that Wainwright’s advisory Guidelines imprisonment range was 41-51 months, noted its consideration of the 18 U.S.C. § 3553(a) factors, and sentenced Wainwright to concurrent 46-month prison terms, to be followed by 5 years of supervised release. Wainwright appeals, and in a brief under  counsel raises issues concerning the reasonableness of Wainwright’s prison sentence. We review a sentence for reasonableness, affording a presumption of reasonableness if the sentence is within a correctly calculated Guidelines range. See Rita v. United States, — U.S. —, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007) (approving presumption of reasonableness for sentences within advisory Guidelines range). Upon careful review of the record, we conclude that the district court correctly calculated Wainwright’s advisory Guidelines imprisonment range and reasonably sentenced him within that range. See United States v. Two Shields, 497 F.3d 789, 795-96 (8th Cir.2007) (defendant overcomes presumption of reasonableness if district court failed to consider relevant factor that should have received significant weight, gave significant
4232	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. 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
3021	decreases the target’s business and leaves it less able to resist union demands. Note, Secondary Boycotts and Work Preservation, 57 Va.L. Rev. 1280, 1289 (1971). . In this case the Board found that the union exerted pressure against the neutrals, PRMMI and MTM, in order to force changes in the operation of San Juan, International and Sea Freight. Under National Woodwork Manufacturers v. N. L. R. B., supra, the union’s defense was that it sought to preserve work traditionally done by its members. Although the administrative law judge cited no cases, his Decision and Order appear to be based upon National Woodwork. In the interim, another circuit has decided a case strikingly similar to this one.  cert. denied 429 U.S. 1041, 97 S.Ct. 740, 50 L.Ed.2d 753 [1977]. And, just six days after oral argument in our case, the Supreme Court further illuminated the contours of the secondary boycott. N. L. R. B. v. Enterprise Ass’n. of Steam, Hot Water, etc. Pipefitters, 429 U.S. 507, 97 S.Ct. 891, 51 L.Ed.2d 1 [1977]. This trio of cases provides the framework for our discussion. NATIONAL WOODWORK AND WORK PRESERVATION National Woodwork Manufacturers v. N. L. R. B. involved a boycotted product. Frouge Corporation, a general contractor, employed union carpenters on a housing project in Philadelphia. The company and the union agreed to be bound by a local collective bargaining agreement. Rule 17 of that agreement prohibited the use
2766	communicated between attorney and client in Thorn EMI North America, Inc. v. Micron Technology, Inc., 837 F.Supp. 616, 620-22 (D.Del.1993); Steelcase Inc. v. Haworth Inc., 954 F.Supp. 1195, 1199 (W.D.Mich.1997); and Nitinol Medical Technologies, Inc. v. AGA Medical Corp., 135 F.Supp.2d 212, 218-19 (D.Mass.2000). These courts have reasoned that the relevant intent is that of the client, not of the attorney. Thus, reliance on advice of an attorney effects a waiver only regarding information known to the client, which could be relevant in deciding whether the client reasonably relied on the advice of the attorney. On the other side, district courts ordered discovery of opining attorneys’ internal drafts, research notes, and thought processes in Novartis Pharmaceuticals Corp. v. EON Labs Mfg., Inc., 206 F.R.D. 396, 399 (D.Del.2002); Mushroom Associates v. Monterey Mushrooms Inc., 24 U.S.P.Q.2d 1767, 1771 (N.D.Cal.1992); and Handgards, Inc. v. Johnson & Johnson, 413 F.Supp. 926, 929-31 (N.D.Cal.1976), among other cases. These courts have asserted that a fair test of the client’s reliance on an attorney’s opinion requires a full opportunity to explore the attorney’s reasoning, including examination of internal drafts, research files, and thoughts and doubts that were never communicated to the client. See, e.g., Novartis Pharmaceuticals, 206 F.R.D. at 399. Eco Mfg. LLC v. Honeywell Intern., Inc., 2003 WL 1888988, *4-5 (S.D.Ind. April 11, 2003). In Eco, Judge Hamilton found that, because the relevant issue is the intent of the
1013	none pleaded) will be made by the Purchaser against the Seller and not against any assignee of the Seller, and the Purchaser will not set up any claim against the Seller as a defense, counterclaim or offset against any assignee of the Seller hereunder, whether or not action be brought by the assignee, and whether or not any action brought by such assignee be brought hereunder for the purchase price or for possession of the property.” The quoted language indicates the essential difference between the contract status of these defendants toward their sellers with respect to the latter’s dealings with an assignee of the contracts of sale, and that which existed in the comparable relationship in Moreover, the provisions of Title 28 U.S.C.A. § 1441(c), effective September 1, 1948, whereby this Court may remand in part and retain in part, point the way to what is thought to be the correct decision herein, the exercise of discretion being based upon these considerations: A. The controversy between each defendant, as third party plaintiff, and the third party defendant, is completely separate and distinct from that stated in .the pleadings between' the plaintiff and each defendant; it is between parties of diverse citizenship and the removal thereof to this Court was proper and is not subject to attack. B. The New York State Supreme Court has already acquired jurisdiction of the primary cause, in personam, and its jurisdiction having first attached
1879	Company, which had charged prices in excess of those ceilings during 1960-1968, to refund the excess. Gillring brought a declaratory action seeking to offset the refund by the extent to which the rates it charged during 1959-60 and 1968-1971 were below the al lowable ceiling. The Commission denied Gillring’s request, and this review proceeding followed. Deferring to the Commission’s reasonable construction of Opinion 595, and to its discretion in considering the equities of a refund order, we affirm the Commission’s decision. Area Rates Opinions No. 595, 45 F.P.C. 674 (1971), and No. 595-A, 46 F.P.C. 827 (1971), affirmed, Public Service Commission v. FPC, 170 U.S.App.D.C. 153, 516 F.2d 746 (1975), had their genesis in the Supreme Court’s landmark decision, In that case the Court, by finding that the Commission had a statutory duty to regulate the rates of some 3,000 independent producers of natural gas, thrust on the Commission a task it was then unequipped to handle. See Permian Basin Area Rate Cases, 390 U.S. 747, 756-758, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). To expedite its docket, the Commission largely abandoned individual ratemaking, and began setting prices according to geographical areas. In 1968, the Supreme Court upheld the first area rate case to reach it. Permian, supra. The contract involved in this dispute came into existence in 1948. After the Phillips decision, Gillring filed the contract as a rate schedule under § 4 of
50	"been commenced in Colorado.” 522 F.Supp. 703, 706 (D.Colo.1981). But in Martin, we squarely refused to adopt that position stating, ""[ajlthough we agree with the district court that this case should be dismissed, we do not think dismissal should be based on lack of subject matter jurisdiction in federal courts.” 910 F.2d at 254-55 (concluding that dismissal under the Burford abstention doctrine was more appropriate). . See n.8 and discussion, supra. . See, e.g., Pioneer Inv. Servs. Co. v. Brunswick Assoc., 507 U.S. 380, 393, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (""If a party is partly to blame for the delay, relief must be sought within one year under [Rule 60(b)(1)] and the party’s neglect must be excusable.""); . The Superintendent maintains that he has sufficient evidence for a meritorious defense of fraudulent inducement that would preclude summary judgment. Even if Frontier did not waive this defense by failing to plead it in its answer to Callon's complaint, having a meritorious defense does not alone make a case for reversing a district court's Rule 60(b)(6) ruling on appeal. The Superintendent also asserts that the equities of the case militate in favor of Rule 60(b)(6) relief. In support, the Superintendent repeats his argument that Frontier should be given a fair opportunity to oppose Callon’s summary judgment motion. While this argument would have carried some weight in a timely Rule 60 motion, it does not support a finding of abuse"
767	PER CURIAM: Ivan Aquiles Rivas-Banos, a native and citizen of El Salvador, petitions this court for review of an order from the Board of Immigration Appeals (BIA) dismissing his appeal of the immigration judge’s (IJ) denial of his application for cancellation of removal. Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), this court is statutorily barred from reviewing the BIA’s purely discretionary denial of cancellation of removal. Sung v. Keisler, 505 F.3d 372, 377 (5th Cir.2007); Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir.2004). However, this court is not precluded from reviewing claims raising constitutional or purely legal questions. See 8 U.S.C. § 1252(a)(2)(D); Rivas-Banos challenges the BIA’s decision on the grounds that: (1) the BIA failed to consider the hardship issue; (2) if an alien meets the petty offense exception, that alien may still qualify for cancellation of removal despite a conviction for a crime involving moral turpitude (CIMT); (3) a conviction for a CIMT that meets the petty offense exception does not stop the accrual of time for purposes of meeting the requirement for continuous physical presence; (4) the BIA should have granted him voluntary departure; and (5) the BIA violated his procedural due process rights by dismissing his appeal despite his plausible ground of relief from removal. Although Rivas-Banos cites to In re Garcia-Hernandez, 23 I. & N. Dec. 590 (BIA
2975	is flatly refuted by our decision in United, States v. Crockett, 813 F.2d 1310 (4th Cir.1987), which held that it was not an abuse of discretion to limit closing argument in this fashion. Id. at 1317. Finally, Headspeth contends that the district court erred in refusing to give his requested instruction on the defendant’s privilege not to testify. Since the district court gave an instruction on testimonial privilege that accurately and adequately stated the governing law, however, its failure to give the precise instruction requested by Headspeth was not reversible error. See United States v. Scheper, 520 F.2d 1355, 1357-58 (4th Cir.1975) (not error to refuse to give precise instruction requested so long as charge given adequately covers its substance); Accordingly, the judgment of conviction is affirmed. Ill Headspeth challenges the enhanced sentence he received for the violation of § 922(g) on three separate grounds: (1) that a prior conviction for storehouse breaking is not a proper basis for sentence enhancement under § 924(e); (2) that § 924(e) is void for vagueness; and (3) that his procedural due process rights were violated because he was not given a separate evidentiary hearing on the issue of enhancement. Because we agree with Head-speth that storehouse breaking is not a predicate offense under the statute, we do not reach the constitutional questions presented. 18 U.S.C. § 924(e)(1) establishes a mandatory minimum sentence of 15 years without parole for any person convicted of
3466	"arrest itself.’’) (citations omitted). . See id. at 1507 (citation omitted). . In a ""show-up,’’ a witness is asked to identify one suspect. . Plaintiff argues that summary judgment is inappropriate because the relevant facts are in dispute. See Pl.’s Resp. to Defs.’ Mot. for Summ. J. at 10. However, Plaintiff fails to identify those points of dispute, and the Court finds, based on a review of the pleadings submitted, that the parties are in accord as to the facts relevant to this action. . Marx, 905 F.2d at 1506 (citations omitted). . Pl.'s Compl. at 3. . See Pl.’s Resp. to Defs.' Mot. for Summ. J. at 4. . See, e.g., . See id. at 199, 93 S.Ct. 375. . See id. at 199-200, 93 S.Ct. 375. . See Butler Dep. at 45. . See Balch Dep. I at 27-28. . Butler-Dep. at 45. . Balch Dep. II at 111. . See Butler Dep. at 92. . See, e.g., Neil, 409 U.S. at 200, 93 S.Ct. 375; Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir. 1987); Jones v. Smith, 772 F.2d 668, 671 (11th Cir.1985); Meyer v. Estelle, 621 F.2d 769, 774 (5th Cir.1980); United States v. Michael, 729 F.Supp. 95, 96 (S.D.Fla.1989). . Butler Dep. at 45. . Pl.'s Dep. at 61 (filed March 24, 1999). . Rankin, 133 F.3d at 1436 (citations omitted). ."
849	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;  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, but would simply have to advertise using a different ear. Liquid Glass even admits, although somewhat disingenuously in this court’s view, that “[t]he use of the Porsche over another personally owned automobile is inconsequential to [Liquid Glass] ....” PI. Op. Br. at 23. Editing the video to cut out the beginning and ending segments portraying a Porsche 911 speeding down the highway, contrary to Liquid Glass’s assertions, will be inexpensive and will not disrupt the sacred “story-line” of
2121	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); 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 property (other than stock or securities of a foreign corporation which is a party to the exchange or a party to the reorganization) by a United States person to a foreign corporation, for purposes of
2221	ORDER Larry Olson appealed his conviction and sentence for racketeering and drug conspiracy charges. We affirmed his conviction,  and ordered a limited remand to ask whether the district court would have imposed the same sentence under an advisory regime. United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 1343, 164 L.Ed.2d 57 (2006). The district court has now indicated that it would likely impose a different sentence in light of the additional discretion afforded by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The district court therefore asks us to vacate Olson’s sentence and remand for resentencing. In their responses to the district court’s statement, both Olson and the government ask us to vacate Olson’s sentence and remand for resentencing. Therefore, we VACATE Olson’s sentence and
4455	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., 617 F.2d 396 (5th Cir.1980); Austracan, (U.S.A.) Inc. v. M/V LEMONCORE, 500 F.2d 237 (5th Cir.1974); The Maria, supra. Cases in which the appellate courts have held jurisdiction proper for the appeal although the facts differed from those of the original justification for the appeal include All Alaskan Seafoods, Inc. v. M/V Sea Producer, 882 F.2d 425 (9th Cir.1989); Dunham v. M/V Marine Chemist, 812 F.2d 212, 214 n. 2 (5th Cir.1987); Nichols v. Barwick, 792 F.2d 1520 (11th Cir.1986); O'Donnell v. Latham, 525 F.2d 650 (5th Cir.1976); Doyle v. Bethlehem Steel Corp., 504 F.2d 911 (5th Cir.1974); Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d 1198 (2d Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 452, 30 L.Ed.2d 369 (1971). As the careful eye will note, some circuits appear in both lists (neither of which is exhaustive), and these circuits have addressed this matter and developed fairly detailed rules to explain the dis tinctions between the various procedural postures presented and the applicability of § 1292(a)(3) to each. . Since we recognize that both parties believed jurisdiction to lie for this appeal, and we understand that the circuits have not provided helpful guidance in this area over time, we think it appropriate that each side bear its own costs.
2328	"Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co., 8 Cir., 106 F. 693, 714. The defendant also contends that Claim 4 must be read in the light of the specification and drawings, and that, when so read, it is apparent that the accused device does not infringe, because the dispensing element attached to the plunger of that device is different. The particular forms of devices described in specifications are to be considered as the forms which are preferred by the inventor. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 418, 28 S.Ct. 748, 52 L.Ed. 1122; National Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co., 8 Cir., 106 F. 693, 715; McDonough v. Johnson-Wentworth Co., 8 Cir., 30 F.2d 375, 384. ""An inventor must describe what he conceives to be the best mode, but he is 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"
2224	contract claim based on Defendant’s alleged anticipatory repudiation. On December 17, 2010, Defendant filed a motion to dismiss based on lack of personal jurisdiction, forum non conveniens, and claim preclusion. (DN 10). On September 30, 2011, we granted the motion to dismiss on the ground that Plaintiffs’ claim was derivative in nature such that they lacked standing under the “shareholder standing rule.” (DN 24). On appeal, the Sixth Circuit reversed our decision and remanded for consideration of the limited issue of whether Plaintiffs’ claim should be barred under the doctrine of claim preclusion. (DN 33). On July 1, 2013, we issued an order allowing the parties to supplement their briefs in light of the Sixth Circuit’s recent decision in Having reviewed the parties’ supplemental briefs and being otherwise sufficiently advised, the Court will now consider whether claim preclusion bars Plaintiffs’ breach of contract action. DISCUSSION Defendant argues that Plaintiffs’ anticipatory repudiation claim is barred under the doctrine of claim preclusion because Plaintiffs were required to raise it, if at all, in their voluntarily dismissed declaratory judgment action. In response, Plaintiffs have advanced three separate arguments. First, Plaintiffs argue that their anticipatory repudiation claim had not yet accrued at the time they filed the declaratory judgment action and that, because claim preclusion only bars causes of action which could have been brought in an earlier action, the declaratory judgment action should not be accorded preclusive effect with respect to their anticipatory
409	"again submit petitions to enter the diversity visa program lottery with the hopes that one of them will be selected and that this time, unlike the last, the Defendants will process and adjudicate their applications before the fiscal year ends. They may also petition Congress for a private bill of relief. See, e.g., H.R. 509, 108th Cong. (2003) (""For the relief of Lindita Idrizi Heath”); H.R. 392, 108th Cong. (2003) (""For the relief of Natasha Oligovna Russo and Anya Oligov-na”). BARKETT, Circuit Judge, dissenting: I would affirm the district court’s grant of mandamus ordering the Immigration and Naturalization Service (“INS”) to do that which was required of it by Congress: process Nyaga’s application for a diversity immigrant visa. See d 480, 483 (5th Cir.1975)). The INS takes the position that it is free to completely disregard a Congressional directive. This view is problematic in the abstract, to say the least, but in this case the INS’ stance renders nugatory an entire section of the Immigration and Nationality Act (“INA”). See 8 U.S.C. § 1153(c). Section 1153(c) of the INA is comprised of three subsections that, together, establish the diversity immigrant visa program. As the majority notes, the diversity visa program is designed to provide permanent residence visas to individuals from countries with"
916	"475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). . Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). . Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991). . Calia v. Werholtz, 426 F.Supp.2d 1210, 1214 (D.Kan.2006) (citing Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir.1992)). . 29 U.S.C. § 1132(a)(1)(B). . Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). . Kimber v. Thiokol Corp., 196 F.3d 1092, 1097 (10th Cir.1999). . Doc. 86 at 8. . 29 U.S.C. § 1132(a)(1). . 29 U.S.C. § 1002(8). . Doc. 54-1 at 4-5. . See Restatement (Second) of Conflict of Laws § 283 (1971); see also Doc. 79 at 19. . Doc. 79 at 19. . Texas law acknowledges that an agreement to enter into a marriage relationship is ""essential to a valid ceremony marriage;” thus, if there is no such agreement, it follows that there is also no presumption of validity. Coulter v. Melady, 489 S.W.2d 156, 158 (Tex.Ct.App.1972). . Tex. Fam.Code Ann. § 1.101 (""[Ejvery marriage entered into in this state is presumed to' be valid unless expressly made void by Chapter 6 or unless expressly made voidable by Chapter 6 and annulled as provided by that chapter”). . Id §§ 6. 201-6. 206."
881	U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). . 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). . Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), subsequently codified in 18 U.S.C. § 3500. . But cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), holding that a statement that would support impeachment for bias and interest “relates” to the witness’ testimony under 18 U.S.C. § 3500. See also Rosenberg v. United States, 360 U.S. 367, 370, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959). . See  cert. denied, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970); United States v. Sopher, 362 F.2d 523, 525-526 (7th Cir.), cert. denied. 385 U.S. 928, 87 S.Ct. 286, 17 L.Ed.2d 210 (1966) ; cf. United States v. Birnbaum, 337 F.2d 490, 497-498 (2d Cir. 1964). . People v. Butler, 33 A.D.2d 675-676, 305 N.Y.S.2d 367, 369 (1969). The New York Court of Appeals affirmed without opinion, 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587 (1971). . Similarly, Jenohs was decided under the Supreme Court’s rule-making powers for the administration of justice in the federal courts rather than as a matter of federal constitutional law. See Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217,
3563	Community House. Given that no other non-profit organizations were willing or able to keep the doors of the shelter open, the decision to lease the building to the BRM was reasonable. 2. The $2 Million Sale Price With respect to the option to purchase, case law before 2005 suggested that, generally, a sale of public property to a religious organization for less than market value would likely violate the Establishment Clause. See, e.g., Freedom from Religion Found., Inc. v. City of Marshfield, 203 F.3d 487, 492 (7th Cir.2000) (sale constitutional even though city did not solicit alternate bids: sale complied with state law, purchaser paid market value, and the city had no further maintenance responsibilities); But no case in the Ninth Circuit or elsewhere had held that a below-market sale would be unconstitutional where the organization also executed an important city policy and saved the city money — the situation with which we are confronted here. The City did not give the BRM a gift; in fact, it received substantial consideration from the BRM. In return for management and ownership of the property, the City was relieved of the obligation and costs of operating the shelter, while at the same time ensuring as a matter of City policy that the
2084	is clear to this Court that defendant Fernandez Santana may have hesitated to answer agent Andaluz’s question if he had been given a proper Miranda warning. Accordingly, we hold that the agent’s questioning of Fernandez Santana immediately after his arrest was improper, since he failed to provide the Miranda warnings after he was under custody. Fernandez’s statement that he had custody of the $26,000.00 was an incriminating statement made pursuant to agent Andaluz’s questioning. Accordingly, the Court suppresses Luis Fernandez Santana’s statements in which he claims ownership and/or custody of the $26,000.00 seized from the red Mitsubishi Mirage. The Court, however, declines to suppress the seized cash, pursuant to the “inevitable discovery” doctrine. The First Circuit explained this doctrine in In that case, appellant claimed that the police officers had improperly seized two duffel bags containing approximately 25 kilograms of cocaine. The Court rejected appellant’s plea, noting that the officers had obtained defendant’s consent to search and freely surrendered the keys to both the doors and the trunk. Accordingly, it held that the seizure was proper. Furthermore, it noted that “[e]ven if the defendant’s consent 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,
1887	have supported Gillring’s argument here. See 390 U.S. at 826-827, 88 S.Ct. 1344. Surely such a dramatic shift in regulatory philosophy would have been signalled by more than ambiguous language in an ordering paragraph. Finally, while not strictly controlling, the filed rate doctrine, reflecting a statutory bias in favor of retroactive rate reductions but not retroactive rate increases, was a consideration the Commission could take into account in interpreting Opinion No. 595. See 15 U.S.C.A. § 717d(a) (1976); cf. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (1951) (no retroactive ratemaking allowed). Equity In ordering a refund, the Commission is to explore and give due weight to considerations of equity.  cert. denied sub nom. Austral Oil Co. v. FPC, 391 U.S. 917, 88 S.Ct. 1801, 20 L.Ed.2d 655 (1968). The statute allows refunds but does not require them. 15 U.S.C.A. § 717c(e). The ultimate balance of equitable consideration is committed to the Commission’s discretion. Placid Oil Co. v. FPC, 483 F.2d 880, 905 (5th Cir. 1973), affirmed, Mobil Oil Corp. v. FPC, 417 U.S. 283, 94 S.Ct. 2328, 41 L.Ed.2d 72 (1974). Gillring asked the Commission to allow the offset on grounds of equity. To 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
1191	"consecutive without a conviction for either a Class A or B violation. . Defendants’ earlier Motion to Dismiss the appeals for lack of jurisdiction was granted in part, denied in part, and denied in part as moot in our order of January 25, 1995. We determined then that no final merits judgment has been entered in this case as plaintiffs' claims for damages remained unresolved. Accordingly, we do not have appellate jurisdiction under 28 U.S.C. § 1291. . See, e.g., Gottlieb v. Wiles, 11 F.3d 1004 (10th Cir. 1993); Croyden Associates v. Alleco, Inc., 969 F.2d 675 (8th Cir.1992), cert. denied, 507 U.S. 908, 113 S.Ct. 1251, 122 L.Ed.2d 650 (1993); Walker v. City cf Mesquite, 858 F.2d 1071 (5th Cir.1988); .The agreed entry does not refer to the MCC as either a ‘'supermaximum"" security institution or a ""disciplinary segregation institution.” The agreed entry does provide that once a prisoner has been assigned to the MCC, the prisoner will be assigned a Security Classification Designation of Level 5. The significance of this classification is not clear from the record. Even assuming arguendo that this is a ""supermaximum” classification, objecting members fail to cite any Indiana authority that would render such a classification unlawfiil. . In fact, the agreed entry provides that upon transfer to the MCC a prisoner’s segregation status, if any, be it “administrative” or ''disciplinary, "" is rescinded. . Objecting members apparently rely here on Indiana Code §§ 11-11-5-6"
1235	“[although ... district courts may look beyond the face of the complaint” to decide fraudulent joinder claims, the plaintiff “need not show that he could survive ... a motion for summary judgment”) (internal quotation marks omitted); Sherman, 528 F.Supp.2d at 328-29 (noting that to survive a fraudulent joinder claim, plaintiff need not show it would survive a motion to dismiss). 3. Breach of Contract As noted, the only cause of action included in the Summons with Notice is one for breach of contract. Under New York state law, the elements of a breach of contract claim are: (1) the existence of a contract; (2) performance of the contract by one party; (3) breach by the other party; and (4) damages. See Matsumura v. Benihana Nat’l Corp., No. 06-CV-7609, 2007 WL 1489758, at *4 (S.D.N.Y. May 21, 2007). It is well established that, generally, a party who is not a signatory to a contract cannot be held liable for breaches of that contract. See Black Car & Livery Ins., Inc. v. H & W Brokerage, Inc., 28 A.D.3d 595, 813 N.Y.S.2d 751, 752 (2006) (holding that “breach of contract cause of action was properly dismissed ... since [the respondent] was not a party to the agreement in question”); Bellino Schwartz Padob Adver., Inc. v. Solaris Mktg. Group, Inc., 222 A.D.2d 313, 635 N.Y.S.2d 587, 588 (1995) (holding that the lower court properly dismissed the breach of contract action because the defendant “was
4296	it was first, but because of the number of substantial parties before the court, and the time and effort which had been spent in preparation. See Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 3 Cir., 1951, 189 F.2d 31, 34-35, affirmed 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200; Northern Ins. Co. of New York v. Grone, D.C.M.D.Pa.1954, 126 F.Supp. 457, 458; cf. Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 1952, 342 U.S. 180, 183-184, 72 S.Ct. 219, 96 L.Ed. 200. Indeed, quite possibly the North Carolina court could have enjoined Burlington’s affirmative pressing of the Massachusetts case for trial. See Martin v. Graybar Electric Co., 7 Cir., 1959, 266 F.2d 202, 203-205; d 774, 778; cf. Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., supra, 342 U.S. at pages 184-185, 72 S.Ct. at pages 221, 222; Dwinell-Wright Co. v. National Fruit Product Co., 1 Cir., 1942, 129 F.2d 848, 852. The North Carolina action was proceeding with all diligence. Nothing was to be gained by an additional trial in Massachusetts which could have been entirely obviated by the stipulation proposed by Alamance. Nor, as we have already said, was there any public interest furthered by some principle of punishing Alamance for having brought other suits. If, in fact, the court made any attempt to weigh the competing private interest of the parties, it was equally in error. Much of defendant’s brief is devoted to arguing that Alamance
93	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 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
1045	227 B.R. 638, 651 (D.Md.1998). The issue is primarily one of fact so long as the debtor presents evidence that it can reasonably accomplish what is promised in the plan. The Code does not require debt- or to prove that success is inevitable or assured, and a relatively low threshold of proof will satisfy § 1129(a)(11) so long as adequate evidence supports a finding of feasibility. Computer Task Group, Inc. v. Brotby (In re Brotby), 303 B.R. 177, 191 (9th Cir. BAP 2003), citing In re WCI Cable, Inc., 282 B.R. 457, 486 (Bankr.D.Or. 2002) and In re Sagewood Manor Assocs. Ltd., 223 B.R. 756, 762 (Bankr.D.Nev. 1998); The Court finds that the plan more likely than not can be performed as promised and that it is therefore feasible and complies with § 1129(a)(ll). 6. Conclusion The debtor’s Second Amended Plan complies with all of the applicable provisions of §§ 1129(a) and 1129(b)(2)(A). The objection will be overruled and the plan will therefore be confirmed, as modified. The interest rate payable to the bank shall be not less than 8.5% per annum, fixed, and the non-material amendment offered in the debtor’s Closing Brief at page 23 concerning payment of all proceeds to the bank in the event of sale of portions of the property, may be included in the confirmation order, without re-balloting. Debtor is directed
1996	medical diagnosis (such as with respect to a current disability), competent medical evidence is generally required to fulfill the well-grounded-claim requirement of section 5107(a) that the claim be “possible” or “plausible”. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); see Caluza, supra. Where the determinative issue does not require medical expertise, lay testimony may suffice by itself (such as in the recounting of symptoms or, in certain circumstances, attesting to in-service incurrence or aggravation of a disease or injury). See Caluza, supra; Heuer v. Brown, 7 Vet.App. 379, 384 (1995) (citing Grottveit, supra). A Board determination whether a claim is well grounded is a conclusion of law subject to de novo review by the Court under 38 U.S.C. § 7261(a)(1). See Grottveit, supra. Based on the facts of this case, the Court holds that the appellant satisfied his initial burden of submitting a well-grounded PTSD claim because he has submitted medical evidence of a current disability; lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD ease is the equivalent of in-service incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD disability. See Caluza, Heuer, and King, all supra. Specifically, the record contains several current diagnoses of PTSD by both private and VA psychiatrists. R. at 98, 101, 128, 130, 216. In addition, the record contains the veteran’s lay statements and sworn hearing testimony to the effect that although
3527	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. 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, 523 U.S. at 54, 118 S.Ct. 966. A. The Members of the City Council Although monitoring or administrating a municipal contract is generally an executive function, whether an act is legislative depends not on defined categories of government 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
974	v. Willcuts, 296 U. S. 1, that the income of a trust paid directly to a divorced wife is taxable to the husband who created the trust, whenever the purpose of the trust and the provision for payment of its income is to satisfy a legal obligation of the husband to support and maintain his wife, whether the satisfaction of that obligation results from the payment of alimony decreed by a competent court, or from the carrying out of a separation agreement which provides for such payments in lieu of alimony, dower, or other rights of the wife in the property of the husband. Albert C. Whitaker, 33 B. T. A. 865; Helvering v. Brooks, 82 Fed. (2d) 173. See also (2d) 661; Helvering v. Stokes, 296 U. S. 551, reversing 79 Fed. (2d) 256. In several recent cases, however, this proposition has been limited, where it appeared that the legal obligation of the husband to support and maintain his wife had been terminated, under the law of a particular state, by divorce or by subsequent remarriage of the wife; Harry S. Blumenthal, 34 B. T. A. 994; aff'd., 91 Fed. (2d) 1009; Henry Oliver Rea, 35 B. T. A. 1132; Edward T. Hall, 36 B. T. A. 398. And in these cases it was held that the income of the trust distributed to the wife after divorce or remarriage is not taxable to the husband. The instant case arose
2223	ORDER Larry Olson appealed his conviction and sentence for racketeering and drug conspiracy charges. We affirmed his conviction, United States v. Olson, 450 F.3d 655 (7th Cir.2006), and ordered a limited remand to ask whether the district court would have imposed the same sentence under an advisory regime. United States v. Paladino, 401 F.3d 471, 483-84 (7th Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 1343, 164 L.Ed.2d 57 (2006). The district court has now indicated that it would likely impose a different sentence in light of the additional discretion afforded by The district court therefore asks us to vacate Olson’s sentence and remand for resentencing. In their responses to the district court’s statement, both Olson and the government ask us to vacate Olson’s sentence and remand for resentencing. Therefore, we VACATE Olson’s sentence and REMAND for resentencing.
2339	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 F. 452, 457; Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U.S. 428, 434, 435, 31 S.Ct. 444, 55 L.Ed. 527; Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 63, 43 S.Ct. 322, 67 L.Ed. 523; JensenSalsbery Laboratories, Inc., v. Salt Lake Stamp Co., 8 Cir., 28 F.2d 99, 101, 102, and cases cited; Strong-Scott Mfg. Co. v. Weller, 8 Cir., 112 F.2d 389, 394. The following language from the case of Trane Co. v. Nash Engineering Co., 1 Cir., 25 F.2d 267, 269, is pertinent here: “The Eibel Case [261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523] certainly admonishes this court to give great weight to the practical results from a claimed invention; to look beyond the paper expression to the state of the art, before and after an alleged invention which is tested in actual practice. Dubilier Condenser Corp. v. New York Coil Co. (C.C.A.) 20 F.2d 723, 725; Minerals Separation v. Hyde, 242 U.S. 261, 270, 37 S.Ct. 82, 61 L.Ed. 286. “An invention is a real thing;
4245	limiting patentability to inventions which in fact contribute to the ‘progress’ of science that every case involving the validity of a patent presents a constitutional question. Hence the Supreme Court of the United States is often required to devote its time and effort to determinations involving minute questions of fact with respect to the patenta-bility of trivial gadgets.” It follows also, from these basic policies, that commercial success alone, without the requisite invention and novelty, will not establish patentability. Great A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 153, 71 S.Ct. 127, 95 L.Ed. 162 (1950). It further follows that the mere discovery of a phenomenon or law of nature is not patentable. Bearing in mind these controlling legal principles, we proceed to consideration of their application to the situation disclosed by the affidavits, depositions, and pleadings contained in the present record, in order to pass upon defendant’s motion for summary judgment. This motion was filed on April 2, 1965, and argued on April 7, 1965. Briefs have been subsequently filed and considered. Defendant, Clearfield Cheese Co., Inc. is a small local concern which in the 1950’s developed a successful process for producing commercially acceptable individually wrapped slices of cheese. This process is unpatented (and, one may surmise, probably unpatentable) and is regarded by Clearfield as a trade secret, enshrouded in rigid security measures. At that time Clearfield
4259	82 S.Ct. 248, 7 L.Ed.2d 207 (1961). Justice Frankfurter protested that consideration of such cases diverted the energies of the Court from the important problems suitable for consideration by the nation’s highest tribunal. Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 525, 540, 547, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957). See also Dick v. New York Life Ins. Co., 359 U.S. 437, 456-459, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959); Ex parte Republic of Peru, 318 U.S. 578, 602-603, 63 S.Ct. 793, 87 L.Ed. 1014 (1943). . Clean hands is a good defense in a patent infringement suit, as Judge. Maris points out in De-Raef Corp. v. Horner Sales Corp., 10 F.R.D. 28 (W.D.Pa. 1950). See also Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 684, 64 S.Ct. 268, 88 L.Ed. 376 (1944). . For that Court, as Professor Wechsler observes, “above all others has the faculty of rendering decisions that accord a quality of rapid obsolescence to the learning we law teachers [and practicing lawyers] claim to have.” Herbert Wechsler, “The Courts and the Constitution,” 65 Col.L.R. (No. 6, June, 1965) 1001. A beautiful performance by one of the most outstanding gamesmen in this field is Philip B. Kurland, “Foreword: ‘Equal in Origin and Equal in Title to the Legislative and Executive Branches of the Government’ ”, 78 Harv.L.R. (No. 1, November, 1964) 143, 144-45. He discerns four principal features
2844	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 challenged described only a “dwelling house,” whereas it was conceded by the Government that the structure contained two stories and was occupied and in the possession of two families, each family being in possession of a different part of the dwelling house. The court held, at page 994: “Under the facts, as conceded, the description of the property contained in the aforesaid search warrants was not in sufficient compliance with the Fourth Amendment In  the court reversed a conviction for purchasing and selling narcotics on the ground that a search warrant was invalid for failing to particularly describe the place to be searched and the search made thereunder was thus illegal. The warrant had identified the “basement and three floors” of an apartment building as the place to be searched, but neither it nor the supporting affidavit specified the particular apartment or apartments in which the alleged sales were made. The court stated, at pages 324-325: For purposes of satisfying the Fourth Amendment, searching two or more apartments in the same building is no different than searching two or more completely separate houses. Probable cause must be shown for searching each house or, in this
1571	Nationality Act of 1952, and brought a proceeding in the district court of the Western District of Texas to review the order of deportation. The district court entered judgment affirming the administrative deportation order. This appeal seeks a reversal of the district court judgment and of the deportation order. The evidence established that the appellant is a homosexual, and on this evidence she was found to be a psychopathic personality. Two doctors, one of them a psychiatrist, testified that homosexuals are not necessarily psychopathic personalities as that term is understood and used by the medical profession. We find it unnecessary “to embark” as Judge Frank has said, “on an amateur’s voyage on the fog-enshrouded sea of psychiatry.” d 405, 412. The term “psychopathic personality” is new in the 1952 Act. The legislative history is clear as to the meaning to be given to these words. In the report of the Senate Committee on the Judiciary it is said: “Existing law does not specifically provide for the exclusion of homosexuals and sex perverts. The provisions of S. 716 which specifically excluded homosexuals and sex perverts as a separate excludable class does not appear in the instant bill. The Public Health Service has advised that the provisions for the exclusion of aliens afflicted with psychopathic personality or a mental defect which appears in the instant bill is sufficiently broad to provide for the exclusion of homosexuals and sex perverts. This change of nomenclature is
4576	or the original court took care to protect the interests of the nonparty; and, in certain circumstances, (3) the non-party had notice of the original suit. Id. at 900, 128 S.Ct. 2161. The Sturgell decision represented a retreat from what the Supreme Court characterized as lower courts’ expansive readings of “privity” doctrine as it applied to issue preclusion. The phrase “substantive legal relationship” was deliberately substituted for “privity” in an attempt to narrow the scope of the exception. See id. at 894, 128 S.Ct. 2161, n. 8. Previously, the Supreme Court had held issue preclusion could be applied to a nonparty of the previous case when the nonparty was in privity with a party to the prior litigation. 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
2109	such reasonableness is to be measured. While neither party has urged adoption 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); 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
1525	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 underfunded plan whether or not the plan later became insolvent. And, it set forth a detailed set of rules for determining and collecting that charge. In other words, the MPPAA required that an employer withdrawing from a multiemployer pension plan pay a fixed and certain debt to the abandoned plan. Robbins, 636 F.Supp. at 668. This debt or withdrawal liability is the proportionate share of the plan’s unfunded vested benefits and is calculated as the difference between the present value of the vested benefits and the current value of the plan’s assets. Id., at 671 n. 41; 29 U.S.C. §§ 1381, 1391. This exposure to a significant financial penalty was intended to reduce the employers’ incentive to leave the plan, and to cushion the financial impact on a plan should a withdrawal occur. R.A. Gray, 467 U.S. at 724, 104
2148	for the job before Hold-craft all were males over the age of forty. Given the undisputed evidence in this case, we agree with the district court that Hold-craft clearly is unable to demonstrate that the County’s selection of Arndt was pretext for discrimination or that the County’s failure to hire him was motivated by age or gender discrimination. As the district court noted, courts do not sit as super personnel departments second guessing an employer’s perceptions of an employee’s qualifications. Smith v. University of N. Carolina, 632 F.2d 316, 345-46 (4th Cir.1980). The law does not require an employer to make, in the first instance, employment choices that are wise, rational, or even well-considered, as long as they are nondiscriminatory. Because the County set forth legitimate, nondiscriminatory reasons for hiring Arndt rather than Holdcraft, and because Hold-craft failed to promulgate evidence on which a reasonable jury could find the proffered reasons were a pretext for discrimination, we find that the district court did not improvidently grant summary judgment to the County on Holdcraft’s age or gender discrimination claims. Accordingly, we affirm the district court’s order granting the County’s motion for summary judgment. 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. AFFIRMED. . Holdcraft's allegation that two of the scores given him by one of the selection panelists in the first
3893	is granted; 3. Other parties will suffer no substantial harm if the stay is granted; 4. The public interest will not be harmed if the stay is granted. In re Baldwin United Corp., 45 B.R. 385, 386 (Bkrtcy.S.D.Ohio 1984); accord, In re White Motor Corp., 25 B.R. 293, 297 (N.D.Ohio 1982); In re Great Barrington Fair and Amusement, Inc., 53 B.R. 237, 239 (Bkrtcy.D.Mass.1985); Hunter v. S.K. Austin Co. (In re Beck), 26 B.R. 945, 946 (Bkrtcy.N.D.Ohio 1983); In re Hotel Associates, Inc., 7 B.R. 130, 131-32 (Bkrtcy.E.D.Pa.1980); Cf. Unsecured Creditors’ Committee v. DeLorean (In re DeLorean Motor Co.), 755 F.2d 1223, 1228 (6th Cir.1985) (four factors regarding grant or denial of preliminary injunction); Based upon this Court’s decision on the merits of the appealed orders, including a reconsideration of the governing statutory provisions and applicable bankruptcy rules discussed in this and the court’s earlier bench opinion, it appears extremely' unlikely that the debtor will prevail on the merits of its appeal. Finally, the issue of the necessity of the debtor’s timely filing a motion to assume an unexpired nonresidential lease has already been decided in this district. See, Cybernetic, 94 B.R. at 953 wherein the Honorable James D. Gregg clearly and unequivocally stated: The procedure to assume an unexpired lease is a contested matter and is controlled by Bankruptcy Rule
4929	"Inc. , 381 F.3d 131, 136 (3d Cir. 2004) (citing E.I. DuPont , 269 F.3d at 203 ). ""Issues are 'inextricably intertwined' only when the appealable issue 'cannot be resolved without reference to the otherwise unappealable issue.' "" Invista S.A.R.L. v. Rhodia, S.A. , 625 F.3d 75, 88 (3d Cir. 2010) (quoting Am. Soc'y for Testing & Materials v. Corrpro Companies, Inc. , 478 F.3d 557, 580-81 (3d Cir. 2007) (citations omitted) ). ""[T]he existence of an ... appealable order [does not] confer pendent appellate jurisdiction over an otherwise unappealable order just because the two orders arise out of the same factual matrix ..."" even if considering the orders together may be encouraged under ""considerations of efficiency."" ""[T]he pendent appellate jurisdiction standard is not satisfied when we are confronted with two similar, but independent, issues, and resolution of the non-appealable order would require us to conduct an inquiry that is distinct from and 'broader' than the inquiry required to resolve solely the issue over which we properly have appellate jurisdiction."" Myers v. Hertz Corp. , 624 F.3d 537, 553-54 (2d Cir. 2010) (citation omitted). Thus, if the appealable order may be properly ""dispose[d] of ... without venturing into otherwise nonreviewable matters[,]"" Kershner v. Mazurkiewicz , 670 F.2d 440, 449 (3d Cir. 1982) (en banc), we ""have no need-and therefore no power-to examine the [nonreviewable] order,"" Hoxworth , 903 F.2d at 208. Here, we must determine, as"
3685	Chotin tow to disintegrate and to suddenly, without warning, veer into the path of the downward bound Blaske tow, at a time too late for the Blaske to do anything to avoid the collision. Causing this series of events to occur constituted gross negligence on the part of the Chotin tow. Where the gross negligence of one vessel is wholly sufficient in itself to account for the collision, and where the active fault of one vessel so flagrantly and heavily outweighs any possibile fault or omission of the other vessel, the interests of justice are best served by condemning the more culpable vessel completely. Compania de Maderas v. The Queenston Heights, 220 F.2d 120 (5th Cir.); The Lord O’Neal, 4th Cir., 66 F. 77. In conclusion, the Court finds that the sole and proximate cause of this collision was the unseaworthiness of the Chotin tow and the negligence of the pilots aboard the two Chotin towboats, Pat Chotin and Joey Chotin. Further, the Court finds that there was no unseaworthiness or negligence on the part of the ACBL tow or the towboat Hugh C. Blaske.
4367	Class II, and Class III prices, plus a State-mandated premium or over-order price. 7 M.R.S.A. § 2954(2). Prior to 1985, Maine market producers received a blend price based on the utilization rate of the buying dealer, rather than on the market-wide utilization rate used under the Federal Order. Under the state system, therefore, producers received various blend prices depending on the percentage of each dealer’s Class I use. For a variety of reasons, Maine market dealers’ Class I utilization rates have tended to exceed the utilization rates of Federal market dealers, creating a price differential between the prices paid to Maine market producers and Federal market producers. This price differential is known as the Maine market premium. See generally, In order to equalize the milk prices paid to all Maine dairy farmers regardless of the market in which they sell their milk, the Maine State Legislature in 1983 enacted the Maine Milk Pool Act, 7 M .R.S.A. § 3151 et seq. Under the Milk Pool Act, Maine milk producers are automatically paid a price based on the Federal Order blend price. Maine market dealers then pay the difference between their individual blend prices and the federal price into the Maine Milk Pool. Subject to some adjustments, the funds received by the Pool are redistributed on an equal basis to all Maine market producers and Federal market producers, thereby achieving substantial price equality for all Maine-produced milk. 7 M.R.S.A. § 3153.
3523	Partnership Act. Cmty. House II, 654 F.Supp.2d at 1165, 1172. In addition, the district court granted the defendants summary judgment on CHI’s FHA claims for religious 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); 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
1899	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 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
3861	Services” name. If, on the other hand, the Courts concludes that CIA’s evidence establishes the foregoing elements of the trademark infringement claim, then it should grant CIA appropriate equitable relief. Costs taxed against Commerce National Insurance Services, Inc. and Commerce Bancorp, Inc. . We have appellate jurisdiction under 28 U.S.C. § 1291 and review the District Court’s factual findings for clear error. See American Home Prods. Corp. v. Barr Lab., Inc., 834 F.2d 368, 370 (3d Cir.1987). Clear error exists when giving all due deference to the opportunity of the trial judge to evaluate the credibility of witnesses and to weigh the evidence, we are left with a definite and firm conviction that mistake has been committed. See . Although the parties do not clearly identify the statute on which they base their claims, it appears that they charge a violation of the Lanham Act, 15 U.S.C. § 1125. . CIA also requests that the case be remanded for consideration of its claim for damages. However, on the record before us, there seems to be no evidence as to the amount of damages CIA sustained. . A mark becomes incontestible after the owner files affidavits stating that the mark has been registered, that it has been in continuous use for five consecutive years subsequent to registration, that there is no pending proceeding contesting the owner’s rights to registration, and that there has been no adverse decision concerning the
1167	the objecting members. Assuming jurisdiction, however, the merits of these appeals are simple, straightforward and easily resolved in favor of the parties defending the settlement. Thus, regardless of whether we were to dismiss the appeals for lack of jurisdiction or to reach the merits of the appeals, the settlement would stand. Although jurisdictional issues are normally resolved prior to a determination of the merits, under the circumstances here, we may disregard potentially difficult jurisdictional issues and proceed directly to the merits where there is no practical difference in the outcome. See e.g., Norton v. Mathews, 427 U.S. 524, 532, 96 S.Ct. 2771, 2775, 49 L.Ed.2d 672 (1976); Safeco Life Insurance Company v. Musser, 65 F.3d 647, 650 (7th Cir.1995); Tisza v. Communications Workers of America, 953 F.2d 298, 300 (7th Cir.1992); United States v. Parcel of Land, 928 F.2d 1, 4 (1st Cir.1991); Browning-Ferris Industries of South Jersey, Inc. v. Muszynski, 899 F.2d 151, 154-60 (2d Cir. 1990). We believe it is prudent to do so here. III. Federal courts naturally favor the settlement of class action litigation. E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 888-89 (7th Cir.1985), cert. denied, 478 U.S. 1004, 106 S.Ct. 3293, 92 L.Ed.2d 709 (1986); Metropolitan Housing Development Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1013 (7th Cir.1980); Armstrong v. Board of School Directors, Etc., 616 F.2d 305, 312-13 (7th Cir.1980). Although such settlements must be approved by the
4744	489 U.S. 527, 109 S.Ct. 1282, 1286, 103 L.Ed.2d 539 (1989); Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 536, 104 S.Ct. 831, 838, 78 L.Ed.2d 645 (1984); Middlesex County Sewage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981); Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981); California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981); Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 91, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750 (1981); Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979); Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). Various factors have been considered by the Supreme Court in discerning whether Congress intended a private remedy in a statute that does not expressly provide one. Key factors include the language of the statute itself, the surrounding statutory scheme, and the legislative history and purpose of the statute. Karahalios, 109 S.Ct. at 1286; Thompson, 108 S.Ct. at 516; Northwest Airlines, 451 U.S. at 91, 101 S.Ct. at 1580; Touche Ross & Co., 442 U.S. at 575-76, 99 S.Ct. at
1727	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. 1, 13/103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). . Accord Broder v. Cablevision Sys. Corp., 418 F.3d 187 (2d Cir.2005). . Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Two exceptions to the well-pleaded complaint rule permit removal of state law actions: when the claims are completely preempted by federal law and 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). .
1250	"only against RBC, and because RBC is a diverse defendant, additional claims against RBC are immaterial to whether RBCCMC should be excluded based on fraudulent joinder. . It bears noting dial the Second Circuit has held that a ""nonsignatory party may be bound to an arbitration agreement if so dictated by the ordinary principles of contract and agency.” Thomson-CSF, S.A. v. Am. Arbitration Assoc., 64 F.3d 773, 776 (2d Cir.1995) (internal quotation marks and citation omitted). The court has recognized five theories, ""aris[ing] out of common law principles of contract and agency law ... for binding non-signatories to arbitration agreements: 1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter ego; and 5) estoppel.” Id..; sec also Under the alter ego theory, courts have found, or have left open the possibility of finding, a nonsignatory bound to the arbitration agreement when it was not the parent of the signatory corporation. See Coastal States Trading, Inc. v. Zenith Navigation, S.A., 446 F.Supp. 330, 336-37 (S.D.N.Y.1977) (stating that a parent corporation may be liable for its subsidiaries contracts ""[o]r conversely, a subsidiary may, under some circumstances, be held bound to obligations undertaken by its parent,” such as when the subsidiary is an agent or instrumentality of the parent). Notably, in the context of holding nonsignatories to arbitration agreements, the assumption theory, which arises out of ""ordinary principles of contract,” is distinct from the veilpiercing/alter ego theory. See Thomson-CSF, 64"
2581	per month are deemed to demonstrate the ability to engage in substantial activity, unless there is affirmative evidence that such work activities themselves establish that the individual does not have such ability. 20 C.F.R. § 404.-1534(b) (1973). During the extensive leaves of absence from the hospital, the plaintiff functioned efficiently operating farm machinery, planting and harvesting crops, purchasing feed, selling crops, installing roofing and siding, and performing work as a carpenter. While it is true plaintiff has a mental impairment, this evidence is insufficient to overcome the presumption of ability to engage in substantial gainful work created by his earnings record. Moreover, the mere presence of an impairment is not tantamount to “disability”, particularly where it can be remedied by treatment. Finally, the burden is at all times upon the plaintiff to establish the existence of the disability upon which he bases his claim. Myers v. Richardson, 471 F.2d 1265 (6th Cir. 1972). Thus, there is surely substantial evidence to support the determinations of the Secretary. For the foregoing reasons it is ordered that the defendant’s motion for summary judgment be granted. So ordered.
3827	the district court abused its discretion by creating an unwarranted disparity between his sentence and the sentences of his co-defendants. See Candia, 454 F.3d at 476-77. Balleza’s assertions that his sentence was unreasonable because his criminal history category was incorrectly calculated, because of his youth, and because nothing in his background or role in the offense justified a 240-month sentence are also without merit. As shown above, any error in the calculation of Balleza’s criminal history category was in Balleza’s favor. While Balleza was relatively young at the time he began the present offenses, age is generally not a relevant factor in sentencing, and Balleza has not shown why his sentence was unreasonable simply because of his relative youth. See Finally, while Balleza maintains that his background and role in the offense did not justify the sentence he received, the facts set forth in the PSR that were adopted by the district court showed that Balleza significantly participated in a major drug conspiracy for a substantial amount of time. Given the facts of the case and the deference given to district court sentencing decisions, Balleza has not shown that the district court abused its discretion or that the sentence was unreasonable. See United States v. Rodriguez-Rodriguez, 530 F.3d 381, 384-87 (5th Cir.2008). AFFIRMED. . We take this opportunity to clarify this court's jurisprudence on whether an overt act in furtherance of the conspiracy is an element of the offense of
3136	courts that have expanded the doctrine of necessity beyond railroad reorganization cases have done so relying on the equitable power provided in Section 105(a) of the Bankruptcy Code. See In re Just for Feet, Inc., 242 B.R. 821, 824 (D.Del.1999) (explaining that even if the doctrine of necessity is not codified in the Bankruptcy Code, courts have authorized pre-petition claims when necessary using their equitable powers under Section 105(a)). (B) The Kmart Case Before the Kmart case, supra, bankruptcy courts routinely exercised their discretion in granting critical vendor motions under the “necessity of payment doctrine.” See e.g., In re Lehigh & New England Ry. Co., 657 F.2d 570, 581 (3rd Cir.1981); In re Just for Feet, Inc., 242 B.R. at 822; In Ionosphere, the court explained the rationale behind allowing a Chapter 11 debtor-in-possession to pay prepetition claims. 98 B.R. at 174. The debtor in that case had already obtained court approval to pay the pre-petition salaries and benefits of active employees and the pending contested matter was whether striking employees were entitled to receive commensurate payments. Id. at 175. The court ultimately ruled against the striking employees, but in so doing, noted that Section 368(b) gives courts broad discretion to allow debtors to pay pre-petition claims in the ordinary course of business when the debtor “articulate[s] some business justification.” Id. at 175. The court further explained that equal distribution to creditors may be significant in a liquidation context, but in Chapter
872	207 (10th Cir. 1971) ; United States ex rel. Joseph v. LaVallee, 415 F.2d 150 (2d Cir. 1969), cert. denied, 397 U.S. 951, 90 S.Ct. 976, 25 L.Ed.2d 133 (1970) ; United States ex rel. Dukes v. Wallack, 414 F.2d 246 (2d Cir. 1969). . Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972) ; see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). . Cf. United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973) ; United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972) ; United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied, 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970). . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). . 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). . Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), subsequently codified in 18 U.S.C. § 3500. . But cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), holding that a statement that would support impeachment for bias and interest “relates”
151	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  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 argue that postponing the dismissal of the Plaintiffs’ Section 1983
4308	discretion. Larsen v. Switzer, 8 Cir., 1950, 183 F.2d 850, 851; see Shaffer v. Evans, 10 Cir., 1958, 263 F.2d 134, 135, certiorari denied 359 U.S. 990, 79 S.Ct. 1119, 3 L.Ed.2d 978; Adney v. Mississippi Lime Co. of Missouri, 7 Cir., 1957, 241 F.2d 43, 45-46; Lyman v. United States, 1 Cir., 1944, 138 F.2d 509, certiorari denied 320 U.S. 800, 64 S.Ct. 429, 88 L.Ed. 483. But that does not excuse the failure to exercise any discretion, see Martin v. Graybar Electric Co., supra, 266 F.2d at page 203; cf. Grivas v. Parmelee Transp. Co., 7 Cir., 1953, 207 F.2d 334, 338, certiorari denied 347 U.S. 913, 74 S.Ct. 477, 98 L.Ed. 1069; .D. 14, 18, or save from reversal an unpermitted exercise. We have already expressed our belief that the court did not even purport to exercise discretion. But were we to assume that it did, the reasons given — that Alamance had brought the suit, and obliged the defendant to employ counsel to file an answer — were patently insufficient. These were merely a recitation of the very circumstances that call the rule into play. Something else was needed, and we find nothing else present. By the dismissal offered Filene’s would, of course, be protected. Burlington had no right to be. Since Manchester, although a competitor of Burlington, was willing to be represented by Burlington counsel in Massachusetts, we see no hardship for it to be
2229	Holbrook and Ventas are in conflict. Whereas Holbrook held that declaratory judgments preclude all subsequent actions except those based on the judgment, Ventas held that declaratory judgments should be accorded no preclusive effect whatsoever. As a district court seeking to apply Kentucky law, but nonetheless bound to follow interpretations thereof provided by the Sixth Circuit, we are thus faced with a troublesome dilemma requiring us to select one precedent over another. Ultimately, two considerations have persuaded us to follow Holbrook. First, because a subsequent panel may not overrule the decision of a previous panel, the latter of two conflicting precedents must yield to the former. See Spencer v. Bouchard, 449 F.3d 721, 726 (6th Cir.2006) (citing  and 6TH CIR. R. 206(c)). Second, based on our own review of Kentucky case law, we have concluded that Holbrook offers a more accurate interpretation of Kentucky law. Having concluded that Holbrook is the applicable precedent, we must now proceed to apply it to the case at bar. Here, Plaintiffs’ voluntarily dismissed declaratory judgment action sought a declaration that Defendant’s sale of his stock would be in violation of the Agreement, while their present action seeks damages based on a theory of anticipatory repudiation. Thus, under Holbrook, Plaintiffs’ present action will be precluded unless it can be deemed to be based on the previous declaratory judgment action. Clearly, Plaintiffs cannot clear this hurdle. To begin with, because Plaintiffs’ voluntarily dismissed
4035	(Count IV). Whatever the basis for the illegality, Defendants will still contend that HHC must first show that its unlawfully lowered reimbursement was “unreasonable in fact” before it can obtain relief. That horrendous burden, and the delay inherent therein, HHC respectfully declines to bear. The Medicaid Act makes it unnecessary. At the time this affidavit was filed, count V had already been dismissed by Judge Brieant. We affirm that dismissal for the reasons stated by him. . We reach the merits but to the extent that this action is a stalking horse for a state action for damages, we frown upon resort to the equitable remedy of a declaratory judgment in a federal court. See 
1537	emergency. 14 C.F.R. § 91.3(b). 36. Included in the deviations that pilots may make from the FARs during an emergency is the authority to deviate from and Air Traffic Control (“ATC”) clearance, even when in controlled airspace. When an ATC clearance has been obtained, no pilot in command may deviate from that clearance, except in an emergency, unless he obtains an amended clearance____ 14 C.F.R. § 91.75(a). Except in an emergency no person may, in an area in which air traffic control is exercised, operate an aircraft contrary to an ATC instruction. 14 C.F.R. § 91.75(b). 37. Such deviation authority includes refusing to comply with an ATC clearance if complying with that clearance would endanger the safety of the aircraft. New Hampshire Ins. Co. v. U.S., 641 F.Supp. 642 (D.P.R.1986), aff'd, 838 F.2d 595 (1st Cir.1988); Delta Air Lines, Inc. v. United States, 561 F.2d 381, 392 (1st Cir.1977), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978). 38. Air traffic controllers are required to comply with the mandatory provisions of the Air Traffic Control Manual FAA 7110.-65D to provide for the safe, orderly, and expeditious flow of traffic. 14 C.F.R. § 65.45(a). An emergency may be declared by either the pilot or by personnel of a Federal Aviation Administration facility. Air Traffic Control Manual, FAA 7110.65D, Section 9-15. 39. In the “forced handoff”, the Radar Controller never advised the local controller that the plane was returning
2364	Fed.R.Civ.P. 54(d)(1). The Third Circuit has clarified that the costs a district court may award a prevailing party under Rule 54(d) are limited to the “taxable costs” enumerated in 28 U.S.C. § 1920, the taxable costs statute: Rule 54(d) provides a standard to be applied by the district courts in awarding what are commonly referred to as taxable costs. Those taxable costs are listed in 28 U.S.C. § 1920. They do not include such litigation expenses as attorneys’ fees and expert witness fees in excess of the standard daily witness fee. Rule 54(d) requires that such taxable costs be awarded to the prevailing party unless the court finds and articulates a reason why that party does not deserve such an award. The taxable costs statute lists six categories of litigation costs that a court (or the clerk of a court) may award: (1) Fees of the clerk and marshal; (2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and copies of papers necessarily obtained for use in the case; (5) Docket fees under section 1923 of this title [28 USCS § 1923]; (6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title [28 USCS § 1828]. 28 U.S.C. § 1920. Delaware
2782	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 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,
4511	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  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
1842	trade or commerce. With these findings made, we come to consideration of the Conclusions of Law to be drawn from them. 3. THE LAW APPLICABLE TO THE FINDINGS OF FACT The defendants argue that (1) the promotion of championship boxing contests does not constitute the “relevant market” for purposes of determining’ monopoly power; (2) they have not in fact combined and conspired in restraint of or to monopolize, trade in violation of Sections 1 and 2 of the Sherman Act; and (3) their activities are not in interstate trade or commerce. Defendants’ first point relating to the relevant market is predicated almost exclusively on the recent decision in  1004, 100 L.Ed. 1264. That case is the Supreme Court’s latest exposition on the subject of the relevant market for Sherman Act consideration. Although the prevailing opinion did not command the assent of a majority of the Court (it being divided 4-3, with two Justices not participating), nevertheless, it is the precedent upon which both sides in this case have relied. In the Cellophane case, the Court, following earlier precedents, ruled that: “a party has monopoly power if it has, over ‘any part of the trade or commerce among the several states’, a power of controlling prices or un reasonably restricting competition. * * * Monopoly power is the power to control prices or exclude competition.” The Supreme Court made
246	res judicata and collateral estoppel were not a bar to the forfeiture action because the criminal action involving the defendant was on a charge of conspiracy, not on the substantive acts [see pp. 6 and 7 of 294 F.2d 1 (5th Cir. 1961)]. It is noted that the criminal indictment against Markowitz was on the conspiracy charge, not on the substantive facts. . See, also, United States v. LaFranca, 282 U.S. 568, 575, 51 S.Ct. 278, 75 L.Ed. 551 (1931). . E. g., Helvering v. Mitchell, 303 U.S. 391, 397-400, 405-406, 58 S.Ct. 630, 82 L.Ed. 917 (1938); United States ex rel. Marcus v. Hess, 317 U.S. 537, 549-550, 63 S.Ct. 379, 87 L.Ed. 443 (1943). See, also, . In the answer, he merely asserts that he is the President of the company; in the pre-trial memorandum he is called only the “principal” stockholder (see Documents Nos. 8 and 16). . His wife owned the remaining 10 shares. . In that case, the Coffey case was carefully distinguished. Noto also that the court, at p. 554 of the decision, stated: “The application of these general ideas to the case of a criminal prosecution followed by a civil suit has not been easy” (showing that the U. S. Court of Appeals for the Third Circuit would classify this action as a “civil” one undoubtedly). . See United States v. Two Lots of Ground, etc., 194
1297	Goffs Rule 39(b) motion for trial by jury on all issues. Accordingly, the plaintiff’s motion is granted. 2. Defendant’s Motion to Reconsider. As noted at the outset, defendant’s motion to reconsider addresses the orders of this court (1) denying defendant’s motion to dismiss and granting plaintiffs request for a jury trial, (2) reinstating the first case, and (3) consolidating the two cases for all purposes. The decision to grant or deny a motion for reconsideration is within a district court’s discretion. Three grounds are recognized for granting a motion to reconsider: (1) an intervening change in controlling law, (2) availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice. D.Kan.Rule 7.3. See also  aff'd, 948 F.2d 1529 (10th Cir.1991), cert. dismissed, 503 U.S. 915, 112 S.Ct. 1310, 117 L.Ed.2d 510 (1992). Owen alleges neither an intervening change in controlling law nor newly available evidence. In fact, Owen does not even claim the court committed clear error in any of its orders. Defendant’s motion could be denied on that basis alone, but the court will briefly address the merits. This court has granted Goffs Rule 39 motion for trial of all issues by jury, as set forth in this opinion. Whether the court committed clear error in refusing to strike Goffs Rule 38 demand in the second case is therefore a moot issue. This court has determined Owen suffers no prejudice if Goff
581	Internal Revenue Act, above quoted. It follows that this is a situation where § 3801(b) (5) is applicable and the taxpayer was entitled to an adjustment under that section that would have resulted in a refund of the full amount of her claim. I am adopting as the Court’s findings of fact herein the stipulation of facts, dated August 30, 1945, received as Exhibit 1 on the trial February 28, 1946. As a conclusion of law, I rule that the petitioneriplaintifif is entitled to judgment against the defendant United States of America for the amount sued for, $4,490.23, with interest from December 15, 1937. On the question of interest see Title 26 U.S.C.A. Int.Rev. Code, § 3771; 46 S.Ct. 506, 70 L.Ed. 983; and Title 28 U.S.C.A. § 284(b); Aluminum Co. of America v. United States, 30 F.Supp. 686, 90 Ct.Cl. 173, Id., Ct.Cl., 32 F.Supp. 767.
10	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  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 serve as a primary basis for investment decisions.... ” 29 C.F.R. § 2510.21(c)(l)(ii)(B). Plaintiffs sole attempt to establish the provision of investment advice on a regular basis consists of one short paragraph that reveals the lack of merit in the assertion. Plaintiffs
1596	has already decided” the claim. Id. (quoting Trafftech, 461 F.3d at 695); see also Int’l Bhd. of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO v. Olympic Plating Indus., Inc., 870 F.2d 1085, 1089 (6th Cir.1989) (“In such cases where the Board’s resolution of non-contractual issues could also resolve the controversial breach of contract claims brought 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 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,
1387	No.: 1:16-cv-00376 DAD JLT. The court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid, 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The record of this Court's docket is a source whose accuracy cannot reasonably be questioned, and judicial notice may be taken of court records. Mullis v. United States Bank, Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); , The Court recognizes, as do the Plaintiffs, that this does not mean that no such unconstitutional conduct has occurred within this time period. However, it directly contradicts the statements of Plaintiff's counsel that such court determinations have been made (Doc. 37-1 at 2).
1227	of whether or not there has been fraudulent joinder is uniformly whether the plaintiff can establish a claim under state, not federal law.” Fed. Ins. Co. v. Tyco Int’l Ltd., 422 F.Supp.2d 357, 378 (S.D.N.Y.2006) (internal quotation marks omitted); see also Rezulin Prods., 133 F.Supp.2d at 280 (stating that in fraudulent joinder cases, “the [cjourt must consider the state law upon which the claim rests”). That is, “[ejven though federal law applies to the question of fraudulent joinder, the ultimate question is whether ... state law might impose liability on the facts involved.” 16 James Wm. Moore, et al., Moore’s Federal Practice § 107.14[2][c][iv][C] (3d ed.2003). All ambiguities in state law are to be resolved in Plaintiffs’ favor. See Furthermore, courts apply the state pleading rules relevant to the particular pleading at issue in deciding whether a plaintiff could have asserted a viable claim in state court based on that pleading. See Gensler v. Sanolfi-Aventis, No. 08-CV-2255, 2009 WL 857991, at *3 n. 3 (E.D.N.Y. Mar. 30, 2009) (noting that “state procedural rules apply in evaluating a claim of fraudulent joinder”); Kuperstein v. Hoffman-Laroche, Inc., 457 F.Supp.2d 467, 471-72 (S.D.N.Y.2006) (“Because the purpose of fraudulent joinder analysis is to determine whether a state court might permit a plaintiff to proceed with his claims, [the court] will refer to the state pleading standards as they have been applied by state courts to similar claims.” (emphasis in original) (footnote omitted)). New
1532	"of Philadelphia and Vicinity v. Fed. Exp. Corp., No. 80-304, 1995 WL 791371 at *8 n. 3 (D.Del. Dec. 27, 1995). . Courts addressing the application of § 1392(c) have done so most often where a conveyance of assets to or other dealings with subsidiaries are suggestive of bad faith. See e.g., Sherwin-Williams Co. v. N.Y. State Teamsters Conference Pension, Retirement Fund, 158 F.3d 387 (2d Cir,1998)(stating that weak financial status of subsidiary made avoid or evade motive more likely); Santa Fe Pacific Corp. v. Central States, Southeast and Southwest Areas Pension Fund, 22 F.3d 725, 729 (7th Cir.1994)(finding employer's sale of subsidiary's stock instead of assets suggested intent to avoid or evade liability); Dorn’s Transportation, Inc. v. Teamsters Pension Trust Fund of Philadelphia, 787 F.2d 897 (3d Cir.l986)(finding that sale of motor freight business did not violate § 1392(c) where, regardless of seller’s motive, buyer continued to make payments to fund; characterizing § 1392 as embodying ""good faith” requirement). . Congress underscored the right to withdraw in § 1401(e) of the Act. This section authorizes an employer to obtain from the plan sponsor ""general information” in order ""to compute its withdrawal liability."" It also allows the employer to request ""an estimate of ... [its] withdrawal liability."" This information is available to facilitate the employer's withdrawal decision. Reliable Liquors, Inc. v. Truck Drivers & Helpers Local"
808	of his allegations. II. DEFENDANT’S APPLICATION FOR ATTORNEYS’ FEES UNDER THE CIVIL RIGHTS ATTORNEYS FEES ACT. The Court having previously determined that defendant, as a prevailing party, was entitled to an award of attorneys fees under 42 U.S.C. § 1988, held a hearing on this matter. Defendant submitted the number of documented hours of services rendered in this case, totalling 31.5 hours, which is to be multiplied by a reasonable hourly rate. The Court finds that counsel Estrella’s rate of $60.00 per hour is very reasonable, and as a matter of fact, is below the hourly rate charged in this jurisdiction by other attorneys of equal competence and experience. Accordingly, the Court awards defendants attorney’s fees in the sum of $1,890.00. Blum v. Stenson, 104 S.Ct. 1541 (1984); Lamphere v. Brown University, 610 F.2d 46 (1st Cir.1979). WHEREFORE, the motion for disqualification is hereby DENIED, and defendants are awarded the sum of $1,890.00 in attorney’s fees. IT IS SO ORDERED. APPENDIX IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO GUILLERMINA CORTEZ QUIÑONES and ALBERTO ALMODOVAR MEDINA, Plaintiffs v. CHARLES JIMENEZ NETTLESHIP, et al., Defendants CIVIL NO. 82-3063 (HL) OPINION AND ORDER Following my induction to this Court, the above entitled case was transfered to me. After reviewing said case, I hereby disqualify myself for the following reasons: Mr. Harvey B. Nachman, counsel for the plaintiff herein, acted as attorney for the undersigned judge
325	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  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 the former. 440 F.2d at 915-16. Now we are again confronted by similar alternatives. Since the occurrence of the facts supporting the claims in Turner, Sackett, and Hecht, supra, the California legislature has enacted a statute of limitations for actions brought pursuant to a state statute similar to section 10(b). The defendants urge this court to reject our previous decisions and to adopt the new statute, Cal.Corp. Code § 25506. We decline to do so for several reasons. First, as we noted in Douglass, supra:
282	"Cir.1999) (Glasser, J., dissenting) . Courts have found that similar denials, absent other evidence, do not constitute a sufficient factual issue for trial in the context of malicious prosecution claims. See Cotto v. Pabon, 2008 WL 4962986, *15 (S.D.N.Y.2008) (""The fact that Cotto's version of the incident contradicts that of the officers is not enough to present an issue of fact as to the probable cause element of Cotto’s malicious prosecution claim.”); Brazeau v. Zon, 2007 WL 2903617, *12 (W.D.N.Y.2007) (""conflicting testimony between the malicious prosecution claimant and the police defendants and other prosecution witnesses is insufficient to rebut the presumption of probable cause”). . Nor has plaintiff proffered any of the testimony that was presented to the grand jury. See . In his fifth claim for relief, plaintiff alleges that ""[i]n creating false evidence against plaintiff COREY WILLIAMS, in forwarding false evidence and information to prosecutors, and in providing false and misleading testimony, defendants violated plaintiff’s constitutional right to a fair trial under the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution.” Am. Compl. ¶ 58 In his opposition to summary judgment, plaintiff argues that this statement also encompasses a claim for a violation of his Sixth Amendment fair-trial rights. In his complaint, plaintiff specifies his constitutional claims arise from the"
3243	(6th Cir.1963); In re Continental Airlines Corporation, 64 B.R. 865, 872 (Bankr.S.D.Tex.1986). However, the conditions applicable to employment may include contractual limitations on the circumstances in which employment may be terminated. To the extent that these job security provisions are enforceable under 29 U.S.C. § 185, they form the basis of an allowable damage claim. The Court recognizes that certain language of In re Continental Airlines, 64 B.R. 865 (Bankr.S.D.Tex.1986), supports U.S. Truck’s argument: Federal labor law does not require an award of damages for time periods during which no work would have been available in any event, even where an employee was discharged in violation of the NLRA. See NLRB v. Biscayne Television Corp., 337 F.2d 267, 268 (5th Cir.1964); Midland Ross, Inc., 239 N.L.R.B. 1205 (1979), order enf'd, 653 F.2d 239 (6th Cir.1981); NLRB v. United Contractors, Inc., 614 F.2d 134, 138 (7th Cir.1980); NLRB v. Columbia Tribune Publishing Co., 495 F.2d 1384, 1393 (8th Cir.1974); NLRB v. American Creosoting Co., 139 F.2d 193 (6th Cir.1943); Brown & Root, Inc., 112 N.L.R.B. 295 (1955); Lauren Burt, Inc. of Colorado, 114 N.L.R.B. 295 (1955); Hill Transportation Co., 102 N.L.R.B. 1015 (1953). But for the Court’s rejection of the collective bargaining agreement at issue here, Continental would have gone out of business and pilots represented by ALPA could not have claimed lost future wages as damages, because the agreements did not guarantee future employment. 64 B.R. at 872. The holding in
785	“or in favor of any adverse party.” I. TIMELINESS AND SUFFICIENCY OF AFFIDAVIT. We start with the proposition that it is the primary duty of the judge against whom an affidavit of bias or prejudice is filed to pass on the legal sufficiency of the facts alleged in the affidavit, and its timeliness. Action Realty Co. v. Well, 427 F.2d 843 (7th Cir.1970). To safeguard the judiciary from frivolous attacks on its dignity and integrity, affidavits of disqualification for bias are to be strictly construed for form, timeliness and sufficiency. Radamacher v. City of Phoenix, 442 F.Supp. 27 (D.C.Ariz.1977); Bumpus v. Uniroyal Tire Co., 385 F.Supp. 711 (D.C.Pa.1974); Town of East Haven v. Eastern Air Lines, Inc., 304 F.Supp. 1223 A. TIMELINESS. The motion to recuse comes after judgment was entered and post trial motions were denied. The Opinion and Order dismissing the complaint was filed on July 10, 1984, and judgment was entered thereon on July 20, 1984. The motion for recusal was filed on August 28, 1984, subsequent to this Court’s order of August 22, 1984, scheduling a hearing on defendant’s application for attorneys’ fees. In order to disqualify a judge, a timely objection must be made, otherwise the objection is waived. U.S. v. Hall, 424 F.Supp. 508, affmd., 536 F.2d 313, cert. den., 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285; Andrews, Mosburg, Davis, Elam, Legg & Bixter, Inc. v. General Ins. Co. of America, 418 F.Supp. 304
842	barred by the doctrine of laches. Liquid Glass asserts that Porsche was aware that Liquid Glass was using Porsche marks in its advertisements as early as 1991 and failed to bring suit until now. Neither of the elements óf laches has been met. Laches is an equitable defense which is left to the discretion of the district court. A.C. Aukerman Co. v. R.L. Chaides Construction Co., 960 F.2d 1020, 1032 (Fed.Cir.1992). To invoke the defense, Liquid Glass must demonstrate inexcusable delay on the part of Porsche and that this delay prejudiced Liquid Glass. Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961); United States v. Koreh, 59 F.3d 431, 445 (3d Cir.1995); Any delay by Porsche in filing suit was completely excusable. Porsche diligently enforced its rights to the mark, immediately writing to Liquid Glass when it became aware of the improper advertisements and requesting that Liquid Glass discontinue using the marks. See E-Systems, Inc. v. Monitek, Inc., 720 F.2d 604, 607 (9th Cir.1983)(noting that mark owner’s diligence in enforcing the mark and good faith ignorance by the junior user are two factors which can be considered in evaluating a lach-es defense to a trademark suit). Cease and desist letters were repeatedly sent to Liquid Glass and were met with responses representing that the matter could be settled amicably. Several settlement agreements proposed by Porsche were, however, shot down by Liquid Glass. Vague
3992	genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Fed.R.Civ.P. 56(e). However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing summary judgment motions, this court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941, 943-44 (6th Cir.1990). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standard. Thus, in most civil cases the court must decide “whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Id. at 252,106 S.Ct. 2505. IV. LAW AND ANALYSIS A. Validity of the '833 Patent As an initial matter, this court declines to reconsider the validity of the
1906	the standard of review is immaterial because the Court would reject the argument even on de novo review. Vaad ’lays heavy emphasis on the undisputed fact that placement of the Kehot logo on any publication required the Rebbe’s approval. But the Court is in complete agreement with the TTAB that a similar approval process is to be expected for any trademark. Nor does it follow that allowing Vaad and others to use the logo made it a certification mark. “[Trademark] licensing is permissible provided the licensor retains some degree of control over the quality of the goods or services marketed thereunder.” E.G.L. Gem Lab Ltd. v. Gem Quality Inst, Inc., 90 F.Supp.2d 277, 300 (S.D.N.Y.2000) (citing Indeed, allowing others to use a mark without a quality approval process— what trademark law calls a “naked license” — -risks abandoning the mark’s source-identifying function altogether. See id. (“A licensor must exercise some degree of supervision over the licensee on pain of abandonment of the mark, a, result that never is in the licensor’s and rarely in the licensee’s interest.” (footnote omitted)). In the context of this case, it is hardly surprising that the approval process would be carried out by the founder of both Kehot and Merkos and the spiritual leader of the Lubavitcher community during his lifetime. Nor is it surprising that others at Merkos would have to take over the approval process upon the Rebbe’s passing.
2233	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 extra “bona fide purchaser” rights for trustees under § 544(a)(3). A trustee must still check the public records and be aware of encumbrances as would any purchaser. See, Section 549(d) states that an action to recover property may not be commenced after the case has been closed. 11 U.S.C. § 549(d)(2). See, In re Weiman, 22 B.R. 49 (9th Cir. BAP 1982); In re Wilson, 4 B.R. 605 (Bankr.E.D.Wash.1980). Wiley Brooks’ bankruptcy closed almost two years ago. Therefore, even if this court were to find the re-recordation invalid under the facts of this case, the time to avoid it has expired. The validity of the bank’s lien went uncontested by Wiley Brooks’ trustee thus the statute of limitations has run on the trustee’s avoidance powers. Other parties affected by the stay are afforded no substantive or procedural rights under these provisions of the Bankruptcy Code. In re Stivers,
3601	upon the co-liability of the parties, as to a third party or to the Environmental Protection Agency (“EPA”), is a disallowa-ble claim for reimbursement or contribution. Dant & Russell, 951 F.2d at 249; Charter., 862 F.2d at 1503; In re Eagle-Picher Industries, Inc., 144 B.R. 765, 769 (Bankr.S.D.Ohio 1992); In re Hemingway Transport, Inc., 105 B.R. 171, 174 (Bankr.D.Mass.1989). See In re Cottonwood Canyon Land Co., 146 B.R. 992 (Bankr.D.Colo.1992) (disallowable claim for contribution or reimbursement existed even though EPA not involved). On the other hand, when reimbursement or contribution is not a factor, a direct contingent claim by the current owner of property for CERCLA past and future response costs is not disallowed by 11 U.S.C. § 502(e)(1)(B). In the instant case, the Board does not seek to recover sums owed under CERCLA to a third party, such as the EPA, but instead seeks to recover sums it has expended and will expend in the future to remedy the hazardous waste conditions on the property acquired from the debtor. Therefore, 11 U.S.C. § 502(e)(1)(B) will not bar the Board’s proposed contingent claim because there does not appear to be any multiple liability on the debtor’s part for the contingent claim asserted by the Board. Dant & Russell, 951 F.2d at 248; In re Allegheny International, Inc., 126 B.R. 919 (W.D.Pa.1991), aff'd without opinion, 950 F.2d 721 (3d Cir.1991); Harvard Industries, 138 B.R. at 13. Standing It has been argued that
1847	settlement of a contractor claim. Burden of Proof, Standard of Proof The defendant bears the burden of proving the correctness of the default termination. Although the notice of default termination was predicated solely on an asserted fraud by the contractor in certifying the training of its solderers, that issue was abandoned by the government prior to trial. Instead, the government attempted to sustain the default on two other grounds. The first was that the contractor had falsified the results of leak tests performed on the TVPCs. The second was that Triad fraudulently concealed from MICOM its discovery that the wrong type of soldering flux may have been used on completed units. Fraud taints everything it touches. Consequently, proof of fraud by clear and convincing evidence is a ground for default termination. Joseph Morton Co., 757 F.2d at 1278-79; see United States v. Acme Process Equipment Co., 385 U.S. 138, 144-48, 87 S.Ct. 350, 354-56, 17 L.Ed.2d 249 (1966). Fraud is sufficient to vitiate acceptance of delivered contract goods. See Universal Sportswear Inc. v. United States, 180 F.Supp. 391, 145 Ct.Cl. 209, 214 (1959). On this basis, defendant seeks confirmation of the decision to default terminate, as well as return of payments made in excess of the value of completed units accepted. The government also raises as a defense a special plea in fraud pursuant to 28 U.S.C. § 2514 (1988). The effect of this provision is to
4766	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. 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
2425	"is a FOIA request. The Supreme Court has held that ""[hjabeas is the exclusive remedy ... for the prisoner who seeks ""immediate or speedier release” from confinement.” Skinner v. Switzer, - U.S. -, 131 S.Ct. 1289, 1293, 179 L.Ed.2d 233 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005)). ""Where the prisoner's claim would not necessarily spell speedier release, however, suit may be brought.” Id. (internal quotation marks omitted). A FOIA action seeking access to documents does not implicate the plaintiff's conviction and is not a request for ""present or future release” which is the "" 'core' [of] habeas corpus relief.” Dotson, 544 U.S. at 81, 125 S.Ct. 1242. See also . The district court also stated that even assuming Mr. Terry had properly filed a complaint, any FOIA claim would be time-barred. However, because we agree with the district court’s holding on other grounds, we do not reach the time-bar issue. Nor do we have occasion to determine the exhaustion of remedies question."
3581	MORRIS SHEPPARD ARNOLD, Circuit Judge. Jeffrey Chubb appeals the entry by the district court of summary judgment in favor of the City of Omaha, Nebraska, on his claim that Omaha violated the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654, by denying him bonus annual leave after he took FMLA leave. We review the district court’s decision de novo, see  cert. denied, 540 U.S. 823, 124 S.Ct. 153, 157 L.Ed.2d 43 (2003), and affirm. The City of Omaha awards a police officer who does not take more than 40 hours of sick leave in a particular year with 2 hours of additional annual leave for each pay period during that year in which the officer had at least 1000 hours of accrued sick leave. For all of 2003, Mr. Chubb had at least 1000 hours of accrued sick leave. When in that year he took three weeks of leave for surgery, however, he “substitute[d]” accrued paid sick leave for FMLA leave, see 29 U.S.C. § 2612(d)(2)(B). (Although the term “substitute” is used in § 2612(d)(2)(B), that term is somewhat misleading
3644	with trial as scheduled. See United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). Rose’s claim that the district court violated his Sixth Amendment rights by denying his request for the appointment of substitute counsel is without merit. As the district court determined, Rose failed to establish grounds for replacing his counsel, Scott Miller Anderson and substituting new counsel. The court found Rose’s assertion that counsel had lied to him to be incredible, and this court will not revisit that determination. See United States v. Hoskins, 910 F.2d 309, 311 (5th Cir. 1990). The record indicates that Rose’s request was based on his disagreement with counsel’s strategy, which is insufficient to warrant the substitution of new counsel. See cf. Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). The record further shows that Rose understood the risks of self-representation and clearly, unequivocally, and repeatedly expressed his desire to proceed pro se. See Faretta v. California, 422 U.S. 806, 815-21, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Rose does not now argue that his invocation was unknowing, involuntary, or equivocal, nor does he contend that the district court’s colloquy was inadequate. Rather, he contends that the court ought not to have allowed him to proceed pro se given his obvious lack of legal knowledge and training. However, because Rose clearly and unequivocally invoked his constitutional right to self-representation after extensive questioning, the
2729	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. 1613, 1615, 164 L.Ed.2d 358 (2006), we remand to the BIA for addition al explanation and investigation into that question. The BIA may answer it in the negative. But, if such is the BIA’s finding, it must make its reasons plain so as to afford meaningful appellate review. See Ill Even if the documents are determined to be valid, and even if they are held to establish changed country conditions in the above sense, there arises the question of whether petitioner’s motion to reopen could have been denied on the ground that his children were born after he had been ordered to depart. The panel in Shou Yung Guo appears to have left this question open. See Shou Yung Guo, 463 F.3d at 115 (“[Petitioner] had given birth to a child in China prior to filing her application for asylum in 1993, and gave birth to a second child in 1995 after arriving in the United States, but before being ordered to depart in 1996. Therefore, [petitioner] appears to
2741	implies that the decisionmaker ... selected or reaffirmed a course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Id. (quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)). In light of this intent requirement, an equal protection challenge to a law or policy may proceed under one of several theories. First, a law, policy, or action may be discriminatory on its face. See United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). Second, a law, policy, or action, neutral on its face, may be applied such that it discriminates against a certain group. See Finally, a law, policy, or action, neutral on its face and in its application, may have been promulgated with discriminatory intent. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). In this last instance, although evidence of a disparate impact may serve as evidence of discriminatory intent, it rarely will carry the day in the absence of other evidence of discriminatory design. The First Circuit has noted that “evidence of a widely disproportionate impact on the plaintiff class normally is not enough, standing alone, to establish an equal protection violation.... Rather, [the plaintiff] must adduce competent evidence of ‘purposeful discrimination.’ ” Hayden, 134
1802	"between the screen door and front door. Richmond contends none of the factors articulated by the officers at the suppression hearings, standing alone, are illegal conduct. He emphasizes he was walking home and, after seeing the officers, continued on that path to his residence. Richmond insists that, as far as the officers knew, he may have been licensed to carry a concealed firearm. See WIS. STAT.§ 175.60 (permitting persons age 21 and older who have not been convicted of a felony to obtain a concealed-carry license). Richmond's points miss the forest for the trees: when evaluating the reasonableness of a police intrusion, we look at the totality of circumstances and ""must not be overly focused on any one factor."" Richmond's presence in a neighborhood beset by drug trafficking and gun violence does not, by itself, support a particularized suspicion that he was committing a crime. But it is among the relevant contextual considerations in a reasonable suspicion analysis. See, e.g. , Wardlow , 528 U.S. at 124-125, 120 S.Ct. 673 (concluding defendant's evasive behavior in a high crime area and unprovoked flight after seeing the police had aroused a reasonable suspicion that he was engaged in criminal activity); United States v. Jackson , 300 F.3d 740, 746 (7th Cir. 2002) (holding same). A suspect's evasive behavior, and the experience of the officers, are also relevant factors. United States v. Oglesby , 597 F.3d 891, 894 (7th Cir. 2010)"
3257	842 (1967). An important exception to this rule, however, applies here. An obvious situation in which the employee should not be limited to the exclusive remedial procedures established by the contract occurs when the conduct of the employer amounts to a repudiation of those contractual procedures. Cf. Drake Bakeries v. Bakery Workers, 370 U.S. 254, 260-263 [82 S.Ct. 1346, 1350-1352, 8 L.Ed.2d 474 (1962)]. See generally 6A Corbin, Contracts § 1443 (1962). In such a situation (and there may of course be others), the employer is estopped by his own conduct to rely on the unexhausted grievance and arbitration procedures as a defense to the employee’s cause of action. Id. at 185, 87 S.Ct. at 914. See also The Court concludes that rejection of a collective bargaining agreement in bankruptcy is just such a situation amounting to an employer’s repudiation of contractual grievance procedures. Therefore, the Court holds that an employee’s failure to pursue the dispute resolution procedures of the rejected contract does not bar the claim. In Bildisco, the Supreme Court reasoned that because the rejection of a contract relates back to the day before the bankruptcy petition, “the filing of the petition in bankruptcy means that the collective-bargaining agreement is no longer immediately enforceable, and may never be enforceable again.” NLRB v. Bildisco and Bildisco, 465 U.S. 513, 532, 104 S.Ct. 1188, 1199, 79 L.Ed.2d 482 (1984). Thus, U.S. Truck is in the anomolous position of
3326	(1979). D. Shamy raises an additional challenge to his conviction for conspiracy to obstruct justice. Noting that there is no direct evidence linking him to several of the overt acts allegedly committed by Nelson in furtherance of the conspiracy, including alteration of the closing statement and alteration of city tax records, Shamy complains that he may have been convicted of conspiracy on the basis of acts he neither authorized nor adopted. We, however, are satisfied that the jury could reasonably have found there was a conspiracy between Shamy and Nelson to obstruct justice and there were overt acts committed in furtherance of the conspiracy during its existence. Thus, Shamy was responsible for the acts even if committed by Nelson. See United States v. Addonizio, 449 F.2d 100, 102 (3d Cir.1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 737, 30 L.Ed.2d 746 (1972). At trial the United States presented evidence that: (1) Nelson withheld $5,000 from Malouf s closing proceeds without informing Malouf he was doing so; (2) two years later, upon learning about Weisen-beck’s investigation, Nelson altered Mal-ouf s closing statement, adding a notation representing that $5,000 had been withheld on Shamy’s behalf; (3) when interviewed by Weisenbeck, Shamy claimed that he had proposed that Nelson withhold $5,000 from Malouf; (4) Nelson produced a letter dated April 16, 1983 in which Shamy outlined his proposal that Nelson withhold
4871	sentence and does not wish to have his guilty plea set aside. Thus, counsel should have omitted any discussion of possible challenges to the voluntariness of Eom’s plea or the adequacy of the plea colloquy. See United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009); United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel has evaluated whether Eom could challenge the reasonableness of the 51-month sentence he asked the district court to impose. Counsel notes, however, that the court correctly calculated the imprisonment range and that Eom’s sentence at the bottom of that range is entitled to a presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); And counsel concludes that this presumption could not be overcome by arguing that the district court failed to adequately consider the sentencing factors under 18 U.S.C. § 3553(a). See United States v. Singleton, 588 F.3d 497, 500-01 (7th Cir.2009). The court acknowledged Eom’s arguments in mitigation: that he is well educated and, until this offense, had an impressive work history and no criminal record. But the court emphasized that Eom’s professional training made him computer savvy, and the transcripts of his online conversations with the undercover officer demonstrate that Eom knew his actions were illegal because he asked the girl about the legal age for consensual sex, expressed his concerns about going to jail, and implored the girl to keep
3647	risks of self-representation and clearly, unequivocally, and repeatedly expressed his desire to proceed pro se. See Faretta v. California, 422 U.S. 806, 815-21, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Rose does not now argue that his invocation was unknowing, involuntary, or equivocal, nor does he contend that the district court’s colloquy was inadequate. Rather, he contends that the court ought not to have allowed him to proceed pro se given his obvious lack of legal knowledge and training. However, because Rose clearly and unequivocally invoked his constitutional right to self-representation after extensive questioning, the district court had no choice but to allow him to proceed pro se as to do otherwise would have violated his Sixth Amendment rights. See Faretta, 422 U.S. at 835-36, 95 S.Ct. 2525; see also United States v. Sanders, 843 F.3d 1050, 1055 (5th Cir. 2016). The district court’s judgment is AFFIRMED. 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.
4684	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 . None of the appellees dispute that they are not citizens of Florida. However, it appears that Chase, a national banking association, is actually a citizen of Ohio, not New York. See OneWest Bank, N.A. v. Melina, 827 F.3d 214, 219 (2d Cir. 2016) (per curiam) (national banking association is citizen of state listed in its articles of association as its main office); Arthur v. JP Morgan Chase Bank, NA, 569 Fed.Appx. 669, 673 (11th Cir. 2014) (Chase's principal office is in Ohio); Excelsior Funds, Inc. v. JP Morgan Chase Bank, N.A., 470 F.Supp.2d 312, 313-14, 314 n.3 (S.D.N.Y.2006) (same). Regardless, this fact would not defeat complete diversity.
573	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.’ 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
768	the accrual of time for purposes of meeting the requirement for continuous physical presence; (4) the BIA should have granted him voluntary departure; and (5) the BIA violated his procedural due process rights by dismissing his appeal despite his plausible ground of relief from removal. Although Rivas-Banos cites to In re Garcia-Hernandez, 23 I. & N. Dec. 590 (BIA 2003), and In re Deanda-Romo, 23 I. & N. Dec. 597 (BIA 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. 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.
3479	November 1945 ...” Harry B. Kates, BVA 92-_, at 5 (Jan. 10, 1992). Accordingly, the Board found the “new” evidence not “material” and denied “the benefit sought on appeal.” ANALYSIS The Board’s 1989 decision, which denied appellant’s claim for fungal infection of his feet, was final and could be reopened only upon the presentment of “new and material” evidence. If “new and material” evidence is presented or secured, the claim must be reopened and readjudicated. See 38 U.S.C.A. §§ 5108, 7104 (West 1991). Of course, if there is “new and material” evidence, that does not necessarily mean that the claimant “wins”; its presentment only compels the reopening and readjudication of the claim. See Manio v. Derwinski, 1 Vet.App. 140, 145-46 (1991); “New” evidence is that which is relevant to and probative of the issue at hand which to be material must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in context of all the evidence, both new and old, would change the outcome. Colvin, 1 Vet.App. at 174. In finding no “reasonable possibility” that the new evidence would change the outcome in this case, the Board determined the new evidence not to be material and refused to reopen the case. The Court agrees. The evidence of Mr. Ezell is not material. This statement by a lay witness as to the medical condition of the feet of a fellow soldier
4356	in 2009. Plaintiffs originally brought this action in the Court of Common Pleas of Philadelphia County. The defendants removed it to this court on the ground that the action is between citizens of a state and citizens or subjects of a foreign state under 28 U.S.C. § 1832(a)(2). The complaint alleges that the plaintiffs and the decedents whose estates they represent are or were citizens of the United Kingdom. It is undisputed that none of the defendants is a citizen of the United Kingdom or any other foreign state. Plaintiffs then moved to remand the action to the Court of Common Pleas. They maintain that Avco’s principal place of business is in Pennsylvania under the “nerve center” test enunciated in  and therefore removal was improper under 28 U.S.C. § 1441(b)(2). That statutory section reads: A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. The court ordered limited discovery on the issue of Avco’s principal place of business, and briefing on this issue is still in progress. Following the filing of their motion to remand and while it is still pending, plaintiffs filed the present motion to collaterally estop Avco from relitigating the determination of Pennsylvania as its principal
1398	involving both a Title VII claim and a claim under section 1981, if the 1981 claim is disposed of before trial, plaintiff has no right to a jury trial on his Title VII claim, and a rule 41(b) motion for involuntary dismissal would be appropriate on the Title VII claim. In this case, however, both claims were before the jury and therefore the granting of a directed verdict on both claims under rule 50(a) is appropriate. Even if rule 41(b) were applicable to the Title VII claim in this case, the plaintiff would not be prejudiced by the court’s application of rule 50(a), since satisfaction of the rule 50(a) standard implies satisfaction of the rule 41(b) standard. See . Southland, in its pleadings, contends that Mr. Ashagre was fired from his position. Mr. Ashagre claims that he took what amounts to a leave of absence and that he was transferred to the Houston Division in January, hence his claim of discrimination on the basis that he was demoted by Southland when they “transferred” him to Houston. The evidence does not expressly support either of these contentions. Mr. Ashagre’s discharge papers reflect that he was “voluntarily dismissed” for “failure to report to work” (as opposed to “involuntarily dismissed”). In his deposition, Mr. Ashagre states that he told Southland he was leaving in November to travel with one of his professors and because he needed the time to
4025	The Coast Guard must come to grips with the meaning of the statute, and, particularly, the meaning of the term “voluntary association.” An agency interpretation is not only necessary to meet appellant’s administrative law challenge, it is also essential, as we will explain, to meet his constitutional claims. Even assuming that the Act can be interpreted to allow the Coast Guard to give a preference to pool members so long as the Association has the physical and economic ability to meet demand, the record is silent on whether that was so when appellant was denied an appointment in 2004. Of course, this was an informal adjudication, and it is common for the record to be spare in such cases. See, e.g., But here we have no indication that in 2004 the situation had changed from earlier years when the pool could not provide adequate service. Moreover, Director Wasserman’s use of “extraordinary circumstances,” as we have noted, seems to be an unexplained, stricter threshold for the appointment of nonmember pilots than the regulation’s text contemplates. Thus, if the pool could not meet demand, and the Coast Guard was simply seeking to compel Menkes to join the Association, that decision might be thought in contravention of the Coast Guard’s own regulations. In any event, the Coast Guard has offered no explanation regarding the changed conditions from the 2003 to 2004 navigation season, and on remand it will be
3493	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. 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.
2383	"attorneys' fees is appropriate in admiralty only when the shipowner acted arbitrarily, recalcitrantly, or unreasonably.”) (citing Vaughan v. Atkinson, 369 U.S. 527, 531-32, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962)); Galveston County Navigation List. No. 1 v. Hopson Towing Co., 92 F.3d 353, 357 (5th Cir.1996) (""The evolution of this bad faith exception to the American Rule in the context of admiralty law began with Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962)''); Goodman v.1973 26 Foot Trojan Vessel, 859 F.2d 71, 74 (8th Cir.1988) (""[AJttorney's fees are not ordinarily awarded in admiralty cases. An exception is made to this general rule when the losing party has acted in bad faith.”) (internal citation omitted); ) (internal quotation marks omitted); Interpool Ltd. v. Bernuth Agencies, 129 F.3d 113, 1997 WL 716115 (2d Cir.1997) (not precendential) (""The award of fees and expenses in admiralty actions is discretionary with the district judge upon a showing of bad faith.”). . Plaintiff also emphasizes the public policy in favor encouraging salvor's to undergo salvage attempts. The Court previously acknowledged that its judgment in favor of plaintiff was consistent this policy. See Del. River Tow, LLC, 2005 WL 331706, at *6 n. 8, 2005 U.S. Dist. LEXIS 2071, at *18 n. 8. With respect to"
2031	friends had been killed at the DWP; he testified in April 1991 that he could not remember the names of friends who had been killed in the attack (R. at 187); and in March 1993 he testified that, although he couldn’t “physically” see any of his friends who were killed, he “could see them through the gate” (R. at 228). However, the ESG report, by stating that there were no casualties from that attack, did repudiate the veteran’s alleged stressor in terms of Navy fiiends being killed at the DWP. Accordingly, the Board’s errors in assessing this stressor (assuming no finding of engagement in combat as to this asserted stressor) were not prejudicial to the veteran. See 38 U.S.C. § 7261(b); Again, assuming no pertinent finding of engagement in combat, the Court does not find error with respect to the Board’s findings of a lack of confirmation of the other alleged stressors (relating to “funeral duty”, witnessing casualties, a Vietnamese boy being taken away, and participation in convoys), nor does the Court hold that VA violated its duty to assist the veteran with respect to verifying these stressors. The ESG was unable to verify the veteran’s allegations that he had been a guard, had participated in combat actions, or had handled casualties; and found that all his other asserted stressors (except for the attack on the DWP and the rocket and mortar attacks) were anecdotal incidents that it could not
2506	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 an injunction would impact the public interest. Nutrition M v. United States, 930 F.2d 867, 869, 18 USPQ2d 1347, 1348-49 (Fed.Cir.1991); Hybritech Inc. v. Abbott Lab., 849 F.2d 1446, 1451, 7 USPQ2d 1191, 1195 (Fed.Cir.1988). A. Likelihood of Success: In order to demonstrate likelihood of success, Bell & Howell must show that, in light of the presumptions and burdens that will inhere at trial, it will likely prove that Keystone infringes its patents. See If Bell & Howell clearly established a likelihood of success, it was entitled to a rebuttable presumption that it would be irreparably harmed if a preliminary injunction were not to issue. Polymer Techs., 103 F.3d at 973, 41 USPQ2d at 1188. Literal infringement involves a two-step determination: the proper construction of the asserted claim and a determination whether the claim as properly construed reads on the accused product or method. Markman v. Westview Instruments, Inc., 52 F.3d 967, 976, 34 USPQ2d 1321, 1326 (Fed.Cir.1995) (in banc), aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577, 38 USPQ2d 1461 (1996). The first step, claim construction, is a question of law, which we review de novo. Id. at
2894	into an IRA. The bankruptcy court did not consider the amount in the retirement fund to be relevant to its valuation of the estate until the date on which Zellner actually received the money. Then, citing 11 U.S.C. § 541(a)(5) (1982 & Supp. Ill 1985), the court concluded that since Zellner received the money more than 180 days after he filed his Chapter 13 petition, the money could not be considered property of the estate for valuation purposes. To determine what is estate properly, Chapter 13 adopts the Chapter 5 definition in 11 U.S.C. § 541, but also includes property acquired during the pendency of the Chapter 13 case. See 11 U.S.C. § 1306(a)(1); 5 Collier on Bankruptcy 111306.01[2][A] (15th ed. 1987). Under section 541, a debtor’s interest in a retirement fund should be considered estate property, then exempted if it qualifies as a “spendthrift trust” under relevant state law. See In re Graham, 726 F.2d 1268, 1270-72 (8th Cir.1984); cf. In re Goff, 706 F.2d 574, 581-82 (5th Cir.1983) (only spendthrift trusts that are beyond the reach of creditors under state law are excluded from the estate). Thus, in order to decide whether the property would be exempt in a Chapter 7 liquidation, the bankruptcy court must determine whether the beneficial interest in the fund is subject to a restraint on alienation such that it could not be reached by the beneficiary’s creditors
162	plaintiff to have been erroneously and illegally assessed and collected by the defendant, when collector, for the year 1919 and the first half of the year 1920, under the Revenue Act of 1918 and the Revenue Act.of 1921 (Comp. St. § 6336%a et seq.). The parties entered into a written stipulation as to most of the material facts for purposes of this suit, in which many of the material allegations of the complaint are conceded. In addition to this stipulation, there was oral testimony, which it is not necessary to set forth. This ease differs from the case of The first question presented in this case is, quoting the language of the learned judges of the Circuit Court of Appeals in Warner v. Walsh, supra, “whether an annuity, payable first out of income, but, if necessary, out of principal, of a similar trust fund, but acquired solely in lieu of, and in consideration for, the relinquishment of valuable statutory rights in the estate, is income, bequest, or annuity.” The Circuit Court held that this was a purchased annuity, and is, until the purchase price shall have been returned, exempt from taxation. Substantially the same question has recently been passed upon by
2359	"standard concerning the opinions of treating physicians, we will be faced with countless numbers of cases similar to the present one. Reversed and remanded to the district court with directions that the matter be remanded to the Secretary for further proceedings consistent with this opinion. . It appears that the State of New York decided to award Havas disability and workers’ compensation benefits after evaluating the reports of the treating and consulting physicians. As we have previously held, ""[w]hile the determination of another governmental agency that a social security disability benefits claimant is disabled is not binding on the Secretary, it is entitled to some weight and should be considered."" Cutler v. Weinberger, 516 F.2d 1282, 1286 (2d Cir.1975); see also . Havas urges us to find, on the basis of his advanced age, limited education and lack of transferrable job skills, that he is incapable of engaging in any substantial gainful employment. However, because the record is incomplete as to what skills, if any, Havas could transfer to another job, we decline to reach this issue."
4869	to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Eom has not responded to our invitation to comment on counsel’s submission, see CIR. R. 51(b), and we confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel begins by telling us that Eom has said he wants only to challenge his prison sentence and does not wish to have his guilty plea set aside. Thus, counsel should have omitted any discussion of possible challenges to the voluntariness of Eom’s plea or the adequacy of the plea colloquy. See United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009); Counsel has evaluated whether Eom could challenge the reasonableness of the 51-month sentence he asked the district court to impose. Counsel notes, however, that the court correctly calculated the imprisonment range and that Eom’s sentence at the bottom of that range is entitled to a presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Jackson, 598 F.3d 340, 345 (7th Cir.2010). And counsel concludes that this presumption could not be overcome by arguing that the district court failed to adequately consider the sentencing factors under 18 U.S.C. § 3553(a). See United States v. Singleton, 588 F.3d 497, 500-01 (7th Cir.2009). The court acknowledged Eom’s arguments in mitigation:
2480	county law, and that any legal conflicts which do exist have not harmed public safety. See PI. Bank Ex. 7 at 14, 19, 47. Even assuming the Mille Lacs Band members obey the County’s ordinances only “under protest,” plaintiffs have not shown that their compliance “under protest” has created a real injury. When examined, the County’s position appears to be that the Court should hold that defendants’ compliance with County law constitutes injury. The Court is unable to find any legal precept that can support this theory. The County’s concern over potential liability similarly affords no colorable claim. The County claims its potential liability stemming from law enforcement beyond its jurisdiction constitutes a cognizable injury. It supports this position by citing  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
1306	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 The district court did not misinterpret this straightforward language. Moreover, Batiste fails to explain how his complaint is unrelated to the Zahara Complaint. He relies on the argument that his complaint is not based on the facts underlying the Zahara Complaint, a contention we find unavailing, as discussed below. Reviewing the Zahara and Batiste complaints de novo, we must consider whether they allege the “same material elements of fraud.” In other words, we must determine whether the Batiste Complaint alleges a fraudulent scheme the government already would be equipped to investigate based on the Zahara Complaint. A side-by-side comparison has persuaded us that, although the complaints allege somewhat different facts, Zahara’s complaint suffices to put the U.S. government on notice
3293	PER CURIAM. Jorge Alarcon pled guilty to conspiring to distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C. § § 846 and 841(b)(1)(A), and the district court sentenced him to the statutory minimum of 120 months in prison. On appeal, his counsel has moved to withdraw and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Alarcon seeks appointment of new counsel and has filed a pro se supplemental brief. Counsel argues in the Anders brief that the sentence imposed is unreasonable. We disagree. See  cert. denied, — U.S. —, 129 S.Ct. 998, 173 L.Ed.2d 297 (2009); see also United States v. Rojas-Coria, 401 F.3d 871, 874 n. 4 (8th Cir.2005) (Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), has no impact on case involving sentence imposed as result of statutory minimum). Alarcon’s pro se argument that his guilty plea was not knowing or voluntary is not cognizable in this appeal, see United States v. Villareal-Amarillas, 454 F.3d 925, 932 (8th Cir.2006) (claim that guilty plea was not knowing and intelligent was not cognizable on direct appeal where defendant did not attempt to withdraw guilty plea
2828	admitted possessing in his deposition. Second, Davne asserts that even if he did have responsive documents, they would not be relevant to this action and so would be undiscoverable. Relevance for discovery purposes is defined broadly. The Federal Rules of Civil Procedure permit discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Fed.R.Civ.P. 26(b)(1). “It is not ground for objection that the information sought will be inadmissable at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id. The party opposing discovery has the burden to raise an objection, then the party seeking discovery must demonstrate the relevancy of the requested information. Once this showing is made, the burden switches again to the party opposing discovery to show why discovery should not be permitted. Id. Relevancy is broadly construed, and determined in relation to the facts and circumstances of each case. Stabilus v. Haynsworth, Baldwin, Johnson & Greaves, P.A., 144 F.R.D. 258, 265-66 (E.D.Pa.1992) (citing Continental Access Control Sys. v. Racal-Vikonics, 101 F.R.D. 418 (E.D.Pa. 1983); McClain v. Mack Trucks, Inc., 85 F.R.D. 53, 61 (E.D.Pa.1979)). When there is doubt about relevance, a court should tend toward permitting discovery. Id. at 265 (citing Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1024 (Fed.Cir.1986)). We find that Davne’s financial or other involvement in AcroMed is relevant to Plaintiffs assertion of a
84	the analysis and to emphasize the changes that IRCA wrought. IRCA provides that green cards can be used as proof of LPR status in order to establish one’s eligibility for a variety of government funded assistance programs. Specifically, eligibility for such programs as Aid to Families with Dependent Children, Medicaid, unemployment compensation, food stamps, and Title IV educational assistance can be established by presenting a green card. IRCA, § 121(a)(1), 100 Stat. 3384-86 (amending Social Security Act, 42 U.S.C. § 1320b-7); § 121(a)(2), 100 Stat. 3386-88 (amending Housing and Community Development Act of 1980, 42 U.S.C. § 1436(a)); § 121(a)(3), 100 Stat. 3388-90 (amending Higher Education Act of 1965, 20 U.S.C. § 1091); see also While not the exclusive means of providing proof of lawful immigrant status under these provisions, the green card is the most widely utilized and accepted means of proving LPR status. IRCA enhanced the importance of the green card in one additional area — employment authorization. IRCA, § 101(a), 100 Stat. 3360-74 (codified at 8 U.S.C. §§ 1324a(a)-(n)). In section 101(a) of IRCA, Congress set out to preclude the employment of aliens who had neither obtained LPR status nor been granted special employment authorization by the Attorney General. 8 U.S.C. §§ 1324a(a), 1324a(h)(3). Indeed, domestic employers are subject to both civil and criminal penalties if they knowingly hire an unauthorized alien or fail to comply with the
3832	530 F.3d 381, 384-87 (5th Cir.2008). AFFIRMED. . We take this opportunity to clarify this court's jurisprudence on whether an overt act in furtherance of the conspiracy is an element of the offense of conspiracy to launder money in violation of 18 U.S.C. § 1956(h). It is not. Overruling United States v. Wilson, 249 F.3d 366, 379 (5th Cir.2001), the Supreme Court held that an overt act is not an element of conspiracy to launder money. Whitfield v. United States, 543 U.S. 209, 214, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005). After Whitfield, this court mistakenly recited in dicta that an overt act is an element of the offense. United States v. Bueno, 585 F.3d 847, 850 (5th Cir. 2009); In conformity with Whitfield, we recognize that an overt act is not an element of the offense of conspiracy to launder money.
2170	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.,  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
2829	to the subject matter involved in the pending action.” Fed.R.Civ.P. 26(b)(1). “It is not ground for objection that the information sought will be inadmissable at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id. The party opposing discovery has the burden to raise an objection, then the party seeking discovery must demonstrate the relevancy of the requested information. Amcast Indus. Corp. v. Detrex Corp., 138 F.R.D. 115, 118 (N.D.Ind.1991). Once this showing is made, the burden switches again to the party opposing discovery to show why discovery should not be permitted. Id. Relevancy is broadly construed, and determined in relation to the facts and circumstances of each case. v. Racal-Vikonics, 101 F.R.D. 418 (E.D.Pa. 1983); McClain v. Mack Trucks, Inc., 85 F.R.D. 53, 61 (E.D.Pa.1979)). When there is doubt about relevance, a court should tend toward permitting discovery. Id. at 265 (citing Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1024 (Fed.Cir.1986)). We find that Davne’s financial or other involvement in AcroMed is relevant to Plaintiffs assertion of a conflict of interest. Contrary to Davne’s argument, this information is not relevant solely on the issue of conspiracy, a claim that has been dismissed, or on Plaintiffs punitive damages claim. Davne has responded to request number 24 that he has no responsive documents, but has not responded to request number 34. We
4183	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 and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment); United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). The Plaintiffs persuasively argue that no reasonable person would believe that they are free to leave when they are pulled over by a police officer for a traffic stop and ordered by an officer to show their hands at gunpoint. . The Plaintiffs also argue that Officers Zotz and Ross used excessive force when they fired shots into the backseat of the vehicle, severely injuring the Plaintiffs. Under the factors articulated in Graham, questions of fact remain that should be resolved by a jury. The severity of the crime at issue, running a stop sign, was extremely minimal. This traffic
3460	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. 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 PSIR’s chronology, he offered no evidence to counter the quantity calculations and he chose not to disavow his prior statements. Furthermore, these statements made during his PSIR interview were non-immunized and against his own interest.
2879	here. Whether or not a suit instituted elsewhere is such a public record need not be decided, since it is clear that I have not before me enough to enable me to determine whether what is sought in these proceedings is disclosed in the others, or whether the subject matter of the two sets of proceedings is identical to the extent that the information disclosed in one answers the questions posed here. The information sought in paragraphs 6, 7 and 8 of the motion for bill of particulars need not be given. With that qualification, the motion is granted and the defendant ordered to file the required bill of particulars within ten days after notice of this order. 
2105	is to declare whether respondent’s determination is reasonable. H. Rept. 94-658,1976-3 C.B. (Vol. 2) 931,935; S. Rept. 94-938,1976-3 C.B. (Yol. 3) 299,304. A subsidiary question is raised, however, in declaring the reasonableness of respondent’s determination. That inquiry focuses on the appropriate standard of review against which such reasonableness is to be measured. While neither party has urged adoption 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 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
200	"through “Specific jurisdiction”. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), and Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). . See Hanson v. Denckla, 357 U.S. 235, 237-255, 78 S.Ct. 1228, 1229-1240, 2 L.Ed.2d 1283 (1958). Defendants maintain that their only contact with Puerto Rico is the location of the plaintiff, and that in itself is insufficient contacts for the plaintiff to maintain this action in Puerto Rico, (docket 9, p. 5) . See Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 915 F.2d 7, 11 (1st Cir.1990). . See Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940); . Rule 4.7 of the Civil Rules of the Commonwealth of Puerto Rico prays as follows: ""(a) when the person to be served is not within Puerto Rico the general court of justice of Puerto Rico shall have personal jurisdiction over said non-resident as if he were a resident of the Commonwealth of Puerto Rico, if the action or claim arises as a result of the following: (1) such person or his agent carries out business transactions within Puerto Rico; or (2) executes by himself or through his agents, tortious acts within Puerto Rico; or (3) ... (4) ... (5) ..."" . Furthermore, the place where the performance of the contract is to take place is"
4667	"custody or otherwise deprived of his freedom by the authorities in any significant way,’ ""id. at 5, 88 S.Ct. 1503 (quoting 384 U.S. at 478, 86 S.Ct. 1602), but did not say whether the interview with Mathis fell within Miranda because of his incarceration or because of some other deprivation that was significant in the circumstances. Although it did not address Mathis, the Court’s opinion in Shatzer forecloses Ellison’s reading of the case for the former proposition. . On these facts, there would, of course, be no conclusion of custodial interrogation in those circuits that have previously applied the rule that such interrogation of a prisoner occurs only when the suspect’s restraint is more rigorous than the institutional norm. See, e.g., United States v. Conley, 779 F.2d 970, 973 (4th Cir.1985); Cervantes v. Walker, 589 F.2d 424, 428 (9th Cir.1978)."
1670	the respondent appear to be supported by at least an equal number of lawyers in tho Judge Advocate General’s Department. McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049. Cf. Carter v. Roberts, 177 U.S. 496, 20 S.Ct. 713, 44 L.Ed. 861; Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 48 L.Ed. 236; Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640; Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225; French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692. Contra See, e. g. Ex parte Bigdow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005. Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436; Ex parte Hans Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. Cf. Rosborough v. Rossell, 1 Cir., 150 F.2d 809; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; and Amrine v. Tines, 10 Cir., 131 F.2d 827. Title 30 U.S.C.A. § 1511. “As to number (article 40). No person shall, without his consent, be tried a second time for the same offense; but no proceeding
858	court is satisfied, beyond a reasonable doubt that at most it was harmless error. The petition for a writ of habeas corpus is dismissed. .  made retroactive in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968). . In each instance when Conroy’s statements were testified to, the court, following Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), which was in effect when this case was tried, instructed the jury that Conroy’s admissions were received only as against him and were to be disregarded in determining Butler’s guilt or innocence. The instruction was repeated in the court’s charge. . See 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) ; United States
3455	Cir.2005). While our established review for unreasonableness may have come to an end, Lister’s challenges do not. He contends that Booker and its predecessors charge this court with the responsibility to avoid unwarranted sentencing disparities between co-defendants, and between controlled substances where Congress has specifically legislated differing, advisory, punishments. We note only briefly that the judiciary has no power to maintain charges against an individual where the United States Attorney exercises its executive discretion and chooses to dismiss them, as was the case here. This is not a matter of the “sentencing disparities” as considered by Booker, but instead an example of the separation of powers in our legal system. United States v. Jones, 438 F.2d 461, 467-68 (7th Cir.1971) (citing Regarding the 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
1711	"defendant bank specifically ignored the plaintiffs order to credit the funds to a specific account. In contrast, the facts alleged here suggest that Rozsa ordered May Davis to limit its use of the funds as per their agreement, but that Rozsa had no such agreement with SG Cowen. SG Cowen’s motion to dismiss the conversion claim is granted. Conclusion For the foregoing reasons, the motion to dismiss is granted without prejudice. Roz-sa may replead within thirty (30) days of the date this opinion is filed. It is so ordered. . SG Cowen has withdrawn its Rule 9(b) motion in light of Rozsa’s acknowledgment that the complaint does not sound in fraud. (Def. Repl. Br. at 7 n. 3.) . See also Ahn v. Rooney, Pace Inc., 624 F.Supp. 368, 370-71 (S.D.N.Y.1985) (same). . Press, supra, did not address the line of cases holding that clearing brokers were fiduciaries and therefore does not foreclose this holding. Even if Press could be construed to address the question of clearing brokers' fiduciary status, it held only ""that the duties a broker owes to its client requires attention to the specific circumstances of the relationship between the broker and the client and the scope of the matters entrusted to the broker.” Kwiatkowski v. Bear, Stearns & Co., Inc., No. 96 Civ. 4798(JGK), 1999 WL 1277245, *10 (S.D.N.Y. Nov. 29, 1999). As set forth above, SG Cowen had"
2028	mechanic, he had never performed that duty while he was in Vietnam” and that instead he had been assigned, among other duties, to work on convoys and to perform guard duty. Br. at 17. The appellant contends that his experiences with mortar and rocket attacks and sniper fire are entirely consistent with the type of duty, i.e., guard and convoy, that he performed in Vietnam and that his testimony supports a finding that his stressors were related to combat. In this case, the Board failed to make a finding as to the credibility of the veteran’s sworn testimony describing his duties while in Vietnam, see Lizaso v. Brown, 5 Vet.App. 380, 386 (1993); Ohland v. Derwinski, 1 Vet.App. 147, 149-50 (1991);  and the Board failed to articulate clearly whether it found the veteran to have engaged in combat. In order for this Court to be able to carry out effective review of a BVA denial of a PTSD service-connection claim, the Board must generally make specific findings of fact, supported by an adequate statement of reasons or bases under section 7104(d)(1), as to whether or not the veteran was engaged in combat with the enemy, and, if so, whether the claimed stressor was related to such combat. See Zarycki, 6 Vet.App. at 98; see also Caluza, Gabrielson, and Gilbert, all supra. Because of the Board decision’s lack of an express finding with respect to combat, the reduced evidentiary threshold for combat
2347	to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (1982). Briefly stated, the administrative inquiry first determines whether a claimant is able to 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); “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
970	if they require resolution by a trier of fact. See id. at 248, 106 S.Ct. at 2510. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. See id. at 247-48, 106 S.Ct. at 2510. If the evidence is such that a reasonable fact-finder could find in favor of the nonmoving party, summary judgment should not be granted. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Determining credibility, weighing evidence, and drawing reasonable inferences are left to the trier of fact. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. Procedurally, the.party moving for summary judgment bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrates the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553; see also Fed.R.Civ.P. 56(c). The burden then shifts to the nonmoving party to establish the existence of a genuine issue for trial. See Matsushita, 475 U.S. at 585-87, 106
1286	concurrent sentences of 25 years on Count I and 20 years on Count II, to be followed by lifetime supervised release. On appeal, counsel has moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that Medley’s sentence is unreasonable. Upon careful review, we conclude that the district court did not abuse its discretion in sentencing Medley, and that the court imposed a substantively reasonable sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (in reviewing sentence for abuse of discretion, appellate court first ensures that district court committed no significant procedural error, and then considers substantive reasonableness of sentence); see also Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues for appeal. Accordingly, we grant counsel’s motion to withdraw, and we affirm. . The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas.
30	of vacating the judgment under Rule 60(b)(6) so that Frontier may have its day in court. Each of these issues involves a different standard of review and raises distinct legal questions. A We first look at whether the judgment is void under Rule 60(b)(4). This Court reviews a district court’s denial of a Rule 60(b)(4) motion to set aside a judgment de novo. Carter v. Fenner, 136 F.3d 1000, 1005 (5th Cir.1998). We have recognized two circumstances in which a judgment may be set aside under Rule 60(b)(4): 1) if the initial court lacked subject matter or personal jurisdiction; and 2) if the district court acted in a manner inconsistent with due process of law. Id. at 1006; see also 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,
1751	". 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). . . 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 a double design.”); Pack v. AC & S, 838"
2432	"Nazarian, 974 F.Supp.2d 790, 840 (Md.2013). ""While Maryland may retain traditional state authority to regulate the development, location, and type of power plants within its borders,"" the District Court explained, ""the scope of Maryland's power is necessarily limited by FERC's exclusive authority to set wholesale energy and capacity prices."" Id., at 829. The Fourth Circuit affirmed. Relying on this Court's decision in Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 370, 108 S.Ct. 2428, 101 L.Ed.2d 322 (1988), the Fourth Circuit observed that state laws are preempted when they ""den[y] full effect to the rates set by FERC, even though [they do] not seek to tamper with the actual terms of an interstate transaction."" Maryland's program, the Fourth Circuit reasoned, ""functionally sets the rate that CPV receives for its sales in the PJM auction,"" ""a FERC-approved market mechanism."" Id., at 476-477. ""[B]y adopting terms and prices set by Maryland, not those sanctioned by FERC,"" the Fourth Circuit concluded, Maryland's program ""strikes at the heart of the agency's statutory power."" Id., at 478. The Fourth Circuit cautioned that it ""need not express an opinion on other state efforts to encourage new generation, such as direct subsidies or tax rebates, that may or may not differ in important ways from the Maryland initiative."" Ibid . The Fourth Circuit then held that Maryland's program impermissibly conflicts with FERC policies. Maryland's program, the Fourth Circuit determined, ""has the potential"
3984	to eighteen months beyond that would ignore § 1322(d) and Congress’ clear intent). We agree with the above cases to the extent they hold that, even though a chapter 13 debtor has completed his or her monthly plan payments, failure to pay unsecured creditors the promised percentage dividend constitutes a material default with respect to a term of a confirmed plan. § 1307(c)(6). Because the Schlegels did not seek to continue their Plan payments beyond the 60 months but instead sought a hardship discharge, we do not render any opinion as to whether § 1322(d) limits a bankruptcy court’s ability to allow a debtor to continue making plan payments beyond the applicable commitment period. Schlegels argue that under  a plan is “complete” and debtors are entitled to a discharge when they either pay all claims 100% or make 60 months of payments. We disagree with their position. In Fridley, debtors sought an early discharge after making a lump-sum payment in month 14 of their 36-month plan, which satisfied the plan’s dollar amount. 308 B.R. at 540. The Panel held that since debtors’ plan did not provide for 100% payment to unsecured creditors, they had to commit themselves to the temporal requirement of 36 months and their prepayment did not “complete” their plan for purposes of §§ 1328(a) or 1329. Id. at 545. To obtain an early discharge without paying allowed unsecured claims in full, debtors had to
494	all requirements contract has been explained as follows: It has been the practice for many years of REA Administrators, including the af-fiant, to require as a condition of making operating and transmission loans pursuant to section 4 [of the Act] to cooperatives ... that the borrower shall obtain 35 year contracts with its members (hereinafter called “thirty-five year all-requirements contracts”) obligating them to purchase all of their electrical requirements to the extent that the borrower shall have the power and energy available. The purpose of this requirement is to assure that the borrower will have a market for the power generated and transmitted by the R.E.A. financed facilities and thus be able to repay the loan.  (quoting affidavit of REA Administrator) (emphasis added), cert. denied, 393 U.S. 1000, 89 S.Ct. 488, 21 L.Ed.2d 465 (1968). Similarly: The all-requirements provisions of the wholesale power sales contracts not only ensure that the cooperatives will have ah adequate market for their power among their local utility members during the period of the loan but also assure the REA that the utilities making up the federated cooperative seriously desire the loan to be made and intend to use its share of the power capacity which the loan would create. This customary and long established practice of the REA has been made known to, and acquiesced in, by Congress. Greensboro Lumber Co. v. Georgia Power Co., 643 F.Supp. 1345, 1364 (N.D.Ga.1986)
4275	favored nation clause, it is not implausible that Hicks decided to forego his demands. Finally, the record indicates that Union spokesman Pendzimas stated to Hicks that the Union would work harder in getting specified wage rates into all of the counties as a means of minimizing Buffalo’s concerns. Therefore, Hicks may well have concluded that the problem he faced in rural counties would soon be lessened. The testimony concerning the meeting was in direct contradiction. The administrative law judge chose to believe Egan. When a choice has been made between two fairly conflicting views, this court may not displace that choice even though we may have made a different choice had the matter been before us de novo. See In light of the fact that the record as a whole supports the credibility findings of the administrative law judge and the Board, we refuse to disturb the Board’s finding of a violation of 29 U.S.C. § 158(a)(5) and (1). The administrative law judge further found that on August 20 and 22,1975, Hicks violated 29 U.S.C. § 158(a)(5) and (1) by engaging in negotiations directly and individually with employees in an attempt to bypass the Union which was recognized as the exclusive representative of Buffalo’s employees. Buffalo contends that at both meetings Hicks did nothing more than state in factual terms the same offer that had been previously made to the Union. The record reflects,
743	criminal trial of another. For proof, Downey adverts to the testimony of several jurors at his coram vobis hearing. The State urges that jury deliberations are wrapped in a mantle of privilege, and jurors cannot be called to impeach their verdict. In controversy here, however, is not the nature of the mental processes of each juror in reaching the verdict, nor is it proposed that jurors testify as to their impression of the impact of particular evidence on the deliberations. United States v. McKinney, 429 F.2d 1019, 1029, 1030 (5 Cir. 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);  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
2255	initiative, without any state agency or officer ordering or determining that the cleanup was necessary. In the instant motion, PLC seeks to have the court declare its claim for reimbursement costs, totalling $85.892.30, an administrative expense. DISCUSSION I. Section 503(b)(1)(A) of the Bankruptcy Code (“the Code”), 11 U.S.C. et seq., authorizes the court to grant an administrative claim for, “the actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case.” Section 507 of the Code dictates that such expenses will be paid ahead of all other unsecured claims. The burden is upon the claimant to establish that its claim qualifies for allowance as an administrative expense. To determine whether a claim should be accorded administrative expense status, it is necessary to consider when the claim arises. Since Code section 503(b) concerns itself with expenses incurred in connection with the bankruptcy estate, the expense must be one which arises post-petition. Typically, only debts incurred for the economic preservation of the bankruptcy estate are entitled to an administrative priority. In re Dant & Russell, Inc., 853 F.2d 700, 706 (9th Cir.1988), citing Matter of Baldwin-United Corporation, 43 B.R. 443, 451 (S.D.Ohio 1984); In re Armorflite Precision, Inc., 43 B.R. 14, affirmed 48 B.R. 994 (Bankr.D.Me. 1984); In re Tri-L Corp., 65 B.R. 774 (Bankr.D.Utah 1986) (Administrative expense payments are reserved to those who either help preserve and administer
2979	here might qualify as a violent felony, for it involved the heaving of a brick through the plate glass window of a jewelry store. While the case is indeed a close one, 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 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
1098	in Wisconsin, but Mr. Raeder’s affidavit does not represent that the pickup was by the defendant’s own truck. Mr. Olender, on the other hand, has expressly averred that “the merchandise was not picked up by a Philip Olender & Company truck, nor was the driver under the direction or control of Philip Olender & Company.” The foregoing suggests that this was an isolated mail order transaction, and that it would be unfair to subject the defendant to jurisdiction under the Wisconsin long-arm statute. I conclude that the defendant’s contacts within Wisconsin were not sufficient to constitute a “substantial connection” for the purposes of due process. Balistrieri v. O’Farrell, 324 F.Supp. 151, 152 (E.D.Wis.1971); cf. Therefore, IT IS ORDERED that the defendant’s motion to dismiss this action be and hereby is granted.
56	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); 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 illegally reentering the United States shortly after he had been removed. Duran-Olvera has failed to show that the district court did not consider a factor that should have received significant weight, gave significant weight to a factor that it should not have so weighted, or made a clear error of judgment when it balanced the relevant factors. Cooks, 589 F.3d at 186. He has thus failed to rebut the pre sumption
2270	power vested in the trustee by § 554 is a narrow one. It does not encompass a speculative or indeterminate future violation of such laws that may stem from abandonment. The abandonment power is not to be fettered by laws or regulations not reasonably calculated to protect the public health or safety from imminent and identifiable harm. Id. at 507 n. 9,106 S.Ct. at 762 n. 9. Prior to the Midlantic decision, the Third Circuit appeared to interpret the Supreme Court’s decision in Ohio v. Kovacs, 469 U.S. 274, 105 S.Ct. 705, 83 L.Ed.2d 649 (1985) to require the denial of an administrative expense priority to a claim for costs incurred to comply with a regulatory agency’s cleanup order. However, the court’s subsequent decision in Commonwealth of Pennsylvania Department of Environmental Resources v. Conroy, (In re Conroy) 24 F.3d 568 (3d Cir.1994) makes it doubtful that such an interpretation is appropriate. In Conroy, the court relied upon Midlantic to grant the Pennsylvania Department of Environmental Resources (“DER”) an administrative claim for its costs to remove environmental contamination. In Conroy, the DER ordered Conroy to arrange for the proper disposal of drums and canisters containing hazardous wastes. Con-roy did not comply with the DER order, instead he and his wife filed a Chapter 11 bankruptcy petition. Fearful that the debt- or’s failure to remove the waste endangered public health, the DER initiated an “interim response,” pursuant to Pa.Stat.Ann., tit. 35,
1193	reentry cases. The District Court held a sentencing hearing on March 9, 2006. The court reduced Rondon-Urena’s Guidelines criminal history category from Category III to Category II based on concerns that Category III might overstate his actual criminal history, and that a violation of probation may not have been considered correctly. Judge McLaughlin rejected Rondon-Urena’s request for a downward departure based on fast-track disparities, however. App. 25. Ultimately, the District Court sentenced Rondon-Urena to 36 months’ incarceration, a sentence below the applicable guidelines range of 41-51 months. II. Understanding Rondon-Urena’s argument requires an understanding of fast-track programs. Fast-tracking of immigration cases began in districts along the U.S.-Mexico border in response to massive caseloads that threatened to overwhelm U.S. Attorneys’ offices. To better manage the flood of cases, federal prosecutors offered shorter sentences to defendants in certain immigration cases, in exchange for defendants’ expeditious guilty pleas and waivers of appellate and other rights in 8 U.S.C. § 1326 cases. United States v. Morales-Chaires, 430 F.3d 1124, 1127 (10th Cir.2005). Prosecutors have used two means to offer shorter sentences and thereby encourage defendants to plead guilty: charge-bargaining, and agreeing to recommend downward departures at sentencing. Id. Congress formally authorized fast-track programs as part of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (“PROTECT Act”), Pub.L. No. 108-21,117 Stat. 650, 675 (2003). In the PROTECT Act, Congress instructed the United States Sentencing Commission to promulgate
1618	under Rule 16, Fed.R.Crim.P., effective July 1, 1966. In opposition, the Government noted that a similar motion was denied some time ago, and said “now Karp seeks to take advantage of the new Rules * * *.” This sole objection is not a moving one. The case still awaits trial. The new Rules were written to be taken advantage of. There is no hurt to the Government in applying them here. This is by no means the first case illustrating that fortuitous matters of chronology may make a difference, sometimes a dramatic and painful difference, for a defendant in a criminal trial. E. g., compare Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and  with Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). To.summarize and record the court’s rulings: The motion for severance is granted to the extent of requiring that Karp be tried separately from Pitkin. The motion for discovery and inspection is also granted. It is so ordered. . It is unnecessary here to insist that the decision was actually put still more narrowly on the ground that the “accredited ritual [of telling the jury not to draw the inference] was not followed * * 262 F.2d at 538. . Neither, by the way, is Gleason.
3705	to lay the foundation for an identified legal claim. To the extent that the pleadings can be cured by the allegation of additional-facts, the plaintiff should be afforded leave to amend. Cook, Perkiss and Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.1990) (citations omitted). B. 12(b)(1) Legal Standard Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for “lack of subject-matter jurisdiction.” Faced with a Rule 12(b)(1) motion, a plaintiff bears the burden of proving the existence of the court’s subject matter jurisdiction. Thompson v. McCombe, 99 F.3d 352, 358 (9th Cir.1996). A federal court is presumed to lack jurisdiction in a particular-case unless the contrary affirmatively appears: A challenge to subject matter jurisdiction may be facial 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
369	"show remorse; (7) lack of concern for others; (8) a tendency to derive pleasure from hurting others; (9) inability to learn from experience or punishment; (10) the ability to manipulate others; and (11) the development of extremely strong sex drives with a tendency toward sexual deviancy. He also testified that petitioner’s behavior was becoming increasingly violent and that he would continue to pose a threat to the safety of others even if he were to be incarcerated. . See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). . Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); . Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). . 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). . Chapman, 386 U.S. at 24, 87 S.Ct. at 828. . 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). . Brecht, 507 U.S. at 623, 113 S.Ct. at 1714. . The Texas Court of Criminal Appeals was silent as to which standard it applied. . The district court applied the standard espoused in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (Whether the error ""had substantial and injtirious effect or influence on the jury’s verdict""). . 386"
1672	U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049. Cf. Carter v. Roberts, 177 U.S. 496, 20 S.Ct. 713, 44 L.Ed. 861; Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 48 L.Ed. 236; Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640; Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225; French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692. Contra Sanford v. Robbins, 5 Cir., 115 F.2d 435. See, e. g. Ex parte Bigdow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005. .R. 1436; Ex parte Hans Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. Cf. Rosborough v. Rossell, 1 Cir., 150 F.2d 809; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; and Amrine v. Tines, 10 Cir., 131 F.2d 827. Title 30 U.S.C.A. § 1511. “As to number (article 40). No person shall, without his consent, be tried a second time for the same offense; but no proceeding in which an accused has been found guilty by a court-martial upon any charge or specification shall be held to be a trial in
1954	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.);  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
572	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 d 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. & 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;
925	not trigger the statute of limitations; the period begins to run only with the filing of the return, through which the final tax liability is ascertainable). The monies remitted to the IRS as a result of the levies on the taxpayer’s wages and bank account were amounts collected to discharge the taxpayer’s finally determined 1983 tax liability. They were 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  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
2329	"F. 693, 714. The defendant also contends that Claim 4 must be read in the light of the specification and drawings, and that, when so read, it is apparent that the accused device does not infringe, because the dispensing element attached to the plunger of that device is different. The particular forms of devices described in specifications are to be considered as the forms which are preferred by the inventor. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 418, 28 S.Ct. 748, 52 L.Ed. 1122; National Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co., 8 Cir., 106 F. 693, 715; J. L. Owens Co. v. Twin City Separator Co., 8 Cir., 168 F. 259, 266; ""An inventor must describe what he conceives to be the best mode, but he is 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"
2911	"not commercially significant. Therefore, it was unlawful for Commerce to compare these groups of products as “identical” according to 19 U.S.C. § 1677(16)(A). D. The Department’s Claimed Reliance on a Practice Not to Alter a Model-Match Methodology Absent Compelling Reasons Does Not Suffice to Sustain the Remand Redetermination The Remand Redetermination relies on a claimed ""practice ... not to alter a model-match methodology developed at an earlier stage of a proceeding absent `compelling reasons’ for the modification."" Remand Redetermination 4. In support of this reliance, the Remand Redetermination cites various decisions of the Court of International Trade for the proposition that the practice is grounded in a reasonable construction of the antidumping statute. Id. (citing SKF USA Inc. v. United States, 31 CIT 951, 491 F.Supp.2d 1354 (2007), aff’d 537 F.3d 1373 (Fed.Cir.2008) and Mittal Steel USA, Inc. v. United States, 31 CIT 1395 (2007)). After making various factual findings, the Remand Redetermination states as follows: ""[t]he Department finds on remand that the record evidence does not support the assertion that meaningful physical and commercial differences between laminated and other painted CORE products justify a departure from its previous model match methodology."" Id. at 10. The prior decisions of the Court of International Trade cited in the Remand Re-determination are not binding on the court in this case. More important, however, is that those prior decisions do not state a principle under which the court may affirm"
1814	"that marijuana was being grown in the home. Id . at 3-4, 133 S.Ct. 1409. The Court acknowledged an implied license exists for members of the public to approach a home and knock on the front door based upon custom and social norms. Id . at 10-11, 133 S.Ct. 1409. But the warrantless use of sensory-extending drug dogs to discover incriminating evidence inside the home exceeds this customary invitation and constitutes a trespassory search implicating the Fourth Amendment. Id . at 10-12, 133 S.Ct. 1409 (affirming Florida Supreme Court's holding that canine sniff of front door was a search requiring a warrant). Richmond also cites In Collins , the officer discovered photographs on social media of a potentially stolen motorcycle parked at the top of the driveway of a house. The officer tracked down the address of the home, drove to it, walked up the driveway to investigate, and pulled a tarp off the motorcycle to search its license plate and vehicle identification numbers, which confirmed that the motorcycle was stolen. Id . at 1668. The Court held that the automobile exception-which is based largely upon the ready mobility of the vehicle-""extends no further than the automobile itself[,]"" and does not give ""an officer the right to enter a home or its curtilage to access a vehicle without a warrant."" Id ."
3789	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 hours of operation and the physical size of adult entertainment establishments as time, place, and manner restrictions); Brownell, 190 F.Supp.2d at 486 (applying O’Brien to ordinance restricting specified sexual activities including erotic touching); The AEC’s criminal provisions, which directly regulate nude dancing, will be analyzed under the intermediate scrutiny of O’Brien. VIII. Plaintiffs Constitutional Challenges to the AEC’s Criminal Provisions Plaintiff contends that three of the AEC’s criminal provisions unconstitutionally limit protected expression. Plaintiff claims that the third definition of SSA, AEC § 3-6(3), as prohibited by section 3-129(3), and the entire definition of SSA, AEC § 3-6, as applied in section 3-129(6), violate the First and Fourteenth Amendments. Additionally, Plaintiff asserts that the limited no-touch provision of section 3-129(9) violates the First, Fifth, and Fourteenth Amendments. A. Fondling Provision — Section 3-129(3) Section 3-129(3) prohibits workers at adult entertainment establishments from engaging in SSAs at the establishment. AEC § 3-129(3). The provision also
603	rule making would be on the basis of a record to which a substantial evidence test, where pertinent, may be applied in the event an informal hearing is held,” although his point in this respect seems weakened by the qualifying phrase, “where pertinent.” He concluded, however, that very possibly “the controversy is semantic in some degree, at least in the context of informal rulemaking,” and lacks “the dispositional importance” claimed for it by the Government. . Although formulated in the context of adjudication, the comments by Judge Leventhal on how a reviewing court should go about the discharge of its responsibilities in the court-agency partnership in furtherance of the public interest are helpful here. See  cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 2233, 29 L.Ed.2d 701 (1971). In a paper presented to the 1974 Judicial Conference of this Circuit, to be published in due course as part of the proceedings, Professor Roy Schotland, of the Georgetown University Law Center, has emphasized the degree to which the success of the partnership turns on clear thinking about the scope of the review to be afforded by the judicial member. Professor Schotiand’s useful peroeptions are many, but none more so than his reminder that the concept of scope of review defies generalized application, and demands, instead, close attention to the nature of the particular problem faced by the agency. . For a comparison of tliis aspect of OSHA
2801	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. Thus, tension exists between the saving to suitors clause and the Limitation Act as one statute gives suitors a choice of remedies, and the other statute gives vessel owners the right to seek limitation of liability 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
243	See, e. g., Scott v. Baltimore and O. R. Co., 151 F.2d 61, 64 (3rd Cir. 1945); Jacquard Knitting Mach. Co. v. Ordnance Gauge Co., 95 F.Supp. 902, 905 (E.D. Pa.1951). . See . E. g., Helvering v. Mitchell, 303 U.S. 391, 397-400, 405-406, 58 S.Ct. 630, 82 L.Ed. 917 (1938); United States ex rel. Marcus v. Hess, 317 U.S. 537, 549-550, 63 S.Ct. 379, 87 L.Ed. 443 (1943). See, also, United States v. International Building Co., 345 U.S. 502, 73 S.Ct. 807, 97 L.Ed. 1182 (1953). . In the answer, he merely asserts that he is the President of the company; in the pre-trial memorandum he is called only the “principal” stockholder (see Documents Nos. 8 and 16). . His wife owned the remaining 10 shares. . In that case, the Coffey case was carefully distinguished. Noto also that the court, at p. 554 of the decision,
3797	Id. at 488. Thus, even without the “erotic” qualifier, the fondling proscription itself may have been unconstitutional for exceeding what was necessary to further the government’s interest. Because the ordinance continues to regulate the moves that a dancer may employ to convey an erotic message, Plaintiffs challenge to the constitutionality of the ordinance still stands and is not mooted by the County’s amendment to the ordinance. 2. Application of O’Brien Of the four cases cited by Plaintiff, only one applied O’Brien; the remainder applied the more exacting, strict scrutiny standard of review. See Dream Palace v. County of Maricopa, 384 F.3d 990, 1019-21 (9th Cir.2004) (applying strict scrutiny to ordinance proscribing the movements of dancers in adult entertainment establishments); Centerfolds, Inc. v. Town of Berlin, 352 F.Supp.2d 183, 193-94 (D.Conn.2004) (applying strict scrutiny to an ordinance virtually identical to the AEC’s pre-amendment ordinance); Score, 319 F.Supp.2d 1224 (applying O’Brien in a facial overbreadth challenge of a simulated sexual conduct provision that precluded touching the sex organs or anus); see also BSA Inc. v. King County, 804 F.2d 1104, 1110 (9th Cir.1986); Giovani Carandola, 396 F.Supp.2d at 652-53 (applying O’Brien to ordinance that restricted erotic movements including fondling or touching certain body parts); Brownell, 190 F.Supp.2d at
4462	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 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 Auto Supply Co. v. Savage Arms, Inc. (In re Savage Indus., Inc.), 43 F.3d 714, 719-20 n. 8 (1st Cir.1994). A bankruptcy court’s decision to dismiss or convert a case under § 1307(c) is reviewed for an abuse of discretion. See Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1222-23 (9th Cir.1999); see also Ho v. Dowell (In’re Ho), 274 B.R.
1839	Act, 15 U.S.C.A. §§ 1, 2. The amended complaint alleges, in substance, that the defendants combined and con spired in restraint of, and to monopolize, and have monopolized, interstate and foreign commerce in the promotion of professional championship boxing contests, including the sale of radio, television and motion picture rights thereto. • Defendants’ motion to dismiss the complaint for lack of jurisdiction over the subject matter, i. e., for lack of interstate commerce and for failure to state a claim upon which relief can be granted, was granted on February 8, 1964. The United States appealed directly to the Supreme Court, which reversed the judgment of dismissal and remanded the suit for trial, . 236, 75 S.Ct. 259, 99 L. Ed. 290. This determination was a holding that accepting the allegations of the complaint, a claim was stated entitling the Government to some form of relief and that “ * * * the Government is entitled to an opportunity to prove its allegations ***..” I note, with gratitude and appreciation, that I have had the utmost cooperation from counsel both in the pre-trial hearings and at trial. This expedited the presentation of the evidence and shortened the trial. 1. THE ISSUES PRESENTED The complaint alleges that the defendants, beginning in 1949, combined and conspired in restraint of and to monopolize interstate trade and foreign commerce in the promotion, exhibition, broadcasting, telecasting and motion picture production and distribution of
1426	of the commissions. Here, however, the Court need not engage in a continued analysis of the Eleventh Amendment. As to these two defendants, plaintiff has utterly failed to state any facts which would give rise to a claim in favor of plaintiff and against these defendants. Accordingly, these defendants are granted dismissal from this action. For the reasons stated above, dismissal in favor of each defendant is granted in this action. This, however, cannot end the analysis. While the plaintiff may not maintain this suit for damages, the Court is well aware that plaintiff could maintain an action in federal court, consistent with the Eleventh Amendment, to enjoin state officials to conform their future conduct to the requirements of federal law. Thus the court must decide whether to grant plaintiff leave to amend his complaint in order to seek prospective injunctive relief. To decide this question it is necessary for the Court to investigate the other issues raised by the defendants. AVOIDANCE OF DUPLICATIVE LITIGATION Defendants assert that dismissal of this action is appropriate in view of the Supreme Court’s decision in Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Defendants argue that avoidance of duplicative litigation requires dismissal of this federal action in favor of state court adjudication and that these principles rest on considerations of wise ju dicial administration giving regard to conservation of judicial
1638	particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs.” Engel v. Vitale, supra, 370 U.S. at 431, 82 S.Ct. at 1267. The Supreme Court has again and again condemned exactly the practice which the named officials of Alabama now seek to effect. School District of Abington v. Schempp, supra; Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711; Engel v. Vitale, supra ; Cantwell v. Connecticut, supra; Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292; People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649; 81 S.Ct. 1101, 6 L.Ed.2d 393; Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982; West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. In People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. at 227, 68 S.Ct. at 473, the Court stated, “the Constitution * * * prohibited the Government common to all from becoming embroiled, however innocently, in the destructive religious conflicts of which the history of even this country records some dark pages.” Then in Zorach v. Clauson, supra, 343 U.S. at 312, 72 S.Ct. at 683, the Court stated, “There cannot be the slightest doubt that the First Amendment reflects the philosophy that Church
1800	"is permitted under the Fourth Amendment where the police have reasonable suspicion to believe criminal activity is afoot. See Terry , 392 U.S. at 30, 88 S.Ct. 1868 ; United States v. Baskin , 401 F.3d 788, 791 (7th Cir. 2005). Reasonable suspicion exists when an officer can point to "" 'specific and articulable facts which, taken together with rational inferences from those facts[,] reasonably warrant that intrusion.' "" Baskin , 401 F.3d at 791 (quoting Terry , 392 U.S. at 21, 88 S.Ct. 1868 ). When making reasonable suspicion determinations, we ""must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing."" Reasonable suspicion requires more than a hunch but less than probable cause and ""considerably less than preponderance of the evidence."" Illinois v. Wardlow , 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). With these standards in mind, we examine the facts on which the officers formed their suspicions, and whether the district court erred in its reasonableness assessment. Four categories of facts created a suspicion that Richmond was illegally carrying a gun or was otherwise engaged in unlawful activity: (1) Richmond was walking down the street near midnight in a neighborhood plagued by drug trafficking and gun violence; (2) there was a significant bulge in Richmond's front T-shirt pocket"
3985	order, declaring that CitiMortgage will be treated and paid in the Plan as an unsecured nonpriority creditor. Without question, the claims bar date in Schlegels’ case was April 30, 2009. The Motion to Value and the avoidance of CitiMortgage’s junior lien came later. The Valuation Order, which stripped CitiMortgage’s lien and rendered its claim unsecured, was entered on October 22, 2009. Until that point, CitiMortgage was operating in this case as a secured creditor. Secured creditors in a chapter 13 case may, but are not required to, file a proof of claim. See Rule 3002(a). Such creditors may choose not to participate in the bankruptcy case and look to their liens for satisfaction of the debt. Secured liens pass through bankruptcy unaffected. Long v. Bullard, 117 U.S. 617, 620-21, 6 S.Ct. 917, 29 L.Ed. 1004 (1886); Dewsnup v. Timm, 502 U.S. 410, 418, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992); In re Brawders, 503 F.3d at 872. However, if the lien is avoided and the formerly secured creditor failed to file a secured claim prior to the claims bar date, the creditor' may file a proof of claim within 30 days after the order avoiding the lien becomes final. See Rule 3002(c)(3); Prestige Ltd. P’ship-Concord v. E. Bay Car Wash Partners (In re Prestige Ltd. P’ship-Concord), 234 F.3d 1108, 1118 (9th Cir.2000); Zebley v. First Horizon Home Loans (In re Ong), 469 B.R. 599, 601 (Bankr.W.D.Pa.2012).
266	for false arrest if probable cause existed at the time of the arrest. Singer, 63 F.3d at 118-19. Probable cause is presumed to exist if a plaintiff is arrested pursuant to an arrest warrant. Martinetti v. Town of New Hartford, 12 Fed.Appx. 29, 32 (2d Cir.2001); Blasini v. City of New York, 2011 WL 6224605, *4 (S.D.N.Y.2011) (pre-arrest indictment demonstrates that probable cause 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 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
1093	"is directed at the protection of the individual and he is entitled to its immunity as much against the state as against the national government.”). Both clauses protect against deprivations of a person's liberty without due process of law. See U.S. Const, amends. V, XIV. And the Supreme Court has construed both clauses to include substantive protections. See Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (""We have long recognized that the [Fourteenth] Amendment's Due Process Clause, like its Fifth Amendment counterpart, guarantees more than fair process. The Clause also includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests.” (internal quotation marks and citations omitted) (citing  and Reno v. Flores, 507 U.S. 292, 301-02, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (involving substantive due process rights under the Fifth Amendment))). There is no persuasive textual, precedential, or principled argument suggesting that the states may not ban D & X without a health exception but that the federal government may. If there is a due process right to abortion, as the Supreme Court has held that there is, then the constitutional restrictions on regulating abortion apply equally to the federal government as to the states. . The Chasen Study raises concerns about the safety of D & X, but because of its lack"
1089	"(quoting Roe, 410 U.S. at 164-65, 93 S.Ct. 705). ""Since the law requires a health exception in order to validate even a postviability abortion regulation, it at a minimum requires the same in respect to previability regulation.” Stenberg, 530 U.S. at 930, 120 S.Ct. 2597. This Act, like Nebraska’s statute struck down in Stenberg, makes no distinction between pre- and postviability abortions, thus ""aggra-vat[ing] the constitutional problem presented.” Id. . Although this case involves a challenge to federal legislation which must be tested against the restraints of the Fifth Amendment Due Process Clause, while Stenberg invalidated a state statute under the Due Process Clause of the Fourteenth Amendment, the Supreme Court has generally interpreted the clauses to be coextensive. See, e.g., Screws v. United States, 325 U.S. 91, 123, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (""The Fifth Amendment contains a due process clause as broad in its terms restrict ing national power as the Fourteenth is of state power.”); Curry v. McCanless, 307 U.S. 357, 370, 59 S.Ct. 900, 83 L.Ed. 1339 (1939) (""[T]he due process clause of each amendment is directed at the protection of the individual and he is entitled to its immunity as much against the state as against the national government.”)."
1700	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); 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 to claim that agent “actively engaged ... in creating
3799	the AEC. The second prong of O’Brien asks whether the regulation furthers an important or substantial government interest. The purpose of the AEC, like most codes regulating sexually-oriented businesses, is to curb the unwanted secondary effects associated with adult entertainment establishments. The AEC’s preamble cites evidence and testimony presented in a series of public hearings regarding the prostitution, drug use, violent crime, and lower property values, among other things, that may tend to accompany adult entertainment establishments. See AEC § 3-5. The County has attached voluminous exhibits detailing the evidence of secondary effects presented to the Orange County Board of Commissioners as a foundation for adopting the AEC. (Pub. Hr’g Trs., Docs. 65, 67-78); see also AEC § 3-5; Plaintiff has not attempted to refute the evidence amassed by the County. The County argues that the definition is not overbroad because it validly prohibits “the fondling or erotic touching of the female breast, such as workers placing their breasts on the face, neck, or mouth of a patron, a patron sucking a worker’s breast, or the groping of a worker’s breast by another.” (Def.’s Mem. at 11.) The County has conflated two of the criminal provisions that are the subject of this suit. See AEC §§ 3-129(3) & (9) (the fondling and intentional touching provisions). The County’s examples of overt sexual acts between workers
4057	"fact under Fed.R.Civ.P. 56[ (c) ] or explain why he cannot ... under Rule 56[ (d) ].”). . Fed.R.Civ.P. 56(e)(2). . Fed.R.Civ.P. 56(e)(3). . See, e.g., Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) (""Although a 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. . . 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"
319	"pretrial order”). Plaintiffs offer no argument why Sanibel has not adequately cured its failure to present the affirmative defense in its answer by raising it in its principal brief on summary judgment, well in advance of the pretrial order. Third, the touchstone of the Rule 8(c) pleading requirement for affirmative defenses is the prevention of unfair prejudice or surprise to the plaintiff. ""When there is no prejudice, the trial court does not err by hearing evidence on the issue.” Grant v. Preferred Research, Inc., 885 F.2d 795, 797-98 (11th Cir.1989) (affirmative defense was properly raised in summary judgment motion, even though not pleaded previously, where plaintiff failed to show any prejudice from lateness of pleading); see also Plaintiffs have not shown, or even suggested, that they were prejudiced by defendant’s omission of the ""common promotional plan” angle to its invocation of the 100-unit exemption in the answer. . Sanibel correctly asserts that the presumption created by § 1701(4) is not conclusive or irrebuttable. . The record is devoid of any suggestion that only certain pre-marked, pre-designated units were made available for Sanibel principals and investors. Rather, as Sanibel concedes, the process was an informal one in which Sanibel called these insiders and asked them"
4297	Cir., 1951, 189 F.2d 31, 34-35, affirmed 342 U.S. 180, 72 S.Ct. 219, 96 L.Ed. 200; Northern Ins. Co. of New York v. Grone, D.C.M.D.Pa.1954, 126 F.Supp. 457, 458; cf. Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., 1952, 342 U.S. 180, 183-184, 72 S.Ct. 219, 96 L.Ed. 200. Indeed, quite possibly the North Carolina court could have enjoined Burlington’s affirmative pressing of the Massachusetts case for trial. See Martin v. Graybar Electric Co., 7 Cir., 1959, 266 F.2d 202, 203-205; Barber-Greene Co. v. Blaw-Knox Co., 6 Cir., 1957, 239 F.2d 774, 778; cf. Kerotest Mfg. Co. v. C-O-Two Fire Equipment Co., supra, 342 U.S. at pages 184-185, 72 S.Ct. at pages 221, 222; d 848, 852. The North Carolina action was proceeding with all diligence. Nothing was to be gained by an additional trial in Massachusetts which could have been entirely obviated by the stipulation proposed by Alamance. Nor, as we have already said, was there any public interest furthered by some principle of punishing Alamance for having brought other suits. If, in fact, the court made any attempt to weigh the competing private interest of the parties, it was equally in error. Much of defendant’s brief is devoted to arguing that Alamance could have been ready for trial. The question is not whether it was physically possible, but whether it was necessary. While there is no absolute right to dismiss on terms, Diamond v. United States, 5
2553	statute does not apply to insurance “[policies or contracts not issued for delivery in this state nor delivered in this state.” Wyo. Stat. § 26-15-101(a)(ii). It is undisputed that Infinity’s policy insuring Mr. Santiago was neither issued nor delivered in Wyoming. Therefore, this insurance policy is exempt from the attorney’s fee provision of Wyo. Stat. § 26-15-124. D. Infinity’s Motion to Review Entry of Clerk’s Bill of Costs 1. Standard of Review Pursuant to Rule 54(d) a prevailing party may recover costs “as a matter of course.” Fed.R,Civ.P. 54(d). The prevailing party’s entitlement to costs, however, is subject to the ultimate discretion of the district court in determining whether and to what extent costs may be awarded. 2. Discussion Infinity objects to the Clerk’s Bill of Costs entered on November 24, 2000. Specifically, the Bill of Costs includes costs associated with the first trial which resulted in a hung jury. However, this Court finds Plaintiffs were the “prevailing party” in this case. Fed.R.Civ.P. 54(d)(1). Accordingly, the Clerk’s Bill of Costs should be upheld. See Givens v. Lederle, 556 F.2d 1341, 1346 (5th Cir.1977) (awarding costs from first trial to plaintiff who prevailed in the second trial even though the first trial resulted in a verdict for defendant). Conclusion For all of the above reasons, the Court HEREBY ORDERS as follows: 1. Defendant Infinity Insurance Company’s Combined Renewed Motion for Judgment as a Matter of Law and Motion
4655	POSNER, Circuit Judge. Some years ago Michael Segal — lawyer, certified public accountant, insurance broker — was indicted along with Near North Insurance Brokerage (NNIB), a company he owned, for multiple violations of federal law. He was charged with racketeering, mail and wire fraud, making false statements, embezzlement, and conspiring to interfere with operations of the Internal Revenue Service. NNIB was charged with mail fraud, making false statements, and embezzlement. Both were convicted in 2004, and the following year Segal was sentenced to 121 months in prison. After further proceedings, see 644 F.3d 364 (7th Cir.2011), he was resen-tenced to time served and ordered to pay $842,000 in restitution and to forfeit to the government his interest in the company and $15 million. To resolve a series of disputes that arose over the forfeiture judgment and had not been resolved either by the district court or in either of the decisions (cited above) by this court, the parties in 2013 agreed to a binding settlement that specified the final ownership and disposition of certain of Segal’s assets. Segal, by then released from prison, participated actively, indeed aggressively, in the negotiation of the settlement. But after the district judge approved the settlement the parties clashed over three issues
2033	corroborated), the same analysis applies as is set forth above regarding the rocket-and-mortar-attaek stressor. Moreover, as with the first requisite element of a PTSD-service-connection claim (a clear diagnosis), because the veteran’s PTSD claim was well grounded, if the Board doubts the veteran’s medical evidence regarding the third requisite PTSD-elaim element, then fulfillment of the statutory duty to assist under section 5107(a) would require that VA seek a medical opinion on this nexus question. See Allday, Suttmann, and Green, all swpra. C. Miscellaneous Pursuant to its statutory duty to assist, ‘VA has a duty to assist in gathering social security records when put on notice that the veteran is receiving social security benefits”. Clarkson v. Brown, 4 Vet.App. 565, 567-68 (1993); see Masors v. Derwinski, 2 Vet.App. 181, 187-88 (1992); 38 C.F.R. § 3.159 (1996). In this case, the veteran gave sworn testimony at a March 1993 hearing before the Board that in 1989 he started receiving Social Security disability benefits because of his unemployability due to PTSD. R. at 247-48. The record before the Court does not include records from the SSA. On remand, pursuant to section 5107(a), the BVA must seek to obtain the SSA records, and, if obtained, consider them in its readjudication of the veteran’s PTSD claim, and support its assessment of them with
43	"This problem also arises in situations involving courts of different states. As relates to the present case, state legislatures (including New York and Louisiana) adopted the Uniform Insurers Liquidation Act (""UILA”) and established reciprocal procedures for resolving claims against insolvent insurers. See N.Y. Ins. Law §§ 7408, et seq.; La.Rev.Stat. Ann. §§ 22:757, et seq. Obviously, state legislatures can withhold jurisdiction from their own state courts but cannot control the jurisdiction of the federal courts. . See, e.g., Clark v. Fitzgibbons, 105 F.3d 1049, 1051-52 (5th Cir.1997); Barnhardt Marine Ins., Inc. v. New England Int’l Surety of Amer., Inc., 961 F.2d 529, 531-32 (5th Cir.1992); Martin Insurance Agency, Inc. v. Prudential Reinsurance Co., 910 F.2d 249, 255 (5th Cir.1990); Law Enforcement Insurance Co. v. Corcoran, 807 F.2d 38 (2d Cir.1986); Lac D’Amiante du Quebec Ltee v. American Home Assurance Co., 864 F.2d 1033 (3d Cir.1988); Hartford Casualty Insurance Co. v. Borg-Warner Corp., 913 F.2d 419 (7th Cir.1990); Grimes v. Crown Life Insurance Co., 857 F.2d 699 (10th Cir.1988). .Only one federal court has given traction to the Superintendent’s argument that the New York rehabilitation proceedings left the district court without jurisdiction to rule on Gallon’s summary judgment motion. In Insurance Affiliates, Inc. v. O'Connor, the district court held that the UILA divested Colorado courts of jurisdiction ""to hear actions involving controverted claims involving out-of-state insurers unless ancillary proceedings have been commenced in Colorado.” 522 F.Supp. 703, 706 (D.Colo.1981). But in"
4640	continue making payments. (Tr. at 16:1-9, 20:1-3, Aug. 3, 2006). However, despite knowing about an income contingent repayment option for his loans, Hooker admits he did not further investigate or participate in the program, which would have required him to pay an estimated $160.12 each month. Because he did not consider or pursue this repayment option, the bankruptcy court found that Hooker did not demonstrate good faith in his repayment efforts and that, therefore, could not discharge his student loan debt. II. Student loan debt is excepted from discharge unless excepting it would “impose an undue hardship on the debtor.” 11 U.S.C. § 523(a)(8). The Fourth Circuit has adopted the Second Circuit’s three-prong test outlined in  for determining whether a debtor has demonstrated an “undue hardship” to discharge the debtor’s student loans. Educ. Credit Mgmt. Corp v. Frushour (In re Frushour), 433 F.3d 393, 398 (4th Cir.2005). To prove an undue hardship under that test a debtor must show: (1) he cannot maintain a minimal standard of living and repay the loans; (2) additional circumstances exist that illustrate he will not be able to repay the loans for a substantial part of the repayment period; and (3) he attempted to repay the loans in good faith. Id. at 400. The bankruptcy court found it unnecessary to decide whether Hooker satisfied Brunner’s first two prongs because it concluded that he had failed to satisfy the third. The
3067	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 Criado v. IBM Corp., 145 F.3d 437, 441 (1st Cir.1998). In this case, the Court concludes that Plaintiff has failed to show that she had a disability as the term has been interpreted for the purposes of the ADA. “Not all physical impairments rise to the level of disability under the ADA.” Le-bron-Torres, 251 F.3d at 239. Instead, the ADA defines the term disability as: (A) “a physical or mental impairment that substantially limits one or more of the major life activities of [an] ... individual,” (B) “a record of such an impairment,” or (C) “being regarded as having such an impairment.” 42 U.S.C.A. § 12102(2)(A)-(C). Plaintiff claims that she falls within category (A) of section 12102(2). In making the
3254	freed U.S. Truck to implement its management decisions and reductions in operations, it must be held that the damages did result from the rejection of the collective bargaining agreement. 9. Laid Off Employees’ Rejection Damage Claims Are Not Barred by Their Failure to Exhaust the Grievance and Arbitration Procedures of the Rejected Contract. U.S. Truck contends that laid off employees were required to exhaust their remedies under the grievance and arbitration procedures of the rejected contract, which it voluntarily continued until approximately April 15, 1983. Only one employee, Joann Drew, grieved her layoff and received a grievance award. The federal common law of labor contracts favors contractual grievance procedures and arbitration as the means to resolve contractual labor disputes. Thus, failure to exhaust contractual grievance remedies generally bars an employee’s suit under 29 U.S.C. § 185. Id.; Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 913, 17 L.Ed.2d 842 (1967). An important exception to this rule, however, applies here. An obvious situation in which the employee should not be limited to the exclusive remedial procedures established by the contract occurs when the conduct of the employer amounts to a repudiation of those contractual procedures. Cf. Drake Bakeries v. Bakery Workers, 370 U.S. 254, 260-263 [82 S.Ct. 1346, 1350-1352, 8 L.Ed.2d 474 (1962)]. See generally 6A Corbin, Contracts § 1443 (1962). In such a situation (and there may of course be others),
3719	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.” 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 must “name the specific individual associated with the filing or prosecution of the application issuing as. the [subject] patent, who both knew of the material information and deliberately withheld or misrepresented it.” Id. at 1329 (citation omitted). The allegation must also identify “which claims, and which limitations in those claims, the withheld references [or misrepresentations] are relevant to ...” Id. (citation omitted). Further, the
1471	two letters from Watts to Dee were intercepted at ISMF and at least one communication from Dee to Watts was intercepted at ISP. As a result of the interceptions, Dee sustained a loss of two days good time, and Watts was reprimanded and warned that if he persisted in trying to communicate with convicts in other Iowa institutions in violation of prison rules, he would lose all of his communications privileges. A claim for damages, whether actual or punitive, or both based on the fourteenth amendment cannot successfully be bottomed on so frail a foundation. We recognize that today under ruling judicial decisions the inmates of prisons have a constitutionally protected right to reasonable correspondence with persons in the outside world. And that right was discussed in some detail in the opinion of this court in Finney v. Arkansas Bd. of Correction, supra, 505 F.2d at 210-12. That right, however, is not untrammeled. It is subject to reasonable and necessary restrictions properly geared to legitimate institutional interests. Finney v. Arkansas Bd. of Correction, supra, 505 F.2d at 210-11. We do not say that a state has an unqualified right to forbid an inmate of one of its penal institutions to correspond with an inmate of another penal institution in the same state or in a different state. We think it obvious, however, that where such correspondence is involved, the institutional authorities have a peculiar and compelling interest
4381	as adequate consideration if an employee has worked with the employer for at least two years. See Fifield v. Premier Dealer Servs., Inc., 373 Ill.Dec. 379, 993 N.E.2d 938, 943 (2013); Prairie Rheumatology Assoc., 2014 IL App. (3d) 140338 at *4, 388 Ill.Dec. 150, 24 N.E.3d 58. The Illinois Supreme Court has not addressed this question. In the absence of a ruling from the Illinois Supreme Court, this Court “must make a predictive judgment as to how the supreme court of the state would decide the matter if it were presented presently to that tribunal.” Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 635 (7th Cir.2002). Since Fifield, three federal courts decisions have considered this very question. In  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
1569	"bill of sale. The petitioner, Celia Lieberman, seeks to review"" that portion of the order of the Referee which states that the trustee is subrogated to the rights of the General >Dental Supply Company, Inc. Celia Lieberman, petitioner, the mother of the bankrupt, holds a second alleged lien in the form of a chattel mortgage on the equipment in question. The petitioner has acquired no greater rights by reason of the fact that the conditional bill of sale has been declared to be invalid as against the trustee. The trustee is subrogáted to the rights of General Dental Supply Company, Inc., vendor, and is entitled to a first lien on the proceeds of any sale of the equipment. See The determination made by the Referee will not be disturbed. The petition for review will be dismissed. Settle order on notice."
4751	obligation of a service provider towards an RTC transferee, which can provide the basis for a common law breach of contract claim — such as Count VII of MountainWest Financial’s Amended Complaint. The court will now consider the merits of Section 471 in relation to Count VII in order to resolve Visa’s Motion to Dismiss that Count. The central issue in this regard is whether Visa’s refusal to provide services to MountainWest Financial is based on MountainWest Financial’s “failure to comply with [a] material term or condition of the original obligation” that MountainWest Savings and Loan had with Visa. The legislative history of Section 471 will not be considered in this analysis because the language of the statute is unambiguous. MountainWest Financial argues that Section 471 requires Visa to continue to provide the same services that Visa provided to MountainWest Savings prior to it being taken over by the RTC. Thus, since Moun-tainWest Savings had the right to launch a Prime Option program, MountainWest Financial argues that it should have that right as well. MountainWest Financial claims that it has complied with all material provisions of MountainWest Savings’ original obligation with Visa; including all of Visa’s bylaws and operating regulations for which MountainWest Savings was accountable. Visa, on the other hand, asserts that MountainWest Financial has failed to comply with certain material terms and conditions of the original obligation. Mountain-West Savings was subject to all of Visa’s bylaws and any
2589	this putative class and the Lions have conflicting interests in the course of each litigation, counsel cannot represent both. ABA Code of Professional Responsibility Disciplinary Rule 5-105 and Ethical Considerations 5-14 through 5-16. The Court has no reason to believe that counsel’s representation in this lawsuit has yet been influenced by their responsibilities to the Lions, but counsel must submit an affidavit within five days of the date of this order certifying that they have completely withdrawn from further representation of the Lions if this class action is going to proceed. The responsibility of class counsel to absent class members whose control over their attorneys is limited does not permit even the appearance of divided loyalties of counsel. See The fact that counsel have not tried to press claims against CIS which they believe (and justifiably so) are unsuitable for class treatment does not make them inadequate. To the contrary, that is the proper course for them to take. See p. 265, infra. Defendants have not seriously challenged the adequacy of the representative plaintiffs. e. Predominance In order to allow an action to proceed as a class action under Rule 23(b)(3), the Court must find “that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members * * Defendants recognize that common questions generally predominate in securities fraud cases involving standardized written representations to
610	350 (7th Cir. 1972); Chrysler Corp. v. Department of Transportation, 472 F.2d 659 (6th Cir. 1972). These eases support the proposition that “practicable” as employed in the Automobile Safety Act of 1966, 15 U.S.C. § 1392(a), includes economic considerations, but the legislative history of that statute, unlike the history of OSHA, is more explicit on that point. . Temporary variances may be obtained when timely compliance is technologically impossible. . Testimony of industry representatives predicted both of these results. See, e. g., App. at 960-62. . Since technological progress is here linked ■ to objectives other than the traditional competitive, profit-oriented concerns of industry, accommodation of both sets of values will sometimes involve novel economic problems.  illustrates some of these problems in the context of the automobile emissions standards of the Clean Air Act. 42 U.S.C. § 1857 et seq. In the highly concentrated automobile industry the court deemed it likely that, by virtue of their size and importance to the economy, any one of the three major companies could obtain a relaxation of the automobile emissions standards if it could not meet them. If this occurred after other manufacturers had prepared to comply with the standard, the technological laggard would enjoy a competitive advantage because installation of the control devices renders the vehicles less efficient to operate. This circumstance justified insuring that the standards could be met by all major producers before they became effective. . Although
4049	rights in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by applying an adjustment for physical contact under U.S.S.G. § 2A2.4(b)(l), and for his status as a career offender under U.S.S.G. § 4B1.1. As Currence was sentenced after the decision in Booker was rendered, the district court was free to make all findings relevant to sentencing by a preponderance of the evidence. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005). Currence concedes that Mares is controlling, but he argues that it was incorrectly decided. We disagree and, in any event, we are bound by our precedent. See The judgment of the district court is AFFIRMED. 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.
4933	"jurisdiction in this context counsel against expanding the narrow doctrine of pendent appellate jurisdiction in the way Citizens proposes. To be sure, some of our sister Courts of Appeals have treated FLSA and Rule 23 certification as nearly one and the same. See, e.g., Espenscheid v. DirectSat USA, LLC , 705 F.3d 770, 772 (7th Cir. 2013) (""[T]here isn't a good reason to have different standards for the certification of the two different types of action, and the case law has largely merged for the standards, though with some terminological differences ... [and] so we can, with no distortion of our analysis, treat [both Rule 23 and FLSA actions] as if [they] were a single class action.""); On the other hand, other courts have concluded that ""[t]here [are] fundamental, irreconcilable difference[s]"" between Rule 23 class actions and FLSA collective actions that preclude treating them as interchangeable. LaChapelle v. Owens-Illinois, Inc. , 513 F.2d 286, 288 (5th Cir. 1975) (per curiam). For example, in a Rule 23 action ""each person within the [class] description is considered to be a class member and, as such is bound by the judgment ... unless he has 'opted out' of the suit[,]"" but [u]nder ... [the FLSA,] no person can become a party plaintiff and no person will be bound by or may benefit"
3126	owner where the purchase was made by his “straw man,” even though the letter of the statute would require such inquiry. The Court said: “Manifestly, section 204 is a remedial measure. It empowers the courts, exercising sound discretion, to afford relief to innocent parties having interests in condemned property where the claim is reasonable and just. Its primary purpose is not to protect the revenues; but this is proper matter for consideration whenever remission is sought. The section must be liberally construed to carry out the objective. The point to be sought is the intent of the law-making powers. Forfeitures are not favored; they should be enforced only when within both letter and spirit of the law.  (Emphasis supplied.) United States v. One 1936 Model Ford V-8 De Luxe Coach, 307 U.S. 219, 226, 59 S.Ct. 861, 864, 83 L.Ed. 1249. The liberal construction of this particular section, and the theory that it primarily intends to require an investigation where a credit inquiry is made was approved by this Court. United States v. Frank Graham Co., 5 Cir., 199 F.2d 499. We think it clear, as pointed out in Harris v. United States, supra, United States v. One 1936 Model Ford V-8 De Luxe Coach, supra, and the Graham case of this Circuit that subdivision (3) of this sub-section of the statute was primarily intended to cause an inquiry to be made in connection
668	plaintiffs to forego monetary claims in order to challenge the validity of Government action, or to preclude challenges to the validity of Government action in order to protect a constitutional claim for compensation.” Id. Thus, in Loveladies, this court clarified that a litigant may file a suit challenging the validity of governmental regulatory activity concurrently with a takings claim arising from the same set of facts. Furthermore, if a district court finds the regulatory activity valid, the Court of Federal Claims must hear the takings claim even if the regulatory challenge consumes more than six years. Accordingly, the Court of Federal Claims may stay a takings action pending completion of a related action in a district court. Cf. Pennsylvania Aulston v. United States, 823 F.2d 510, 514 (Fed.Cir.1987). In this case, however, the claimants had not filed concurrent actions in the Court of Federal Claims and a district court. The claimants, therefore, did not face the Hobson’s choice either to challenge the validity of the Wilson Order or bring a takings claim. They could have brought both suits contemporaneously and had the takings challenge stayed pending resolution of the validity issue. Instead, the claimants elected to pursue a single remedy. This conscious choice militates against “equitably tolling” the statute of limitations on the basis of the Loveladies decision. Otherwise, claimants would be able to file in the Court of Federal Claims as an
3467	submitted, that the parties are in accord as to the facts relevant to this action. . Marx, 905 F.2d at 1506 (citations omitted). . Pl.'s Compl. at 3. . See Pl.’s Resp. to Defs.' Mot. for Summ. J. at 4. . See, e.g., Perez v. State of Florida, 648 So.2d 715, 719 (Fla. 1995). . 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). . See id. at 199, 93 S.Ct. 375. . See id. at 199-200, 93 S.Ct. 375. . See Butler Dep. at 45. . See Balch Dep. I at 27-28. . Butler-Dep. at 45. . Balch Dep. II at 111. . See Butler Dep. at 92. . See, e.g., Neil, 409 U.S. at 200, 93 S.Ct. 375; Jones v. Smith, 772 F.2d 668, 671 (11th Cir.1985); Meyer v. Estelle, 621 F.2d 769, 774 (5th Cir.1980); United States v. Michael, 729 F.Supp. 95, 96 (S.D.Fla.1989). . Butler Dep. at 45. . Pl.'s Dep. at 61 (filed March 24, 1999). . Rankin, 133 F.3d at 1436 (citations omitted). . Id. (citation omitted). . See Marx, 905 F.2d at 1507.
4050	"523(a)(6)). It is so ordered. . See 28 U.S.C. § 157(b)(2)(I) (stating that ""determinations as to the dischargeability of particular debts” are core proceedings); § 157(b)(1) (granting authority to bankruptcy judges to hear core proceedings). . Plaintiffs also discovered, in August 2009, that Jacobson included in his invoices to Plaintiffs a bill from Complete Construction for $5000 that Complete Construction informed Jacobson was a mistaken bill that should not be paid. . Corbels are decorative brackets that are placed under the eaves of homes. The corbels Plaintiffs hired Jacobson to build were custom made and designed only for Plaintiffs’ home. . Fed.R.Civ.P. 56(a). Rule 56 is applicable to bankruptcy adversary proceedings via Federal Rule of Bankruptcy Procedure 7056. . . Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir.2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Id. (citing Federal Rule of Civil Procedure 56). . Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 674 (10th Cir.2002) (internal quotations omitted). . Celotex Corp., 477 U.S. at 327, 106 S.Ct. 2548. .Doc. 36 at 1. . Id. at 1-2. . Id. at 2. . Fed.R.Civ.P. 56(c); see also Diaz, 289 F.3d at 674 (""[T]he non-movant- must either"
3519	violated the First Amendment’s anti-Establishment Clause and the federal Fair Housing Act (“FHA”). CHI additionally named as defendants the following individuals: (1) David Bieter, the mayor of the City of Boise; (2) Maryann Jordan, Elaine Clegg, Vernon Bisterfeldt, David Eberle, Jerome Mapp, and Alan Shealy, members of the Boise City Council; (3) Bruce Chatterton, the Director of Planning and Development Services; and (4) Jim Birdsall, the Manager of Housing and Community Development. The City, the City Council, and the individual defendants moved for summary judgment. Of relevance to this limited appeal, the district court denied summary judgment to the individual defendants as a group, determining that they were not entitled either to legislative or qualified im munity. House II ”), • The court determined that genuine issues of material fact precluded qualified immunity on the Establishment Clause claims, but because the individual defendants did not explicitly raise at that time a qualified immunity defense with respect to the FHA claims, the court did not consider that issue. Id. We are now faced with the second interlocutory appeal in this case. Because the individual defendants appeal from a denial of summary judgment on the basis of immunity, we have jurisdiction pursuant to 28 U.S.C. § 1291 and the collateral order doctrine. Robinson v. York, 566 F.3d 817, 821 (9th Cir.2009). We hold that Mayor Bieter and the members of the City Council are entitled to absolute legislative
427	rate reduction would “elevate” the members’ equitable interests over the interests of creditors is similarly insufficient to justify the injunction that the court entered. By the explicit terms of the amended rate order, “all amounts refunded to the distribution cooperatives from the escrow account must be in turn refunded to consumers.” Ex Parte Louisiana Pub. Serv. Comm’n, 1996 WL 875337, at *1, 1996 La. PUC LEXIS 69, at *4. The bankruptcy court’s concern that the LPSC’s rate order “elevates” the members’ equitable interests and Mabey’s assertion that the escrow arrangement “violate[s] the Bankruptcy Code’s distribution scheme” by distributing estate assets to members are therefore misplaced. See 11 U.S.C. § 1129(b)(2)(B)(ii); E. Summary In sum, our careful review of the bankruptcy court’s opinion and the parties’ arguments leads us to the conclusion that the bankruptcy court abused its discretion by enjoining the LPSC from considering a rate decrease based on the suspension of Cajun’s interest obligation during the pen-dency of the bankruptcy proceeding and by terminating the escrow established by the LPSC’s rate order. The LPSC carefully crafted its rate order so that it will not infringe on the bankruptcy court’s ultimate determination as to whether Cajun’s postpetition interest will be discharged, and it has expressed a reasonable concern regarding the appropriateness of Cajun’s rates during what has already been a lengthy bankruptcy proceeding. Mabey, the
3282	v. Roncco, 314 F.2d 186 (10th Cir.1963). Where a local union has developed a reliance on the dues checkoff, the checkoff mechanism can effectively be its financial lifeline. Accordingly, federal courts have enforced legal dues checkoffs under 29 U.S.C. § 185. See, e.g., International Brotherhood of Electrical Workers Local No. 12 v. A-1 Electric Service, Inc., 535 F.2d 1 (10th Cir.1976), cert. denied, 429 U.S. 832, 97 S.Ct. 94, 50 L.Ed.2d 96 (1976); Food Handlers Loc. 425 v. Valmac Industries, Inc., 528 F.2d 217 (8th Cir.1975); Local 127, United Shoe Workers of America v. Brooks Shoe Manufacturing Company, 298 F.2d 277 (3rd A review of the union security and checkoff provisions of the collective bargaining agreement indicates that they are clear and mandatory, and the Court con- eludes that the dues checkoff obligation is enforceable. See Finding of Fact 52. The Committee claims damages in an amount equal to the full amount of dues which U.S. Truck did not deduct for union member employees who were actively working. The Committee’s records provide a monthly measure of these lost dues for the duration of the rejected agreement. The Court concludes that this measure of damages is consistent with that used under 29 U.S.C. § 185. See Bugher, 515 F.Supp. at 1183; Amalgamated Meat Cutters and Allied Workers of North America, Local 593
1567	plaintiff has not done so here. In making his pretext argument, plaintiff contends that he was the most qualified applicant for the SSA positions and that discrimination can be inferred from his non-selection in favor of less qualified, non-minority applicants. Plaintiff further argues that SAC Huggins’s has a history of discriminatory conduct which supports the inference - that plaintiffs non-selection was the result of racial animus. The evidence in the record, however, does not support Mr. Pendleton’s assertions. Although Mr. Pendleton correctly argues that a court may infer discrimination where a plaintiff who was denied a promotion was significantly more qualified than the applicant who received the promotion, our Circuit has held that the qualifications gap must be “wide and inexplicable.” Snow, 336 F.3d 1085 (D.C.Cir.2003)). Such a gap does not exist in this case. First, although Mr. Pendleton argues that he was more experienced than either of the other two agents selected, plaintiff acknowledges that seniority was not a critical element in the OIG’s selection decision. PL Dep. 74:17^-21. Moreover, although plaintiff had more years of investigatory experience, the other two agents selected were both experienced investigators by the time they applied for the SSA positions. Second, although plaintiff argues that he has excelled throughout his career, his colleagues and former supervisors have testified that plaintiff has had difficulty handling complex investigations and consistently demonstrated a lack of organization and an inability to communicate effectively. As a result, plaintiffs
2860	probable cause existed was that unit which contained the telephone to which the intercepted calls were made. The Government has argued, in effect, that since the defect in the description of the premises to be searched contained in the search warrant was the product of an honest mistake on the part of the officers, the error should be overlooked and the warrant upheld. The Court has no doubt that the Federal agents honestly did pot know that the structure at 4637 Newport was a two-family dwelling. The test to be applied in this situation, however, is not whether the officers had actual knowledge, but the test is whether they should have known that the building was not a one-family home. In  cert. denied, 391 U.S. 969, 88 S.Ct. 2043, 20 L.Ed.2d 883 (1968), where a search warrant was challenged on the same grounds as those raised here, the court ruled, at page 429: With regard to the contention that the search warrant failed to describe the premises with particularity, . . . there was no showing at any stage of the State court proceedings, and there has been no showing to date, that 1 Thomas Park appeared to be a multiple unit dwelling. The State court record indicates, to the contrary, that there was only one door from the outside, which opened into a hallway which gave access to the entire house. There has been no showing that the police officers knew or
4163	"work. It is therefore unnecessary to go into any further detail about those earlier jobs and their physical demands. . That evidence, summarized in the Appendix, should not be misinterpreted as reflecting all the proof on the subject. On the contrary, the record also contains some evidence downgrading the severity of Paige’s impairments. But it is important to recognize the abundance of clinical evidence supporting Paige’s claims. Before Secretary can validly conclude a claimant is not disabled, he ""must articulate his analysis of 'considerable evidence [which] is presented to counter the agency's position,’ at least at a minimum level” (Ray v. Bowen, 843 F.2d 998, 1002 (7th Cir.1988), quoting Burnett v. Bowen, 830 F.2d 731, 735 (7th Cir.1987), in turn quoting .Because parts of the tape of the Hearing were inaudible and could not be transcribed, the incomplete transcript has limited this Court’s review to a minor degree. . Dr. Fintel’s only comment as to Paige’s arthritis-related complaints came in response to a question from Paige’s attorney as to whether she was basing her opinion solely on Paige’s heart problems. She responded (R. 94): A. Yes, I have taken his other complaints into my decision. In regard to his back discomfort, I go to the last exam from 1983, the neurological exam shows good coordination, his gait is satisfactory, he’s not requiring any aids, really there are no (INAUDIBLE) neurological findings to substantiate that he’s having, you know, neurological problems."
552	". Section 7(3) defines ""special maritime and territorial jurisdiction of the United States,” as used in 18 U.S.C. § 2243(a) and other sections of Title 18, to include: Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or 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 a fort, magazine, arsenal, dockyard, or other needful building. .We note that a defendant who pleads guilty, as Gatlin did, may nevertheless challenge the District Court’s jurisdiction on appeal even in the absence of a court-approved reservation of issues for appeal. See, e.g., . Statutes prohibiting crimes against the United States government may be applied extrater-ritorially even in the absence of ""clear evidence” that Congress so intended. As the Supreme Court held in United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149 (1922), the presumption against extraterritoriality ""should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents.” 260 U.S. at 98, 43 S.Ct. 39 (emphasis added). With respect to such statutes, the Supreme Court reasoned, Congress’s intent to"
2446	121 months instead of the correct range of 63 to 78 months for the two drug convictions. Given the magnitude of the mistake, the government concedes that the oversight constituted plain error warranting resentencing, and we accept the concession. Although after United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the guidelines are advisory, a sentencing court still must calculate and consider the advisory range. United States v. Dean, 414 F.3d 725, 727-30 (7th Cir. 2005); United States v. Baretz, 411 F.3d 867, 877 (7th Cir.2005). And whether pre- or post-Booker, basing a sentence on a miscalculated range is an error that affects substantial rights and may constitute plain error. Baretz, 411 F.3d at 877; United States v. Maggi, 44 F.3d 478, 484 (7th Cir.1995). Accordingly, we VACATE the sentence and REMAND for resentencing.
4868	moved to withdraw because he cannot identify a nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Eom has not responded to our invitation to comment on counsel’s submission, see CIR. R. 51(b), and we confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel begins by telling us that Eom has said he wants only to challenge his prison sentence and does not wish to have his guilty plea set aside. Thus, counsel should have omitted any discussion of possible challenges to the voluntariness of Eom’s plea or the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel has evaluated whether Eom could challenge the reasonableness of the 51-month sentence he asked the district court to impose. Counsel notes, however, that the court correctly calculated the imprisonment range and that Eom’s sentence at the bottom of that range is entitled to a presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007); United States v. Jackson, 598 F.3d 340, 345 (7th Cir.2010). And counsel concludes that this presumption could not be overcome by arguing that the district court failed to adequately consider the sentencing factors under 18 U.S.C. § 3553(a). See United States v. Singleton, 588 F.3d 497,
3343	Waterman, supra, on the other hand, the Supreme Court affirmed without modification a lower court’s injunction which simply prescribed the use of a full first name instead of an initial, and required a notice of disclaimer. Since the field is one that does not lend itself to strict application of the rule of stare decisis because the fact patterns are so varied, we must try to identify the elements that have influenced decisions on the adequacy of the remedy. For example, the fact that an alleged infringer has previously sold his business with its goodwill to the plaintiff makes a sweeping injunction more tolerable. Cf. Hat Corporation of America v. D. L. Davis Corp., supra, note 2; and cf. So, too, if an individual enters a particular line of trade for no apparent reason other than to use a conveniently confusing surname to his advantage, the injunction is likely to be unlimited. See Vick Medicine Co. v. Vick Chemical Co., 11 F.2d 33 (5th Cir. 1926). If, however, the second comer owns the company himself and evinces a genuine interest in establishing an enterprise in which his own skill or knowledge can be made known to the public, that argues in favor of allowing him to use his own name in some restricted fashion. Cf. Stetson v. Stetson, supra, note 2, and cases cited infra at 736. As
2260	establish that its claim qualifies for allowance as an administrative expense. In re Hemingway Transport Inc., 954 F.2d 1, 5 (1st Cir.1992). To determine whether a claim should be accorded administrative expense status, it is necessary to consider when the claim arises. Since Code section 503(b) concerns itself with expenses incurred in connection with the bankruptcy estate, the expense must be one which arises post-petition. Typically, only debts incurred for the economic preservation of the bankruptcy estate are entitled to an administrative priority. In re Dant & Russell, Inc., 853 F.2d 700, 706 (9th Cir.1988), citing Matter of Baldwin-United Corporation, 43 B.R. 443, 451 (S.D.Ohio 1984); In re Armorflite Precision, Inc., 43 B.R. 14, affirmed 48 B.R. 994 (Bankr.D.Me. 1984); The determination of when a claim arises has proved to be a particularly vexing question where an environmental injury which gives rise to liability occurs pre-petition, but the remediation costs are expended post-petition. Generally, environmental compliance costs which arise from the debtor’s pre-petition conduct are treated as general unsecured claims. Dant and Russell, 853 F.2d at 709; In re Great Northern Forest Products, Inc., 135 B.R. 46, 60-61 (Bankr.W.D.Mich.1991); In re Kent Holland Die Casting & Plating, Inc., 125 B.R. 493, 503 (Bankr.W.D.Mich.1991). However, courts have found an exception to this general rule when the pre-petition environmental
1642	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 Following the lead of World-Wide Volkswagen Corp. v. Woodson, supra, in Swank v. Carmona, 603 F.Supp. 1092 (D.P.R.1985) the District Court of Puerto Rico authorized in personam jurisdiction over a defendant that delivers products into the stream of commerce with the expectation that they will be purchased by consumers in the forum state. Boeing in manufacturing a plane, parts thereof, or spare parts, and selling the same to American Airlines
2441	"regulatory domains. The Federal Power Act authorizes the States to regulate energy production. 16 U.S.C. § 824(b). It then instructs the Federal Government to step in and regulate wholesale purchases and energy transportation. § 824(a). Finally, it allows the States to assume control over the ultimate sale of energy to consumers. § 824(b). In short, the Federal Power Act, like all collaborative federalism statutes, envisions a federal-state relationship marked by interdependence. Pre-emption inquiries related to such collaborative programs are particularly delicate. This Court has said that where ""coordinate state and federal efforts exist within a complementary administrative framework, and in the pursuit of common purposes, the case for federal pre-emption becomes a less persuasive one."" That is not to say that pre-emption has no role in such programs, but courts must be careful not to confuse the ""congressionally designed interplay between state and federal regulation,"" Northwest Central Pipeline Corp. v. State Corporation, Comm'n of Kan., 489 U.S. 493, 518, 109 S.Ct. 1262, 103 L.Ed.2d 509 (1989), for impermissible tension that requires pre-emption under the Supremacy Clause. In this context, therefore, our general exhortation not to rely on a talismanic pre-emption vocabulary applies with special force. See Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941) (""This Court ... has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency;"
1088	"uniform approach that Stenberg demands.”); Hope Clinic v. Ryan, 195 F.3d 857, 859 (7th Cir.1999) (Posner, J„ dissenting) (""The health effects of partial birth abortion should indeed be treated as a legislative fact, rather than an adjudicative fact, in order to avoid inconsistent results arising from the reactions of different district judges ... to different records.”), majority opinion vacated, 530 U.S. 1271, 120 S.Ct. 2738, 147 L.Ed.2d 1001 (2000). Applying a clearly erroneous standard to findings of legislative facts would undermine the requirement of uniformity under Stenberg because it would mean that the Supreme Court could uphold one trial court’s determination that an abortion procedure is never medically necessary while upholding another’s that it is necessary to protect women’s health. Cf. . Casey recognized that the government has a substantial interest in promoting and protecting fetal life. See 505 U.S. at 875-76, 112 S.Ct. 2791. That interest is considerably stronger after the point of viability. See Stenberg, 530 U.S. at 930, 120 S.Ct. 2597; Casey, 505 U.S. at 880, 112 S.Ct. 2791. But, according to the Supreme Court, the government’s substantial interest in protecting fetal life postviability cannot override the mother’s right to abort the fetus “where it is necessary, in appropriate medical judgment, for the preservation of the [mother's] life or health.” Casey, 505 U.S. at 879, 112"
1565	(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, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(i) (2006). In a suit brought pursuant to Title VII, a plaintiff may prove his claim of discrimination indirectly under the burden-shifting framework established in 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
651	obtained a court order permanently enjoining the Parish from abandoning the original Project. In 1977, while the state action was pending, the same landowners sued in federal district court, to overturn the Wilson Order. The district court held, on summary judgment, that General Wilson did not abuse his discretion in adopting the modified Project. Creppel v. United States Army Corps of Eng’rs, 500 F.Supp. 1108, 1119 (E.D.La. 1980), rev’d in part and aff'd in part, 670 F.2d 564 (5th Cir.1982). The United States Court of Appeals for the Fifth Circuit also found no abuse of discretion. The Fifth Circuit, however, reversed and remanded to determine whether local assurances were available for completion of the Project, and whether section 404(c) prevented it. Crep-pel, 670 F.2d at 575. On remand, the district court found that the Parish’s refusal to assure the revised Project made its completion impossible. Creppel v. United States Army Corps of Eng’rs, No. 77-25, slip op. at 5 (E.D.La. Aug. 13, 1984). The district court therefore ordered the original Project to proceed. Id. The EPA began proceedings on December 17, 1984, to determine whether to block the
935	other things: (1) calling into question the Defendant’s involvement in the charged conspiracy generally; and (2) undermining any evidence that the Defendant possessed the requisite knowledge and/or intent for the conspiracy offense charged. To the extent the Government has “affirmative evidence” of Williams’ involvement in illicit activity with Bowman, the failure of one or more co-conspirators to identify Williams as a member of the conspiracy may or may not support a defense theory that Bowman and Williams were engaged in a separate relationship. Information that numerous and/or significant co-conspirators did not affirmatively identify Williams as a member of the charged conspiracy reasonably can be expected to raise questions in the minds of the jurors and aid Williams’ defense. Id.; cf. Furthermore, neither the Government nor the Court is in a position to conclusively determine at this stage of the proceedings that the purported failure of one or more co-conspirators to name Williams as a member of the conspiracy will not be favorable to the Defendant in preparing his defense. As the District of Columbia Court of Appeals explained, It should by now be clear that in making judgments about whether to disclose potentially exculpatory information, the guiding principle must be that the critical task of evaluating the usefulness and
1729	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. 1, 13/103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). . Grable & Sons Metal Prods., Inc., v. Darue Eng’g & Mfg.,-U.S. -, 125 S.Ct. 2363, 2368, 162 L.Ed.2d 257 (2005). Accord Broder v. Cablevision Sys. Corp., 418 F.3d 187 (2d Cir.2005). . Two exceptions to the well-pleaded complaint rule permit removal of state law actions: when the claims are completely preempted by federal law and 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
1389	preponderance of the evidence that the reasons offered by defendant were not the true reasons for discharge, but only a pretext for discrimination. Id. at 804, 93 S.Ct. at 1825. A review of the entire record in this case indicates that Mr. Ashagre failed to establish a prima facie case of discrimination on the basis of race and/or national origin. Even assuming that he did make such a showing, Southland articulated legitimate, nondiscriminatory reasons for discharging Mr. Ashagre, and Mr. Ashagre failed to prove, by a preponderance of the evidence, that Southland’s reasons were merely pretextual. It is also clear that, with respect to the claim under section 1981, Mr. Ashagre failed to make any showing of purposeful discrimination. See In McDonnell Doughs Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) the Supreme Court set out the requirements for a prima facie case of discrimination based on failure to hire. The Fifth Circuit first applied these requirements to a case involving a discharge from employment in Marks v. Prattco, Inc., 607 F.2d 1153 (5th Cir. 1979). The court in Marks found that, to establish a prima facie case of employment discrimination in a discharge, the plaintiff must show that 1) he is a member of a protected class; 2) he was qualified for the job from which he was discharged; 3) he was discharged; and, 4) after
1664	to accelerate tho prompt trial of these offenses, it is requested that you assume court-martial jurisdiction in these cases. “3. The accused is at present in confinement in the Third U. S. Army Stockade, but will be delivered upon request to such i>laco as you may designate. “For tho Commanding General:” The views of counsel for the petitioner coincide with those of the three Judge Advocates who constituted the Board of Review while tho views of the respondent appear to be supported by at least an equal number of lawyers in tho Judge Advocate General’s Department. McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049. Cf. Carter v. Roberts, 177 U.S. 496, 20 S.Ct. 713, 44 L.Ed. 861; t. 181, 48 L.Ed. 236; Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640; Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225; French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692. Contra Sanford v. Robbins, 5 Cir., 115 F.2d 435. See, e. g. Ex parte Bigdow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005. Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436; Ex parte Hans Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; United States v. Ball, 163 U.S. 662,
3934	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); 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 been discharged from a job during the time that his postal application was pending. Accordingly, plaintiff was not otherwise qualified for the position of PTF mail carrier. Defendants would not have offered plaintiff employment had they known of his omission of the A & P warehouse job and his failure to inform them of his firing. Under the Burdine standards, plaintiff is
3228	if valid, the new agreement does not bar the Committee’s damage claims. Accordingly, it is unnecessary to determine whether the new agreement was properly approved by the Union. 3. The New Agreement Did Not Modify the Rejected Agreement. U.S. Truck argues that a modification or termination of an existing agreement, agreed upon by a union and an employer, precludes a later claim under a modified contract provision. In support, U.S. Truck cites cases involving mid-term modifications of collective bargaining agreements, arguing that such modifications extinguish the employees’ rights under the former terms. It is clear that an employer and a union may voluntarily agree to modify or amend their collective bargaining agreement. See, e.g., However, that is not what happened here. These parties did not mutually and voluntarily agree to re-open an unsatisfactory portion of their existing agreement, and, with the protections, benefits, and obligations of the agreement intact, mutually agree to changes. In this case, there was no agreement in existence to modify; the rejection of the agreement on December 6, 1982, legally terminated it. Thus, there was no modification of a then existing agreement. The debtor in possession cannot ask for partial rejection of a contract, nor can the court require that certain portions of an agreement be retained. After rejection, the union and the employer renegotiate the entire collective bargaining agreement. This creates a risk that provisions that were not financially burdensome
2773	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 424; Chiron, 179 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); 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
4165	well as excessive force, assault, battery, negligence and intentional infliction of emotional distress under Indiana law. (Filing No. 1.) The Plaintiffs voluntarily withdrew their Eighth Amendment claim (Filing No. 43-6 at 2-3); (Filing No. 43-7 at 2-3), as well as their negligence and intentional infliction of emotional distress claims (Filing No. 48). Therefore, the Motion for Summary Judgment applies only to the Fourth Amendment and the remaining state law claims. For the following reasons, the Court DENIES the Defendants’ Motion for Summary Judgment. I. BACKGROUND As with any summary judgment motion, the following facts are reviewed in the light most favorable to the Plaintiffs, the nonmoving parties, and the Court draws all reasonable inferences in the Plaintiffs’ favor. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). In the evening on April 2, 2013, Daniel Veza (“Officer Veza”), with the Indianapolis Metropolitan Police Department, initiated a traffic stop on a red Chevrolet Blazer after he witnessed the vehicle run a stop sign. Officer Veza sent a message to Officer Ross requesting back-up because he believed there were five individuals in the vehicle. Id. at 3. As Officer Veza approached the vehicle, he observed that the windows were tinted and instructed the passengers to roll their windows down. Id at 1. Officer Veza observed five people inside the vehicle. Id. Kevin Somerville (“Sommerville”) was in the driver’s seat, Trisha Parish (“Parish”) was in
4903	"Rule 23(f) petition, which we granted. II. JURISDICTION AND STANDARD OF REVIEW The District Court had original jurisdiction over Plaintiffs' FLSA claims under 28 U.S.C. § 1331, and supplemental jurisdiction over their state-law claims pursuant to 28 U.S.C. § 1367. Because we granted Citizens' Rule 23(f) petition, we have jurisdiction over the District Court's Rule 23 order pursuant to 28 U.S.C. § 1292(e). ""We review the grant of class certification for an abuse of discretion, which occurs if the certification 'rests upon clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.' "" In re Blood Reagents Antitrust Litig. , 783 F.3d 183, 185 n.1 (3d Cir. 2015) (quoting 2008) ). An additional question raised in this appeal is whether we have pendent appellate jurisdiction to review the District Court's FLSA certification order, a question of first impression for our Court. As a general matter, an order certifying a collective action under the FLSA is non-final and therefore not reviewable. See Halle , 842 at 227. However, under certain limited circumstances, the Court may, in its discretion, exercise pendent appellate jurisdiction ""over issues that are not independently appealable[.]"" E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S. , 269 F.3d 187, 202-03 (3d Cir. 2001) (citing In re Tutu Wells Contamination Litig. , 120 F.3d 368, 382 (3d Cir. 1997) ). For the reasons"
4758	as charged, id. at 28. In support of our conclusion, we added by way of dictum that “even in the face of an offer to stipulate, the government may choose to present evidence on the one felony necessary to prove the crime charged,” id. at 28. Although we stand by and reaffirm the proposition central in Collamore, that a defendant may not use a stipulation or any other procedural device, including bifurcation, to remove from his felon-in-possession prosecution the fact of his prior conviction, we now realize upon reconsideration that our dictum rested on a shaky foundation. In Collamore, we relied on three cases, two from the Sixth Circuit, United States v. Blackburn, 592 F.2d 300, 301 (6th Cir.1979); and and one from the Eighth Circuit, United States v. Bruton, 647 F.2d 818, 825 (8th Cir.1981), 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
1369	California Supreme Court has held that the phrase “as a result of’ in UCL section 17204 “imposes an actual-reliance requirement on plaintiffs prosecuting a private enforcement action under the UCL’s fraud prong.” Tobacco II, 46 Cal.4th at 326, 93 Cal.Rptr.3d 559, 207 P.3d 20. This also applies under the UCL’s “unlawful” and “unfair” prongs, where the predicate unlawfulness is misrepresentation and deception. Hale v. Sharp Healthcare, 183 Cal.App.4th 1373, 1385, 108 Cal.Rptr.3d 669 (2010); see also Kwikset, 51 Cal.4th 310, 120 Cal.Rptr.3d 741, 246 P.3d 877; In re Actimmune Mkt. Litig., No. 08-2376, 2010 WL 3463491, at *8 (N.D.Cal. Sept. 1, 2010), aff'd, 464 Fed. Appx. 651 (9th Cir.2011); Brazil v. Dole Food Co., 935 F.Supp.2d 947 (N.D.Cal. 2013); .Cal.2014). The federal and state statutes relied on by Plaintiff prohibit a particular type of consumer deception, the mislabeling of food products. As such, the actual reliance requirement applies to Plaintiffs claims under all prongs of the UCL. See Figy v. Amy’s Kitchen, No. 13-CV-03816-SI, 2013 WL 6169503 (N.D.Cal. Nov. 25, 2013); Kwikset, 51 Cal.4th 310, 120 Cal. Rptr.3d 741, 246 P.3d 877; Wilson v. Frito-Lay N. Am., 961 F.Supp.2d 1134 (N.D.Cal.2013). Defendant argues that Plaintiff cannot establish standing because Plaintiff cannot demonstrate that he was deceived by Defendant’s alleged conduct. However, Plaintiff counters that he purchased Defendant’s products in reliance on the “no trans fat” and “no cholesterol” representations. Dkt. No. 47 ¶¶ 10 n.l, 13,
3023	San Juan, International and Sea Freight. Under National Woodwork Manufacturers v. And, just six days after oral argument in our case, the Supreme Court further illuminated the contours of the secondary boycott. N. L. R. B. v. Enterprise Ass’n. of Steam, Hot Water, etc. Pipefitters, 429 U.S. 507, 97 S.Ct. 891, 51 L.Ed.2d 1 [1977]. This trio of cases provides the framework for our discussion. NATIONAL WOODWORK AND WORK PRESERVATION National Woodwork Manufacturers v. N. L. R. B. involved a boycotted product. Frouge Corporation, a general contractor, employed union carpenters on a housing project in Philadelphia. The company and the union agreed to be bound by a local collective bargaining agreement. Rule 17 of that agreement prohibited the use of prefitted doors on construction projects. Frouge was therefore bound to use “blank” doors, which required more on-site work by the carpenters. Although adherence to the contract was possible, Frouge disregarded Rule 17 and ordered 3,600 prefitted doors from a member of the National Woodwork Manufacturers Association. Union officials ordered the rank
2413	days. Subsequent orders of this Court have extended that restraining order during the processing of this suit. II. Respondent’s alternative motion is based upon a theory of exhaustion of remedies. Under 10 United States Code § 1552(a), the Army Board for Correction of Military Records (ABCMR) is empowered to review and correct petitioner’s military records, including the findings made by the Physical Review Council. Cf. Hendrick v. United States, 150 Ct.Cl. 437 (1963). As petitioner concedes, he has made no application for relief to the ABCMR and has therefore not exhausted his military remedies. But petitioner’s failure to exhaust his military remedies does not automatically require that this Court dismiss the pending action. In The defendants moved to dismiss on the ground that, since no application for relief was made to the ABCMR, plaintiff had failed to exhaust available military remedies. The district court, while agreeing that plaintiff had not exhausted, refused to dismiss the action. Instead, the Court noted that under 5 U.S.C. § 1009(d), it could stay the discharge pending completion of the military’s administrative processes. More importantly, it found that plaintiff had fulfilled all of the conditions traditionally required for the .granting of such a stay: (1) A likelihood that petitioner will prevail on the merits of the
1309	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 Rule 9(b) to bar later complaints; they must provide only sufficient notice for the government to initiate an investigation into the allegedly fraudulent practices, should it choose to do so. Batiste, supported by the United States as amicus curiae, argues that the court should impose a heightened pleading requirement on complaints for first-to-file purposes, relying on Such an interpretation, they argue, would strike the appropriate balance between the first-to-file rule’s twin purposes — to encourage whistleblowers to come forward with allegations of fraud and to prevent copycat actions that do not provide additional material information to the government. Requiring a complaint to meet the Rule 9(b) standards, they contend, would ensure the complaint provides the government sufficient information to pursue an investigation, as well as prevent an overly-broad complaint from barring a more detailed, later-filed complaint. We are unconvinced. Nothing in the language of Section 3730(b)(5) incorporates the particularity requirement of Rule 9(b), which militates against reading such a requirement into the statute. The statutory text imposes a bar on complaints related to earlier-filed, “pending”
2953	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 (1976). A federal habeas corpus petitioner seeking relief on the grounds of court-appointed counsel’s incompetence has the burden of proving a constitutional defect, Day v. Peyton, 303 F.Supp. 221 (W.D.Va.1969), and petitioner in the instant case has substantially failed to convince this court that Simpson and Tisinger were incompetent. Petitioner challenges the adequacy of Simpson’s opening statement, and respondent maintains that the opening statement is a matter of trial tactics. This court agrees with respondent. The matter of trial tactics and the attorney’s judgments are beyond this court’s review. Franklin v. Conway, 391 F.Supp. 1233 (W.D. Va.1975), aff’d 546 F.2d 579 (4th Cir. 1976). Petitioner attacks his attorneys’ failure to put on a defense in that no witnesses were called to testify on petitioner’s behalf. However, based on a professional judgment, counsel’s decision not to call witnesses does not deprive a defendant of his constitutional right to effective assistance. Ingram v. Cox, 339 F.Supp. 891 (W.D.Va.1972). Since petitioner’s voluntary confession placing him at the crime scene had been admitted into evidence, Simpson and Tisinger might have feared disastrous results in introducing witnesses who petitioner said would provide him with an alibi, especially where the alibi witnesses might be of questionable character and credibility. Furthermore, the evidence is not clear
2246	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 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 Defendants “abused their discretion” in not maintaining copies of particular documents in his Central File and by categorizing those documents as exempt from the Freedom of Information Act. In response, the Defendants have requested the disposition of this case for primarily two reasons. First, it is argued that the entire complaint is vexatious in nature
3338	given a secondary meaning (as well as trademark registration) to a family name, and a later comer who wishes to use his own true family name as a trademark in the same industry has been one of the more interesting issues in the law of trademark infringement. The problem is made more difficult when the second comer has his own background of experience in the particular industry, and is not simply a newcomer. See John T. Lloyd Laboratories, Inc. v. Lloyd Brothers Pharmacists, Inc., 131 F.2d 703 (6th Cir. 1942). In the nineteenth and earlier twentieth centuries, both the state and federal courts tended to be highly solicitous of an individual’s personal right to use his name in trade. Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U.S. 118, 25 S.Ct. 609, 49 L.Ed. 972 (1905); Meneely v. Meneely, 62 N.Y. 427 (1875). See McCarthy, Trademarks in Unfair Competition, § 13.3 pp. 459-560 (1973 ed.). With the passage of the Federal TradeMark Act of 1905, 33 Stat. 724, and an increasing commercial reliance on marketing techniques to create name recognition and goodwill, the courts adopted a more flexible approach to the conflicting property interests involved in surname trademark infringement cases. By 1908, the Supreme Court was willing to enjoin the use of a surname unless accompanied by a disclaimer. Herring-Hall-Marvin Safe Co. v. Hall’s Safe Co., 208 U.S. 554, 559-60, 28 S.Ct. 350, 52
4790	Payne and Jackson. Witness Esmeier identified defendant Willis. Witness Moulton identified Payne and witness Welch identified Payne and Willis. All five testified that their identifications were based upon their observations at the time of the robbery, and they were not assisted by the confrontation which had occurred on the previous day. Counsel for defendants voiced no objection to these courtroom identifications during the suppression hearing. When witness Esmeier asked if he could stand up while he looked at persons in the courtroom, the court asked all of the defendants to stand. They did so. None of the defense counsel objected to this procedure. At least in the absence of objection, this practice does not deprive a defendant of due process. While the suppression hearing was in recess defendants formally moved to suppress the in-court identification of defendants by the five Government eyewitnesses. Counsels’ ground for this motion was that the confrontation on September 1, 1970, 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
1761	"III ¶ 248. . Shell Oil does not claim its right to removal was revived, but that the initial pleading was not removable. In their objection, plaintiffs cite inapposite cases where defendants unsuccessfully sought to prove that their right to removal was revived because the initial complaint was amended so "" 'drastically that the purposes of the 30-day limitation would not be served by enforcing it.’ ” Objections at 7-8 (quoting Wilson, 668 F.2d at 964; Cantrell v. Great Republic Ins. Co., 873 F.2d 1249, 1255 (9th Cir.1989) (finding that removal was untimely and that plaintiff's addition of a plaintiff and defendant did not change the nature of the action and did not restart the removal clock); Jeffrey M. Goldberg & Assoc. v. Collins, Tuttle & Co., 739 F.Supp. 426, 430 (N.D.Ill.1990) (finding that the addition of a ""new tortious interference claim” that did not change the basic legal theory in an initially removable complaint did not restart the removal clock); Potty Pals, Inc. v. Carson Fin. Group, Inc., 887 F.Supp. 208, 209 (E.D.Ark.1995) (finding that the addition of a claim for a preliminary and permanent injunction where no change occurred in the basic nature of the complaint did not restart the clock for removal on a complaint which was initially removable)). . See, e.g., Hibbs v. Consolidation Coal"
3770	v. Glover, 222 F.3d 1327, 1329 (11th Cir.2000) (“We will not force a plaintiff to choose between intentionally violating a law to gain access to judicial review and foregoing what he or she believes to be constitutionally protected activity in order to avoid ... [sanctions].”) The County does argue, however, that Plaintiff lacks third-party standing to litigate the rights of its danc ers by challenging the substantive criminal provisions of the AEC. (Def.’s Mem. at 8-9.) Third-party standing is an exception to the prudential requirement that a party must litigate its own rights and interests and not those of a third party. See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); A party may assert a third party’s rights if they share a close relationship, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (school and parents); Craig v. Boren, 429 U.S. 190, 195, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (bartender and customers); if the third party is unlikely or unable to defend his or her rights in court, Barrows v. Jackson, 346 U.S. 249, 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
1716	"2005) (""R & R”), Ex. 1 to Plaintiffs’ Objections to Magistrate Judge's Report and Recommendation re Plaintiffs’ Motion to Remand and Memorandum of Law in Support Thereof (""Objections”). . Objections ¶¶ 1-3 (quoting R & R at 2, 8). . 28 U.S.C. § 636(b)(1). . For a full recitation of plaintiffs' fact allegations in this MDL see In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 175 F.Supp.2d 593 (S.D.N.Y.2001) (""MTBE I”) (concerning preemptive effect of Clean Air Act); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 209 F.R.D. 323 (S.D.N.Y.2002) (""MTBE II”) (denying class certification); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 342 F.Supp.2d 147 (S.D.N.Y.2004) (""MTBE III"") (federal agent jurisdiction); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 341 F.Supp.2d 386 (S.D.N.Y.2004) (""MTBE V”) (bankruptcy jurisdiction); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 361 F.Supp.2d 137 (S.D.N.Y.2004) (""MTBE VI”) (sovereign immunity); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 364 F.Supp.2d 329 (S.D.N.Y.2004) (""MTBE VII”) (preemption constitutes a colorable federal defense for purposes of the federal officer removal statute). . See 12/12/01 Complaint at Law, Quick, et al. v. Shell Oil Co., et al, No. O1-L-147 (Ill. Cir. Kankakee County) (""Compl.”) ¶¶ 3, 41 (listing ""MTBE, BETX compounds, including benzene, toluene, and xylem,” as contaminants of the potable water supply). The facts recited herein are mere allegations, and do not constitute findings of"
2357	these doctors knew that Havas was already retired at the time of their examinations and was no longer driving for prolonged periods, there was no reason to include such a restriction in their reports. The record also contains the reports of two other physicians, Dr. Ralph S. Brown and Dr. Judith Bodnar, neither of whom examined Havas or specializes in orthopedic medicine. They opined that Havas was capable of returning to work. However, the opinions of nonexamining medical personnel cannot in themselves constitute substantial evidence overriding the opinions of examining physicians. See Martin v. Secretary of HEW, 492 F.2d 905, 907-08 (4th Cir.1974); Landess v. Weinberger, 490 F.2d 1187, 1190 (8th Cir.1974); Mefford v. Gardner, 383 F.2d 748, 759 (6th Cir.1967); Furthermore, the AU did not refer to those reports. In sum, there is no substantial evidence in the record creating a “genuine conflict[],” Schisler, 787 F.2d at 81, with Dr. Mulbury’s opinion that Havas can no longer perform his past work. We therefore remand to the Secretary for a determination as to whether Havas “cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A) (1982 & Supp. Ill 1985). This case underlines the need for our recent order in Schisler requiring the Secretary to “state in relevant publications ... that adjudicators at all levels, state and federal, are to apply the treating physician rule.”
3077	an individual would be excluded because of an impairment.”) The Court will now explain why Plaintiffs evidence fails to meet her burden under the ADA in “working” cases. First, the Court holds that a lifting restriction alone is not sufficient to establish a substantial impairment to the major life activity of working. See Thompson v. Holy Family Hosp., 121 F.3d 537, 541 (9th Cir.1997); Williams v. Channel Master Satellite Sys., 101 F.3d 346, 349 (4th Cir.1996) (Holding as a matter of law that a 25-pound lifting limitation does not constitute a disability); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir.1996). Other courts have held that even lesser amounts were not substantial limitations. See Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 644 (2nd Cir.1998) (10-20 pounds); Helfter v. United Parcel Service, Inc., 115 F.3d 613, 617-18 (8th Cir.1997) (10-20 pounds); McKay v. Toyota Motor Mfg., US.A., Inc., 110 F.3d 369, 373 (6th Cir.1997) (20 pounds); Wooten v. Farmland Foods, 58 F.3d 382, 384-86 (8th Cir.1995) (10-20 pounds); Piascyk v. City of New Haven, 64 F.Supp.2d 19, 29-31 (D.Conn.1999) (15 pounds), aff'd 216 F.3d 1072 (2nd Cir.2000) (Table case); Gerdes v. Swift-Eckrich, 949 F.Supp. 1386, 1400 n. 5 (N.D.Jowa 1996) (10 pounds) aff'd 125 F.3d 634 (8th Cir.1997). Recognizing that a lifting restriction alone would not suffice, Plaintiff has offered Figueroa’s declaration, which the Court finds contains only bald assertions and
4112	frauds, and that under these circumstances claimant is entitled to recover. Eor the defendants it is urged that the findings make a stronger case against claimant than that set forth in the opinion of the court, heretofore rendered on demurrer to the original petition. That public policy amply sanctions the offer of rewards to officers of the United States for special vigilance in the detection and punishment of crime is too well established to be questioned. (United States v. Matthews, 173 U. S. R., 381.) It is also true that the offer of a portion of penalties to collectors is to stimulate and reward their zeal and industry in detecting fradulent attempts to evade the payment of taxes and duties. ( But these cases merely establish the principle that officers are not excluded in proper cases from claiming rewards under statutes providing for the payment of rewards generally in the detection of crime. There are some things, however, which officers must do regardless of rewards. They must not neglect their plain duty, or shut their eyes to any violation of law while oharged with the obligation of having others conform to such of its requirements as must be enforced by ordinary vigilance. Everything imposed upon an official in the discharge of his duty must be done in good faith without reference to extra compensation in the shape of rewards and premiums for extraordinary diligence. In the case at bar it appears that Murray
4032	members; (4) claims of the party plaintiff are typical of claims of the class; (5) the Government must have acted on grounds generally applicable to the whole class; (6) the claims of many claimants must be so small that it is doubtful they would be otherwise pursued; (7) the party plaintiffs must adequately and fairly protect the interests of the class without conflicts of interest; and (8) the prosecution of individual lawsuits must create a risk of inconsistent or varying adjudications. Buchan, et al. v. United States, 27 Fed.Cl. 222, 224 (1992) (citing Quinault, 197 Ct.Cl. at 140-41, 453 F.2d 1272). The court also weighs whether certifying the group as a class action would serve the interest of justice. See United States, 3 Cl.Ct. 684, 686 (1983)). The total number of colonel selectees equal 198 members. Although it is a relatively small group when compared to other groups seeking class certification, the court is satisfied that such a class would be manageable yet large enough to justify certification. The court finds no compelling reason why each category of selectees, i.e., colonels in the 1967 and 1969 year groups, and colonels serving as chaplains, cannot be combined into one group for class certification purposes. The factual issues affecting each individual member of the class and their assigned category are diminutive when compared to the overriding legal issues involved in the instant matter. Likewise, the question of law, whether the
4201	orders appealed were entered after the statute’s enactment. Congress could have easily inserted language to restrict the application of these limitations to awards for work performed subsequent to the PLRA’s enactment, but it did not do so. Accordingly, the plain language of § 803(d) of the PLRA (codified at 42 U.S.C.A. § 1997e(d)) mandates that the attorney’s fees limitations apply to the awards made in the May, August,- and October orders, regardless of when the work being compensated was performed. We acknowledge that other courts that have addressed the applicability of the attornej^s fees provisions of § 803 of the PLRA to pending cases have refused to apply the limitations, concluding that such application would have an impermissible retroactive effect. See .C.A. § 1988 would be “manifestly unjust”); Cooper v. Casey, 97 F.3d 914, 921 (7th Cir.1996) (same); see also Weaver v. Clarke, 933 F.Supp. 831, 834 (D.Neb.1996) (refusing to apply § 803(d)’s limitations when determining attorney’s fees awarded after the enactment of the PLRA for work performed prior to the enactment of the PLRA). But cf. Hadix v. Johnson, 947 F.Supp. 1113, 1114-15 (E.D.Mich.1996) (concluding that § 803 of the PLRA applies when determining attorney fee awards for work completed after enactment of the PLRA in a
219	considered as an instrument dangerous to life, limb or property, and plaintiffs make no such contention. It is not contended that the alleged negligence caused any physical harm to the person or property of the plaintiffs. Undoubtedly there is confusion in the many decisions which have discussed this subject. The Huset case may now be entirely outmoded and MacPherson v. Buick Motor Co., supra, and the multitude of cases which have followed it may well have pronounced broader and more realistic principles of liability for negligent manufacturers, Carter v. Yardley & Co., Ltd., 1946, 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559; upp. 601; E. I. Dupont de Nemours & Co. v. Baridon, 8 Cir., 1934, 73 F.2d 26; Mannsz v. Macwhyte Co., 3 Cir., 1946, 155 F.2d 445; Ellis v. Lindmark, 1929, 177 Minn. 390, 225 N.W. 395; but see A. J. P. Contracting Corporation v. Brooklyn Builders Supply Co., 1939, 171 Misc. 157, 11 N.Y.S.2d 662, and Sperling v. Miller, Sup.App.T., 1944, 47 N.Y.S.2d 191; Blich v. Barnett, 1951, 103 Cal.App.2d Supp. 921, 229 P.2d 492; National Iron & Steel Co. v. Hunt, 1924, 312 Ill. 245, 43 N.E. 833, 34 A.L.R. 63; Buckley v. Gray, 1895, 110 Cal. 339, 42 P. 900, 31 L.R.A. 862; Ultramares Corp. v. Touche, 1931, 255 N.Y. 170, 174 N.E. 441, 74 A.L.R. 1139, but plaintiffs have not found
3425	the sentencing guidelines. Shelton, 400 F.3d at 1331. Terrell’s burden to show that his substantial rights were affected is very high, and he fails to meet this burden. Although the district court stated at sentencing that it had no discretion under the guidelines and sentenced Terrell at the low end of the guideline range, the court did not indicate that it would have sentenced Terrell differently had it known the guidelines were advisory. In the absence of a more definitive statement from the court, Terrell cannot meet his burden. United States v. Fields, 408 F.3d 1356 (11th Cir.2004) (holding that sentencing at the low end of the guideline range, without more, will not meet the plain error test). But see United States v. Martinez, 407 F.3d 1170 (11th Cir.2005) (vacating and remanding under plain error test because the court expressed its frustration at the guidelines sentence). D. Consecutive Sentences The district court’s application of § 5G1.3 is a question of law that we review de novo. United States v. Bidwell, 393 F.3d 1206, 1208-09 (11th Cir.2004). The district court properly imposed consecutive sentences. Terrell faced two undischarged state sentences — one for the burglary that formed the basis for the federal § 922(g) offense, and one for
1484	"argues that its spacer blocks are not substantially equal to the diameter of the separated pipes, as the claims require. Industrial contends that on the advice of its patent counsel, and specifically to avoid infringement, it instructed its spacer block manufacturer to make the spacer blocks for 5V2"" pipes at least one-sixteenth of an inch less than the pipe diameter. The district court found that the “slightly shorter, double-concave Industrial blocks would correspond to the ‘substantially equal to’ limitation * * * ” under the doctrine of equivalents. The court’s belief that it found infringement under the doctrine of equivalents, however, is wrong. The doctrine of equivalents only comes into play when there is no literal infringement. See Since “substantially equal to” embraces “slightly less than,” the district court’s finding that Industrial’s “slightly shorter” spacer blocks were “substantially equal to” the pipe diameter is a finding of literal infringement which is not clearly erroneous. The district court, expressly found infringement, though, only in regard to spacer blocks one-sixteenth of an inch less than the diameter of the separated pipe. This finding we affirm. The report of the Special Master concerning Seattle Box’s lost profits, however, indicated that after trial had ended, Industrial made 84 pipe bundles with spacer blocks one-quarter of an inch less than the diameter of the separated pipe. The Special Master correctly refused to consider whether these blocks infringed the '373 reissue"
3978	for failing to complete their plan payments within five years from the commencement of their case. Although Schlegels had made their $812 monthly plan payments, they had failed to pay their unsecured nonpriority creditors the promised 48% dividend. Schlegels contend that the bankruptcy court erred in dismissing their case because they completed all of their payments under the Plan as required by § 1328(a) even if they failed to pay the required percentage dividend. Neither, the Ninth Circuit nor this Panel has addressed this precise issue. However, persuasive authority supports the bankruptcy court’s decision to dismiss for this 'reason. B. Analysis 1. Authority supporting dismissal of the case In  a case with nearly identical facts, debtors’ confirmed chapter 13 plan promised to pay monthly payments of $474, to pay filed tax claims and to pay unsecured creditors a 10% dividend. Three years later, the IRS filed a proof of claim for a postpetition trust fund tax. No person filed objections to the IRS’s claim and the trustee began making payments on account of the IRS claim. Six years after confirmation, the trustee moved to dismiss on the basis that debtors’ plan payments failed to pay both the IRS claim and the 10% dividend to unsecured creditors. In response, debtors filed a motion for discharge under § 1328(a) or for a hardship discharge under § 1328(b). The bankruptcy court dismissed the
2279	"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 of cleanup costs in connection with remediation of a pre-petition environmental contamination as an administrative expense. . In Re Charlesbank Laundry, 755 F.2d 200, 202 (1st Cir.1985) (court applies Reading to award an administrative claim to parties harmed by debtor in possession's postpetition violation of a civil injunction) (emphasis added); In re N.P. Min. Co., Inc., 963 F.2d 1449, 1453 (11th Cir.1992) (""we find that punitive, civil penalties assessed for postpetition mining activities qualify as an administrative expense”) (emphasis added); ) (citations omitted)."
1708	bailment. SG Cowen’s motion to dismiss the breach of contract claim is therefore granted. See, e.g., Kreiss v. McCown De-Leeuw & Co., 37 F.Supp.2d 294, 298 (S.D.N.Y. March 4, 1999) (dismissing breach of contract claim for failure to plead every essential element thereof). IV. Conversion To withstand a motion to dismiss, a conversion claim must allege (1) an actionable wrong other than breach of contract caused plaintiffs injury;, (2) plaintiff had ownership of the funds at the time they were converted; (3) defendant exercised unauthorized dominion over the funds; (4) the funds were specific and identifiable; and (5) the defendant was to have treated the funds in a particular manner but they were not so treated. See A complaint that offers no factual basis for inferring conversion must be dismissed. Pinnacle Consultants, Ltd. v. Leucadia National Corp., 923 F.Supp. 439, 447 (S.D.N.Y.1995), aff'd, 101 F.3d 900 (2d Cir.1996). The complaint fails to allege facts that support either the third or fifth elements of conversion because, as set forth above, the only communications Rozsa alleges pertaining to the use of the funds are between himself and May Davis, not SG Cowen. Moreover, although the complaint has attached various correspondence and bank documents, no specific account information has been alleged. As a result, the complaint fails to allege that the funds were in a specifically identifiable account, as required to sustain a conversion claim. Neither of the cases Rozsa
622	"and there is no other reasonable basis for the parties’ choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which, under the rule of § 188, would be the state of the applicable law in the absence of an effective choice of law by the parties. (3) In the absence of a contrary indication of intention, the reference is to the local law of the state of the chosen law. . See Guardian Savings & Loan Assn. v. MD Associates, 64 Cal.App.4th 309, 315-316, 75 Cal.Rptr.2d 151 (Cal.Ct.App.1998). . Superior Court, 4 Cal.App.4th 63, 68, 5 Cal.Rptr.2d 428 (Cal.Ct.App.1992)). . The Bank argues it has a further connection to Colorado because it has branches in Colorado, and the Debtors submitted their loan documents to a Colorado branch. The Court finds this argument creates, at best, a relatively tenuous connection to Colorado. The Bank identified itself in the Term Loan Agreement as ""a California banking corporation.” In addition, on the signature page of the Term Loan Agreement, the Bank states the Term Loan Agreement is ‘‘[a]ccepted as of May 28, 2008, at the Bank’s place of business in the City of Newport Beach, State of California.” (emphasis added) .In its Additional Brief (Docket No. 314), the Bank argued"
1701	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); 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 to claim that agent “actively engaged ... in creating fraudulent trading losses” rather than acting as “a mere conduit.”). However, the complaint
2484	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); 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 custom. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Court has no evidence before it which suggests such an illegal policy is in place in Mille Lacs County. This scenario is scarcely the kind of risk upon which jurisdiction can be based. The Court must, absent evidence to the contrary, assume the County’s law enforcement officers will continue to protect the citizenry and avoid constitutional wrongs. The Court finds the County’s proffered “threat
1131	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 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 statute, the construction and validity of which was at issue between the parties. Since a declaratory judgment action is analogous to the old bill in equity, quia, timet, it would seem that the stay granted in that case prevented prosecution of a suit at law so that action could first be taken by a court of equity. The Glen Oaks Utilities case merely held that, since the complaint
1392	a rigid formula such as the one set out in Marks will not necessarily apply to every fact pattern. As noted by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), “[t]he facts necessarily will vary in Title VII cases, and the specification [in the four prong test] of the prima facie proof required ... is not necessarily applicable in every respect to differing factual situations.” Id. at 802 n.13, 93 S.Ct. at 1824 n.13. Thus, while failure to meet' the fourth requirement by showing that a nonminority was hired to replace the plaintiff may amount to failure to establish a prima facie case in certain cases, see, e.g.,  it may not in 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
3885	releasing her. The Plaintiff responded by filing a motion to compel and a motion for an extension of time. The Plaintiff subsequently advised the Court that he wished to drop his allegation that the Defendant had failed to abide by its standard screening procedures and that he “will rely solely on the issue of whether the Defendant detected an emergency medical condition and, if so, whether that condition was stabilized before the Plaintiff was discharged from Wishard Memorial Hospital.” Plaintiffs “Report to the Court”, at 1-2. A hospital violates the Act by failing to properly stabilize or transfer a patient after the hospital determines that the individual has an emergency medical condition. See 42 U.S.C. § 1395dd(b); see also An “emergency medical condition” is: (A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in— (i) placing the health of the individual- (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to bodily functions, or (iii) serious dysfunction of any bodily organ or part____ 42 U.S.C. § 1395dd(e). The Plaintiff contends that: [TJhere is no dispute that at the time SHELIA was first examined by Dr. Severs at WISHARD she was suffering from an emergency medical condition and that WISHARD knew this since Dr. Severs’ differential diagnosis included
3238	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 agreement — no sufficient offer and acceptance. [Footnotes omitted.] Corbin § 1277 at 117-121. Assent is essential to effect a rescission and substituted contract. See Ra-  citing 6 Corbin on Contracts 147 (1951 ed.), (§ 1293 at n. 4, 1962 ed.). Accordingly, the Court must review the new agreement for the requisite expressions of agreement. Such a review must recognize that as a result of the rejection of the collective bargaining agreement, the new agreement was negotiated from “ground zero” after many years of bargaining history between the parties. The effect of such an agreement may be difficult to determine under the federal common law of labor contracts, because most labor contract precedent does not address such agreements, created under the unusual conditions imposed by operation of the bankruptcy laws. Typical collective bargaining agreements contain automatic renewal clauses. See 1 C. Morris, The Developing Labor Law,
3279	is within the jurisdiction of the federal courts. United Mine Workers of America, District 22 v. Roncco, 314 F.2d 186 (10th Cir.1963). Where a local union has developed a reliance on the dues checkoff, the checkoff mechanism can effectively be its financial lifeline. Accordingly, federal courts have enforced legal dues checkoffs under 29 U.S.C. § 185. See, e.g., International Brotherhood of Electrical Workers Local No. 12 v. A-1 Electric Service, Inc., 535 F.2d 1 (10th Cir.1976), cert. denied, 429 U.S. 832, 97 S.Ct. 94, 50 L.Ed.2d 96 (1976); Food Handlers Loc. 425 v. Valmac Industries, Inc., 528 F.2d 217 (8th Cir.1975); Local 127, United Shoe Workers of America v. Brooks Shoe Manufacturing Company, 298 F.2d 277 (3rd Cir.1962);  aff'd, 705 F.2d 1426 (5th Cir.1983), cert. denied, 473 U.S. 904, 105 S.Ct. 3524, 87 L.Ed.2d 650 (1985). A review of the union security and checkoff provisions of the collective bargaining agreement indicates that they are clear and mandatory, and the Court con- eludes that the dues checkoff obligation is enforceable. See Finding of Fact 52. The Committee claims damages in an amount equal to the full amount of dues which U.S. Truck did not deduct for union member employees who were actively working. The Committee’s records provide a monthly measure of these lost dues for the duration of the rejected agreement. The Court concludes that this measure of damages is consistent with that used under 29 U.S.C. § 185. See Bugher,
1666	the Third U. S. Army Stockade, but will be delivered upon request to such i>laco as you may designate. “For tho Commanding General:” The views of counsel for the petitioner coincide with those of the three Judge Advocates who constituted the Board of Review while tho views of the respondent appear to be supported by at least an equal number of lawyers in tho Judge Advocate General’s Department. McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049. Cf. Carter v. Roberts, 177 U.S. 496, 20 S.Ct. 713, 44 L.Ed. 861; Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 48 L.Ed. 236; Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640; 31 S.Ct. 230, 55 L.Ed. 225; French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692. Contra Sanford v. Robbins, 5 Cir., 115 F.2d 435. See, e. g. Ex parte Bigdow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005. Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436; Ex parte Hans Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. Cf. Rosborough v. Rossell, 1 Cir., 150 F.2d 809; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Bowen
2085	v. Zapata, 18 F.3d 971 (1st Cir.1994). In that case, appellant claimed that the police officers had improperly seized two duffel bags containing approximately 25 kilograms of cocaine. The Court rejected appellant’s plea, noting that the officers had obtained defendant’s consent to search and freely surrendered the keys to both the doors and the trunk. Accordingly, it held that the seizure was proper. Furthermore, it noted that “[e]ven if the defendant’s consent 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 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
4914	"common to the class predominate over those affecting only individual class members."" Sullivan v. DB Inv., Inc., 667 F.3d 273, 297 (3d Cir. 2011). Accordingly, we will analyze the two elements together, with particular focus on the more stringent predominance requirement. See, e.g., In re LifeUSA , 242 F.3d at 144 (evaluating the predominance and commonality requirements together) (citing Amchem Products , 521 U.S. at 623-24, 117 S.Ct. 2231 ). At the class certification stage, the predominance requirement is met only if the district court is convinced that ""the essential elements of the claims brought by a putative class are 'capable of proof at trial through evidence that is common to the class rather than individual to its members.' "" Tyson Foods, Inc. v. Bouaphakeo , --- U.S. ----, 136 S.Ct. 1036, 1045, 194 L.Ed.2d 124 (2016) (citation omitted). In practice, this means that a district court must look first to the elements of the plaintiffs' underlying claims and then, ""through the prism"" of Rule 23, undertake a ""rigorous assessment of the available evidence and the method or methods by which [the] plaintiffs propose to use the evidence to prove"" those elements. Marcus , 687 F.3d at 600 (citing In re DVI, Inc. Sec. Litig. , 639 F.3d 623, 630 (3d Cir. 2011) ). ""If proof of the essential elements of the [claim] requires individual treatment, then class certification is unsuitable."" Newton v. Merrill Lynch, Pierce, Fenner &"
3268	supplement its response, the trial court has an inherent power to impose sanctions in order to protect the integrity of its processes. See 8 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2050 at 325-26 (1970). Cf. Evanson v. Union Oil Company of California, 619 F.2d 72 (Temp.Emer.Ct.App.1980), cert. denied sub nom., Union Oil Co. of Cal. v. Evanson, 449 U.S. 832, 101 S.Ct. 102, 66 L.Ed.2d 38 (1980). This case is distinguishable from one in which a party is embarrassed by its answer to an interrogatory, but then at trial is not precluded from taking a different position or from explaining the discrepancy. See C. Wright & A. Miller, § 2181 at 579. Cf.  cert. denied, 404 U.S. 1017, 92 S.Ct. 678, 30 L.Ed.2d 665 (1972). The difference is in the degree of prejudice to the opposing party in constructing its case around the false answers, and the injury to the fact-finding process from the resulting inability to reconstruct accurate proofs in the midst of trial. The Committee was severely prejudiced, not only by the false information, but also by its late revelation. The major part of the Committee’s case involved Wrotslavsky’s calculations in Exhibit 28, based on the “regular hours worked”, which could only be provided by U.S. Truck. The inaccuracy of U.S. Truck’s interrogatory answers increased the amount of the Committee's claim for lost wages and benefits; U.S. Truck’s recalculation of the lost
236	both actions. In this case, the David Realty Corporation was not a party to the criminal action. Although Abe Markowitz now asserts for the first time in this action that he is the sole stockholder in the corporation, this allegation is not enough to have the principle of res judicata apply. It has been held in this Circuit that a former action by a corporation of which the plaintiff in the later suit was the only principal executive officer and the stockholder controlling 1209 shares was not a bar to the plaintiff’s maintaining the later action in this court, since the corporation and the individual were different parties and, therefore, the doctrine of res judicata did not apply. Also, it has been determined in this Circuit that the acquittal of the driver of a vehicle alleged to have been driven in violation of the revenue laws of the United States is no bar to a forfeiture action brought under the same statute which is applicable in the present action against the owner of the vehicle, who was the wife of the defendant acquitted in the criminal action. United States v. One Dodge Sedan, 113 F.2d 552, 553-554 (3rd Cir.1940). Therefore, under the applicable law, the defendant in the criminal action (Abe Markowitz) and the corporation asserting a claim here (David Realty Corporation) not being identical, the principle of res judicata would not apply and, hence, the amendment should not
372	"U.S. at 24, 87 S.Ct. at 828. . 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). . Brecht, 507 U.S. at 623, 113 S.Ct. at 1714. . The Texas Court of Criminal Appeals was silent as to which standard it applied. . The district court applied the standard espoused in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (Whether the error ""had substantial and injtirious effect or influence on the jury’s verdict""). . 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (""harmless beyond a reasonable doubt”). . Some courts have held that the Brecht standard is applicable only when the state appellate court previously has applied the more stringent Chapman standard. See Orndorff v. Lockhart, 998 F.2d 1426 (8th Cir.1993) (same); Other courts have held that the language of Brecht applies to all federal habeas proceedings. See Davis v. Executive Director of Dep't of Corrections, 100 F.3d 750 (10th Cir.1996) (Brecht standard applies to all federal habeas proceedings); Sherman v. Smith, 89 F.3d 1134 (4th Cir.1996) (same); Horsley v. Alabama, 45 F.3d 1486 (11th Cir.1995); Tyson v. Trigg, 50 F.3d 436 (7th Cir.1995) (federal habeas corpus courts should apply the Kotteakos standard even if state courts have not conducted a Chapman analysis.) . 131 F.3d"
4238	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. 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):
643	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.” This is in point, because the defendant was by order of court permitted to plead to the merits after default. Substantially the same rule is laid down in the case of 14 S. Ct. 533, 38 L. Ed. 311. Judge Reed, of Iowa, in the case of Waverly Stone & Gravel Co. v. Waterloo, C. F. & N. Ry. Co. (D. C.) 239 F. 561, and Judge Sanborn, sitting as a Circuit Judge, in the case of Ruby Canyon Gold Min. Co. v. Hunter (C. C.) 60 F. 305, both passed upon this question. These cases are in accord, and in his opinion Judge Sanborn says that the act “which requires the petition for removal to be filed in the state court ‘at the time, or any time before, the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to
4311	arrest. (2) With respect to defendant Lance Jones, the district court did not err in denying his motion to suppress the evidence recovered from the car in which he was riding on November 6, 1999, for the reasons stated above with respect to Lonnie Jones. Lance Jones is not entitled to a mistrial on the ground that he was unfairly prejudiced when jurors observed him in handcuffs during the course of his trial because it was within the discretion of the district court to conclude, after conducting a voir dire, that no prejudice ensued, see United States v. Torres, 519 F.2d 723, 727-28 (2d Cir.1975), and because, in light of the voir dire, a curative instruction was not required, cf. The district court was not required to determine whether Lance Jones’ offense level was 33 or 34 because the district court would have imposed the same sentence irrespective of the difference in level. The district court gave an adequate explanation describing Lance Jones’ extensive criminal history that justified a sentence at the upper end of the range corresponding to offense level 33. Accordingly, for the foregoing reasons, we affirm the judgments of conviction and sentences of the district court. As explained in the opinion also filed today, no mandate will issue at this time.
609	assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life. . . . (emphasis supplied). . A discussion of some of the costs of dust control is found in Hills, Economics of Dust Control, 132 Annals of the New York Academy of Sciences 322 (1965), App. at 442-54. Several industry representatives testified in detail concerning the cost of attempting to meet the standards. Of. H & H Tire Co. v. United States Dep’t of Transportation, 471 F.2d 350 (7th Cir. 1972); These eases support the proposition that “practicable” as employed in the Automobile Safety Act of 1966, 15 U.S.C. § 1392(a), includes economic considerations, but the legislative history of that statute, unlike the history of OSHA, is more explicit on that point. . Temporary variances may be obtained when timely compliance is technologically impossible. . Testimony of industry representatives predicted both of these results. See, e. g., App. at 960-62. . Since technological progress is here linked ■ to objectives other than the traditional competitive, profit-oriented concerns of industry, accommodation of both sets of values will sometimes involve novel economic problems. International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615 (1973), illustrates some of these problems in the context
4483	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 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
40	"""No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance”. 15 U.S.C. § 1012(b). . This problem also arises in situations involving courts of different states. As relates to the present case, state legislatures (including New York and Louisiana) adopted the Uniform Insurers Liquidation Act (""UILA”) and established reciprocal procedures for resolving claims against insolvent insurers. See N.Y. Ins. Law §§ 7408, et seq.; La.Rev.Stat. Ann. §§ 22:757, et seq. Obviously, state legislatures can withhold jurisdiction from their own state courts but cannot control the jurisdiction of the federal courts. . See, e.g., Barnhardt Marine Ins., Inc. v. New England Int’l Surety of Amer., Inc., 961 F.2d 529, 531-32 (5th Cir.1992); Martin Insurance Agency, Inc. v. Prudential Reinsurance Co., 910 F.2d 249, 255 (5th Cir.1990); Gonzalez v. Media Elements, Inc., 946 F.2d 157 (1st Cir.1991); Law Enforcement Insurance Co. v. Corcoran, 807 F.2d 38 (2d Cir.1986); Lac D’Amiante du Quebec Ltee v. American Home Assurance Co., 864 F.2d 1033 (3d Cir.1988); Hartford Casualty Insurance Co. v. Borg-Warner Corp., 913 F.2d 419 (7th Cir.1990); Grimes v. Crown Life Insurance Co., 857 F.2d 699 (10th Cir.1988). .Only one federal court has given traction to the Superintendent’s argument that the New York rehabilitation proceedings left the district court without jurisdiction to rule on Gallon’s summary judgment"
1173	96 S.Ct. 2771, 2775, 49 L.Ed.2d 672 (1976); Safeco Life Insurance Company v. Musser, 65 F.3d 647, 650 (7th Cir.1995); Rekhi v. Wildwood Industries, Inc., 61 F.3d 1313, 1316 (7th Cir.1995); Tisza v. Communications Workers of America, 953 F.2d 298, 300 (7th Cir.1992); United States v. Parcel of Land, 928 F.2d 1, 4 (1st Cir.1991); Browning-Ferris Industries of South Jersey, Inc. v. Muszynski, 899 F.2d 151, 154-60 (2d Cir. 1990). We believe it is prudent to do so here. III. Federal courts naturally favor the settlement of class action litigation. E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 888-89 (7th Cir.1985), cert. denied, 478 U.S. 1004, 106 S.Ct. 3293, 92 L.Ed.2d 709 (1986); Armstrong v. Board 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.
1943	contains the elements of the offense charged, fairly informs a defendant of the charges against which he must defend, and enables a defendant to plead an acquittal or a conviction in bar of further prosecution for the same offense. See Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). An indictment need only track the language of the statute and, if necessary to apprise the defendant of the nature of the accusation against him, state the time and place of the alleged offense in approximate terms. See Bussell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962); United States v. Covino, 837 F.2d 65, 69 (2d Cir.1988); United States v. Ferrara, 701 F.Supp. 39, 44 (E.D.N.Y.), aff'd, 868 F.2d 1268 (2d Cir.1988). Where the statute, as an element of the criminal offense, requires that a defendant’s conduct violate a regulation promulgated as part of the statute’s regulatory scheme, a district court may consider whether the regulation “on its face” is within the terms of the statute. See Adamo Wrecking Co. v. United States, 434 U.S. 275, 285, 98 S.Ct. 566, 573, 54 L.Ed.2d 538 (1978) (regulation held not to constitute an emission standard under the Clean Air Act — indictment dismissed). If the court determines that the regulation is not of a kind contemplated by
3225	United States as of the date of the filing of the petition, and shall allow such claim in such amount except to the extent that— (1) such claim is unenforceable against the debtor and property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or un-matured; ... As noted in In re Continental Airlines Corp., 57 B.R. 845, 849 (Bankr.S.D.Tex. 1985): The Bankruptcy Court must determine the allowability of claims for both summary judgment and estimation purposes by applying the appropriate substantive law which would be applied in the non-bankruptcy context. See, e.g., Woods-Tucker Leasing Corp. v. Hutcheson-In-gram Development Co., 642 F.2d 744, 748 n. 8 (5th Cir.1981); See also Mazirow v. Grigsby, {In re White Motor Corp.), 44 B.R. 563 (ND.Ohio 1984). 3 Collier on Bankruptcy ¶ 502.02 at 502-27 to 29 (15th ed. 1987); Bordewieck & Countryman, The Rejection of Collective Bargaining Agreements by Chapter 11 Debtors, 57 Am.Bankr.L.J. 293, 330-31 (1983). Note, The Bankruptcy Law’s Effect on Collective Bargaining Agreements, 81 Colum.L.Rev. 391 (1981). In this case, the Committee’s claim for breach of the collective bargaining agreement is determined by reference to the federal common law of labor contracts which has developed under 29 U.S.C. § 185 (Labor Management Relations Act, § 301). Textile Workers v. Lincoln Mills of Alabama, 353 U.S. 448, 455, 77 S.Ct. 912, 917, 1
1467	an inmate of a prison or jail to have access to the federal courts to seek relief from his imprisonment or from the conditions thereof. That right has been established since the decision of the Supreme Court in Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Neither does the case involve the right of an inmate to have the assistance of another inmate in gaining access to the courts for the redress of grievances where those who have the former inmate in charge have not otherwise provided him with legal assistance or made more conventional legal assistance available to' him.. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Finney v. Hutto, 410 F.Supp. 251, 262-63 (E.D.Ark.1976), aff’d, 548 F.2d 740 (8th Cir. 1977), aff’d, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). Finally, the case presents no question as to constitutional deprivations, if any, that the plaintiff, Dee, may have sustained while confined in ISMF or thereafter. All that we are concerned with here is whether the individual plaintiff, Watts, suffered a personal deprivation of federally protected rights which entitles him to an award of monetary damages against any of the defendants. In resisting the claim of Watts the defendants advance the basic contention that while an inmate of a prison who has no other access to legal assistance has a constitutional right to the
3190	"familiar enough with Bossier Parish to guess race based on addresses. Ms. Ma-bry, on the other hand, was very familiar with the area and its residents. . See Guice v. Fortenberry, 722 F.2d 276, 278 (5th Cir.1984) (""Guice II”). . Petitioner faced the death penalty at his first trial. He received a mandatory life sentence from the court because the jury could not unanimously agree on a penalty. By asking for a new trial in this habeas petition, Petitioner exposes himself to the risk of a death sentence at a second trial. Federal law principles of Double Jeopardy or Due Process will not prevent the State from obtaining a death sentence when the original jury was hung on the sentencing issue. The Supreme Court of Louisiana has, however, held that giving the prosecution another chance at the death penalty in these circumstances would unduly impair or chill the policies underlying the right to appeal guaranteed by the Louisiana constitution. State v. Washington, 380 So.2d 64 (La.1980). Of course, there is no guarantee the modern Supreme Court of Louisiana will adhere to that 24 year old decision. Petitioner will, therefore, face some risk of a death sentence if he insists on a new trial."
3213	"837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984), that deference does not extend to the question of judicial review, a matter within the peculiar expertise of the courts. . In this case, the Administrator had ""assumed that a suspension hearing would require approximately four months.” Emergency Order, 51 Fed.Reg. at 36636. . Under subsection (c)(3), only registrants and the agency may participate in the hearing process, although ""any person adversely affected may file briefs within the time allotted by the Agency's rules.” FIFRA § 6(c)(3), 7 U.S.C.A. § 136d(c)(3). Anyone filing briefs thereby becomes a party to the proceeding for the purpose of seeking judicial review. . Plaintiffs are undoubtedly “interested persons” within the meaning of this section. See They sought review with the concurrence of Cedar Chemical Co., one of the registrant manufacturers that had initially requested an expedited hearing. Clerk’s Record (CR) 18 ¶ 6; see 2 RT at 265, 268. . Section 6(c)(4), 7 U.S.C.A. § 136d(c)(4), provides in relevant part: A final order on the question of suspension following a hearing shall be reviewable in accordance with section 136n of this title, notwithstanding the fact that any related cancellation proceedings have not been completed. Any order of suspension entered prior to a hearing before the Administrator shall be subject to immediate review in an action by the registrant or other"
21	"to Monda Marine. . This includes Mosaic Underwriting Service, on behalf of Lloyds Syndicate number 1861, and Navigators Insurance Company, Inc., which issued Excess Protection and Indemnity Policy Number MUS334191-12-1 to Moncla Marine. Navigators Insurance is a 50% subscriber to the Excess P & I Policy, utilizing policy number HO12LIA245101. . Title 9 of the United States Code contains both the Federal Arbitration Act and the United States implementing legislation for the Convention. When the Convention governs the recognition and enforcement of an arbitration agreement or award, the FAA applies only ""to the extent that [the FAA] is not in conflict with [the Convention Act] or the Convention as ratified by the United States.” See 9 U.S.C. § 8; The Fifth Circuit, acknowledging that the Convention incorporates the FAA (codified at Chapter 1 of Title 9), points out that the Convention is broader: Both the Arbitration Act and the Convention provide that if a dispute in a pending lawsuit is subject to arbitration, the district court ""shall on application of one of the parties stay the trial of the action until such arbitration has been had.” Both provide that the district court ""shall make an order directing the parties to proceed to arbitration” when the site for arbitration is within the district. But § 206 of the enabling legislation for the Convention also authorizes district courts to order parties to proceed with a Convention arbitration even outside the United"
4073	the victims, reassuring them about the refundability of their deposits, and sending loan applications and advance fees through the mail, Lanier associated himself with, participated in, and sought to further the loan scheme. B. Motion for a New Trial Appellant contends that he is entitled to a new trial because the verdict is against the weight of the evidence. When a motion for a new trial is made on the ground that the verdict is contrary to the weight of the evidence, the district court must weigh the evidence and evaluate the credibility of the witnesses, and will set aside the verdict only if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred. The district court’s decision will not be overturned absent a clear and manifest abuse of discretion. Id. We believe that no such abuse exists here. Lanier makes no argument impugning the credibility of the witnesses. We do not believe that the overall evidence preponderates so heavily against the verdict that a miscarriage of justice may have occurred. Because we find no abuse of discretion, we decline to overturn the District Court’s decision. C. Admissibility of Hasse’s Testimony Lanier argues that Hasse’s testimony is not admissible because Hasse did not give him Miranda warnings prior to questioning. Lanier also argues that Hasse’s testimony was evidence of other bad acts, and as such is not admissible under Fed.R.Evid. 404(b). 1. Miranda Warnings
3657	selected a model match methodology; (4) determined Toyo’s purchases from suppliers were at arm’s length; (4) accepted Nissan’s accounting methodology pertaining to Nissan’s U.S. value-added costs; (5) treated Toyota’s fringe benefits; (6) determined verification of Nissan’s and Toyo’s cost of production was unnecessary; (7) treated Nissan’s home market rebates; and (8) accounted for Toyota’s value-added labor costs and product liability premiums. Hyster Co. v. United States, 18 CIT 119, 136, 848 F. Supp. 178, 192 (1994). Additionally, the Court remanded the case to Commerce and ordered the agency to eliminate the use of 19 U.S.C. § 1677b(a)(4)(B) (1988) in accounting for the “multiplier effect,” and to consider any further adjustments to USP consistent with Hyster, 18 CIT at 136, 848 F. Supp. at 192. The Court also ordered Commerce to point to substantial evidence on the record in support of its determination that Nissan and Toyota’s related-party transfer prices were arm’s length, and if it is unable to point to such evidence, to make any necessary adjustments. Id. at 136, 848 F. Supp. at 192. Finally, the Court directed Commerce to correct the errors in Toyo’s database. Id. at 136, 848 F. Supp. at 192. Pursuant to the Court’s order, Commerce changed its methodology for calculating the United States price tax. Remand Results at 3. On remand, Commerce could not identify substantial evidence in support of its determination
4668	"in any significant way,’ ""id. at 5, 88 S.Ct. 1503 (quoting 384 U.S. at 478, 86 S.Ct. 1602), but did not say whether the interview with Mathis fell within Miranda because of his incarceration or because of some other deprivation that was significant in the circumstances. Although it did not address Mathis, the Court’s opinion in Shatzer forecloses Ellison’s reading of the case for the former proposition. . On these facts, there would, of course, be no conclusion of custodial interrogation in those circuits that have previously applied the rule that such interrogation of a prisoner occurs only when the suspect’s restraint is more rigorous than the institutional norm. See, e.g., Garcia v. Singletary, 13 F.3d 1487, 1491 (11th Cir.1994); Cervantes v. Walker, 589 F.2d 424, 428 (9th Cir.1978)."
3095	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 release. A pro se plaintiff such as Gallegos should be accorded leniency and should be permitted to amend his pleadings when it is clear from his complaint that there is a potential ground for relief. See This is particularly true when the plaintiff is committed or incarcerated and delay carries severe punishment. We therefore vacate the dismissal of the plaintiff’s action and remand this action to the district court with instructions to permit the plaintiff to amend his pleadings to name his custodian as a respondent so that the merits of the argument he seeks to raise may be determined at the earliest possible date. VACATED and REMANDED with directions.
1334	is the basis of the petitioner’s claim for relief. It is argued in this case that the petitioner’s Fourth Amendment rights were violated when the police stopped his car and eventually found burglary tools in his possession. The issue can only be resolved by an examination of the police activity in this case in light of the Fourth Amendment principles. The Supreme Court has recognized that the protection of the Fourth Amendment applies at all times whenever an individual has a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576. It is quite clear that a person driving an automobile has such an expectation and is therefore protected by the Fourth Amendment. 85 S.Ct. 223, 13 L. Ed.2d 142; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. There is no doubt that petitioner was protected by the Fourth Amendment when he drove through the streets of Blair, Nebraska. The Fourth Amendment provides: “[T]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The important Fourth Amendment issues therefore are whether there was a “search” or “seizure” or both in this case and whether they were “reasonable.” The Supreme Court recently in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889, defined the Fourth Amendment term seized for the purpose of police-citizen street
2238	it. Thus plaintiff would have saved $115.20 if, upon the first intimation that the city designed to condemn its property under the laws of the land, it had hastened to make the city a free gift of it.” In this view the petitioner was paid nothing whatever for the land taken, and in addition he was required to pay $891.60, which was the net result of the entire transaction so far as he was concerned. The gain, if any, derived by the taxpayer from the transaction was in the increased value of the property already owned bjr him. This increase is not a taxable gain. The petitioner cites the decision of the Circuit Court of Appeals of the Second Circuit in The values, however, were different. That court, speaking through Judge Learned Hand, said: “In this instance the ‘gain’ in dispute could arise only on the hypothesis that so much of the award as paid the assessment was received before the assessment itself was paid. This was demonstrably not the case; it was received at the same time. Thus it does not affirmatively appear to be a taxable ‘gain’ at all, and the taxpayer wins. Moreover, this is the direct and natural way to look at the transaction. The taxpayer has ‘gained’ only what he has received above
1260	26(a)(3)(A). Second, if the witnesses are expert witnesses, Defendant argues that disclosure at this time violates Fed.R.Civ.P. 26(a)(2)(C), which requires that such witnesses be identified at least ninety (90) days before trial, and Fed.R.Civ.P. 26(a)(2)(B), which requires certain reports, information, and background information on experts that will be called to testify. II. Analysis A. Front Pay as an Equitable Remedy 42 U.S.C. § 1983 allows a victim to seek legal or equitable relief. Deloach v. Delchamps, Inc., 897 F.2d 815, 822 (5th Cir. 1990). Front pay and reinstatement are both equitable remedies. Id. Reinstatement is generally the preferred remedy for a discriminatory discharge, but front pay may be awarded if reinstatement is not feasible. Deloach, 897 F.2d at 822; Reinstatement is considered to be not feasible if the plaintiff can no longer be a satisfactory employee for the defendant, if the plaintiffs •reinstatement would disrupt the employment of others, or if antagonism between.the victim and the discriminatory employer exists such that would make reinstatement unfeasible. Deloach, 897 F.2d at 822; see also Woodhouse v. Magnolia Hospital, 92 F.3d 248, 258 (5th Cir.1996) (reinstatement of the employee was not an abuse of discretion by the trial court); Mitchell v. Sisters of Charity of the Incarnate Word, 924 F.Supp. 793, 803 (S.D.Tex.1996). It is for the court to determine whether a front pay award is appropriate, and to determine the amount. Both the decision to award front pay and the amount
1040	assuming a similarly adverse credit market such as prevails today, it would still seem that refinancing of a $21 million balance with a then fully-built power center and a track record of payment performance since 2010 should be very feasible since this would be only a 67% loan to value loan. In sum, this plan is more than just the hopeful “wing and a prayer” that the bank argues in its Post-Trial Brief. “Feasibility” does not mean certainty. The standard has been interpreted in the Ninth Circuit to mean that the plan has a “reasonable probability of success.” In re Acequia, Inc., 787 F.2d 1352, 1364-65 (9th Cir.1986). The “feasibility” standard has been interpreted as excluding “visionary schemes.” But, possibility of failure is not fatal. Hobson v. Travelstead (In re Travelstead), 227 B.R. 638, 651 (D.Md.1998). The issue is primarily one of fact so long as the debtor presents evidence that it can reasonably accomplish what is promised in the plan. The Code does not require debt- or to prove that success is inevitable or assured, and a relatively low threshold of proof will satisfy § 1129(a)(11) so long as adequate evidence supports a finding of feasibility. Computer Task Group, Inc. v. Brotby (In re Brotby), 303 B.R. 177, 191 (9th Cir. BAP 2003), citing In re WCI Cable, Inc., 282 B.R. 457, 486 (Bankr.D.Or. 2002) and In re Sagewood Manor Assocs. Ltd., 223 B.R. 756, 762
172	paid into the treasury might even subject the collector to a personal execution against him, if faets should appear upon which a court would deny a certificate of probable cause. To hold that the collector is thus divested of his defense to this action would' be to give to the statute an effect which is not clearly nor imperatively to be read into- it. I believe that the statute is prospective entirely, and it applies, not only to suits begun after its passage, but to suits begun as a result of transactions which arose after its passage, and as to payments made and as to penalties or sums exacted and collected after its passage. In the very recent ease of Ct. 105, 72 L. Ed. -, the Supreme Court held that Revenue Act 1924, §§ 3191-324 (26 USCA §§'1131-1136; Comp. St. §§ 6336%s-6336%x), in so far as it undertakes to impose a tax on gifts fully consummated before its provisions taxing gifts came before Congress, is invalid under the due process clause of the Fifth Amendment. As the court says, on page 147 (48 S. Ct. 106): “ * * * It seems wholly unreasonable that one who, in entire good faith,and without the slightest premonition of such consequence, made absolute disposition of his property by gifts, should thereafter be required to pay a charge for so doing.” It seems equally unreasonable that a collector, where the tax had been
3218	Except as provided in subsections (h)(2) and (i)(2) of this section, the rejection of an executory contract or unexpired lease of the debtor constitutes a breach of such contract or lease— (1) if such contract or lease has not been assumed under this section or under a plan confirmed under chapter 9, 11, 12, or 13 of this title, immediately before the date of the filing of the petition; ... See also NLRB v. Bildisco and Bildisco, 465 U.S. 513, 530, 104 S.Ct. 1188, 1198, 79 L.Ed.2d 482 (Rehnquist, J., for the majority), 465 U.S. at 539 n. 8, 104 S.Ct. at 1203 n. 8 (Brennan, J., concurring in part and dissenting in part) (1984); Bohack Corporation v. Truck Drivers Local Union No. 807, 431 F.Supp. 646, 656 (E.D.N.Y.1977), aff'd, 567 F.2d 237 (2d Cir.1977), cert. denied, 439 U.S. 825, 99 S.Ct. 95, 58 L.Ed.2d 117 (1978); General Drivers, Warehousemen and Helpers Local 89 v. Midwest Emery Freight System, Inc., 48 B.R. 566, 568 (Bankr.N.D.Ill.1985). 11 U.S.C. § 502(b)(1) provides: (b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount except to the
223	rights not only unequivocally appears, but it is not asserted. Consequently, so far as the tort phase of plaintiffs’ claim is concerned, it appears that the alleged negligence occurred in the manufacture and construction of the generator equipment months before plaintiffs entered into any contractual relation with the Government for the assembly of such units. There are a multitude of cases which sustain the principle that, as an indispensable condition precedent to liability for interference with the performance of one’s contract, there not only must be knowledge of the contract, but there must be an intentional interference therewith. Robins Dry Dock & Repair Co. v. Flint, 1927, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290; d 1; New York Trust Co. v. Island Oil & Transport Corp., 2 Cir., 1929, 34 F.2d 649; The Federal No. 2, 2 Cir., 1927, 21 F.2d 313; Kelly v. Central Hanover Bank & Trust Co., D.C.S.D.N.Y., 1935, 11 F.Supp. 497, 513, reversed oh other grounds, 2 Cir., 1936, 85 F.2d 61; Tipton v. Burson, 1951, 73 Ariz. 144, 238 P.2d 1098; Dewey v. Kaplan, 1937, 200 Minn. 289, 274 N.W. 161; Brink v. Wabash R. Co., 1901, 160 Mo. 87, 60 S.W. 1058, 53 L.R.A. 811; see Twitchell v. Glenwood-Inglewood Co., 1915, 131 Minn. 375, 155 N.W. 621; see Cat’s Paw Rubber Co. v. Bario Leather & Findings Co., D.C.S.D.N.Y., 1951, 12 F.R.D. 119, 121; Phillips v. Belding Heminway, D.C.S.D.N.Y., 1943, 50 F.Supp. 1015,
2889	hearing before the bankruptcy judge, the amended plan was confirmed. EAC appealed to the district court arguing that: (1) the plan does not pass muster under the “best interests of creditors” test of 11 U.S.C. § 1325(a)(4) (1982), (2) the debt is a long-term debt and is therefore nondischargeable, (3) the plan does not include all of Zellner’s projected disposable income for the plan’s three-year period, and (4) the plan was not proposed in good faith. The district court rejected these arguments and affirmed the decision of the bankruptcy court. On review, we examine the bankruptcy court’s factual findings using a “clearly erroneous” standard, and we examine its legal conclusions de novo. We affirm the judgment of the district court. I. Under the “best interests of creditors” test of Chapter 13, a plan should not be confirmed if the property to be distributed under the plan is less than the amount each allowed unsecured creditor would be paid if the debtor’s estate were liquidated under Chapter 7. 11 U.S.C. § 1325(a)(4). EAC argues that because a student loan is not dischargeable under Chapter 7, EAC would have been entitled to payment in full, thus, the loan should not be discharged under Chapter 13. The simple fact that a loan that is nondischargeable under Chapter 7 does not make it nondischargeable under Chapter 13. The district court correctly rejected this argument. See In
1420	defendants’ actual knowledge of the fact that the truck had been driven more than 100,-000 miles over the mileage shown on the odometer at the time the truck was sold to plaintiff. Furthermore, the language of the pleading itself reveals that this claim is clearly no more than a restatement of plaintiffs claim for fraud. The Fifth Cause of Action is, therefore, dismissed. Sixth Cause of Action (Breach of Contract) Both sides seek summary judgment on the Sixth Cause of Action, for breach of contract. Defendants’ motion is granted and plaintiffs cross-motion is denied. Under New York law, the same set of facts cannot be the basis of recovery in both breach of contract and fraud. See Here, plaintiff has clearly stated (and has prevailed upon) its claim for fraud; the nature of the claim is that defendants deceived plaintiff by altering the odometer, thereby causing plaintiff to enter into a contract to purchase a truck that had been driven more than 100,000 miles further than plaintiff had reason to know about. That claim sounds in fraudulent inducement, not breach of contract. Therefore, the Sixth Cause of Action is dismissed. Eighth Cause of Action (New York Vehicle and Traffic Law) Neither side has moved for summary judgment on the Eighth Cause of Action, which alleges a violation of New York’s Vehicle and Traffic Law § 417-A, but this court will address the matter sua sponte. The statute prohibits
565	pension fund and that he failed to disclose this information to the probation officer even after he had notice that the probation officer had made a specific inquiry for this information. As the district court noted, this pattern of activity was consistent with Larsen’s conduct in the underlying offense. An enhancement for obstruction of justice under § 3C1.1 would not have been clearly erroneous and therefore the district court’s refusal to adjust the base level offense downward for acceptance of responsibility was proper. For these reasons, the judgment of the district court is Affirmed. . The Commentary to the Guidelines, which includes the application notes, is to be treated as the legal equivalent of a policy statement. Guidelines § 1B1.7; United States v. Guerrero, 894 F.2d 261, 265 n. 2 (7th Cir.1990). Because they are contemporaneous explanations of the Guidelines by their authors, these notes are entitled to substantial weight. United States v. Terry, 900 F.2d 1039, 1042 (7th Cir.1990).
4205	that their fees would be based on 42 U.S.C.A. § 1988 would be “manifestly unjust”); Cooper v. Casey, 97 F.3d 914, 921 (7th Cir.1996) (same); see also Weaver v. Clarke, 933 F.Supp. 831, 834 (D.Neb.1996) (refusing to apply § 803(d)’s limitations when determining attorney’s fees awarded after the enactment of the PLRA for work performed prior to the enactment of the PLRA). But cf. Hadix v. Johnson, 947 F.Supp. 1113, 1114-15 (E.D.Mich.1996) (concluding that § 803 of the PLRA applies when determining attorney fee awards for work completed after enactment of the PLRA in a prison conditions ease arising prior to enactment of the PLRA). With all due respect to our sister Circuits, we find their analyses flawed. In  the Supreme Court outlined a three-step inquiry to be undertaken when determining whether a court should apply a new statute to actions that occurred prior to the enactment of the statute. See id. at 280,114 S.Ct. at 1505. First, we ascertain whether Congress expressly prescribed the reach of the statute. Although we are bound by Congress’s directive, see id., nothing in § 803 of the PLRA expressly prescribes its reach. Unlike § 802, which Congress expressly made applicable to pending cases, § 803 contains no stated effective date. We decline to draw any negative inferences from the express inclusion of a provision making § 802 applicable to pending eases and the absence of the same from
3174	develop the factual basis of a claim in State court proceedings,” the federal court “shall not hold an evidentiary hearing” unless the petitioner makes certain showings that this applicant cannot make. 28 U.S.C. § 2254(e)(2). This applicant did not, however, fail to develop the factual basis of his claim while in State court. His counsel filed several affidavits and exhibits concerning the history of the selection of Bossier Parish grand jury foremen and the race of those selected. He also fully briefed the factual and legal issues related to the foreman claims. (Tr.1975-2040) There was certainly no lack of diligence, nor any greater fault attributable to Petitioner, as would be required to preclude a federal hearing pursuant to the statute. Michael Given the lack of a § 2254(e)(2) bar on a hearing, the court was authorized to hold one pursuant to Rule 8(a) of the Rules Governing § 2254 Cases. The State did not object to the hearing and can claim no prejudice stemming from it. The historical facts presented by Petitioner in support of his prima facie case were already in the State court record. The only new evidence was the testimony of Judge Kitchens, which benefitted the State by providing it a possible basis for rebutting the Petitioner’s case. G. Standard of Review Section 2254(d)(1) provides that a federal court may not grant habeas relief with respect to any claim that was adjudicated on
2156	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, 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
2834	to explore the issue of materials that would not be used at trial. It held that when tapes or other materials would 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 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
4839	a similar interest in regulating foreign corporations. The Court in fact specifically distinguished MITE, which involved an Illinois statute similar to Tennessee’s IPA, because the statute in that case “applied as well to out-of-state corporations as to in-state corporations.” Id. at 1651. Tennessee’s ACPA therefore does not create burdens on interstate commerce incidental to the exercise of a legitimate state interest. Rather it directly regulates offers for non-Tennessee corporations to insulate these corporations from the market for corporate control. Such direct regulation is prohibited. See MITE, 457 U.S. at 641-43, 102 S.Ct. at 2640-41. (Illinois statute regulating offers for domestic and foreign corporations an impermissible direct restraint on interstate commerce) (plurality opinion). As the Supreme Court noted in Yet these arguments are at odds with the general principle that the Commerce Clause prohibits a State from using its regulatory power to protect its own citizens from outside competition. Id. at 43-44, 100 S.Ct. at 2019. 2. Risk of Inconsistent Regulation State statutes that “adversely may affect interstate commerce by subjecting ac tivities to inconsistent regulations” also violate the Commerce Clause. CTS, 107 S.Ct. at 1649. The Tennessee Legislature sought to avoid this problem by providing that the ACPA is inapplicable to the extent
27	the Company shall not be liable for a greater proportion of any loss to which Coverage E applies than the applicable limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.” Prior to the decision of the Supreme Court of Arkansas in the Wallace case, the federal courts in Arkansas and the Court of Appeals for the Eighth Circuit had held in at least two cases that policy provisions identical or similar to the provision contained in defendant’s policy were void as violative of Ark.Stats. § 66-4003. Robey v. Safeco Ins. Co. of America, W.D.Ark., 270 F.Supp. 473, aff’d 8 Cir., 399 F.2d 330; cf. Carter v. Saint Paul Fire and Marine Insurance Co., E.D.Ark., 283 F.Supp. 384. In Wallace, supra, the Arkansas Supreme Court held that the anti-stacking provision of the policy there in suit did not violate the Arkansas statute. In seeking to distinguish the Wallace case from this case counsel for plaintiff urges that there both of the policies involved had been issued by the same company whereas here the policies were issued by different companies. The distinction drawn by counsel is factually valid, but this Court has not read and does not read Wallace so narrowly. The language of the final paragraph of the Wallace opinion dealing with the purpose of the statute and its reference to Robey and to Maryland Casualty Co.
3641	with the intent to distribute, and possession of a firearm by a convicted felon, as well as his resulting life sentence. For the first time on appeal, he argues that the district court violated his Sixth Amendment rights when it denied his motion to substitute counsel and allowed him to proceed pro se. He also asserts for the first time that the district court violated his due process rights and denied him the right to present a defense when it denied his pretrial motion for a continuance to conduct legal research. However, he has abandoned this claim by failing to adequately brief it. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Fed. R. App. P. 28(a)(9); see also Alternatively, he affirmatively waived the claim by withdrawing his request for a continuance at the pretrial conference and specifically asking the court to proceed with trial as scheduled. See United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). Rose’s claim that the district court violated his Sixth Amendment rights by denying his request for the appointment of substitute counsel is without merit. As the district court determined, Rose failed to establish grounds for replacing his counsel, Scott Miller Anderson and substituting new counsel. The court found Rose’s assertion that counsel had lied to him to be incredible, and this court will not revisit that determination. See United States v. Hoskins, 910 F.2d 309, 311 (5th Cir. 1990).
1612	— 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. 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 his lawyer’s advice — and waive his privilege. If he does not, it is less clear than the Government says that Karp will be forbidden to call him to the stand and invite the jury to draw inferences from his failure to testify. As noted earlier, the Government relies upon United States v. Maloney, supra, for its conclusion that this tactic is a forbidden weapon in Karp’s defense. But that authority stands at most for the point that the prosecution may not call a witness knowing he will
370	"from experience or punishment; (10) the ability to manipulate others; and (11) the development of extremely strong sex drives with a tendency toward sexual deviancy. He also testified that petitioner’s behavior was becoming increasingly violent and that he would continue to pose a threat to the safety of others even if he were to be incarcerated. . See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). . Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); Woods v. Johnson, 75 F.3d 1017 (5th Cir.), cert. denied, — U.S. -, 117 S.Ct. 150, 136 L.Ed.2d 96 (1996). . . 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). . Chapman, 386 U.S. at 24, 87 S.Ct. at 828. . 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). . Brecht, 507 U.S. at 623, 113 S.Ct. at 1714. . The Texas Court of Criminal Appeals was silent as to which standard it applied. . The district court applied the standard espoused in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (Whether the error ""had substantial and injtirious effect or influence on the jury’s verdict""). . 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (""harmless beyond a reasonable doubt”). . Some courts have held that the"
388	"opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. . These facts are based on Johns’ allegations, which we must accept as true in reviewing the case at the pleadings stage. We suspect that Kaelbein, the Board, and the IRS have a quite different version of events. . Johns argues for the first time in his reply brief that the economic loss rule does not apply to his common law duty of care claim and it therefore should not have been dismissed on those grounds. We will generally not consider an argument raised for the first time in a reply brief and will not do so here. See . Tex. Bus. Orgs.Code Ann. § 3,105 (West 2006). . The lack of justifiáble reliance was one of two grounds on which the district court dismissed the negligent misrepresentation claim. It also held that Kaelblein needed to have a pecuniary interest in the misrepresentation. Kaelblein now concedes that this was error as Texas law also recognizes a claim for negli gent misrepresentation when the challenged statement is made in connection with one's employment. See McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex.1999) (noting that a misrepresentation must be made ""in the course of his business, profession or employment, or in any transaction in which he has a pecuniary interest”) (emphasis added)."
3881	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);  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
1997	the RO nonetheless issued a decision on his claim in July 1989, within three months after the RO’s letter of inquiry. The veteran responded in August 1989, well within the one-year period, and then, in October 1990, the RO denied his claim and incorrectly characterized it as one to reopen. B. Evaluation of PTSD Claim Adjudication of a well-grounded claim for service connection for PTSD requires the evaluation of the evidence in light of the places, types, and circumstances of service, as evidenced 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 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
1355	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. 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 at 362. On a factual challenge, the party opposing the motion must produce affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction. Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). Under a factual attack, the court need not presume the plaintiffs allegations are
3442	his sentence was unreasonable, and third, that the district judge’s findings on relevant conduct violated his right to due process. II. Discussion A. Acceptance of Responsibility. On appeal Lister primarily argues against the district court’s finding that he failed to accept responsibility for his crimes, see U.S.S.G. § 3E1.1. This denial of credit, he argues, led to an erroneous application of the guidelines. In seeking credit for accepting responsibility for his crimes, the defendant bears the burden of proving this acceptance by a preponderance of the evidence. United States v. Travis, 294 F.3d 837, 840 (7th Cir.2002); United States v. Ewing, 129 F.3d 430, 435 (7th Cir.1997). We review the district court’s decision on this fact-based finding for clear error. United States v. Mayberry, 272 F.3d 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
1456	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 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. § 1304(2) (c), as insufficient as a matter of law. Even if the admissions
3145	not available for that purpose, thereby rendering his life sentence void. More specifically, petitioner alleges that he was never formally sentenced under one of the prior convictions that was used for enhancement. Indeed, he states, that only after he began serving his life sentence as a habitual criminal did the convicting court pass sentence and issue its mandate sentencing him to 10 years in the penitentiary and ordering this sentence to run concurrently with the life sentence. At most, this raises a question of State law, not a federal question over which this Court has jurisdiction. Compare Beto v. Sykes, 360 F.2d 411 (5th Cir. 1966). See also United States ex rel. Read v. Martin, 263 F.2d 606 (2d Cir. 1959); United States ex rel. Nersesian v. Fay, 239 F.Supp. 142 (S.D.N.Y.1965). If petitioner’s allegations are true, however, he should be entitled to relief in the State courts as a matter of State law. In White v. State of Texas, 171 Tex.Cr.R. 683, 353 S.W.2d 229 (1962), the defendant was convicted of burglary, with two prior convictions alleged for enhancement, and sentenced to life imprisonment. To prove the two prior convictions, the State introduced certified copies of the judgments for each prior conviction. On appeal, the Court of Criminal Appeals reversed, holding that the judgments were not sufficient to show the two prior convictions. The Court stated: “There, is no evidence in the record showing that sentence was pronounced upon the
2815	and declare whether or not plaintiffs’ rights have been violated under the facts and circumstances present in the record. The City of Memphis under appropriate statutory authority to make its City Hall, or any portion of it available for non-governmental purposes, might make and publish appropriate regulations governing the conditions, restrictions, and circumstances of such use provided they were nondiscriminatory and provided they did not confine expression of sentiments to those officially approved. Tinker v. Des Moines Independent Community School District, 898 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Such regulations relating to use of City Hall by private groups or organizations, if adopted, must not be of such character that rights of free speech would be effectively denied. Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); Thomas v. Collins, 323 U.S. 516, 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.
876	. Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972) ; see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). . Cf. United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973) ; United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972) ; United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969) ; United States ex rel. . 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). . Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), subsequently codified in 18 U.S.C. § 3500. . But cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), holding that a statement that would support impeachment for bias and interest “relates” to the witness’ testimony under 18 U.S.C. § 3500. See also Rosenberg v. United States, 360 U.S. 367, 370, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959). . See United States v. Crisona, 416 F.2d 107, 112-114 (2d Cir. 1969), cert. denied, 397 U.S. 961,
2580	prior evidentiary hearing is not required by due process in this case. Additionally, regardless of the constitutional argument the reinstatement of the disability benefits from March, 1969 through February 1, 1972 would be preposterous since even if a pretermination evidentiary hearing had been held, the plaintiff, having been found not to satisfy the requisite disability, would not be entitled to retain the benefits. Several recent cases have also rejected similar claims. In Crites v. Weinberger, 364 F.Supp. 956 (N.D.Tex.1973), the court under substantially similar facts rejected the plaintiff’s claim, .finding that it would be ludicrous to require the Social Security Administration to reinstate plaintiff’s disability benefits. The courts in Perez v. Secretary of H. E. W., 354 F.Supp. 1342 (D.P.R.1972), and  also agreed that a later evidentiary hearing renders moot the claim of denial of due process from the failure to have an evidentiary hearing prior to the termination of the disability benefits. Regarding the second issue, disability is defined in the Social Security Act as the inability to engage in substantial activity. 42 U.S.C. §§ 416(i), 423. The Act gives the Secretary broad authority to promulgate regulations augmenting these basic definitions. 42 U.S.C. § 423(d)(4). The relevant regulations provide that earnings greater than $140 per month are deemed to demonstrate the ability to engage in substantial activity, unless there is affirmative evidence that such work activities themselves establish that the individual does not have such ability. 20 C.F.R. § 404.-1534(b) (1973). During
3134	doctrine of necessity to cases that do not involve railroad reorganization, and courts eventually further utilized the doctrine to protect the interests of creditors and reorganization efforts more generally. See In re CoServ, L.L.C., 273 B.R. 487, 493 n. 7, 497 (Bankr.N.D.Tex.2002). Unlike the six-month rule, the “doctrine of necessity” was never codified in the Bankruptcy Reform Act of 1978. See Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549 (effective October 1, 1979, codified as amended at 11 U.S.C. §§ 101 et seq. (2000)). Still, most courts that have expanded the doctrine of necessity beyond railroad reorganization cases have done so relying on the equitable power provided in Section 105(a) of the Bankruptcy Code. See (B) The Kmart Case Before the Kmart case, supra, bankruptcy courts routinely exercised their discretion in granting critical vendor motions under the “necessity of payment doctrine.” See e.g., In re Lehigh & New England Ry. Co., 657 F.2d 570, 581 (3rd Cir.1981); In re Just for Feet, Inc., 242 B.R. at 822; In re Ionosphere, 98 B.R. 174, 175 (Bankr.S.D.N.Y.1989). In Ionosphere, the court explained the rationale behind allowing a Chapter 11 debtor-in-possession to pay prepetition claims. 98 B.R. at 174. The debtor in that case had already obtained court approval to
985	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 discretionary appellate jurisdiction exists for a district court under 28 U.S.C. § 158. See .C. § 158 does not mean that Court of Appeals cannot exercise discretionary jurisdiction under 28 U.S.C. § 1292 as long as the conditions under this provision are met). Is any order of the bankruptcy court, under consideration in this consolidated proceeding in this court, a “final” order? Does it conclusively determine any discrete and definable claim? If not, does the attempt to appeal from the order nevertheless qualify for leave to appeal from an interlocutory order? These are among the threshold questions in the present proceeding in this court. C.
348	of certain funds in his hands. The parties concerned were agreed that this clause required the receiver to pay the tax, and procured an order from the Circuit Court of Baltimore' City directing him to do so. For cases bearing upon the right of a voluntary payor to recover a tax illegally exacted, see: Wourdack v. Becker, 8 Cir., 55 F.2d 840, certiorari denied, 286 U.S. 548, 52 S.Ct. 501, 76 L.Ed. 1285; Clift & Goodrich Inc. v. United States, 2 Cir., 56 F.2d 751; Central Aguirre Sugar Co. v. United States, Ct. Cl., 2 F.Supp. 538; Ohio Locomotive Crane Co. v. Denman, 6 Cir., 73 F.2d 408; certiorari denied 294 U.S. 712, 55 S.Ct. 508, 79 L.Ed. 1246; Aaron v. Hopkins, 5 Cir., 63 F.2d 804. The judgment of the District Court will therefore be affirmed but without prejudice to the Government to assess and collect the tax if funds are available after the claims of the bank’s depositors have been satisfied, and if it be found that the certificates are within the purview of section 901 of title 26 U.S.C.A. “§ 901. Corporate securities “On all bonds, debentures, or certificates of indebtedness issued by any corporation, and all instruments, however termed, issued by any corporation with interest coupons or in registered form, known generally as corporate securities on each $100 of face value or fraction thereof, 10 cents until July 1, 1934, and 5 cents thereafter.” “(a) Whenever and after
2146	Corp., 933 F.2d 231, 234-35 (4th Cir.1991). Specifically, deposition testimony and supporting documentation established the County relied on rank-ordering of candidates by a review panel, based on objective reviews of documentation and subjective interviews during which all candidates were presented with the same questions and rated individually on their answers. Although both Holderaft and Arndt, the candidate ultimately selected, were qualified for the Program Manager position, the final tally of the scores of the initial interview placed Arndt well above Holderaft, who never made it to the second interview round because his score was not among the top three highest. In addition, while Holderaft complains he possessed superior qualifications, his perception of himself, without evidence to support it, is not relevant. There was evidence that Arndt’s qualifications and prior work experience on a Wellness/Fitness Committee of the International Association of Fire Fighters were directly and specifically related to the Program Manager position, and more suited to the County’s attested to desire to hire an individual with a strong background in health and wellness. In a deposition, Holderaft agreed that the selection panel stressed the health and wellness aspect of the position during his interview, and further admitted that Arndt’s credentials in this area were stronger than his. We find that there is no evidence that the two raters in the second and final interview were motivated by any desire other than to select the candidate they felt was the best suited
504	of it, reveals that the parties intended that the REA and CFC would directly benefit from the contract. The contract was a requirement of the loans by the REA and CFC, it serves as the security for the loan, and the plain language establishes that its purpose is to benefit the REA and CFC as principal holders of Soyland’s indebtedness by assuring that payment can be made on the loans. The REA and CFC, therefore, benefit as a direct result of the performance of the contract. As such, their interest in the contract was clearly within the contemplation of the parties, and Southwestern cannot now challenge their standing under, or interest in, the contract. Furthermore, this Court finds that public policy demands that the REA and CFC have standing to sue. The nature and function of the REA would be severely jeopardized if it were not allowed a voice in the dispute over the validity of this contract. The structure of approximately 60 generation and transmission cooperatives nationwide, and their approximately 800 distribution member cooperatives, for whom the REA and CFC provide financing, is based on a contract very similar to the one 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
1617	and copy her statements to government agents and grand jury testimony, matters clearly available to her under Rule 16, Fed.R.Crim.P., effective July 1, 1966. In opposition, the Government noted that a similar motion was denied some time ago, and said “now Karp seeks to take advantage of the new Rules * * *.” This sole objection is not a moving one. The case still awaits trial. The new Rules were written to be taken advantage of. There is no hurt to the Government in applying them here. This is by no means the first case illustrating that fortuitous matters of chronology may make a difference, sometimes a dramatic and painful difference, for a defendant in a criminal trial. E. g., compare  and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), with Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). To.summarize and record the court’s rulings: The motion for severance is granted to the extent of requiring that Karp be tried separately from Pitkin. The motion for discovery and inspection is also granted. It is so ordered. . It is unnecessary here to insist that the decision was actually put still more narrowly on the ground that the “accredited ritual [of telling the jury not to draw the inference]
4653	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. 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 Supreme Court carved out an exception to the employment-at-will doctrine for situations where the employee’s discharge contravenes public policy. To maintain a so-called Greeley claim, a plaintiff must establish:
4139	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 fifteen years, neither physician recommended the surgery. In Robinson, the court compared several court eases awarding compensation for pain and suffering, and based on those awards, concluded that the plaintiff should be awarded $50,000.00 for past pain and suffering, and $200,000.00 for future pain and suffering (reduced by that plaintiffs 20% comparative negligence). Id. at 297. In Kane v. U.S., the court wrote that “Kane’s life has been shattered because a Postal Service employee driving a two and a half ton truck failed to look carefully as he made a turn ... Far from being a malingerer, she has worked hard to be ‘productive’ again.” 189 F.Supp.2d at 54. The court awarded Kane noneconomic losses consisting of past injuries, conscious pain and suffering, and loss of the enjoyment
4767	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); 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)
1860	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,  cert. denied, 324 U.S. 850, 65 S.Ct. 684, 89 L.Ed. 1410 (1945). . During post trial oral argument, however, counsel for Triad stated that a claim for the offset value of those materials is pending before the CO. . The court recognizes that dealing with manufacturing materials as a separate claim creates the possibility of the nominal appearance of an affirmative contractor claim. The substance of the inquiry, however, would remain the same, namely, how much of an offset against overpay-ments is the contractor entitled to? . The suspension in companion docket number 90-3958C is hereby lifted. The grounds for re lief, and the relief sought, are disposed of in this opinion. Accordingly, these actions are consolidated.
3456	between co-defendants, and between controlled substances where Congress has specifically legislated differing, advisory, punishments. We note only briefly that the judiciary has no power to maintain charges against an individual where the United States Attorney exercises its executive discretion and chooses to dismiss them, as was the case here. This is not a matter of the “sentencing disparities” as considered by Booker, but instead an example of the separation of powers in our legal system. United States v. Jones, 438 F.2d 461, 467-68 (7th Cir.1971) (citing Goldberg v. Hoffman, 225 F.2d 463, 464-65 (7th Cir.1955)). Regarding the different punishment recommended for cocaine base and cocaine, this Court has previously upheld the ratio differential codified in 21 U.S.C. § 841. See 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
914	"City of Herriman, 590 F.3d at 1181. . Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006). . Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). . Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). . Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). . Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). . Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991). . Calia v. Werholtz, 426 F.Supp.2d 1210, 1214 (D.Kan.2006) (citing Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir.1992)). . 29 U.S.C. § 1132(a)(1)(B). . . Kimber v. Thiokol Corp., 196 F.3d 1092, 1097 (10th Cir.1999). . Doc. 86 at 8. . 29 U.S.C. § 1132(a)(1). . 29 U.S.C. § 1002(8). . Doc. 54-1 at 4-5. . See Restatement (Second) of Conflict of Laws § 283 (1971); see also Grabois v. Jones, 77 F.3d 574, 576 (2d Cir.1996) (explaining that federal courts ordinarily apply state law to determine who is the rightful beneficiary of an ERISA-regulated benefit plan); Doc. 79 at 19. . Doc. 79 at 19. . Texas law acknowledges that an agreement to enter into a marriage relationship is ""essential to a valid ceremony marriage;” thus, if there is no such agreement, it follows that there is also"
268	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 that police knew of perjured grand jury testimony insufficient to proceed to trial). Plaintiff argues that, because plaintiff and defendant give markedly different accounts of the events that led up to plaintiffs arrest, the issue of probable cause must be decided by the jury. The cases plaintiff relies on for the argument uniformly involve arrests without warrants. See, e.g., Weyant v. Okst, 101 F.3d 845, 855 (2d Cir.1996); Richardson v. City of New York, 2006 WL 2792768 (E.D.N.Y.2006); Taylor v. City of New York, 2006 WL 1699606 (S.D.N.Y.2006); Kirk v. Metropolitan Transp. Authority, 2001 WL 258605 (S.D.N.Y.2001); La-Grange v. Ryan, 142 F.Supp.2d 287 (N.D.N.Y.2001); Naccarato v. Scarselli, 124 F.Supp.2d 36 (N.D.N.Y.2000). These cases are inapplicable here because plaintiff was arrested subsequent to an indictment and pursuant to an arrest warrant, which presumptively establishes probable cause for the arrest. Not only is there a presumption of probable cause arising from the indictment and arrest warrant, but also the undisputed facts in this case as to the information known to the arresting officers established ample probable cause. UC # 3159 identified
731	in the alternative, seeks to have the case transferred to Alabama pursuant to 28 U.S.C. § 1404. Under the Louisiana Long Arm statute, this Court “may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.” La.R.S. 13:3201(B). Thus, the issue is whether the assertion of jurisdiction over Ward under the facts of this case comports with due process. The Court must apply a two step analysis to resolve this issue: (1) there must be some minimum contact with the state; and, (2) it must be fair and reasonable to require the defendant to come into the state to defend the action. See On the issue of minimum contacts, the United States Supreme Court has considered a similar type of transaction in Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). In Burger King, a franchiser brought an action against the franchisee to enforce the franchise contract and for trademark infringement. The only contacts of the defendant with Florida involved the franchise agreement. The defendant had not entered Florida physically. The Court reasoned that the defendant’s contract alone was not sufficient to establish minimum contacts. However, the prior negotiations, contemplated future consequences, the terms of the contract, and the parties’ actual course of dealing must be considered to determine whether the defendant purposefully established minimum contacts with the forum.
1547	required relative to revising the State’s judicial selection process. Plaintiffs opposed the request. At the same time, the State consented to an injunction which prohibits filling by election positions “now vacant” for the family court, district courts and courts of appeal, “pending the issuance of further orders by this Court.” It should also be noted that a three-judge court was convened in this case under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, because Louisiana had created judgeships and had taken other actions regarding judicial election procedures which had not been submitted for approval to either the Attorney General of the United States or to the United States District Court for the District of Columbia, The three-judge court enjoined implementation of a number of such changes and the State authorities proceeded to submit a number of such changes to the Attorney General. In due course, letters of “no objection” issued as to several changes which the State was then allowed to implement. On September 27, 1988, the three-judge court enjoined the implementation of La. Act 801 of 1987 which created four new judgeships in the Second and Third Circuit Courts of Appeal. That injunctive order was predicated upon the formal objection of the Attorney Gener al to implementation of Act 801. That in-junctive order remains in effect and will be unaffected by any order of this single-judge court. See Allen v.
3597	15, 1993, for an order permitting it to file a late proof of claim with respect to the CERCLA claim which is the subject of the District Court action in Mississippi. The debtor maintains that such late filing should not be accepted as “excusable neglect.” DISCUSSION Allowability At the outset, it should be noted that 42 U.S.C. §§ 9607(a) and 9613(f) per mit a private party to recover from a responsible party response costs it incurs in conducting cleanup pursuant to CERCLA. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992); Dant & Russell, Inc. v. Burlington Northern Railroad Co. (In re Dant & Russell, Inc.), 951 F.2d 246, 248 (9th Cir.1991); Whether or not a contingent response claim is allowable in bankruptcy depends, in part, on a finding that it is not a claim for reimbursement or contribution which is dis-allowable under 11 U.S.C. § 502(e)(1)(B). A contingent CERCLA claim that is not a direct claim between the parties but depends upon the co-liability of the parties, as to a third party or to the Environmental Protection Agency (“EPA”), is a disallowa-ble claim for reimbursement or contribution. Dant & Russell, 951 F.2d at 249; Charter., 862 F.2d at 1503; In re Eagle-Picher Industries, Inc., 144 B.R. 765, 769 (Bankr.S.D.Ohio 1992); In re Hemingway Transport, Inc., 105 B.R. 171, 174 (Bankr.D.Mass.1989). See In re Cottonwood Canyon Land Co., 146 B.R. 992 (Bankr.D.Colo.1992)
822	Equipment and uses the fictitious name of Cow Country Equipment as part of its operations. Ace Steel urges this Court to apply the test of whether Ace Steel and Cow Country Equipment are a 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.” 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.
3956	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. She also advances a claim for negligent infliction of emotional distress. Navis-tar seeks summary judgment on all claims. Kariotis seeks summary judgment on the COBRA and the FMLA claims. The Court will address the ADA, the ADEA, and the ERISA claims first and the remaining claims in turn. A. The ADA the ADEA, and the ERISA Kariotis, admittedly, has no direct evidence that unlawful discrimination of any form played a role in Navistar’s decision to terminate her. Accordingly, she proceeds under the indirect method of proof or three-step model enunciated in  to establish her claim of discrimination under the ADA, the ADEA, and/or the ERISA at the summary judgment stage. See DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir.1995) {McDonnell Douglas test used in ADA case); Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993) {McDonnell Douglas test used in ADEA case); Grottkau v. Sky Climber, Inc., 79 F.3d 70, 73 (7th Cir.1996) (McDonnell Douglas test used in ERISA 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
2866	the two cases are distinguishable : The house at 164 Hill Street is to all outward appearances a one-family house with a front door and a side door, and it had always been registered with the local authorities as a one-family dwelling. A few years prior to the search the interior of the house was renovated and subdivided by Orlando, but, in contravention of local ordinances, no permission to do so was obtained from the proper authorities. Consequently no notice of this subdivision was ever given to the local officials. In view of these facts we think that the issued warrant described the premises to be searched with that “practical accuracy” we have held to be necessary. d 133. The description in the warrant was in accordance with the outward appearance of the structure, cf. Carney v. United States, 6 Cir., 1935, 79 F.2d 821, and in view of the concealment by Orlando of the interior alteration made by him it would be absurd to say that the Government was on notice as to it. The agents were not warned of a possible dual occupancy of the house until after they had shown the copy of the warrant to Orlando and had entered inside. In neither Owens, Ramos, Gomez nor Santore did the court find that the officers who either applied for or executed the respective search warrants could have or should have known that the description of the place to be
3557	lease with the City was more favorable than the BRM’s. 490 F.3d at 1057. The BRM was obligated to pay rent of $1 per year for the first five years, after which rent would escalate to a commercial rate, and the maximum term of the lease was only ten years. The CHI lease, on the other hand, required rent of only $1 per year for its fifty-year lease term. The City had similar repair and insurance responsibilities under both leases. CHI correctly points out that, although the BRM lease was (at worst) neutral when compared to the CHI lease, this fact is not, by itself, sufficient to de feat an Establishment Clause claim. Cmty. House I, 490 F.3d at 1057-58 (citing  concurring)). But neutrality is a very important factor in the indoctrination inquiry and tends to show that a private entity’s indoctrination cannot be attributed to the government. See Mitchell, 530 U.S. at 810, 120 S.Ct. 2530 (plurality) (“[I]f the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose ... then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose.”). Here, not only was the City neutral toward the BRM in its lease terms when compared to CHI’s lease, the BRM actually got the worse
4775	"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  which, in turn, relied upon Brickey. . In concurring in Breitkreutz, Judge Norris noted that the majority’s assumption that the nature of the past conviction is relevant in a § 922(g) prosecution conflicted with Barker. 8 F.3d at 693. . The decision of the Third Circuit in United States v. Williams, 612 F.2d 735, 740 (3d Cir.1979), also facially supports the government’s position. The stipulation at issue there, however, concerned the fact of the prior conviction, and the decision therefore simply may reflect agreement with our conclusion in Collamore that a defendant may not modify a statute by eliminating one of its elements from the jury's consideration. . Both the eyewitness testimony explicitly identifying Tavares as the radio thief and the"
2552	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. 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). When viewed in a light most favorable to the Plaintiffs, the Court finds sufficient evidence in the record to suggest that Infinity acted intentionally. The jury’s finding on this point is certainly not “overwhelmingly against the weight of the evidence.” Anaeme, 164 F.3d at 1284.
2458	"suit or suits to be brought by and on behalf of the Mille Lac [sic] Band of Chippewa Indians in the State of Minnesota against the United State [sic] on account of losses sustained by them or the Chippewas of Minnesota by reason of the opening of the Mille Lac [sic]. Reservation ... to public settlement under the general land laws of the United States. 35 Stat. 619, c. 126 (1909). The Mille Lacs Band filed suit pursuant to the 1909 Act to recover losses resulting from the 1889 Act. This suit was ultimately heard and resolved by the United States Supreme Court, which ordered an assessment of damages in favor of the Band. See Shortly after this decision, the United States purchased land for the Mille Lacs Band and made allotments to"" it and its members. The 4,000 acres purchased at that time are held in trust, and are not disputed here. In 1990, the Mille Lacs Band filed a lawsuit which casts its shadow over the present matter. By joining with several other Bands, they sought a declaratory judgment to establish entitlement to continued implied hunting and fishing rights originally guaranteed in the 1837 Treaty. Nine years later, the United States Supreme Court ruled in their favor, and in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999), found that"
918	"96-1. . Doc. 96-2. . Docs. 96-3, 96-4. . Doc.96-5. . Doc. 96 at 7. . Docs. 96-2, 96-5. . Doc. 99 at 4. . Id. at 4, 7. . Id. at 20. . Doc. 79 at 21-22. . Tex. Fam.Code Ann. § 1.101. . Id. (""[EJvery marriage entered into in this state is presumed valid unless expressly made void by Chapter 6 or unless expressly made voidable by Chapter 6 and annulled as provided by that chapter”). . Id. § 6.108. . Doc. 86-15 ¶ 2. . Tex. Fam.Code Ann. § 2.302. . Id. § 1.101; Doc. 79 at 20. . Doc. 54-1 at 4-5. . Doc. 99 at 24. . 29 U.S.C. § 1132(a)(3). . . Id. at 1185 (quoting Varity Corp. v. Howe, 516 U.S. 489, 515, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996)). . Id. (citing cases). . Id. (alteration omitted) (quoting Tolson v. Avondale Indus., Inc., 141 F.3d 604, 610 (5th Cir.1998)). . See id at 1186. (""Goodyear fulfilled its fiduciary obligation of discharging its duties ‘in accordance with the documents and instruments governing the plan.' ”); see also Averhart v. U.S. WEST Management Pension Plan, 46 F.3d 1480, 1489 n. 6 (10th Cir.1994) (""as a matter of law, benefits committee did not breach fiduciary duties by denying benefits to employees who were not entitled to such benefits under the terms of the plan”)."
2032	is, that it was part of combat or was corroborated), the same analysis applies as is set forth above regarding the rocket-and-mortar-attaek stressor. Moreover, as with the first requisite element of a PTSD-service-connection claim (a clear diagnosis), because the veteran’s PTSD claim was well grounded, if the Board doubts the veteran’s medical evidence regarding the third requisite PTSD-elaim element, then fulfillment of the statutory duty to assist under section 5107(a) would require that VA seek a medical opinion on this nexus question. See Allday, Suttmann, and Green, all swpra. C. Miscellaneous Pursuant to its statutory duty to assist, ‘VA has a duty to assist in gathering social security records when put on notice that the veteran is receiving social security benefits”. see Murincsak v. Derwinski, 2 Vet.App. 363 (1992) (pursuant to duty to assist, VA must seek to obtain all pertinent records, including Social Security Administration (SSA) records, of which it is put on notice); Masors v. Derwinski, 2 Vet.App. 181, 187-88 (1992); 38 C.F.R. § 3.159 (1996). In this case, the veteran gave sworn testimony at a March 1993 hearing before the Board that in 1989 he started receiving Social Security disability benefits because of his unemployability due to PTSD. R. at 247-48. The record before the Court does not include records from the SSA. On remand, pursuant to section 5107(a), the BVA must seek to obtain the SSA records, and, if obtained, consider them in its readjudication of the veteran’s
674	addition, a federal district judge told the claimants as early as 1980 that the Court of Federal Claims was the proper forum in which to seek compensation. Creppel, 500 F.Supp. at 1120. This court will not invent a new reason to toll the statute of limitations and pretend that the claimants filed their takings claim contemporaneously with their 1976 challenge to the Wilson Order. The claimants’ temporary taking claim is therefore time-barred. IV. The claimants’ permanent taking claim presents different questions. As this court recently held, a claim under the Fifth Amendment accrues when the taking action occurs. Alliance of Descendants of Texas v. United States, 37 F.3d 1478, 1481 (Fed.Cir. 1994), citing The Court of Federal Claims determined that the Government could have taken nothing permanently because the property’s value remained unchanged after the temporary taking precipitated by the Wilson Order: “The EPA Final Determination did not diminish the value of the land any more than it had been diminished by the Wilson Order.” Creppel, 30 Fed.Cl. at 331. The sequence of events discloses an error in the trial court’s conclusion. On August 13, 1984, the federal district court ordered that the original Project proceed. Creppel, No. 77-25 (E.D.La. Aug. 13, 1984). This order rendered the Wilson Order nugatory. The EPA then commenced proceedings on December 17, 1984 to determine whether it would issue a veto under section 404(c). The district court stayed
958	entire record relied upon by the trial court be supplied for review. Burkhart, 84 B.R. at 661. In this case, although Friedman supplied us with a substantial record amounting to some fourteen hundred pages, only selected portions of the trial transcript are provided. The trial court’s oral opinion, from which we might more specifically discern both the basis for its extensive findings, and the portions of the record on which it relied to arrive at those findings, is absent. As the record presently exists, we would be justified in affirming the decision below on the basis that Friedman has not made reference to nor supplied us with those portions of the record indicating the commission of clear error. Cf. . An appellate court is not obligated to search the record for error. McDowell v. Safeway Stores, Inc., 753 F.2d 716, 717 (8th Cir.1985). Nevertheless, we have reviewed the record provided to us in order to determine whether the trial court’s findings meet the clearly erroneous standard. B. Insider Status. Friedman seeks to avoid appellees’ lien as a preferential transfer under § 547. One essential element of a preferential transfer is that the transfer must have occurred (A) on or within 90 days before the date of the filing of the petition; or (B) between ninety days and one year before the date of the filing of the petition, if [the transferee] creditor
2832	objection, then the party seeking discovery must demonstrate the relevancy of the requested information. Amcast Indus. Corp. v. Detrex Corp., 138 F.R.D. 115, 118 (N.D.Ind.1991). Once this showing is made, the burden switches again to the party opposing discovery to show why discovery should not be permitted. Id. Relevancy is broadly construed, and determined in relation to the facts and circumstances of each case. Stabilus v. Haynsworth, Baldwin, Johnson & Greaves, P.A., 144 F.R.D. 258, 265-66 (E.D.Pa.1992) (citing Continental Access Control Sys. v. Racal-Vikonics, 101 F.R.D. 418 (E.D.Pa. 1983); McClain v. Mack Trucks, Inc., 85 F.R.D. 53, 61 (E.D.Pa.1979)). When there is doubt about relevance, a court should tend toward permitting discovery. Id. at 265 (citing We find that Davne’s financial or other involvement in AcroMed is relevant to Plaintiffs assertion of a conflict of interest. Contrary to Davne’s argument, this information is not relevant solely on the issue of conspiracy, a claim that has been dismissed, or on Plaintiffs punitive damages claim. Davne has responded to request number 24 that he has no responsive documents, but has not responded to request number 34. We DENY as MOOT Plaintiffs Motion to Compel answer to Document Request number 24, but remind Davne of Federal Rule of Civil Procedure 26(e), which concerns a party’s duty to supplement discovery responses. However, Plaintiffs Motion to Compel answers to Document Request number 34, Plaintiffs Second Request for Documents number 1 and Plaintiffs
4536	and separate public interest, duty and responsibility in bringing this ERISA action to enforce the trustees’ fiduciary obligations and duties, to ensure public confidence in the private pension system that provides billions of dollars of capital for investments affecting federal tax revenues and interstate commerce, and most importantly, to protect the income of the retired workers and beneficiaries. Further, the Secretary of Labor has a separate interest when he intervenes so-as to prevent the establishment of harmful legal precedent as well as to ensure uniformity in the enforcement and application of ERISA laws. Id. at 696, See also Herman v. S. Carolina Nat. Bank, 140 F.3d 1413, 1424 (11th Cir.1998) (same) (citing Beck v. Levering, 947 F.2d 639, 642 (2d Cir.1991)); The Supreme Court has addressed' the situation where the government seeks in-junctive relief which is potentially duplica-tive of relief already afforded to a private party. In United States v. Borden Co., the Supreme Court-held a private plaintiffs injunctive relief did not bar the federal government from bringing suit for. injunc-tive relief under the Clayton' Act, 15 U.S.C. § 25. 347 U.S. 514, 520, 74 S.Ct. 703, 98 L.Ed. 903 (1954). The district court had held the violations described in the government’s complaint and shown at thfe trial were, “for the most part, old violations .. -.- [and] the [private injunction] assure[d], as completely as any decree can assure, that there will be no new violations.” Id. at 517-518, 74 S.Ct.
3526	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. 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, 523 U.S. at 54, 118 S.Ct. 966. A. The Members of the City Council Although monitoring or administrating a municipal contract is generally an executive function, whether an act is legislative depends not on defined categories of government acts but on “the character and effect” of the particular act at issue. Cinevision Corp. v. City
4442	provide an interlocutory appeal. In admiralty, trials were traditionally bifurcated. First, there would be a trial before the court on the issue of liability. If there was a finding of liability, there would then be a separate hearing before a special master to ascertain damages. These damages hearings were often both lengthy and costly. Congress intended 28 U.S.C. § 1292(a)(3) to permit parties to appeal the finding of liability on the merits, before undergoing the long, burdensome, and perhaps unnecessary damages proceeding. Section 1292(a)(3) was not intended to clutter the federal docket with interlocutory odds and ends. City of Fort Madison, 990 F.2d at 1089 (internal quotations and citations omitted). This understanding of the statute’s purpose is universal. E.g., Seattle-First Nat’l Bank, 772 F.2d at 568; The SS TROPIC BREEZE, 456 F.2d 137, 139 (1st Cir.1972); The Maria, 67 F.2d 571 (2d Cir.1933); 9 James Wm. Moore et ah, Moore’s Federal Practice ¶ 110.19[3] (2d ed. 1994); 16 Charles Alan Wright et al., Federal Practice and Procedure § 3927 (1977). Indeed, this circuit indicated that this was its understanding of the purpose of the statute in Medomsley Steam Shipping Co. v. Elizabeth River Terminals, Inc., 317 F.2d 741 (4th Cir.1963), where, quoting from the Second Circuit’s opinion in The Maria, supra, it stated: That statute [now 28 U.S.C. § 1292(a)(3) ] was primarily intended to avoid the expense and delay of a reference to compute damages, since it is
2762	counters that “allowing BASF to rummage through Reilly’s counsel’s private papers and work product through the time of trial would not address the question of Reilly’s intent and reasonable beliefs over six years ago when it decided that it could continue its process after learning of BASF’s patent.” [Docket No. 76, p. 8]. Reilly goes on to argue that allowing discovery of this information would “needlessly and unfairly interfere with trial counsel’s defense of this lawsuit,” and might even create an “ethical dilemma” whereby trial counsel might be drawn into being a material witness. [Docket No. 76, p. 8], While Reilly’s concerns are legitimate, they are not dispositive. There are consequences to invoking the advice-of-counsel defense. As stated in There are discovery consequences to such an assertion. Fairness requires that a party who seeks to be absolved of willful infringement because it relied on counsel’s advise pay the dis covery price. The party asserting the defense waives attorney-client privilege and work product immunity to the broadest extent consonant with direct relevance to the advice of counsel itself. The parties do not dispute that Reilly has waived the attorney-client and work product privileges. Instead, the dispute revolves around how broadly that waiver runs. It is this question the Court must answer. There is no bright line test to make this determination. Many courts have
1384	County of Kern, Case No.: 1:13-cv-01051 LJO JLT, The Estate of Christopher McDaniel v. County of Kern, Case No.: 1:15-cv-01320 JAM JLT, 2015 WL 7282881 (E.D. Cal. Nov. 11, 2008) and M.M. v. County of Kern, Case No.: 1:16-cv-00376 DAD JLT. The court may take notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid, 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). The record of this Court's docket is a source whose accuracy cannot reasonably be questioned, and judicial notice may be taken of court records. Mullis v. United States Bank, Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987);  aff'd, 645 F.2d 699 (9th Cir. 1981); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th. Cir. 1980). , The Court recognizes, as do the Plaintiffs, that this does not mean that no such unconstitutional conduct has occurred within this time period. However, it directly contradicts the statements of Plaintiff's counsel that such court determinations have been made (Doc. 37-1 at 2).
4787	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 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 U.S.C.A. § 1331, the phrase “all civil actions” does not enlarge the jurisdiction of the district courts to vest in them general original jurisdiction in cases of mandamus. We hold, except as
1707	*9 n. 5 (S.D.N.Y. Apr. 17, 2001). The complaint in this action alleges only that by accepting his $5 million, SG Cowen entered into a contract agreeing, inter alia, to use his funds only as authorized by him, and that it breached that contract by transferring funds out of the account without his authorization. (CompLIffi 43-45.) However, Rozsa sent the letters providing these terms to Conley at May Davis, not to SG Cowen. . Accordingly, the complaint fails to assert facts from which it can be inferred that SG Cowen assented to the implied contractual terms Rozsa alleges and thereby created a bailment. SG Cowen’s motion to dismiss the breach of contract claim is therefore granted. See, e.g., IV. Conversion To withstand a motion to dismiss, a conversion claim must allege (1) an actionable wrong other than breach of contract caused plaintiffs injury;, (2) plaintiff had ownership of the funds at the time they were converted; (3) defendant exercised unauthorized dominion over the funds; (4) the funds were specific and identifiable; and (5) the defendant was to have treated the funds in a particular manner but they were not so treated. See Citadel Management Inc. v. Telesis Trust, Inc., 123 F.Supp.2d 133, 148 (S.D.N.Y. 2000). A complaint that offers no factual basis for inferring conversion must be dismissed. Pinnacle Consultants, Ltd. v. Leucadia
2108	respondent’s determination. That inquiry focuses on the appropriate standard of review against which such reasonableness is to be measured. While neither party has urged adoption 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); 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,
240	2” contains a building which was allegedly used by Brown and others to provide water, sewerage and electricity for the still. This building was also owned by the David Realty Co. . See . See, e. g., Scott v. Baltimore and O. R. Co., 151 F.2d 61, 64 (3rd Cir. 1945); Jacquard Knitting Mach. Co. v. Ordnance Gauge Co., 95 F.Supp. 902, 905 (E.D. Pa.1951). . See United States v. Markowitz, supra, 176 F.Supp. at pp. 686-687. . The court held in the Burch case that the principles of res judicata and collateral estoppel were not a bar to the forfeiture action because the criminal action involving the defendant was on a charge of conspiracy, not on the substantive acts [see pp. 6 and 7 of 294 F.2d 1 (5th Cir. 1961)]. It is noted that the criminal indictment against Markowitz was on the conspiracy charge, not on the substantive facts. .
1092	"their federal counterparts”); Screws v. United States, 325 U.S. 91, 123, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (""The Fifth Amendment contains a due process clause as broad in its terms restrict ing national power as the Fourteenth is of state power.”); Curry v. McCanless, 307 U.S. 357, 370, 59 S.Ct. 900, 83 L.Ed. 1339 (1939) (""[T]he due process clause of each amendment is directed at the protection of the individual and he is entitled to its immunity as much against the state as against the national government.”). Both clauses protect against deprivations of a person's liberty without due process of law. See U.S. Const, amends. V, XIV. And the Supreme Court has construed both clauses to include substantive protections. See The Clause also includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests.” (internal quotation marks and citations omitted) (citing Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (involving substantive due process rights under the Fourteenth Amendment), and Reno v. Flores, 507 U.S. 292, 301-02, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (involving substantive due process rights under the Fifth Amendment))). There is no persuasive textual, precedential, or principled argument suggesting that the states may not ban D & X"
4306	(2d ed. 1951). Whether, and on what terms, a dismissal without prejudice may be granted, is a matter left initially to the trial court’s discretion. Larsen v. Switzer, 8 Cir., 1950, 183 F.2d 850, 851; see Shaffer v. Evans, 10 Cir., 1958, 263 F.2d 134, 135, certiorari denied 359 U.S. 990, 79 S.Ct. 1119, 3 L.Ed.2d 978; Adney v. Mississippi Lime Co. of Missouri, 7 Cir., 1957, 241 F.2d 43, 45-46; Lyman v. United States, 1 Cir., 1944, 138 F.2d 509, certiorari denied 320 U.S. 800, 64 S.Ct. 429, 88 L.Ed. 483. But that does not excuse the failure to exercise any discretion, see Martin v. Graybar Electric Co., supra, 266 F.2d at page 203; cf. d 334, 338, certiorari denied 347 U.S. 913, 74 S.Ct. 477, 98 L.Ed. 1069; Harvey Aluminum, Inc. v. American Cyanamid Co., D.C.S.D.N.Y. 1953, 15 F.R.D. 14, 18, or save from reversal an unpermitted exercise. We have already expressed our belief that the court did not even purport to exercise discretion. But were we to assume that it did, the reasons given — that Alamance had brought the suit, and obliged the defendant to employ counsel to file an answer — were patently insufficient. These were merely a recitation of the very circumstances that call the rule into play. Something else was needed, and we find nothing else present. By the dismissal offered Filene’s would, of course, be protected. Burlington had no right to be. Since
238	the amendment would avail the moving parties nothing, the interests of justice do not require that the amendment be granted and it is, therefore, denied. . This libel was filed before the date on which the amendment to the above Section became effective. See 26 U.S.C.A. § 5615(3). . The answer alleges that David Realty Company had sold the premises referred to as Lot No. 1 to a “Joe Brown” and received a purchase money mortgage from him as part payment. “Lot No. 2” contains a building which was allegedly used by Brown and others to provide water, sewerage and electricity for the still. This building was also owned by the David Realty Co. . See . Abe Markowitz was one of a group of defendants who were tried on a charge of conspiring to violate the Internal Revenue Laws of the United States, in violation of the provisions of 18 U.S.C.A. § 371. A judgment of acquittal was entered as to Markowitz. See United States v. Markowitz, 176 F.Supp. 681 (E.D.Pa. 1959). David Realty Corporation was not a party to this criminal action. . See United States v. Two Lots of Ground, etc., 194 F.Supp. 312, 313 (E.D. Pa. 1961). . See, e. g., Scott v. Baltimore and O. R. Co., 151 F.2d 61, 64 (3rd Cir. 1945); Jacquard Knitting Mach. Co. v. Ordnance Gauge Co., 95 F.Supp. 902, 905 (E.D. Pa.1951). . See United States
4242	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); 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.
1755	"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 a double design.”); . to determine that the turbines were made according to government specifications and that removal was available based on the government contractor defense”). . Soto, 111 F.Supp.2d at 224. Accord Akin, 156 F.3d at 1036; Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir.2002) (citations omitted) (""[T]he information supporting removal in a copy of an amended pleading, motion, order or other paper must be ‘unequivocally clear and certain’ to start the time limit running for a"
3177	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. 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
733	during this period. It is safe to conclude that but for Ward’s endorsement, the bank would not have loaned the money to LUC. But for the continued business relationship which had developed between Ward and the bank, the bank would not have agreed to renew Ward’s note ten different times during the three year period. Considering these facts and the state’s interest in providing a forum for its citizen (the bank) to enforce its rights under a contract made in Louisiana, the Court concludes that it has personal jurisdiction over Ward in this case. Koeniger v. Lentz, 450 So.2d 680 (La.App. 4th Cir.1984); American Bank & Trust Co. v. Sunbelt Environmental Systems, Inc., 451 So.2d 1111 (La.App. 1st Cir.1984); In short, the Court finds that exercising jurisdiction over Ward is consistent with the constitution and laws of the State of Louisiana and the Constitution of the United States. Burger King, supra. The Court also finds that defendant’s motion to transfer this case to Alabama should be denied. Most of the witnesses to the transactions as well as the documents involved are located in Louisiana. The Court must also apply Louisiana law. Considering these factors, the Court finds that the most convenient forum to try this suit is the Middle District of Louisiana. Therefore; defendant’s motions to dismiss and to transfer are DENIED.
2817	authority to make its City Hall, or any portion of it available for non-governmental purposes, might make and publish appropriate regulations governing the conditions, restrictions, and circumstances of such use provided they were nondiscriminatory and provided they did not confine expression of sentiments to those officially approved. Tinker v. Des Moines Independent Community School District, 898 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Such regulations relating to use of City Hall by private groups or organizations, if adopted, must not be of such character that rights of free speech would be effectively denied. Terminello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); 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.
2895	court concluded that since Zellner received the money more than 180 days after he filed his Chapter 13 petition, the money could not be considered property of the estate for valuation purposes. To determine what is estate properly, Chapter 13 adopts the Chapter 5 definition in 11 U.S.C. § 541, but also includes property acquired during the pendency of the Chapter 13 case. See 11 U.S.C. § 1306(a)(1); cf. In re Goff, 706 F.2d 574, 581-82 (5th Cir.1983) (only spendthrift trusts that are beyond the reach of creditors under state law are excluded from the estate). Thus, in order to decide whether the property would be exempt in a Chapter 7 liquidation, the bankruptcy court must determine whether the beneficial interest in the fund is subject to a restraint on alienation such that it could not be reached by the beneficiary’s creditors under non-bankruptcy law. See McLean, 762 F.2d at 1206-07; 2 A. Scott, The Law of Trusts § 151 (3d ed. 1967) (defining “spendthrift trust”). There is insufficient evidence in the record for the bankruptcy court to have made such a determination regarding Zellner’s retirement fund. Even
1340	Cowan, the request to get out of the car seems reasonable in light of the circumstances. See Wilson v. Porter, 9 Cir., 361 F.2d 412. The last aspect of the problem of the scope of the seizure of Carpenter is whether the police were reasonable in taking him to the police station after they saw what appeared to them to be burglary tools in the petitioner’s auto. It has always been held that it is reasonable to “seize” a person and take him into custody if there is probable cause to arrest for a public offense. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; United States v. Skinner, 8 Cir., 412 F.2d 98; The question becomes was there probable cause for arrest. We hold that probable cause did exist for an arrest for possession of burglary tools under § 28-534 R.S. Nebraska. The probable cause was supplied by the hour of the encounter, the absence of explanation of why the tools were in the petitioner’s possession, the location of the tools in the front of the auto under the seat rather than in a tool box in a more conventional place, and the series of burglaries which had taken place in Blair prior to the morning in question. Once it has been shown that the police conduct was reasonable up until the car was searched incident to a valid search warrant, the seizure of the evidence
3866	to him by investigative agents was the unit he found missing from his cubicle when he returned from liberty the morning following Corporal Pringle’s observations of appellant’s nocturnal activities. It may be that the evidence thus presented to the trier of fact consisted, in part, of direct evidence which only circumstantially established the guilt of appellant to the offense of falsely swearing that he had neither stolen Private Boom’s stereo unit nor sold a stereo unit to Private Garcia. We, however, are entirely satisfied that appellant is guilty beyond reasonable doubt of false swearing and that the evidence presented is adequate, credible, and mutually corroborative. II We find any asserted deficiencies in the staff judge advocate’s review have been waived. Accordingly, we conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the accused was committed. Accordingly, the findings of guilty and the sentence as approved on review below are affirmed. Chief Judge EOFF and Judge RAPP concur.
1026	its coal transportation clause. We agree. The clause requires that the subcontractor shall not only agree to provide its employees with the economic benefits of the contract, but to adhere to the noneconomic terms as well. It also provides that Amax may contract out only to contractors who employ Union members. To that extent, the clause seeks to aid UMWA members generally rather than those union members employed at the Belle Ayr Mine. The continuance of the relationship between the signatory employer and any contractor depends on the contractor’s decision to employ UMWA as his employees’ bargaining representative and not on the contractor’s maintenance of union wage scales or conditions. Its effect is therefore secondary and unlawful. See  cert. denied, 390 U.S. 905, 88 S.Ct. 819, 19 L.Ed.2d 871 (1968). D. Repair and Maintenance Work The ALJ found and the Board agreed that the Union’s Repair and Maintenance Work Clause proposal violated Sec tion 8(e). The proposal prohibited contracting out repair and maintenance work customarily performed by classified employees at the mine or central shop unless the work was performed under a manufacturer’s warranty or the employer did not have available equipment or regular employees with necessary skills available to perform the work at the mine or central shop, “provided, however, that the work, shall be performed by UMWA members to the extent and in the manner permitted by law.” App., at 134a. The Board’s decision will
2241	non conveniens, he has available upon an appropriate showing the relief provided by § 1404(a) of the Judiciary Code. 62 Stat. 869, 937, 28 U.S.C. § 1404(a).” (Emphasis supplied.) The Supreme Court recognized the right of a litigant to initially choose his forum — even where this involves a “race to the courthouse.” American Brake Shoe had a statutory right for which it sought vindication in the Maryland court. Its right was separate and independent from that against the alleged infringing manufacturer, and such, right, sanctioned by statute, ought not be interfered with except for compelling reasons. 35 U.S.C. §§ 271, 281; Birdsell v. Shaliol, 112 U.S. 485, 488, 5 S.Ct. 244, 28 L.Ed. 768 (1884); The Supreme Court in Kerotest gave its approval to the normal procedural' safeguards used to protect litigants from-having to do battle in an improper forum. One of these safeguards is the application of the doctrine of forum non-conveniens under the provision of section 1404(a) of the Judicial Code.. Here, the District Court did not enjoin the suit between the patentee and the alleged infringing customer because of frivolousness or because it constituted' harassment of Sundstrand’s customers; rather it ordered the patentee to seek its remedy in the Illinois court should the- customers choose to make an appearance in that court. This was an application of the forum non conveniens doctrine not sanctioned by section 1404(a) of the Judicial Code. A
4166	Indiana law. (Filing No. 1.) The Plaintiffs voluntarily withdrew their Eighth Amendment claim (Filing No. 43-6 at 2-3); (Filing No. 43-7 at 2-3), as well as their negligence and intentional infliction of emotional distress claims (Filing No. 48). Therefore, the Motion for Summary Judgment applies only to the Fourth Amendment and the remaining state law claims. For the following reasons, the Court DENIES the Defendants’ Motion for Summary Judgment. I. BACKGROUND As with any summary judgment motion, the following facts are reviewed in the light most favorable to the Plaintiffs, the nonmoving parties, and the Court draws all reasonable inferences in the Plaintiffs’ favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); In the evening on April 2, 2013, Daniel Veza (“Officer Veza”), with the Indianapolis Metropolitan Police Department, initiated a traffic stop on a red Chevrolet Blazer after he witnessed the vehicle run a stop sign. Officer Veza sent a message to Officer Ross requesting back-up because he believed there were five individuals in the vehicle. Id. at 3. As Officer Veza approached the vehicle, he observed that the windows were tinted and instructed the passengers to roll their windows down. Id at 1. Officer Veza observed five people inside the vehicle. Id. Kevin Somerville (“Sommerville”) was in the driver’s seat, Trisha Parish (“Parish”) was in the front passenger seat, Johnson was sitting behind the driver’s seat, William Morris (“Morris”)
516	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 individuals with disabilities. 2011 DOJ Statement, p. 3. The Department of Justice further states that a “comprehensive, effectively working plan” written pursuant to Olmstead must “include commitments for each group of persons who are unnecessarily segregated,” including “individuals spending their days in sheltered workshops or segregated day programs.” Id. at 7. Finally, the Department of Justice states that appropriate remedies under the integration mandate include “supported employment.” Id. at 8. Although the Ninth Circuit recently accorded deference to another portion of the 2011 DOJ Statement in  defendants argue that it should be given no weight here because it is inconsistent with the Department of Justice’s earlier proclamation in 1991 when the integration mandate regulation was promulgated. The 1991 commentary to the publication of the proposed regulation stated that: “These provisions should not be construed to jeopardize in any way the continued viability of separate schools providing education for particular categories of children with disabilities, sheltered workshops, special recreational programs, and other similar programs.” Nondiscrimination on the Basis of Disability in State and Local Government Services, 56 Fed.Reg. 8538-01, 8543 (proposed Feb. 28, 1991), 1991 WL 311707 (emphasis added). Defendants contend that this language means that the Department of Justice did not consider sheltered workshops to violate
690	words. Quock Ting v. United States, 140 U.S. 417, 420, 11 S.Ct. 733, 35 L. Ed. 501 (1891); Hasson v. Commissioner of Internal Revenue, 239 F.2d 778, 782 (CA 6, 1956); Wood v. Commissioner of Internal Revenue, 338 F.2d 602, 605 (CA 9, 1964). The courts must scrutinize with special care the dealings between husband and wife, especially where, as here, the husband appeared to have carte blanche to use what he claims was his wife’s money. Fouke v. Commissioner, 2 B.T.A. 219, 220-221 (1925). Drybrough had the burden of overcoming the presumption of validity of the Commissioner’s determination respecting his alleged income tax deficiencies. Bishop v. Commissioner of Internal Revenue, 342 F.2d 757, 759 (CA 6, 1965); We cannot say that the Tax Court was clearly erroneous in concluding that that burden was not carried. This view obviates our discussion of other contentions of Drybrough as to the debtor-creditor relationship between him and his wife; the Tax Court’s opinion adequately disposes of them. Accordingly, we reverse the Tax Court’s decision to the extent that it finds that the assumption of the balance of the 1953 loan by the four corporations organized on June 1, 1957, should “be considered as money received by the taxpayer (Drybrough) on the exchange,” § 357(b) IRC 1954; in all other respects, relevant to this petition for review, the Tax Court’s decision is affirmed. Date of Filing Fair Market Name of Corporation
164	States v. Bolster, Executrix, 26 F.(2d) 760, resulting in a decision for the taxpayer. The law on this question, therefore, is settled in so far as the instant case is concerned. The defendant’s second claim is that the taxpayer never presented in writing to the Commissioner of Internal Revenue the “alleged purchase for value theory” as a ground for her claim for refund, and therefore the claim for refund was never prpperly presented, or considered within the meaning of the statutes, and hence this action will not lie. This claim was made to the court in the previous case of Warner v. Walsh (D. C.) 24 F.(2d) 449, and in the ease of The third claim of the defendant is that these taxes in question were paid voluntarily, without protest and without duress, affording the collector a complete defense. A similar claim appears to have been made and passed upon by Judge Thomas in the former Warner v. Walsh case, where he stated that under ordinary circumstances voluntary payments of money may not be recovered, but decided that, under the provisions of section 1014 (a) of the Revenue Act of 1924 (26 USCA § 156; Comp. St. § 5949), taxes illegally assessed and collected may be recovered, whether or not such taxes were paid under protest or duress. The taxes
3981	the debtors, the $2,300 monthly payments would have been sufficient to provide the proposed 65% return to creditors within three years. However, the amounts for filed claims substantially exceeded debtors’ scheduled debts and debtors had not filed any objections to the claims. As a result, the plan failed to pay the 65% dividend by about $15,000. Id. The trustee moved to dismiss debtors’ case under § 1307(c)(6) for a material default in the plan. Debtors responded with a motion for discharge under § 1328(a). The issue before the Rivera court involved which plan provision takes precedence — the percentage dividend to unsecured creditors or the monthly plan payments. Persuaded by the reasoning of In re Carr, 159 B.R. 538 (D.Neb.1993) and  the Rivera court found that debtors’ payment of less than the percentage dividend required in the plan precluded a discharge. Id. at 334-335. By failing to pay their unsecured creditors the promised 65% dividend, the debtors had not completed their payments under the plan within the meaning of § 1328(a). Id. at 335. In In re Hill, 374 B.R. 745 (Bankr. S.D.Cal.2007), the bankruptcy court considered two separate cases in one decision involving a husband and wife in one and an individual woman in the other. In each case, the debtors or debtor had a confirmed plan providing for monthly payments and a 100% dividend plus 10% interest to unsecured creditors. Id. at 746-48. In both cases, total claims ended up being
2983	MEMORANDUM ITT Corp. petitions for review of the Benefits Review Board’s order affirming the decision of the administrative law judge (ALJ) to grant Walter West’s claim for disability and medical benefits under the Defense Base Act, 42 U.S.C. § 1651 et seq. The ALJ properly found that West made a prima facie showing that he suffered a work-related injury and was .therefore entitled to the statutory presumption of eligibility. See For purposes of the prima facie analysis, the ALJ made a reasonable determination that West’s August 2008 back injury was the natural progression of his March 2008 leg injury and the lumbar surgery that it required. See Cyr v. Crescent Wharf & Warehouse Co., 211 F.2d 454, 457 (9th Cir.1954). ITT makes two attempts to rebut the statutory presumption. First, ITT argues that the light packing activity in which West engaged in August 2008 constituted an intervening cause that severed the causal connection to his work-related injury. However, the ALJ properly determined that, because it was not negligent for West to engage in light packing, any worsening of West’s condition that followed was a “natural or unavoidable” result of the
4912	"Cir. 2004) (citation omitted). "" Rule 23(b)(3) 's predominance element in turn requires that common issues predominate over issues affecting only individual class members."" Id. at 528 (citing Fed. R. Civ. P. 23(b)(3) ). We have held that Rule 23(b) 's predominance requirement incorporates Rule 23(a) 's commonality requirement because the former, although similar, is ""far more demanding"" than the latter. Id. Like the commonality requirement, ""[p]redominance tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation."" In re Hydrogen Peroxide , 552 F.3d at 310-11 (quotation omitted). However, the ""predominance requirement imposes a more rigorous obligation upon a reviewing court to ensure that issues common to the class predominate over those affecting only individual class members."" Accordingly, we will analyze the two elements together, with particular focus on the more stringent predominance requirement. See, e.g., In re LifeUSA , 242 F.3d at 144 (evaluating the predominance and commonality requirements together) (citing Amchem Products , 521 U.S. at 623-24, 117 S.Ct. 2231 ). At the class certification stage, the predominance requirement is met only if the district court is convinced that ""the essential elements of the claims brought by a putative class are 'capable of proof at trial through evidence that is common to the class rather than individual to its members.' "" Gonzalez v. Corning , 885 F.3d 186, 195 (3d Cir. 2018) ; Tyson Foods, Inc. v. Bouaphakeo , --- U.S. ----, 136 S.Ct."
225	alleged negligence occurred in the manufacture and construction of the generator equipment months before plaintiffs entered into any contractual relation with the Government for the assembly of such units. There are a multitude of cases which sustain the principle that, as an indispensable condition precedent to liability for interference with the performance of one’s contract, there not only must be knowledge of the contract, but there must be an intentional interference therewith. Robins Dry Dock & Repair Co. v. Flint, 1927, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290; Baruch v. Beech Aircraft Corp., 10 Cir., 1949, 175 F.2d 1; New York Trust Co. v. Island Oil & Transport Corp., 2 Cir., 1929, 34 F.2d 649; d 313; Kelly v. Central Hanover Bank & Trust Co., D.C.S.D.N.Y., 1935, 11 F.Supp. 497, 513, reversed oh other grounds, 2 Cir., 1936, 85 F.2d 61; Tipton v. Burson, 1951, 73 Ariz. 144, 238 P.2d 1098; Dewey v. Kaplan, 1937, 200 Minn. 289, 274 N.W. 161; Brink v. Wabash R. Co., 1901, 160 Mo. 87, 60 S.W. 1058, 53 L.R.A. 811; see Twitchell v. Glenwood-Inglewood Co., 1915, 131 Minn. 375, 155 N.W. 621; see Cat’s Paw Rubber Co. v. Bario Leather & Findings Co., D.C.S.D.N.Y., 1951, 12 F.R.D. 119, 121; Phillips v. Belding Heminway, D.C.S.D.N.Y., 1943, 50 F.Supp. 1015, 1019; see Prosser, Torts 991-996 (1941); 30 Am.Jur. Interference § 22; Note, 26 A.L.R.2d 1227, 1246. This is also the view adopted by the American Law
952	§ 101(30), for purposes of application of the one-year preference period under § 547(b)(4)(B); 2. Whether equitable considerations dictate that appellees’ mortgage lien be subordinated to the interests of other creditors; 3. Whether the trial court abused its discretion: (a) in allowing appellees’ counsel to use a previously excluded transcript as a cross examination aid; (b) in denying Friedman’s motion to re-open the case; (c) in refusing to allow appellant costs after the trial was continued for three months because of illness to appellees’ former counsel. III. STANDARD OF REVIEW The determination of insider status is a question of fact. Matter of Missionary Baptist Found., 712 F.2d 206, 210 (5th Cir.1983); In re UVAS Farming Corp., 89 B.R. 889, 892 (Bankr.D.N.M.1988); 2 Collier on Bankruptcy 11101.30, at 101-72 (15th ed. 1990). We review the bankruptcy court’s findings of fact for clear error. In re Torrez, 63 B.R. 751, 753 (9th Cir.BAP 1986), affd 827 F.2d 1299 (9th Cir.1987). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be clearly erroneous. Anderson v. City of Bessemer, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Friedman contends that, because the facts herein are “largely undisputed,” we must review the trial court’s finding that appellees were not insiders de novo. In support of this argument, Friedman cites In re Schuman, 81 B.R. 583 (9th Cir. BAP 1987), which observes that in certain circumstances it may
3443	findings on relevant conduct violated his right to due process. II. Discussion A. Acceptance of Responsibility. On appeal Lister primarily argues against the district court’s finding that he failed to accept responsibility for his crimes, see U.S.S.G. § 3E1.1. This denial of credit, he argues, led to an erroneous application of the guidelines. In seeking credit for accepting responsibility for his crimes, the defendant bears the burden of proving this acceptance by a preponderance of the evidence. United States v. Travis, 294 F.3d 837, 840 (7th Cir.2002); United States v. Ewing, 129 F.3d 430, 435 (7th Cir.1997). We review the district court’s decision on this fact-based finding for clear error. United States v. Hicks, 368 F.3d 801, 808 (7th Cir.2004); 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,
136	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”); . 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 the scope of his delegated authority”). Furthermore, to the extent that the Plaintiffs’ FTCA claim against the United States is based on the FBI’s failure to use particular technology, that claim also falls within
2358	"at 82-85, are adjudicated without regard to the agreed upon legal standard concerning the opinions of treating physicians, we will be faced with countless numbers of cases similar to the present one. Reversed and remanded to the district court with directions that the matter be remanded to the Secretary for further proceedings consistent with this opinion. . It appears that the State of New York decided to award Havas disability and workers’ compensation benefits after evaluating the reports of the treating and consulting physicians. As we have previously held, ""[w]hile the determination of another governmental agency that a social security disability benefits claimant is disabled is not binding on the Secretary, it is entitled to some weight and should be considered."" see also Hankerson v. Harris, 636 F.2d 893, 896-97 (2d Cir.1980). . Havas urges us to find, on the basis of his advanced age, limited education and lack of transferrable job skills, that he is incapable of engaging in any substantial gainful employment. However, because the record is incomplete as to what skills, if any, Havas could transfer to another job, we decline to reach this issue."
3990	"of the plan but before the completion of payments under such plan, the plan may be modified, upon request of the debtor, the trustee, or the holder of an allowed unsecured claim[.]” . Rule 3002(c)(3) provides in part: ""An unsecured claim which arises in favor of an entity or becomes allowable as a result of a judgment may be filed within 30 days after the judgment becomes final if the judgment is for the recovery of money or property from that entity or denies or avoids the entity’s interest in property.” . Although not raised by the Schlegels, the bankruptcy court did not engage in any ""best interest of creditors” analysis before dismissing their case, which is required. However, on this record dismissal appears to be in the best interest of creditors and the estate. Over the course of 60 months, the unsecured creditors have not received anywhere near the 48% dividend required by their Plan. With dismissal and the dissolving of the stay, these creditors are now free to pursue collection of their claims against the Schlegels, which would likely result in more money than if the case had been converted to chapter 7."
4218	raise retroactivi1y problems. See Landgraf v. USI Film Prods., 511 U.S. 244, 276-78, 114 S.Ct. 1483, 1503, 128 L.Ed.2d 229 (1994). . In Landgraf, the Court noted several additional examples of new statutes whose application to pending cases was proper. These included statutes whose plain language unambiguously requires application to pending cases, see United States v. Schooner Peggy, 1 Cranch [5 U.S.] 103, 2 L.Ed. 49 (1801); statutes authorizing or affecting the propriety of prospective relief, see American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189 (1921); statutes conferring or ousting jurisdiction, see Bruner v. United States, 343 U.S. 112, 72 S.Ct. 581, 96 L.Ed. 786 (1952); and statutes revising procedural rules, see See Landgraf v. USI Film Prods., 511 U.S. 244, 272-76, 114 S.Ct. 1483, 1501-02, 128 L.Ed.2d 229 (1994) (collecting cases). . The district court ruled that if it had applied the fee limitations of § 803(d), it would have awarded counsel for Plaintiffs the maximum hourly rate available. We express no opinion as to the appropriateness of such an award. The district court may, of course, reconsider the award on remand. See Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 n. 28 (4th Cir. 1978) (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)). . The Barber factors include: (1) the time and labor expended; (2) the novelty and difficulty of the
2014	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; 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
1196	General’s memorandum). The Attorney General further stated that fast-track programs must require defendants to enter into written plea agreements and to waive rights to pretrial motions, appeal and challenges under 28 U.S.C. § 2255— except based on allegations of ineffective assistance of counsel. Id. Although the PROTECT Act itself addressed only downward departure-type fast-track programs, the guidelines provided by the 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 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
2237	of stay. The general rule is that actions taken in violation of the automatic stay are void.... But this rule usually is applied to transfers of property and the like. No case has been cited to us nor are we aware of any case that has discussed whether the automatic stay precludes such a complaint from being an amendable informal proof of claim. Sambo’s at 816-17. The flexible reasoning expressed in Sam-bo’s applies to this case. The bank merely cured a defect in a trust deed given as security for a loan. Wiley Brooks’ trustee allowed the case to close without attacking the re-recording of the bank’s lien. Elna Brooks’ trustee is now barred from contesting the lien. The facts of  distinguish it from the authority cited above and the present case. In Kalb a state court allowed a foreclosure sale and eviction of the debtors during the pendency of the bankruptcy. This extreme situation is much more than a technical violation of a stay. It exceeded the authority of the state court and was void for that reason. It disrupted the ability of the debtors to reorganize and discharge their debts. Bankruptcy Code § 362(d) permits a court to grant relief from stay by “.terminating, annually, modifying, or conditioning such stay — .” These varying powers show a Congressional intention that acts taken in violation of the stay are not void but voidable. Otherwise, there would
3821	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  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
3127	for consideration whenever remission is sought. The section must be liberally construed to carry out the objective. The point to be sought is the intent of the law-making powers. Forfeitures are not favored; they should be enforced only when within both letter and spirit of the law. Farmers’ & Mechanics’ National Bank v. Dearing, 91 U.S. 29, 33-35, 23 L.Ed. 196 * * (Emphasis supplied.) United States v. One 1936 Model Ford V-8 De Luxe Coach, 307 U.S. 219, 226, 59 S.Ct. 861, 864, 83 L.Ed. 1249. The liberal construction of this particular section, and the theory that it primarily intends to require an investigation where a credit inquiry is made was approved by this Court. We think it clear, as pointed out in Harris v. United States, supra, United States v. One 1936 Model Ford V-8 De Luxe Coach, supra, and the Graham case of this Circuit that subdivision (3) of this sub-section of the statute was primarily intended to cause an inquiry to be made in connection with credit or character investigations. The auto-rental business is nowhere referred to in the legislative history of the law in question, and it must therefore be concluded that no such relationship as here existed was intended to be dealt with. We find, therefore, upon the reasoning and authority of the Harris case, that the relationship existing between the appellee here and its renter, Blizzard, was not such as required appellee
466	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, 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 required. The section merely provides, “Upon evidence of such illegal manufacture or sale a tax shall be assessed,” which clearly involves
3712	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 substance, claims to correct inven-torship under 35 U.S.C. § 256. Defendant asserts that Plaintiff does not have standing because it has no ownership interest in any of. the patents-in-suit. MTD at 3-5. Constitutional standing requires that a plaintiff has suffered an injury-in-fact, that the injury is traceable to the conduct complained of, and that the injury is redressable by a favorable decision. U.S. Const, art. Ill, § 2; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To have standing to under Section 256, the Federal Circuit holds that a plaintiff must have a concrete financial interest in the patents at issue. Chou v. Univ. of Chicago, 254 F.3d 1347, 1359 (Fed.Cir.2001). This does not mean that the plaintiff must have an ownership interest
4024	dubious would be a refusal to appoint a pilot for reasons not mentioned in the regulations, such as an effort to force the pilot to join the Association. Ill It is not appropriate for us to decide appellant’s statutory argument — that giving a preference to the Association conflicts with the controlling statute’s use of “voluntary association” — at this time. We cannot pass comfortably on that question because we do not have a forthright agency interpretation of the statute. Paradoxically, the government argues that we should give deference to its interpretation under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). But putting aside the question raised by To be sure, section 401.720(b) could be read to imply a preference for the Association. The Wasserman and Gilmour letters could also be read to suggest as much. But an implication is not an agency interpretation, and we are disinclined to tease out, from the welter of correspondence in this case, an interpretation the agency itself has failed to offer. The statutory question is potentially a difficult one. The Coast Guard must come to grips with the meaning of the statute, and,
3803	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 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 on a stage in front of an audience. See Miller v. Civil City of South Bend, 904 F.2d 1081, 1092 (7th Cir.1990) (Posner, J., concurring in opinion and judgment), rev’d by Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). Stanglin is inapposite and the County cites no cases treating a similar
4809	search that room. We have reviewed the circumstances which led Mrs. Lambert to conclude that the room had been vacated and believe that they were ample to support her view. Defendant Jackson testified that the room had been vacated. When the officers entered the room there was nothing to put them on notice that the room was still occupied. The only item seized in that room was found in a trash can. Under the evidence we conclude that the room was then vacant. Defendants thus may not complain of the search of that room and the seizure of an item from a trash can therein. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); The other items seized at the motel and later received in evidence were taken from a trash can outside Rooms 19 and 20. What a person knowingly exposes to the public is not a subject of Fourth Amendment protection. Katz v. United States, 389 U.S. 347, 351, 88 5. Ct. 507, 19 L.Ed.2d 576 (1967). When defendants placed articles in this public trash can outside the room, they surrendered their privacy with regard to those articles. See United States v. Minker, 312 F.2d 632, 634 (3d Cir. 1962). See also, Wattenburg v. United States, 388 F.2d 853, 857 (9th Cir. 1968). After being arrested at the motel on April 28, 1970, for failure to register as an ex-felon, defendant Jackson
2317	"Don Jarvis, James Rolfe, Gary Richardson, Gary L. Richardson & Associates (Richardson's law firm), and Gerald Hilsher (a former associate attorney at Richardson & Associates) had all been sued by Tex, Charles, and Richard W. Moncrief (son of Tex Moncrief) as third-party defendants in the litigation Michael Moncrief commenced on March 7, 1995. Plaintiff was alleged to have breached his fiduciary duty in the course of his employment by the Moncrief family, to have stolen and intentionally disclosed confidential documents, and to have intentionally misrepresented facts about the Moncrief family to the IRS, Michael Moncrief, and plaintiff's advisors. The complaint also listed causes of action for conspiracy and intentional infliction of emotional distress. . See . Plaintiff made the remarkable assertion during cross examination that only the IRS had possession of tax information, as a taxpayer only retains file copies: A. ""...if you get real technical about it, these weren’t real tax returns because they had not been filed, Mr. King.’’ Q. “These were the taxpayers copies of the tax — these were the Moncriefs file copies of their tax returns?” A. “That's correct.” Tr. p. 676. If this bit of sophistry were accepted, Jarvis could only have violated the agreement by first obtaining original filed copies of tax returns from the IRS. . Rolfe testified that he only did a cursory reading of the contract. . Samuel Graber testified that he inquired of the U.S. Attorney’s"
3132	operating creditors that arose within six months before the receivership priority in payment over secured creditors.” Alan N. Resnick, The Future of the Doctrine of Necessity and Critical-Vendor Payments in Chapter 11 Cases, 47 B.C.L.Rev. at 187. The six-month rule was legislated in Section 77(b) of the Bankruptcy Act of 1898 for railroad reorganization cases and survived through Section 1171(b) of the Bankruptcy Reform Act of 1978. See Act of July 1, 1898, ch. 541, § 77B, 30 Stat. 544 (1899); Jeffrey N. Pomerantz, The Bare Necessities of Critical Vendor Motions — It’s a Jungle Out There, 13 J. Bankr.L. & Prac. 73, 76 (2004); 11 U.S.C. § 1171(b) (2000). The “necessity of payment doctrine” was first enunciated in  and it became an important part of railroad reorganizations and receiverships. It permitted courts to allow receivers to pay certain pre-receivership unsecured creditors. Alan N. Resnick, The Future of the Doctrine of Necessity and Critical-Vendor Payments in Chapter 11 Cases, 47 B.C.L.Rev. at 187. Courts limited this doctrine’s use, however, to secure only the continued delivery of supplies and services essential to the debtor’s continuation in business. In re B & W Enter. Inc., 713 F.2d at 537; In re Boston & Me., 634 F.2d at 1382. The “necessity of payment doctrine” gives courts discretion to deviate from the otherwise applicable rules of priority by making early payments to certain creditors to achieve the greater
4219	v. United States, 343 U.S. 112, 72 S.Ct. 581, 96 L.Ed. 786 (1952); and statutes revising procedural rules, see Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). See Landgraf v. USI Film Prods., 511 U.S. 244, 272-76, 114 S.Ct. 1483, 1501-02, 128 L.Ed.2d 229 (1994) (collecting cases). . The district court ruled that if it had applied the fee limitations of § 803(d), it would have awarded counsel for Plaintiffs the maximum hourly rate available. We express no opinion as to the appropriateness of such an award. The district court may, of course, reconsider the award on remand. See Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 n. 28 (4th Cir. 1978) (citing . The Barber factors include: (1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between the attorney and client; and (12) attorneys’ fees awards
1541	When an ATC clearance has been obtained, no pilot in command may deviate from that clearance, except in an emergency, unless he obtains an amended clearance____ 14 C.F.R. § 91.75(a). Except in an emergency no person may, in an area in which air traffic control is exercised, operate an aircraft contrary to an ATC instruction. 14 C.F.R. § 91.75(b). 37. Such deviation authority includes refusing to comply with an ATC clearance if complying with that clearance would endanger the safety of the aircraft. In re N-500L Cases, 691 F.2d 15 (1st Cir. 1982); New Hampshire Ins. Co. v. U.S., 641 F.Supp. 642 (D.P.R.1986), aff'd, 838 F.2d 595 (1st Cir.1988); Delta Air Lines, 38. Air traffic controllers are required to comply with the mandatory provisions of the Air Traffic Control Manual FAA 7110.-65D to provide for the safe, orderly, and expeditious flow of traffic. 14 C.F.R. § 65.45(a). An emergency may be declared by either the pilot or by personnel of a Federal Aviation Administration facility. Air Traffic Control Manual, FAA 7110.65D, Section 9-15. 39. In the “forced handoff”, the Radar Controller never advised the local controller that the plane was returning to the field, nor that communications had deteriorated to the point of being unintelligible. Although the deterioration of radio transmission does not by itself put a reasonable controller on notice that an aircraft is in emergency status,
2272	as PLC cites to no specific statute. Moreover, arguably, the debtor performed the remediation work necessary to abate any imminent threat when it removed the leaking storage tanks in 1989. Further, it appears that the contaminated soil was not removed in 1989 because the regulations applicable at that time did not require removal. Finally, as the trustee points out, the debt- or did not own the property and cleanup was effected almost two years after the lease was rejected and the trustee returned the property to PLC. In short, unlike the site in Conroy it appears that, the property in the instant case could have been abandoned by the trustee because it posed no imminent threat to the public. See In re Purco, 76 B.R. 523, 533 (Bankr.W.D.Pa.1987); In re FCX, Inc., 96 B.R. 49, 54-55 (Bankr.E.D.N.C.1989). The court in Conroy addressed only the specific issue before it: whether the response costs incurred post-petition by a state agency to clean up an ongoing hazardous condition on a debtor’s property are entitled to receive administrative expense priority. Unsurprisingly and sensibly the court answered in the affirmative. Notably, the court distinguished the matter before it from the Dant & Russell case: Contrary to the Conroys’ suggestion, the Ninth Circuit’s decision in In re Dant & Russell, Inc., 853 F.2d 700 (1988), is also distinguishable. That case held that a lessor who has a bankruptcy claim against a lessee for the costs of
2245	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  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 Defendants “abused their discretion” in not maintaining copies of particular documents in his Central File and by categorizing those documents as exempt from the Freedom of Information Act. In response, the Defendants have requested the disposition of this case for primarily two reasons. First, it is argued that the entire
4804	the Negro robbers might seek a haven in the Negro area of Phoenix which could lead them to drive out Twentieth Street. Fourth, the Cadillac with its three Negroes approached along Twentieth Street, headed in the direction of the Negro area of the city. The circumstances called for swift action. Under these facts the officers acted reasonably in stopping the Cadillac and questioning the occupants concerning their identity and residences. This was intelligent, effective police work. If police officers may not do what was done here, law enforcement would be seriously crippled. The Fourth Amendment was not intended to handcuff the police in their reasonable effort to handcuff criminals. See also, Gilbert v. United States, 366 F.2d 923 (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
4797	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,  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 States v. Ballard, 418 F.2d 325, 327 (9th Cir. 1969). Defendants were not brought into the courtroom in an effort to assist the eyewitnesses in identifying them as the robbers. Moreover, there is nothing to indicate that if defendants’ counsel had then been present they would have done any more to alleviate the supposed prejudice than they did at the subsequent suppression hearing and trial, as described above. We conclude that this
968	the premises owner AMOCO Chemical Company and his employer Rail Link, Inc. Now before the Court is Defendant Rail Link’s Motion for Summary Judgment. For the reasons that follow,' that Motion is GRANTED, and Plaintiffs’ claims against Defendant RAIL LINK, INC. are DISMISSED WITH PREJUDICE. I. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). When a motion for summary judgment is made, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Issues of material fact are “genuine” only if they require resolution by a trier of fact. See id. at 248, 106 S.Ct. at 2510. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. See id. at 247-48, 106 S.Ct. at 2510. If the evidence is such that a reasonable fact-finder could find in favor of the nonmoving party, summary judgment should not be granted. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
3299	voluntary is not cognizable in this appeal, see United States v. Villareal-Amarillas, 454 F.3d 925, 932 (8th Cir.2006) (claim that guilty plea was not knowing and intelligent was not cognizable on direct appeal where defendant did not attempt to withdraw guilty plea in district court); United States v. Murphy, 899 F.2d 714, 716 (8th Cir.1990) (claim that guilty plea was involuntary must first be presented to district court and is not cognizable on direct appeal); and his claim that his counsel was ineffective is more properly raised in a motion under 28 U.S.C. § 2255, see United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir.2006). By his guilty plea, Alarcon has waived any non-jurisdictional challenge to his prosecution, see  and he cannot challenge the drug quantity used for sentencing because he stipulated to the amount in his plea agreement, cf. United States v. Nguyen, 46 F.3d 781, 783 (8th Cir.1995) (defendant who explicitly and voluntarily exposes himself to specific sentence may not challenge that punishment on appeal). Having reviewed the record in accordance with Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw and deny Alarcon’s motions. The judgment of the district court is affirmed. . The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota.
4097	statements that qualify as official statements. Our review of the evidence reveals that the appellant’s own statements establish that his report to security personnel at Kings Bay, that Ms. L had stolen a purse from his quarters, was false. Prosecution Exhibits 1-4. Furthermore, those statements are corroborated by the unrebutted testimony of Ms. L that the purse in question was hers. Record at 189-191. The fact that the statement was not made in the line of duty is totally irrelevant under the facts of this case, because the statement was made to a security officer. Even where there is no duty to report an offense, lying to a law-enforcement agent conducting an investigation is a violation of Article 107, UCMJ. Jackson, 26 M.J. 377, 379 (C.M.A.1988)). The appellant’s third assignment of error is totally without merit. Instructional Error Appellant alleges that the military judge committed plain error when he did not instruct the members concerning the definition of “official” as it relates to a violation of Article 107, UCMJ. Appellant must assert plain error because he did not object to the instructions concerning this issue. Absent plain error, the error, if any, was waived. Rule for Courts-Martial 920(f), Manual for Courts-Martial, United States (1998 ed.). While it is true that the military judge did not define “official,” he was not required to do so. There was no error. The Military Judges’ Benchbook, Dept, of the Army Pamphlet 27-9,
4967	(“When the meaning of claims is in doubt, especially when, as is the case here, there is close prior art, they are properly declared invalid.”); Halliburton, 514 F.3d at 1252-53. NetApp responds that the term is not indefinite because it can, if necessary, be construed. See Invitrogen Corp. v. Biocrest Mfg., L.P., 424 F.3d 1374, 1383-1384 (Fed.Cir.2005) (having construed the preamble term “improved competence,” the Court found the term not indefinite). There, the court reasoned as follows: “ ‘The test for indefiniteness does not depend on a potential infringer’s ability to ascertain the nature of its own accused product to determine infringement, but instead on whether the claim delineates to a skilled artisan the bounds of the invention.’ This court’s and the district court’s constructions of the claim showed that it contained no material ambiguities, and therefore was not invalid for indefiniteness.” Invitrogen, 424 F.3d at 1384. NetApp contends that should the Court deem it necessary to interpret this term, the construction “to provide/providing more than a low predefined number of maintainable persistent consistency point images” should apply. It argues that this construction captures the intent of the '720 patent to overcome the prior art’s low and limited numbers of maintainable snapshots. Sun counters that the claim would still be indefinite under this construction because a person of ordinary skill in the art would not be able to discern a “meaningfully precise claim scope.” Halliburton, 514 F.3d at 1251
657	the Government six years before the claimants’ 1991 takings claims. The claimants allege two distinct takings: (1) a temporary taking commencing when the Wilson Order issued in 1976 and ending in 1988 when the district court upheld the EPA’s Final Determination; and (2) a permanent taking commencing when the EPA issued its Final Determination in 1985. The temporary taking claim is time-barred; the permanent taking claim is not. I. When presented with a regulatory taking claim, this court analyzes three separate criteria: (1) the character of the governmental action; (2) the economic impact of the regulation on the claimant; and (3) the extent that the regulation interferes with distinct investment-backed expectations of the property owner. These criteria define the events that comprise a regulatory taking claim. Thus, in this case, this court must examine these criteria to discern the events triggering the six-year statute of limitations. The first criterion — the character of the governmental action — examines the challenged restraint under the lens of state nuisance law. If the regulation prevents what would or legally could have been a nuisance, then no taking occurred. The state merely acted to protect the public under its inherent police powers. Lucas v. South Carolina Coastal Council, — U.S. -, -, 112 S.Ct. 2886, 2900, 120 L.Ed.2d 798 (1992). Here the courts must inquire into the degree of harm created by the
3219	executory contract or unexpired lease of the debtor constitutes a breach of such contract or lease— (1) if such contract or lease has not been assumed under this section or under a plan confirmed under chapter 9, 11, 12, or 13 of this title, immediately before the date of the filing of the petition; ... See also NLRB v. Bildisco and Bildisco, 465 U.S. 513, 530, 104 S.Ct. 1188, 1198, 79 L.Ed.2d 482 (Rehnquist, J., for the majority), 465 U.S. at 539 n. 8, 104 S.Ct. at 1203 n. 8 (Brennan, J., concurring in part and dissenting in part) (1984); Hall v. Perry, (In re Cochise College Park, Inc.), 703 F.2d 1339, 1352 (9th Cir.1983);  aff'd, 567 F.2d 237 (2d Cir.1977), cert. denied, 439 U.S. 825, 99 S.Ct. 95, 58 L.Ed.2d 117 (1978); General Drivers, Warehousemen and Helpers Local 89 v. Midwest Emery Freight System, Inc., 48 B.R. 566, 568 (Bankr.N.D.Ill.1985). 11 U.S.C. § 502(b)(1) provides: (b) Except as provided in subsections (e)(2), (f), (g), (h) and (i) of this section, if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim in lawful currency of the United States as of the date of the filing of the petition, and shall allow such claim in such amount except to the extent that— (1) such claim is unenforceable against the debtor and property of the debtor,
587	A.2d 784 (Pa.Super.1983) (in action against dealership and manufacturer for breach of sales agreement, no-agency was not an affirmative defense because of “no agency” clause in sales agreement, and because agency relationship was denied by manufacturer). Based upon the foregoing, we hold that an affirmative defense is a matter which serves to excuse a defendant’s conduct or otherwise avoids the plaintiff’s cause of action but which is proven by facts extrinsic to the plaintiffs cause of action, in the sense that liability is avoided without negating an element of the plaintiffs prima facie case. D. Spoliation of Evidence Spoliation of evidence refers to the destruction of relevant evidence by a party or the agent of a party. See Under both federal evidentiary law or the substantive law of Pennsylvania on products liability, the trial court may impose sanctions on a party responsible for the spoliation of evidence. Id. The seriousness of the sanction to be imposed depends upon consideration of the following: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future. Schmid, 13 F.3d at 79 (citations omitted). In some cases, a moderate sanction in the
3695	“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. Furthermore, given its finding that there was a zoning ordinance violation, the County’s order requiring the Jen-sens to schedule inspection to confirm abatement is reasonable and does not present a Fourth Amendment violation. See Sanchez v. Cnty. of San Diego, 464 F.3d 916, 923-924 (9th Cir.2006); G.H. Love, Inc. v. Fleming, 161 F.2d 726, 728 (9th Cir.1947). The Jensens’ claim that they were penalized for seeking a hearing in violation of their First Amendment right to petition the government for redress also lacks merit. As the district court noted, there is no evidence in the record — including on the penalty
3723	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 Thus, to survive a motion to dismiss based on the concealment of an inventor, a plaintiff must also plead facts to support that the omitted individual was, indeed, an inventor. Id. Plaintiff argues Defendant should be liable for allegedly inequitable conduct on the part of its “agents” Fematt, Brown, Borchert, and Viesca on the basis that they failed to disclose Lininger’s status as an inventor in all the patents-at-issue. Opposition at 23. In support of this argument, Plaintiff points to paragraphs in the FAC that identify these individuals as being the inventors on the patents. Id. (citing FAC ¶¶ 64-71). For the sake of this motion, the Court accepts Plaintiffs representation that its concealment allegations are directed at Fematt, Brown, Borchert
3337	chose to capitalize on the name as if his grandfather had left it to him as an inheritance. The only serious question we must meet is whether the injunction is too broad. The conflict between a first comer who has given a secondary meaning (as well as trademark registration) to a family name, and a later comer who wishes to use his own true family name as a trademark in the same industry has been one of the more interesting issues in the law of trademark infringement. The problem is made more difficult when the second comer has his own background of experience in the particular industry, and is not simply a newcomer. See In the nineteenth and earlier twentieth centuries, both the state and federal courts tended to be highly solicitous of an individual’s personal right to use his name in trade. Brown Chemical Co. v. Meyer, 139 U.S. 540, 11 S.Ct. 625, 35 L.Ed. 247 (1891); Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U.S. 118, 25 S.Ct. 609, 49 L.Ed. 972 (1905); Meneely v. Meneely, 62 N.Y. 427 (1875). See McCarthy, Trademarks in Unfair Competition, § 13.3 pp. 459-560 (1973 ed.). With the passage of the Federal TradeMark Act of 1905, 33 Stat. 724, and an increasing commercial reliance on marketing techniques to create name recognition and goodwill, the courts adopted a more flexible approach to the conflicting property interests
4649	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 found that even the collateral effects of a conviction on the defendant’s opportunity to secure gainful employment were not sufficient to outweigh the government’s interest in maintaining criminal records. In  the Third Circuit Court of Appeals reversed a district court decision granting expunction to the defendant who was convicted of the same offense as Petitioner in this matter and who also benefit-ted from the Presidential Pardon in Proclamation 4483. In Noonan, however, the defendant’s conviction had not been set aside as here, and the court found the governmental interest in maintaining criminal records outweighed the potential harm to the defendant. Id. at 958. Here, this Court is setting aside and vacating Petitioner’s conviction. Petitioner, however, has not established extraordinary circumstances presently exist which warrant expungement of the historical record of his conviction. Petitioner presents no evidence that the mere existence of a historical record of his vacated conviction would have any
2695	law, it would be a material disservice to public confidence in the integrity of the bankruptcy system. While we do not hold that a plan can never be used to object to a claim of a creditor who does not actually consent to such an objection, by holding that the essence of Rule 3007 must be complied with, we are holding that considerations of due process mandate great caution and require that the creditor receive specific notice (not buried in a disclosure statement or plan provision) of at least the quality of specificity, and be afforded the same opportunity to litigate one-on-one, as would be provided with a straightforward claim objection under Rule S007. See also In re Millspaugh, 302 B.R. 90, 100 at nn. 20-21 (Bankr.D.Idaho 2003) (applying Dynamic Brokers in Chapter 13 context). At oral argument both counsel suggested that the bankruptcy court in this Second Case was concerned about Ventura being permitted to ignore the First Case and still pursue its in rem remedies at some later date. That concern reverses the parties’ burdens. It was Debtors’ burden to bring an action for declaratory relief as to the amount of taxes owed, or to avoid Ventura’s lien or otherwise limit its in rem rights. We have already held that the Plan did not even purport to do this; but assuming for the sake of argument that the Plan
3109	Plan and AGAC as, respectively, a creation of and the third-party beneficiary of Art. 27, Section M of the CBA, would likely be able to assert this defense. Moreover, the complaint itself alleges that Northwest, indisputedly a party to the CBA, is the administrator of the Plan. Compl. ¶ 3. But here, the claim is that a statute divests this court of jurisdiction. Accordingly, whether the parties asserting this defense were parties to the CBA is irrelevant. Notably, numerous courts, including the Ninth Circuit, have found system boards of adjustment to have exclusive jurisdiction over suits brought against pension benefit plans, even though the plans themselves were not parties to a CBA. See see also Stephens v. Retirement Income Plan for Pilots of U.S. Air, Inc., 464 F.3d 606 (6th Cir.2006) (holding system board had exclusive jurisdiction over parts of ERISA suit brought against pension plan); Jenisio v. Ozark Airlines, Inc. Retirement Plan for Agent & Clerical Employees, 187 F.3d 970 (8th Cir.1999) (holding system board had exclusive jurisdiction over ERISA suit brought against pension plan). If pension benefit plans have standing to assert this defense, there is no reason that a disability benefit plan like the Plan here cannot. Second, Pearson repeatedly suggests that the RLA cannot “apply” to ERISA claims at all. This, however, is a matter of settled
1857	"known to have been shipped indicated ""leaks” on the folder cover. Charles 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., 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"
3587	there is an exception for the frivolous case. A frivolous case does not engage the jurisdiction of the court. Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946); Crowley Cutlery Co. v. United States, 849 F.2d 273 (7th Cir.1988). So frivolousness is an alternative jurisdictional ground for dismissal to lack of standing. Beauchamp’s case is frivolous. We can imagine that the sudden withdrawal of an addictive substance like tobacco might be employed as a form of torture by police or guards, but that is not alleged and with the Supreme Court having just held that prison officials may have a constitutional duty to protect inmates from high levels of ambient cigarette smoke,  a prison could hardly be thought to be violating the Constitution by restricting smoking in the manner illustrated by the present case or by implementing such a restriction in stages to observe its effects before it is too late to step back. So clear are these things that we have no hesitation in pronouncing this suit frivolous and thus in affirming the district court. AFFIRMED.
2427	"of electric energy subject to the jurisdiction of the Commission ... shall be just and reasonable."" § 824d(a). See also § 824e(a) (if a rate or charge is found to be unjust or unreasonable, ""the Commission shall determine the just and reasonable rate""). ""But the law places beyond FERC's power, and leaves to the States alone, the regulation of 'any other sale'-most notably, any retail sale-of electricity."" FERC v. Electric Power Supply Assn., 577 U.S. ----, ----, 136 S.Ct. 760, 766, 193 L.Ed.2d 661 (2016) (EPSA ) (quoting § 824(b) ). The States' reserved authority includes control over in-state ""facilities used for the generation of electric energy."" § 824(b)(1) ; see ). ""Since the FPA's passage, electricity has increasingly become a competitive interstate business, and FERC's role has evolved accordingly."" EPSA, 577 U.S., at ----, 136 S.Ct., at 768. Until relatively recently, most state energy markets were vertically integrated monopolies-i.e., one entity, often a state utility, controlled electricity generation, transmission, and sale to retail consumers. Over the past few decades, many States, including Maryland, have deregulated their energy markets. In deregulated markets, the organizations that deliver electricity to retail consumers-often called ""load serving entities"" (LSEs)-purchase that electricity at wholesale from independent power generators. To ensure"
3426	and sentenced Terrell at the low end of the guideline range, the court did not indicate that it would have sentenced Terrell differently had it known the guidelines were advisory. In the absence of a more definitive statement from the court, Terrell cannot meet his burden. United States v. Fields, 408 F.3d 1356 (11th Cir.2004) (holding that sentencing at the low end of the guideline range, without more, will not meet the plain error test). But see United States v. Henderson, 409 F.3d 1293 (11th Cir.2005) (vacating and remanding when district court sentenced defendant to the low end of the guidelines range and indicated that the sentence was “a little high” but that it was obligated to follow the guidelines); D. Consecutive Sentences The district court’s application of § 5G1.3 is a question of law that we review de novo. United States v. Bidwell, 393 F.3d 1206, 1208-09 (11th Cir.2004). The district court properly imposed consecutive sentences. Terrell faced two undischarged state sentences — one for the burglary that formed the basis for the federal § 922(g) offense, and one for parole revocation. As the guidelines explain, the undischarged burglary sentence would qualify as relevant conduct because it formed the basis for the instant § 922(g) offense, and, therefore, any burglary sentence should run concurrently with the § 922(g) sentence under § 5G1.3(b). See
3288	in good faith with a desire to reach agreement, in the belief that such an approach from both sides of the table promotes the overall design of reaching industrial peace_ But apart from this essential standard of conduct, Congress intended that the parties should have wide latitude in their negotiations, unrestricted by any governmental power to regulate the substantive solution of their differences. 361 U.S. at 488, 80 S.Ct. at 426. See also Bordewieck & Countryman, The Rejection of Collective Bargaining Agreements by Chapter 11 Debtors, 37 Am.Bankr.L.J. 293, 297-299 (1983). . Neither party here requested an order to arbitrate. Thus, the cases deciding whether to order post-rejection arbitration are inapplicable. See  (a non-bankruptcy case, holding the duty to arbitrate may survive contract termination when the dispute is over a contractual obligation); International Union, UAW v. Davis, (In re Muskegon Motor Specialties Company), 313 F.2d 841 (6th Cir.1963), cert. denied, 375 U.S. 832, 84 S.Ct. 51, 11 L.Ed.2d 63 (1963), (where the employer was out of business, without a plant or employees, and rights of the employees had become fixed, the Bankruptcy Court would not surrender its jurisdiction to fix claims); Bohack Corporation v. Truck Drivers Local Union No. 807, 431 F.Supp. 646 (E.D.N.Y.1977), aff’d, 567 F.2d 237 (2d Cir.1977), cert. denied, 439 U.S. 825, 99 S.Ct. 95, 58 L.Ed.2d 117 (1978), (weighing the policies for adjudication in
1533	"sale of subsidiary’s stock was sham transaction); Dorn’s Transportation, Inc. v. Teamsters Pension Trust Fund of Philadelphia, 787 F.2d 897 (3d Cir.l986)(finding that sale of motor freight business did not violate § 1392(c) where, regardless of seller’s motive, buyer continued to make payments to fund; characterizing § 1392 as embodying ""good faith” requirement). . Congress underscored the right to withdraw in § 1401(e) of the Act. This section authorizes an employer to obtain from the plan sponsor ""general information” in order ""to compute its withdrawal liability."" It also allows the employer to request ""an estimate of ... [its] withdrawal liability."" This information is available to facilitate the employer's withdrawal decision. . The level of uncertainty created by the Arbitrator's reasoning is highly problematic. Is it permissible to set a withdrawal date in a current plan year if it is only likely that a plan will experience a shortfall? How likely must it be? Who will decide? The conundrum can also be framed in terms of identifying the point in the plan year when § 1392(c) is applicable. The Arbitrator does not explain how it is possible to determine the date before which an employer must withdraw in order to avoid the application of § 1392(c). Is an employer ""safe” within the first six months of the year? Is November risky?"
3645	382, 384 (5th Cir. 2006). Rose’s claim that the district court violated his Sixth Amendment rights by denying his request for the appointment of substitute counsel is without merit. As the district court determined, Rose failed to establish grounds for replacing his counsel, Scott Miller Anderson and substituting new counsel. The court found Rose’s assertion that counsel had lied to him to be incredible, and this court will not revisit that determination. See United States v. Hoskins, 910 F.2d 309, 311 (5th Cir. 1990). The record indicates that Rose’s request was based on his disagreement with counsel’s strategy, which is insufficient to warrant the substitution of new counsel. See United States v. Fields, 483 F.3d 313, 353 (5th Cir. 2007); cf. The record further shows that Rose understood the risks of self-representation and clearly, unequivocally, and repeatedly expressed his desire to proceed pro se. See Faretta v. California, 422 U.S. 806, 815-21, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Rose does not now argue that his invocation was unknowing, involuntary, or equivocal, nor does he contend that the district court’s colloquy was inadequate. Rather, he contends that the court ought not to have allowed him to proceed pro se given his obvious lack of legal knowledge and training. However, because Rose clearly and unequivocally invoked his constitutional right to self-representation after extensive questioning, the district court had no choice but to allow him to proceed
1301	to conduct minimal due diligence on federal loans it originated, Zahara Complaint ¶¶ 144-146; improperly consolidating loans, id. ¶¶ 147-152; failing to bill borrowers in a timely manner, id. ¶¶ 153-154; improperly crediting borrowers’ payments, id. ¶¶ 155-156; and concealing defaulted loans, id. ¶¶ 157-159. The Southern District of Indiana dismissed Zahara’s complaint without prejudice after he was unable to obtain counsel by a set deadline. Entry Dismissing Action at 1, United States ex rel. Zahara v. SLM Corp., No. 1:06-cv-088 (S.D.Ind. Mar. 12, 2009), ECF No. 42. C. Procedural History The district court dismissed Batiste’s complaint with prejudice on September 24, 2010, for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The court held that under the FCA’s first-to-file rule, the Zahara Complaint barred the court’s consideration of the Batiste Complaint. The first-to-file rule provides, “When a person brings an action under [the qui tam ] 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). The district court found that the Batiste Complaint alleged the “same material elements” of fraud as the Zahara Complaint, and thus was barred by the earlier-filed complaint. Batiste, 740 F.Supp.2d at 102. The district court rejected Batiste’s argument that the Zahara case was not a “pending action” for first-to-file purposes because the Zahara Complaint did not meet heightened pleading standards
4278	an employer from communicating, in non-coercive terms, with employees during collective bargaining negotiations, Proctor & Gamble Mfg. Co., 160 N.L.R.B. 334, 340 (1966), our review of the record convinces us that Buffalo’s actions in going directly to the employees were designed to achieve contract changes shortly after agreeing to sign a negotiated contract with the Union and, hence, resulted in an unfair labor act. See NLRB v. Goodyear Aerospace Corp., 497 F.2d 747, 752 (6th Cir. 1974). As this court has stated: The National Labor Relations Act does not countenance negotiating with individual employees when they have bargaining representatives. Medo Photo Supply Corp. v. N.L.R.B., 1944, 321 U.S. 678, 683-685, 64 S.Ct. 830, d 621, 625; N.L.R.B. v. Acme Air Appliance Co., 2 Cir., 1941, 117 F.2d 417, 420. It requires that representatives designated by the majority of employees shall be the exclusive collective bargaining representatives in respect to rates of pay, wages, hours of employment or other conditions of employment. Lion Oil Co. v. NLRB, 245 F.2d 376, 378-79 (8th Cir. 1957). The Board’s findings on this issue are supported by substantial evidence on the record considered as a whole. It follows that the Board properly concluded that Buffalo violated 29 U.S.C. § 158(a)(5) and (1) by bypassing the Union and dealing directly with the employees. The petition for review is denied and the Board’s order will be enforced. . The Board’s decision and order are reported
574	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. & S. S. M. R. Co., 8 Cir., 99 F.2d 902, 916; 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
4064	"""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. . . 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) (concluding that debt was nondischargeable when a broker deprived a customer of his property by deliberately disposing of it); State Farm Fire & Cas. Co. v. Edie (In re Edie), 314 B.R. 6, 17 (Bankr.D.Utah 2004) (discussing destruction of property by fire cases under § 523(a)(6) and concluding that where the defendant intended to cause injury to property by fire, then willful and malicious intent to injure is proven under § 523(a)(6)). .Doc.31."
2271	indicates that the storage tanks or the contaminated soil posed an imminent threat to the public health. In fact PLC’s expert noted that the removéd tanks were in excellent condition and did not appear to be leaking. Although over two hundred tons of soil contaminated with gasoline and diesel were removed, nothing was presented to the court that indicated that the contamination was migrating so as to imperil adjacent properties or ground water. By contrast, in Conroy, upon inspection of the premises which the debtor abandoned, the DER found that drums and canisters of chemicals and solvents were left in a building with a leaking roof. Several of the drums had been sitting in water and were rusted on the bottom. The threat to the public from such a condition is readily apparent. Secondly, unlike Conroy, Chateaugay, Wall Tube, or even Torwico, no regulatory authority has ordered the debtor to undertake a cleanup. Instead, PLC voluntarily undertook remediation of its own property and now seeks reimbursement from the estate. It is not even readily apparent how much of the cleanup was necessary, as PLC cites to no specific statute. Moreover, arguably, the debtor performed the remediation work necessary to abate any imminent threat when it removed the leaking storage tanks in 1989. Further, it appears that the contaminated soil was not removed in 1989 because the regulations applicable at that time did not require removal. Finally, as the trustee points out, the
562	"1. . See, e.g., Talbott v. United States ex rel. Toth, 215 F.2d 22, 27-28 (D.C.Cir.1954), rev’d on other grounds sub nom. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955); In re Varney, 141 F.Supp. 190, 200 (S.D.Cal.1956); United States v. Kinsella, 137 F.Supp. 806, 811 (S.D.W.Va.1956), rev'd on other grounds sub nom. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); In re Di Bartolo, 50 F.Supp. 929, 933 (S.D.N.Y.1943); United States v. Burney, 21 C.M.R. 98, 125 (C.M.A.1956); United States v. Robertson, 19 C.M.R. 102, 110-11 n. 2, 1955 WL 3407 (C.M.A.1955); .A.1957); see also Note, Criminal Jurisdiction over American Armed Forces Abroad, 70 Harv. L.Rev. 1043, 1057 (1957) (noting that if the Supreme Court were to rule that civilians accompanying the military overseas could not be tried in courts martial, host countries would have exclusive jurisdiction over crimes committed by any such civilians). . See also Singleton, 361 U.S. at 246, 80 S.Ct. 297 (""[Pjrosecution in the United States for the more serious offenses when authorized by the Congress, might well be the answer to the disciplinary problem.” (emphasis added)); id. at 259, 80 S.Ct. 297 (Harlan, J., dissenting in Singleton) (opining that the Court's decisions in Singleton and companion cases ""may result in our having to relinquish to other nations"
2714	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, 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 issue” means more than the presentation of a new legal theory of recovery. Rosen v. Dick, 639 F.2d 82 (2d Cir.1980); Bulk Oil (USA) Inc. v. Sun Oil Trading Co., 584 F.Supp. 36, 43 (S.D.N.Y. 1983). New issues sufficient to revive the right to a jury trial are not raised if the amended pleadings concern the same “general area of dispute” as was raised in the original pleadings. Lanza v. Drexel, 479 F.2d at
2825	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. 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
3962	to return to work; (3) Navistar did not follow its appeal process regarding her termination; and (4) Navistar, after it terminated Kariotis, ignored her doctor’s opinion that she did not commit disability fraud. In the Court’s opinion, the four reasons offered by Kariotis are insufficient to raise the inference that Navistar’s legitimate, non-diseriminatory reason — disability fraud — for firing her is a lie. It is critical to note that at this stage of the analysis, the Court is not concerned with whether the employer’s decision was wise, logical, prudent, ill-informed, ill-considered, or accurate. Indeed, the Court’s only concern is whether the decision was honest, i.e., whether the employer believed the proffered reason for the decision. See Bruno v. City of Crown Point, Ind., 950 F.2d 355, 364 (7th Cir.1991), cert. denied, 505 U.S. 1207, 112 S.Ct. 2998, 120 L.Ed.2d 874 (1992). The four reasons proffered by Kariotis in support of her position that Navistar lied arguably create issues of fact as to whether Navistar’s employment decision was prudent, ill-informed, and accurate, but the Court does not believe that they are enough to call into question the honesty of the decision. The first two reasons — Navistar’s failure to show the videotape to her doctor and failure to have her examined by a company doctor — question whether Navistar acted carelessly or made the most informed decision. But, in Navistar’s opinion, the videotape spoke for itself. Thus,
23	"for the Convention also authorizes district courts to order parties to proceed with a Convention arbitration even outside the United States. Sedeo, 767 F.2d at 1146 (footnotes omitted). . Monda Marine apparently concedes this point: it fails to address this issue in its opposition memorandum. Instead, it focuses on other issues in the event that the Court finds a valid arbitration clause. . For a sampling of cases outside this Circuit, see Century Indem. Co. v. Certain Underwriters at Lloyd’s, London, 584 F.3d 513, 554 (3d Cir.2009) (""But service-of-suit clauses do not negate accompanying arbitration clauses; indeed, they may complement arbitration clauses by establishing a judicial forum in which a party may enforce arbitration.''); Sec. Life Ins. Co. v. Hannover Life Reassurance Co., 167 F.Supp.2d 1086, 1088 (D.Minn.2001) (""It is well-established that such service of suit clauses do not abridge an agreement to arbitrate all disputes arising out of a relationship.”). . Again, the Court points out that the Convention incorporates the FAA and is considered broader in scope. See Sedeo, 767 F.2d at 1146; supra note 4. . The Court notes that Magistrate Judge Roby has not yet ruled on whether Monda Marine can file its supplemental third-party complaint,"
1506	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 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 F.2d at 389-390. See also Wynn v. United States, supra note 8, 130 U.S.App.D.C. at 62, 397 F.2d at 623; Williams v. United States, 117 U.S.App.D.C. 206, 207, 328 F.2d 178, 179 (1963); 3 J. Wigmore, Evidence § 951 at 509 (3rd ed. 1940); C. McCormick, Evidence § 40 at 85 (1954). . United States v. Provoo, 215 F.2d 531, 534 (2d Cir. 1954). See also the cases
314	"Whether the plaintiffs had a morally defensible reason for rescinding is simply not for this Court to decide. . Sanibel has not argued on summary judgment that the Hersey and Priolet revocation letters were ineffective for failure to mention the property report requirement. Defendant not having challenged the validity of the Hersey/Priolet letters on that basis, the Court will not explore sua sponte whether a revocation notice under the ILSFDA must include any particular talismanic words or phrases in order to be effective. . See also Stein v. Paradigm Mirsol, LLC, 551 F.Supp.2d 1323, 1327 (M.D.Fla.2008) (""The ILSFDA is an anü-fraud statute that uses disclosure as its primary tool to protect purchasers from unscrupulous sales of undeveloped home sites.”); Aboujaoude v. Poinciana Development Co. II, 509 F.Supp.2d 1266, 1269 (S.D.Fla.2007) (legislative intent in enacting ILSFDA was to protect purchasers from unscrupulous, out-of-state sales of land purportedly suitable for development but actually underwater or only fit for grazing). . Although the statutory language is phrased in terms of ""lots,"" it is well-established that the Act’s requirements encompass condominium sales such as those herein. See Winter, 777 F.2d at 1449 (holding that the ILSFDA is applicable to the sale of condominiums); Stein, 551 F.Supp.2d at 1327 (""Selling a condominium unit falls within the definition of selling a lot within the meaning of the ILSF-DA.""); Schatz,"
2837	customary rate for scows of this description, since the statute is manifestly intended to be comprehensive of all vessels engaged in transporting freight or passengers. There is no force in the suggestion that there is no general maritime lien against a domestic vessel for wharfage. The converge is held, upon sound reasoning, in The Allianca, 56 Fed. 609; The Advance, 60 Fed. 766; The Kate Tremaine, 5 Ben. 60, Fed. Cas. No. 7,622; and Woodruff v. One Covered Scow, 30 Fed. 269; and we find nothing to Weaken the authority of those cases in the circumstance that in Ex parte Easton, 95 U. S. 68, the supreme court declined to pass upon a question not before it. Nor do we consider that The decree of the district court is affirmed, but, since both sides appealed, without interest or costs.
3286	under federal law. In the present case, unfair labor practice charges were indeed filed by both the union and the employer, were litigated according to the procedures of the National Labor Relations Act, and were ultimately dismissed by Administrative Law Judge Norman Zankel, applying NLRB v. Bildisco and Bildisco, 465 U.S. 513, 104 S.Ct. 1188, 79 L.Ed.2d 482 (1984). U.S. Truck Company, Inc., Case Nos. 7-CA-21936, 7-CA-22018, ALJ Decision (April 2, 1985), (Def. exh. T., items 1, 2, 13). The unfair labor practice charges are not before this Court. Labor Management Relations Act § 301 does not authorize suit in the federal courts for interference with rights guaranteed by National Labor Relations Act § 8. E.g.,  cert. denied, 340 U.S. 827, 71 S.Ct. 64, 95 L.Ed. 608 (1950). The present proceeding concerns only the rights and remedies attending a breach of contract under 29 U.S.C. § 185, as applied through the bankruptcy claims procedure of 11 U.S.C. § 502. U.S. Truck argues that after a collective bargaining agreement expires and the parties bargain to impasse, the employer may unilaterally implement certain proposals without committing an unfair labor practice. This argument is relevant only to unfair labor practice claims under 29 U.S.C. § 158, not to contract claims under 29 U.S.C. § 185 and 11 U.S.C. § 502. . Apparently, a subsequent agreement to waive the claim was disapproved by the union, see Matter of U.S. Truck Co.,
450	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. Burnet v. Clark, 287 U. S. 410; Burnet v. Commonwealth Improvement Co., 287 U. S. 415; New Colonial Ice Co. v. Helvering, 292 U. S. 435. Petitioner quotes Moline Properties, Inc. v. Commissioner, 319 U. S. 436, in which it is said: * * * In general, in matters relating to the revenue, the corporate form may be disregarded where it is a sham or unreal. In such situations the form is a bald and mischievous fiction. Looking to the record, it is to us abundantly clear that the corporation should not be characterized a sham or unreal, nor should it be described as a bald and mischievous fiction. The corporation was formed in 1926 for the purpose of acquiring title to
3824	not conduct counter surveillance during the unloading of the large shipments of cocaine, the district court rejected Balleza’s self-serving affidavit by rejecting his related objection to the PSR, and the district court was entitled to reject Balleza’s self-serving denials based upon the information contained in the PSR. See United States v. Bates, No. 95-50111, 1995 WL 581888 at *8 (5th Cir. Sept.21, 1995) (unpublished); see also 5th Cir. R. 47.5.3 (unpublished opinions issued prior to January 1, 1996, are precedential). Given Balleza’s extensive involvement in the drug conspiracy, the district court’s determination that Balleza was not a minor participant in the offense was not implausible in light of the record as a whole, and, therefore, was not clearly erroneous. See The district court partially granted Balleza’s objection to his criminal history category, ruling that Balleza should be considered to have a criminal history category of one and a half and sentencing Balleza to a sentence within the guidelines sentence range applicable if Balleza’s criminal history category were I. Nevertheless, Balleza argues that the district court erred because it did not fully grant his objection to his criminal history category. He maintains that both of his prior convictions were relevant conduct to the present offense and should not have resulted in any criminal history points, placing him in criminal history category I. He maintains that the district court’s refusal to fully grant his objection harmed him because, even though the district
1142	55 S.Ct. 310, 79 L.Ed. 440; Shanferoke Coal & Supply Corporation of Delaware v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583; Lummus Co. v. Commonwealth Oil Refining Co., 2 Cir., 297 F.2d 80; Chronicle Publishing Co. v. National Broadcasting Co., 9 Cir., 294 F.2d 744; Ferguson v. Tabah, 2 Cir., 288 F.2d 665; Glen Oaks Utilities, Inc. v. City of Houston, 5 Cir., 280 F.2d 330; Arny v. Philadelphia Transportation Co., 3 Cir., 266 F.2d 869; Thibodaux v. Louisiana Power & Light Co., 5 Cir., 255 F.2d 774, reversed, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058; United Gas Pipeline Co. v. Tyler Gas Service Co., 5 Cir., 247 F.2d 681; Council of Western Electric Technical Employees-National v. Western Electric Co., 2 Cir., 238 F.2d 892. . Council of Western Electric Technical Employees-National v. Western Electric Co., 238 F.2d 892 at 894.
1516	(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 The Fund argues that the magistrate judge erred in failing to adopt the arbitrator’s finding that § 1392(c) “ha[s] a straightforward reading” requiring that the date of withdrawal specified in the collective bargaining agreement made between the plaintiff and the unions be set aside. The court reexamined the arbitrator’s decision and finds that his references to the plain meaning of § 1392(c) are (1) conclusory; (2) unsupported by citation to authority of any kind; and (3) inconsistent with the arbitrator’s prior interpretation of the section. The first two observations were reflected in the Report and Recommendation. Report and Recommendation at 6-7. The court, therefore, focuses here on the third observation. In determining whether the magistrate judge erred in failing to invoke a
4450	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., 617 F.2d 396 (5th Cir.1980); Austracan, (U.S.A.) Inc. v. M/V LEMONCORE, 500 F.2d 237 (5th Cir.1974); The Maria, supra. Cases in which the appellate courts have held jurisdiction proper for the appeal although the facts differed from those of the original justification for the appeal include Dunham v. M/V Marine Chemist, 812 F.2d 212, 214 n. 2 (5th Cir.1987); Nichols v. Barwick, 792 F.2d 1520 (11th Cir.1986); O'Donnell v. Latham, 525 F.2d 650 (5th Cir.1976); Doyle v. Bethlehem Steel Corp., 504 F.2d 911 (5th Cir.1974); Bergeron v. Elliot, 466 F.2d 514, 516 n. 3 (5th Cir.1972); Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d 1198 (2d Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 452, 30 L.Ed.2d 369 (1971). As the careful eye will note, some circuits appear in both lists (neither of which is exhaustive), and these circuits have addressed this matter and developed fairly detailed rules to explain the dis tinctions between the various procedural postures presented and the applicability of § 1292(a)(3) to
446	to recuse himself under 28 U.S.C. § 455(b)(5)(ii), and she raises several procedural issues related to alleged incorrect docket entries and delayed service of documents. The district court did not abuse its discretion' in denying Castillo’s motions for default judgment. Default judgment was not warranted: the School Board and Superintendent timely filed a motion to dismiss Castillo’s amended complaint, which stayed the deadline for them to file a responsive pleading. See Fed.R.Civ.P. 12(a)(4)(A). The district court did not err in dismissing Castillo’s amended complaint that asserted the educational rights of a disabled child: she — never asserting futility or inadequacy — failed to exhaust her administrative remedies under the IDEA before bringing her suit. See 20 U.S.C. §1415(1); We decline to consider Castillo’s assertion (without specifics) that the district court judge acted improperly and the allegations on docket entry errors and delayed service: she raised these arguments for the first time on appeal. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir.2004). AFFIRMED. Castillo identifies 13 issues in her statement of the issues, several of which address or restate the same fundamental concepts. We address those issues into four broad issues.
1422	(1976). 3. This court should dismiss or stay this action under the federal doctrine of abstention. Each of these questions must be addressed separately to determine whether this action is to go forward. FAILURE TO STATE A CLAIM Defendants assert that the relief sought by plaintiff may not be granted. Defendants primarily base this contention upon the immunities granted the states under the Eleventh Amendment. The Eleventh Amendment provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. As stated by the United States Supreme Court in zens as well as by citizens of another State. The rule that has evolved is that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment. Id. at 665, 94 S.Ct. 1347. The Court has reiterated the propriety of this rule most recently in Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Here the Court
3184	resources to those issues they believe have the best potential to avoid a conviction or sentence of death. Counsel could certainly have made a reasonable strategic decision to direct their efforts toward an issue other than a claim that had not yet been expressly recognized by the Louisiana or federal courts and that could be cured by the simple issuance of an easily obtained new indictment from a different grand jury. This claim also fails on the prejudice prong of Strickland. Although prejudice need not be shown to prevail on a claim that an indictment is tainted by racial prejudice in the selection of the grand jury, that does not relieve the Petitioner from proving prejudice on a related Strickland claim. The failure to file a motion to quash the indictment (issued on a finding of probable cause) does not undermine confidence in the outcome of the trial (where a legally chosen petit jury found proof of guilt beyond a reasonable doubt). The evidence of guilt in this case was overwhelming. Prejudice, therefore, is not present on this Strickland claim. See Pickney (rejecting similar Strickland claim for lack of prejudice). The Remedy A federal habeas judge who determines that relief is warranted ordinarily does not order the immediate release of a prisoner. Instead, he grants a conditional release order which provides for release of the petitioner after a reasonable time unless the State either retries the petitioner or otherwise corrects the
4514	"""limited” personal jurisdiction to refer to ""specific” personal jurisdiction. . If a district court does hold an evidentiary hearing on the personal jurisdiction issue, the plaintiff must show by a preponderance of the evidence that jurisdiction exists. Welsh, 631 F.2d at 439. . Although not issues of joint venture, the courts have addressed related issues of whether controlling interests or ownership of shares constitutes purposeful availment. The Sixth Circuit has held that controlling interests do not constitute purposeful availment. See Dean, 134 F.3d at 1273-4 (""a company does not purposefully avail itself merely by owning all or some of a corporation subject to jurisdiction.”). The United States Supreme Court has held that ownership of shares does not constitute purposeful availment. See Therefore, it is unlikely that a joint venture, standing alone, is sufficient to demonstrate purposeful availment. . The Court is unable to glean from the pleadings before it the precise nature of the corporate relationship existing between DNN Galvanizing Corporation and DNN Limited Partnership. However, the Court notes that in a July 17, 1998 Order from Magistrate Judge Komives permitting plaintiffs to file a third amended complaint, Judge Komives states that DNN Galvanizing Corporation is the general partner of DNN Galvanizing Limited Partnership. (Df. National Steel’s Mot. to Strike Ex. A). . Plaintiffs allege that ""DNN specifically contacted Michigan-based TMH to order transportation of the steel —"
233	interest in the real estate owned of record by the corporation and that his acquittal in the criminal action bars the instant action. This Motion and the libellant’s objections thereto are presently before the court. Under F.R.Civ.P. 15(a), 28 U.S.C.A., this pleading can be amended only by leave of court. Such leave should be freely given when justice so requires. This rule has been given a liberal interpretation by the courts in cases where no prejudice results to the non-moving party. However, if a proposed amendment seeks to add a defense which is obviously insufficient for the purpose for which it is offered, so that the amendment will be a useless act, the court will not grant such an amendment. See The Government’s position is that the “identity of interest” defense in the proposed amended answer is a departure from the original defense filed and that it will be prejudiced if it has to go to trial with the new issue in 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
3231	Inc., 443 F.Supp. 396 (N.D.Ca.1978); and United Steelworkers Local 1617 v. G.F. Business Equipment, Inc., 105 L.R.R.M. 2762 (BNA) (N.D.Ohio 1978), aff'd, 620 F.2d 303 (6th Cir.1980). The Court concludes that these cases are inapposite because they concern claims for breach of expressly modified provisions arising from the employer’s post-modification conduct. Most of these cases decide whether the modification itself was a breach of the duty of fair representation, or an unfair labor practice, or a breach of contract. They do not apply to a claim for contract breach which accrued before a modification or a new agreement. More applicable are the cases which apply the common law doctrine of accord and satisfaction in the labor setting. See, e.g., Communication Equipment Workers, Inc. v. Western Electric Company, Inc., 328 F.Supp. 240 (D.Md.1971). Under these circumstances, it is clear that it is federal substantive law which controls resolution of the contractual dispute. [Textile Workers Union of America v.] Lincoln Mills, 353 U.S. [448] at 456-57, 77 S.Ct. [912] at 917-18 [1 L.Ed.2d 972 (1957)]. In the absence of controlling federal law principles, however, we may look for guidance to general common law principles, including the substantive law of the state in which the contract arose. These borrowed principles in this context, of course, are “absorbed as federal law” and become the federal common law of labor disputes. See id. at 457, 77 S.Ct. at 918. The principles of accord and satisfaction
3083	does not constitute a disability); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir.1996). Other courts have held that even lesser amounts were not substantial limitations. See Marinelli v. City of Erie, Pa., 216 F.3d 354, 364 (3rd Cir.2000) (10 pounds); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 644 (2nd Cir.1998) (10-20 pounds); Helfter v. United Parcel Service, Inc., 115 F.3d 613, 617-18 (8th Cir.1997) (10-20 pounds); McKay v. Toyota Motor Mfg., US.A., Inc., 110 F.3d 369, 373 (6th Cir.1997) (20 pounds); Wooten v. Farmland Foods, 58 F.3d 382, 384-86 (8th Cir.1995) (10-20 pounds); Piascyk v. City of New Haven, 64 F.Supp.2d 19, 29-31 (D.Conn.1999) (15 pounds), aff'd 216 F.3d 1072 (2nd Cir.2000) (Table case); d 634 (8th Cir.1997). Recognizing that a lifting restriction alone would not suffice, Plaintiff has offered Figueroa’s declaration, which the Court finds contains only bald assertions and conclusory statements, and fails to meet Plaintiffs specific burden of production in ADA “working” cases. The first obstacle that the Figueroa declaration faces is it conclusion: that Plaintiff is “virtually unemployable” in the manual labor field. This conclusion is made with casual disregard for statements by Plaintiff that she performed her employment at Hilton as a Control Guard without regard to her condition (Docket # 37, Ex. 4 at p. 24), and that Plaintiff admitted she could perform, despite her physical disability, the cleaning activities associated with
2646	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); 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 have been the object of state discrimination, to develop and use a system that will result in a fair cross section of qualified persons in the community being placed on the jury rolls and to follow a procedure which will not operate to discriminate in the selection of jurors on racial grounds. Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34, 57, 73 (concurring opinion) ; Brooks v. Beto,
561	"Government the jurisdiction it was recognized as having until the Dravo decision was handed down.” H.R. Rep. No 76-1623, at 1; accord S. Rep. No. 76-1708, at 1. . See, e.g., Talbott v. United States ex rel. Toth, 215 F.2d 22, 27-28 (D.C.Cir.1954), rev’d on other grounds sub nom. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955); In re Varney, 141 F.Supp. 190, 200 (S.D.Cal.1956); United States v. Kinsella, 137 F.Supp. 806, 811 (S.D.W.Va.1956), rev'd on other grounds sub nom. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); In re Di Bartolo, 50 F.Supp. 929, 933 (S.D.N.Y.1943); United States v. Burney, 21 C.M.R. 98, 125 (C.M.A.1956); .A.1955); United States v. Rubenstein, 19 C.M.R. 709, 785-88, 1955 WL 3505 (U.S.A.F. Bd. of Review 1955), aff'd, 22 C.M.R. 313, 1957 WL 4632 (C.M.A.1957); see also Note, Criminal Jurisdiction over American Armed Forces Abroad, 70 Harv. L.Rev. 1043, 1057 (1957) (noting that if the Supreme Court were to rule that civilians accompanying the military overseas could not be tried in courts martial, host countries would have exclusive jurisdiction over crimes committed by any such civilians). . See also Singleton, 361 U.S. at 246, 80 S.Ct. 297 (""[Pjrosecution in the United States for the more serious offenses when authorized by the Congress, might well be the answer to the disciplinary problem.” (emphasis added)); id. at 259, 80"
1079	the invalidation of the law”); 530 U.S. at 1009, 120 S.Ct. 2597 (Thomas, J., dissenting) (interpreting the standard to mean “unless a State can conclusively establish that an abortion procedure is no safer than other procedures, the State cannot regulate that procedure without including a health exception”). Thus, the Government’s interest-based, medically based, and institutional competency arguments all fail to meaningfully distinguish the evidentiary circumstances present here from those that Stenberg held required a health exception to a ban on partial-birth abortion. The lack of a health exception also renders this Act unconstitutional. See, e.g., Planned Parenthood, 320 F.Supp.2d at 1033-34; Planned Parenthood v. Owens, 287 F.3d 910, 917-18 (10th Cir.2002); Hope Clinic v. Ryan, 249 F.3d 603, 604 (7th Cir.2001); Causeway Med. Suite v. Foster, 221 F.3d 811, 812 (5th Cir.2000); Planned Parenthood v. Farmer, 220 F.3d 127, 152 (3d Cir.2000) (Alito, J., concurring); Richmond Med. Ctr. for Women v. Gilmore, 219 F.3d 376, 377 (4th Cir.2000). IV. CONCLUSION While Congress and lower courts may disagree with the Supreme Court’s constitutional decisions, that does not free them from their constitutional duty to obey the Supreme Court’s rulings. As Judge J. Michael Luttig of the Court of Appeals for the Fourth Circuit stated in a concurring opinion soon after the Supreme Court decided Stenberg: As a court of law, ours is neither to devise ways in which to circumvent the opinions of the Supreme Court nor to indulge delay in the
3843	PER CURIAM: The Federal Public Defender appointed to represent Luis Tinoco Gonzalez (Tinoco) has moved for leave to withdraw and has filed a brief in accordance with Tinoco has not filed a response. Our independent review of the record and counsel’s brief discloses no non-frivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. 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.
1	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. 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.
923	refund of an overpayment of any tax imposed by this title ... shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such periods expires the later— 26 U.S.C. § 6511(a). Thus, the plain language of § 6511(a) states that the two-year limitations period, on which the taxpayer bases his claim, begins at the time the tax is “paid.” A remittance or amount collected is recognized as a “payment” to the IRS when it discharges a definite obligation. See McFarland v. United States, 490 F.Supp. 238, 242 (N.D.Ga.1980) (levy to satisfy an assessment is a “payment” for purposes of § 6511(a)). Cf. Schmidt v. Commissioner of Internal Revenue, 272 F.2d 423, 429 (9th Cir.1959) (remittances of estimated taxes do not trigger the statute of limitations; the period begins to run only with the filing of the return, through which the final tax liability is ascertainable). The monies remitted to the IRS as a result of the levies on the taxpayer’s wages and bank account were amounts collected to
235	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  which held that an acquittal on a substantive charge barred a libel in forfeiture. Although this case has been carefully distinguished by the Supreme Court in deciding later cases which present the same type of problem (although do not involve the same statutes), the case has never been expressly overruled. However, in the case at bar, it is unnecessary to determine if this forfeiture proceeding is one to which the “criminal” label should be applied because this amendment would not present a valid defense, even though the nature of these proceedings may be designated as criminal in nature. The doctrines of res judicata and collateral estoppel are available only if the same parties are involved in
199	"in the forum, a state may assert personal jurisdiction over a non-resident defendant through “Specific jurisdiction”. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), and Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). . See Hanson v. Denckla, 357 U.S. 235, 237-255, 78 S.Ct. 1228, 1229-1240, 2 L.Ed.2d 1283 (1958). Defendants maintain that their only contact with Puerto Rico is the location of the plaintiff, and that in itself is insufficient contacts for the plaintiff to maintain this action in Puerto Rico, (docket 9, p. 5) . See Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 915 F.2d 7, 11 (1st Cir.1990). . See Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927). . Rule 4.7 of the Civil Rules of the Commonwealth of Puerto Rico prays as follows: ""(a) when the person to be served is not within Puerto Rico the general court of justice of Puerto Rico shall have personal jurisdiction over said non-resident as if he were a resident of the Commonwealth of Puerto Rico, if the action or claim arises as a result of the following: (1) such person or his agent carries out business transactions within Puerto Rico; or (2) executes by himself or through his agents, tortious acts within Puerto Rico; or (3) ... (4) ... (5) ..."" . Furthermore,"
894	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 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).
383	"L.Ed.2d 655 (1996); Horsley v. State of Alabama, 45 F.3d 1486 (11th Cir.), cert. denied, 516 U.S. 960, 116 S.Ct. 410, 133 L.Ed.2d 328 (1995); Smith v. Dixon, 14 F.3d 956 (4th Cir.) (en banc), cert. denied, 513 U.S. 841, 115 S.Ct. 129, 130 L.Ed.2d 72 (1994). . Hogue, 131 F.3d at 499. Texas courts have also stated ""[i]t is clear that for direct review constitutional error, the state applies Chapman."" It appears that even state courts broadly assume that Chapman need not apply to collateral review of constitutional errors. Ex Parte Fierro, 934 S.W.2d 370, 372 (Tex.Crim.App.1996). . Brecht, 507 U.S. at 635, 113 S.Ct. at 1720. . Brecht, 507 U.S. at 636, 113 S.Ct. at 1721. . DENNIS, Circuit Judge, specially concurring:. Although I recognize that this panel is bound by this court’s prior decision in Hogue v. Johnson, 131 F.3d 466 (5th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1297, 140 L.Ed.2d 334 (1998), I write specially to express my belief that the Supreme Court’s holding in Chapman v. California requires that when state courts on direct review have disregarded their constitutional duty to apply the rigorous ' “beyond-a-reasonable-doubt” standard to constitutional error, federal courts on collateral review must apply the Chapman harmless-error standard as part of their obligation to vindicate federal constitutional rights and to protect criminal defendants from unconstitutional convictions and sentences. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828,"
1194	been considered correctly. Judge McLaughlin rejected Rondon-Urena’s request for a downward departure based on fast-track disparities, however. App. 25. Ultimately, the District Court sentenced Rondon-Urena to 36 months’ incarceration, a sentence below the applicable guidelines range of 41-51 months. II. Understanding Rondon-Urena’s argument requires an understanding of fast-track programs. Fast-tracking of immigration cases began in districts along the U.S.-Mexico border in response to massive caseloads that threatened to overwhelm U.S. Attorneys’ offices. United States v. Martinez-Martinez, 442 F.3d 539, 542 (7th Cir.2006). To better manage the flood of cases, federal prosecutors offered shorter sentences to defendants in certain immigration cases, in exchange for defendants’ expeditious guilty pleas and waivers of appellate and other rights in 8 U.S.C. § 1326 cases. Prosecutors have used two means to offer shorter sentences and thereby encourage defendants to plead guilty: charge-bargaining, and agreeing to recommend downward departures at sentencing. Id. Congress formally authorized fast-track programs as part of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (“PROTECT Act”), Pub.L. No. 108-21,117 Stat. 650, 675 (2003). In the PROTECT Act, Congress instructed the United States Sentencing Commission to promulgate “a policy statement authorizing a downward departure of not more than 4 levels if the Government files a motion for such departure pursuant to an early disposition program authorized by the Attorney General and the United States Attorney.” § 401(m). Accordingly, the Sentencing Commission added a new section
4865	ORDER Sehyun Eom traveled to Wisconsin from Illinois intending to have sex with a 14-year-old girl he met in an Internet chat room. The girl turned out to be an undercover police officer, and Eom, then 32 years old, was arrested. He pleaded guilty to traveling in interstate commerce to engage in sexual conduct with a minor. See 18 U.S.C. § 2423(b). The district court sentenced him to 51 months’ imprisonment, at the bottom of the guidelines range. Eom appeals, but his appointed lawyer has moved to withdraw because he cannot identify a nonfrivolous argument to pursue. See Eom has not responded to our invitation to comment on counsel’s submission, see CIR. R. 51(b), and we confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel begins by telling us that Eom has said he wants only to challenge his prison sentence and does not wish to have his guilty plea set aside. Thus, counsel should have omitted any discussion of possible challenges to the voluntariness of Eom’s plea or the adequacy of the plea colloquy. See United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009); United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel has
4561	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 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 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,
4153	to remand the case or to reverse Secretary’s decision outright, ordering that Paige receive his benefits. 1. Error at Step 4 Council plainly erred in deciding Paige could return to his past relevant work as a “security guard.” It initially found Paige retained the capacity for light work, then determined the “security guard” job was in that category (R. 13). To reach the latter result, Council referred to the description of a security guard’s duties in the Department of Labor’s Dictionary of Occupational Titles (“DOT”), which then defines that job as “light” work (DOT § 372.667-034). Council joined its two findings to conclude Paige could return to his work as a security guard. That flawed analysis totally ignores the teaching of at 509). It is not sufficient to pigeonhole a claimant’s past work as “light” and then conclude he or she retains the capacity for work falling in that classification. Strittmatter’s statement (id.) that “sedentary work is not homogeneous with respect to strenuousness” is equally applicable to light work. To quote Strittmatter once more, adapted to the present context (id.): [Council] was required to determine the physical demands of the particular type of [light] work that this claimant had done and then compare those demands to [his] present capabilities. Council failed to perform the necessary individually-tailored analysis. Secretary attempts to defend Council’s action by pointing
2416	stay the discharge pending completion of the military’s administrative processes. More importantly, it found that plaintiff had fulfilled all of the conditions traditionally required for the .granting of such a stay: (1) A likelihood that petitioner will prevail on the merits of the appeal; (2) Irreparable injury to the petitioner unless the stay is granted; (3) No substantial harm to other interested persons; and (4) No harm to the public interest. [Id. at 252] Under the circumstances of that case, the court concluded that it was appropriate to stay the upcoming discharge pending a final determination by the ABCMR. Accord, Sohm v. Fowler, 124 U.S.App.D.C. 382, 365 F.2d 915 (D.C.Cir. 1966); Nelson v. Miller, 373 F.2d 474 (3rd Cir. 1966) ; We find the principles set forth in Covington and similar cases to be sound and properly applicable to this case. Our sole remaining task is to determine whether, under the facts of this case, a stay is properly granted. III. Likelihood of Success on the Merits In his petition for relief in this ease, petitioner alleges the following errors by the Army Physical Evaluation Board: a. That the Board failed to find that petitioner was unfit for military duty under the provisions of Army Regulation 40-501. b. That the Board failed to consider the petitioner’s evidence concerning his ability to perform duty with the United States Army. c. That the
567	was consistent with Larsen’s conduct in the underlying offense. An enhancement for obstruction of justice under § 3C1.1 would not have been clearly erroneous and therefore the district court’s refusal to adjust the base level offense downward for acceptance of responsibility was proper. For these reasons, the judgment of the district court is Affirmed. . The Commentary to the Guidelines, which includes the application notes, is to be treated as the legal equivalent of a policy statement. Guidelines § 1B1.7; United States v. DeCicco, 899 F.2d 1531, 1537 (7th Cir.1990); United States v. Guerrero, 894 F.2d 261, 265 n. 2 (7th Cir.1990). Because they are contemporaneous explanations of the Guidelines by their authors, these notes are entitled to substantial weight. 
3786	similar and often produce identical results, in select cases the test chosen may be outcome-determinative. Lady J., 176 F.3d at 1364-65. In Renton, 475 U.S. at 47-49, 106 S.Ct. 925, the Court employed a time, place, or manner test for a regulation that might be viewed as content-based but that targeted the undesirable secondary effects associated with adult establishments. The Renton test permits government 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  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
2249	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);  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 Defendants “abused their discretion” in not maintaining copies of particular documents in his Central File and by categorizing those documents as exempt from the Freedom of Information Act. In response, the Defendants have requested the disposition of this case for primarily two reasons. First, it is argued that the entire complaint is vexatious in nature and “falls squarely within the definition of ‘immaterial, impertinent and scandalous matter.’ ” Doe. No. 8 at 3, quoting 5 Wright and Miller, Federal Practice
3923	the evidence together with all inferences to be drawn therefrom must be considered in the light most favorable to the party opposing the motion. The mov-ant’s papers are to be closely scrutinized while those of the opponent are to be viewed indulgently. Watkins v. Northwestern Ohio Tractor Pullers Assn., 630 F.2d 1155, 1158 (6th 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, sushita 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
2445	49%, and 28.5 grams of marijuana instead of 22, an increase of 30%. Nobody noticed the mistake until appeal, but as the government now acknowledges, the miscalculation caused the court to arrive at an incorrect range of 97 to 121 months instead of the correct range of 63 to 78 months for the two drug convictions. Given the magnitude of the mistake, the government concedes that the oversight constituted plain error warranting resentencing, and we accept the concession. Although after United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the guidelines are advisory, a sentencing court still must calculate and consider the advisory range. United States v. Dean, 414 F.3d 725, 727-30 (7th Cir. 2005); And whether pre- or post-Booker, basing a sentence on a miscalculated range is an error that affects substantial rights and may constitute plain error. Baretz, 411 F.3d at 877; United States v. Hall, 212 F.3d 1016, 1022 (7th Cir.2000); United States v. Maggi, 44 F.3d 478, 484 (7th Cir.1995). Accordingly, we VACATE the sentence and REMAND for resentencing.
4391	presumption that prior to April 10, 1969, the NCTA found nothing in the report offensive to its interest in obviating racial discrimination against its members in the Beaufort County school system. “As a general rule, he who participates or acquiesces in an action has no standing in a court of equity to complain against it; one may not stand by and make no objection to a proceeding in court with the anticipation that if it results favorably the benefits will be accepted, but that if it results unfavorably objections will be made.” 31 C.J.S. Estoppel § 115a, page 602. Furthermore, a party may not complain of error which he himself induced the Court to commit by his silence or acquiescence (.R.B. v. Retail Clerks International Association, (9 Cir.), 203 F.2d 165, 169). Additionally, it is well established that even the most sacrosanct constitutional rights may be waived if such waiver is voluntarily, knowingly, and intelligently made. (D. H. Overmyer Co., Inc. of Ohio v. Frick Co., 405 U.S. 174, 185, 92 S.Ct. 775, 31 L.Ed.2d 124). Applying the aforesaid legal principles, it seems logical to me that the NCTA, having taken no steps to advise the District Court in Boomer II that the information or statistics presented in the defendant’s
1424	use and enjoyment of his property. Furthermore, it is clear that the defendant State of California has not consented to this suit. Therefore, in view of Edelman and Quern this court has no alternative but to dismiss this action as against the defendant State of California. The protection of the Eleventh Amendment, moreover, is not limited solely to actions naming a state as the defendant. A state agency, functioning as an arm, an alter ego, of the state cannot be sued in federal court because of the prohibition of such suits by this amendment. The Supreme Court has held that suits brought under 42 U.S.C. § 1983 and against local government units may be maintained in federal court. The Monell decision, however, was limited to local government units. This limitation was reaffirmed in Quern. 440 U.S. at 338, 99 S.Ct. 1139. Thus state agencies are immune from suit in federal court under the Eleventh Amendment. Accordingly, defendants California Coastal Commission and South Coast Regional Commission as state agencies come within the purview of the Eleventh Amendment and dismissal must be granted in favor of these defendants. The relationship of the Eleventh Amendment to the instant action as against the commissioners sued herein individually and as members of their respective commissions, presents a more difficult question. Under certain circumstances, suits may be maintained against state officials for monetary relief. When the effect
344	paid by another cannot be recovered. We do not think that the receiver in this instance was a volunteer. He paid the tax because of a clause in the reorganization plan which provided that the costs of reorganization should be paid out of certain funds in his hands. The parties concerned were agreed that this clause required the receiver to pay the tax, and procured an order from the Circuit Court of Baltimore' City directing him to do so. For cases bearing upon the right of a voluntary payor to recover a tax illegally exacted, see: Wourdack v. Becker, 8 Cir., 55 F.2d 840, certiorari denied, 286 U.S. 548, 52 S.Ct. 501, 76 L.Ed. 1285; Central Aguirre Sugar Co. v. United States, Ct. Cl., 2 F.Supp. 538; Ohio Locomotive Crane Co. v. Denman, 6 Cir., 73 F.2d 408; certiorari denied 294 U.S. 712, 55 S.Ct. 508, 79 L.Ed. 1246; White v. Hopkins, 5 Cir., 51 F.2d 159; Aaron v. Hopkins, 5 Cir., 63 F.2d 804. The judgment of the District Court will therefore be affirmed but without prejudice to the Government to assess and collect the tax if funds are available after the claims of the bank’s depositors have been satisfied, and if it be found that the certificates are within the purview of section 901 of title 26 U.S.C.A. “§ 901. Corporate securities “On all bonds, debentures, or certificates of indebtedness issued by any corporation, and all
2451	permit was disapproved, for the reason that the appellant had manufactured during 1929 substandard and redistillable violet toilet water, and he had diverted, during that year, denatured alcohol allotted to him, and had made false records purporting to show that it had been manufactured into a product and that this product had been sold to the Mohank Sales Company. Although appellant was advised that he might have a hearing after this denial, none was requested. In the absence of such a request, there is no provision requiring a hearing before refusing a permit. Ma-King Products Co. v. Blair, 271 U. S. 479, 46 S. Ct. 544, 70 L. Ed. 1046; Fox v. Blair, 20 F.(2d) 235 (D. C. E. D. Pa.); C. 3); Chicago Grain Products Co. v. Mellon, 14 F.(2d) 362 (C. C. A. 7). The administrator’s investigation of the conduct of the appellant’s business in 1929 revealed, by the analysis of the government chemist, that the appellant’s product—violet toilet water—contained 7.1.30 per cent, alcohol by volume, and examination showed this product to be a substandard toilet preparation which yields potable alcohol upon simple manipulation and distillation. Moreover, it was shown that the appellant sold in bulk practically its entire product to the Mohank Sales Company, except one shipment of 665 gallons, which was made to another concern. There was a discrepancy in ingredients shown. There were total sales of 14,770 gallons for the year to the Mohank Sales Company, which government
1608	false in material respects. Karp, on the other hand, in the affidavits now presented and in her grand jury testimony, has pleaded essentially her ignorance concerning those records and her reliance upon Pitkin — all with a view to establishing, as her counsel states, “the central defense * * *. that the women taxpayers did not have any guilty knowledge or criminal intent.” For the foregoing reasons, Karp says, it is essential that she be able to call Pitkin as a witness for her defense. Since she cannot do this if they are tried together, United States v. Housing Foundation of America, 176 F.2d 665 (3d Cir. 1949), or comment on his failure to testify in a joint trial,  she urges that a severance be granted. In response to the motion, the Government agrees that Karp will be unable to call Pitkin or comment on his silence if they are tried together. It opposes the motion, however, 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
3412	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. 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.
2737	this alleged violation of 42 U.S.C. § 1983 (“Section 1983”) in an amount to exceed $150,000.00. In Count VI of his Fourth Amended Complaint, Plaintiff asserts that MacTag-gart violated the Age Discrimination Act of 1975, 42 U.S.C. §§ 6101-07. Plaintiff has since indicated, however, that he wishes to withdraw this claim. (Pl.’s Resp. Def.’s Mot.Summ.J. at 10.) As a result, the Court dismisses Count VI. The sole issue remaining for the Court is whether a genuine issue of material fact exists as to the equal protection claim. III. DISCUSSION In order to state a claim under Section 1983, the plaintiff must establish that a state actor has deprived him of rights secured by federal constitutional or statutory law. See In this case, Plaintiff asserts that his Fourteenth Amendment right to equal protection has been violated. Under the Fourteenth Amendment, no State may “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV. The First Circuit has recently reiterated that courts evaluating equal protection claims must first determine whether there exists evidence of discriminatory intent. See Hayden v. Grayson, 134 F.3d 449, 452-53 (1st Cir.1998), cert. denied, — U.S. —, 118 S.Ct. 2370, 141 L.Ed.2d 738 (1998). Only once discriminatory intent has been established may the Court turn to the standard under which the action in question is to be reviewed (i.e., rational basis review, intermediate scrutiny, or strict scrutiny). See Hayden, 134
204	"Ovaltine Food Products, 274 F.Supp. 719, 722 (D.P.R.1967). . Because M.K.M. exercised the privilege of conducting activities within Puerto Rico, thus availing itself of the privileges, protection, and benefits, M.K.M. cannot refuse to escape the consequences: ""The exercise of that privilege may give rise to obligations, and so far as these obligations arise out or are connected with the activities within the State, a procedure to enforce them can, in most instances, hardly be said to be undue. Eddie Dassin, Inc. v. Darlene Knitwear, Inc., 441 F.Supp. 324, 326 (D.P.R.1977), applying International Harvester Co. of America v. Com. of Kentucky, 234 U.S. 579 [34 S.Ct. 944, 58 L.Ed. 1479] (1914) and  . The first Circuit, applying Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902 (1st Cir.1980), understood that the District Court lacked personal jurisdiction over the officers of the defendant corporation, because plaintiff failed to even allege that defendant individual officers actively participated or cooperated in the alleged action of the corporation. . See Donatelli v. National Hockey League, 893 F.2d 459, 462-465 (1st Cir.1990); United Elec. Workers v. 163 Pleasant Street Corp., 960 F.2d 1080, 1087-1089 (1st Cir.1992). . As the defendant in this action is a New Jersey corporation with its principal place of business in New Jersey, and the individual defendants Andrew and Barbara Kallen are also residents of New Jersey, there is"
1066	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  Plaintiffs, on the other hand, argue that the evidentiary standard established in Stenberg is incompatible with Turner’s deferential standard. In Turner II, the Supreme Court considered the constitutionality of the Cable Television Consumer Protection and Competition Act of 1992 (“Cable Television Act”), Pub.L. No. 102-385, 106 Stat. 1460, which required cable 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
3150	(10th Cir.1994). Second, the magistrate’s recommendation also properly determined that Appellant, whose ineligibility under the Act was never in dispute, has no constitutionally protected liberty interest in shortening his sentence through emergency time credits. Cf. Shirley v. Chestnut, 603 F.2d 805, 807 (10th Cir.1979) (finding no protected liberty interest when state statute creates possibility of parole). Thus, Appellant has no viable claim to any specific due process procedures. Lastly, the magistrate judge correctly rejected Appellant’s assertion that remaining in overcrowded prison conditions without the benefit of emergency time credits constitutes cruel and unusual punishment. Absent allegations of “deliberate indifference” by prison officials and of a “specific deprivation” of a “human need,” an Eighth Amendment claim based on prison conditions must fail. Accordingly, we AFFIRM the judgment of the district court for the reasons set forth more fully in the magistrate’s recommendation, which the district court adopted in full. The mandate shall issue forthwith. . The district court also accepted the magistrate’s recommendation to deny Appellant’s motion to proceed in forma pauperis on appeal. We now grant Appellant's renewed request to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(a). . Appellant also contends that the district court improperly denied his requests for discovery and an evidentiary hearing. Because we conclude that the district court properly dismissed Appellant’s complaint as a matter of law on summary judgment, we also conclude that the district court did
5	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); 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 U.S.C. § 1102(a); (2) being named and identified as a fiduciary pursuant to a procedure specified in the written plan instrument, 29 U.S.C. § 1102(a)(2); or (3) meeting the definition of a fiduciary contained in 29 U.S.C. § 1002(21): [A] person is a fiduciary with
124	not be liable in like circumstances. Alternatively, the Federal Defendants argue that the complaint does not establish that the United States owed McCloskey a duty of care. They cite Leidy v. Borough of Glenolden, 277 F.Supp.2d 547, 569-70 (E.D.Pa.2003), in support of the proposition that there is no general duty to protect victims of crimes. For their part, the Plaintiffs assert that, in the context of a motion to dismiss, it is not proper for this court to determine whether a purely “discretionary act” is involved here. They assert that further discovery is needed to determine whether, in disconnecting Sampson’s call and failing to inform his supervisors of the call, Anderson violated any applicable policy, rule, or regulation. Relying on Mulloy v. United States, 884 F.Supp. 622, 631-32 (D.Mass.1995); and Williams v. United States, 450 F.Supp. 1040 (D.S.D.1978), the Plaintiffs also argue that 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
2959	been devastating, since petitioner therein changed his story to name George Easter instead of Otha Howard as the actual murderer. Petitioner claims that his attorneys did not ask for a jury instruction commenting on petitioner’s right not to testify. However, this is a matter of trial tactics, as an attorney may not want to call the jury’s attention to a defendant’s failure to testify. Trial tactics are beyond this court’s review. Tompa, supra; Franklin, supra. Petitioner next states that Simpson and Tisinger failed to generally show concern for petitioner. This court finds the claim to be devoid of merit. A lawyer is undér no duty to fabricate defenses, but only has the task of investigation to determine whether valid defenses exist. A review of the 1972 trial transcript shows that Simpson and Tisinger should be commended for their energetic and intelligent efforts rather than chastised for indifference and incompetence. Petitioner’s attorneys contested the state prosecutors at every turn, beginning with a motion for a change of venue and continuing up through the final appeal to the Virginia Supreme Court. Petitioner argues that at the hearing on the motion for a change of venue, his attorneys failed to present all the evidence that was available on the pretrial publicity. Petitioner complains that an article in a national magazine was not offered into evidence to convince the Frederick County Circuit Court to
806	955, 92 S.Ct. 1173, 31 L.Ed.2d 232; U.S. v. Devlin, 284 F.Supp. 477 (1968). Plaintiff, a disgruntled and pertinacious litigant, seeks a review of the Court’s Opinion and Order filed on July 10, 1984. The foregoing is apparent from plaintiff’s affidavit closing remarks, to wit: “... so the District Court erred in his [sic] remarks against plaintiff in 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. 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
8	the plan assets within the meaning of § 1002(21)(A)(i). In this circuit, “a fiduciary is a person who exercises any power of control, management or disposition with respect to monies or other property of an employee benefit fund, or has the authority or responsibility to do so.” Farm King Supply v. Edward D. Jones & Co., 884 F.2d 288, 292 (7th Cir.1989), citing Forys v. United Food & Commercial Worker’s International Union, 829 F.2d 603, 607 (7th Cir.1987). Under this definition, a showing of authority or control requires “actual decision-making power” rather than the type of influence that a professional advisor may have with respect to decisions to be made by the trustees or fiduciaries that it advises. Id.; Professionals who do no more than provide advice to plan trustees are not fiduciaries. Pappas, 923 F.2d at 535; Laborers’ Pension Fund v. Arnold, 2001 WL 197634, at *3-5 (N.D.Ill. Feb.27, 2001). Here, Houlihan was the financial advisor to U.S. Trust, which for purposes of this motion was the ESOP trustee for purposes of the December 1995 stock purchase transaction. Houlihan was not hired by the ESOP plan to manage the plan assets or make investment decisions. It was U.S. Trust, not Houlihan, that made the final decision and caused the ESOP to purchase the shares of stock. There is no evidence in the record indicating that U.S. Trust was simply a puppet acting out Houlihan’s directives in doing so.
2106	(Vol. 2) 931,935; S. Rept. 94-938,1976-3 C.B. (Yol. 3) 299,304. A subsidiary question is raised, however, in declaring the reasonableness of respondent’s determination. That inquiry focuses on the appropriate standard of review against which such reasonableness is to be measured. While neither party has urged adoption 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 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
1544	FINDINGS OF FACT AND CONCLUSIONS OF LAW REMEDY PHASE JOHN V. PARKER, Chief Judge. A. PRELIMINARY STATEMENT In view of the holding of the Fifth Circuit in Chisom v. Edwards, 839 F.2d 1056 (5th Cir.) cert. denied sub nom. Roemer v. Chisom, 488 U.S. 955, 109 S.Ct. 390, 102 L.Ed.2d 379 (1988), this court assumed that its path was rather clearly staked by the appellate court. However, on May 11, 1990, the decision of the Fifth Circuit came down in That ease effectively undercuts the teaching of Chisom because it holds that, although Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, does indeed apply to judicial elections, the use of at-large election districts in the election of Texas trial judges does not violate Section 2. Since Louisiana’s trial judges are also elected at-large, that holding, if it becomes final, will have a significant impact upon the decision which this court must hand down in this Louisiana case. This case has been tried and decided on the violation issues and the Louisiana Legislature was granted time to present a remedy which the Legislature failed to do. This case has also been tried on the remedy phase and the court
389	Nyaga’s application to adjust status and declare that there are no just grounds to suspend the issuance of permanent residency documents to Nyaga and Kibarra. The Defendants filed a motion to dismiss the complaint for lack of subject matter jurisdiction and 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. 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
1781	a matter of law. Whether defendant is entitled to a summary adjudication of non-infringement thus rests on the court’s construction of the term “removably supported.” Construction of claims is a question of law. PC Connector Solutions LLC v. SmartDisk Corp., 406 F.3d 1359, 1362 (Fed.Cir.2005). There is a “heavy presumption” that words used in patent claims are “ ‘given their ordinary and customary meaning,’ ” that is “the meaning that the term would have to a person of ordinary skill in the art 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  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
424	bankruptcy court to exercise any discretion that it may have under § 105(a) by enjoining the 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.” 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
3672	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 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 is unable to meet certain procedural requirements, such as the one-year period of limitation or the stringent gatekeeping requirements for filing a second or successive petition. Cradle, 290 F.3d at 539. We agree with the district court that “to allow Black to file a habeas petition in the district of confinement asserting the same Bousley claim raised in previously unsuccessful collateral attacks ... would obliterate congressional attempts to promote finality in federal criminal cases.”
1946	and place of the alleged offense in approximate terms. See Bussell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962); United States v. Covino, 837 F.2d 65, 69 (2d Cir.1988); United States v. Bagaric, 706 F.2d 42, 61 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); United States v. Ferrara, 701 F.Supp. 39, 44 (E.D.N.Y.), aff'd, 868 F.2d 1268 (2d Cir.1988). Where the statute, as an element of the criminal offense, requires that a defendant’s conduct violate a regulation promulgated as part of the statute’s regulatory scheme, a district court may consider whether the regulation “on its face” is within the terms of the statute. See If the court determines that the regulation is not of a kind contemplated by Congress, the indictment alleging its violation as an element of the offense may be dismissed. Ada-mo, supra. From a review of the Indictment, it is apparent that Counts II and III, and the relevant portions of Count I track the language of RCRA and contain all the elements of the offenses. In Counts II and III, the Johnsons and Rosinski are accused of knowingly disposing of hazardous waste without the proper authorization. See 42 U.S.C. § 6928(d)(2)(A). The substances at issue are specifically described
4055	"106 S.Ct. 2505). . Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Id. (citing Federal Rule of Civil Procedure 56). . Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 674 (10th Cir.2002) (internal quotations omitted). . Celotex Corp., 477 U.S. at 327, 106 S.Ct. 2548. .Doc. 36 at 1. . Id. at 1-2. . Id. at 2. . Fed.R.Civ.P. 56(c); see also Diaz, 289 F.3d at 674 (""[T]he non-movant- must either establish the existence of a triable issue of fact under Fed.R.Civ.P. 56[ (c) ] or explain why he cannot ... under Rule 56[ (d) ].”). . Fed.R.Civ.P. 56(e)(2). . Fed.R.Civ.P. 56(e)(3). . See, e.g.,  (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,"
2555	The appellants repeat here their argument that the bankruptcy court lacked jurisdiction. The lien acquired by Dr. Spence under his Virginia attachment was not invalidated by Section 67(f) of the Bankruptcy Act, 11 U.S.C.A. § 107(a) (1). Had Dr. Spence or one of the other parties in the bankruptcy court objected to that court’s exercise of summary jurisdiction over the escrow fund, upon the ground that the lien was valid and that the bankruptcy court should not interfere with the pending suit in the state court, the objection would have been good. Then the bankruptcy court could not have enjoined the Virginia action, but the trustee in bankruptcy might have intervened in the suit to protect the interests of the estate. The parties, however, did not object to the bankruptcy court’s exercise of jurisdiction but consented to it, both affirmatively and by their acquiescence in the bankruptcy proceedings. Thus, at the hearing to show cause why the bankruptcy court should not adjudicate the rights of the parties to the escrow fund, counsel for the parties stated that they had no objection to the assumption of jurisdiction by the bankruptcy court. Again, the referee’s order assuming jurisdiction was not contested by petition for review or appeal, and became final. Thereafter the parties filed an agreed statement of the facts material to the controverted issues and they participated in hearings at which testimony was taken on those issues.
2696	the bankruptcy system. While we do not hold that a plan can never be used to object to a claim of a creditor who does not actually consent to such an objection, by holding that the essence of Rule 3007 must be complied with, we are holding that considerations of due process mandate great caution and require that the creditor receive specific notice (not buried in a disclosure statement or plan provision) of at least the quality of specificity, and be afforded the same opportunity to litigate one-on-one, as would be provided with a straightforward claim objection under Rule S007. Varela v. Dynamic Brokers, Inc. (In re Dynamic Brokers, Inc.), 293 B.R. 489, 497 (9th Cir.BAP 2003) (emphasis added). See also At oral argument both counsel suggested that the bankruptcy court in this Second Case was concerned about Ventura being permitted to ignore the First Case and still pursue its in rem remedies at some later date. That concern reverses the parties’ burdens. It was Debtors’ burden to bring an action for declaratory relief as to the amount of taxes owed, or to avoid Ventura’s lien or otherwise limit its in rem rights. We have already held that the Plan did not even purport to do this; but assuming for the sake of argument that the Plan could be read as Debtors suggest, that reading is too obscure to satisfy Ventura’s
4571	the parties sought in discovery, attended status conferences relevant to its document production, and requested a related case be transferred to the judge who was handling Melendres. The United States’ statement of interest, filed after the Melendres court published its decision, offered the services and suggestions of the federal government regarding addressing constitutional violations in law enforcement agencies. The statement evén discussed the possibility of a “global settlement encompassing the ’ United States’ claims,” an option the Melendres litigants, including Arpaio, failed to pursue. (2:07-CV-02513-GMS, Doc. 580). Finally, contrary to the few non-controlling and distinguishable cases Arpaio cites, this is .not a case in which the United States could have easily joined the prior litigation.' Of In re Air Crash Disaster at Stapleton Int'l Airport, Denver, Colo., on Nov. 15, 1987, 720 F.Supp. 1505, 1523 (D.Colo.1989) nw’d on other grounds by Johnson v. Cont’l Airlines Corp., 964 F.2d 1059 (10th Cir. 1992) (plaintiffs wére aware of, testified in, and were represented by the same counsel as plaintiffs in earlier suit). The timing issues discussed above, as well as the differences between the federal government joining litigation'versus an individual plaintiff doing so, indicate the difficulty that would have been involved in consolidating these two cases. Because the United States did not “purposefully] elude[ ] the binding force of an initial resolution of a simple issue” nor
3960	establish her claim of discrimination under the ADA, the ADEA, and/or the ERISA at the summary judgment stage. See DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir.1995) {McDonnell Douglas test used in ADA case); Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993) {McDonnell Douglas test used in ADEA case); Grottkau v. Sky Climber, Inc., 79 F.3d 70, 73 (7th Cir.1996) (McDonnell Douglas test used in ERISA 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. 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
4102	that his written statement, which initiated a criminal investigation, was not “official.” The appellant did not request the military judge to define the term to the members, and he did not object to the instructions given concerning this issue. Quite simply, the evidence never raised the issue and the members were fully capable to determine, without instructions, whether or not the appellant made a false “official” statement. Furthermore, given the clear precedent as discussed in the section above, the military judge did not abuse his discretion when he did not define this very common term to the members. Thus, even if it was error not to instruct on the meaning of the word “official” the error was not “plain.” See The assignment of error is without merit. Completeness of the Record and Appellate Review In the appellant’s remaining assignments of error he attacks the completeness of the record of trial and the manner in which this court conducts review of those records. In response to appellant’s fourth assignment of error, the Government moved to attach the appellant’s Article 32, UCMJ, investigation. That motion was granted and the issue is now moot. Even without benefit of the Government’s action, however, the assignment of error was without merit. The Article 32, UCMJ, investigation is not a required part of the record of trial. It, however, “shall be attached to the record.” Rule for Courts-Martial 1103(b)(3)(A) (i), Manual for Courts-Martial, United States (1998 ed.).
3353	the plaintiff company by competing unfairly. Since these matters will require careful delineation, we remand to the District Court with a suggestion that it request the submission of appropriate proposed orders from the parties and that it enter an order in the light of this opinion in language adequate to make possible a contempt proceeding if its decree is violated. The order is affirmed in part, modified in part, and remanded for further proceedings in accordance with this opinion. . The grant or denial of a preliminary injunction is customarily within the discretion of the district court, and the decision will not be disturbed on review unless there has been an abuse of that discretion. See State of Triebwasser & Katz v. A.T. & T. Co., 535 F.2d 1356, 1358 (2d Cir. 1976); 7 Moore’s Federal Practice f| 65.-04[2], at 65-47 to 65-49, fi 65.21 at 85 (Supp. 1976-77). This, of course, does not mean that we must inevitably affirm the district court’s decision. See Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1197 (2d Cir. 1971) (Friendly, J.) (. . . Congress would scarcely have made orders granting or refusing temporary injunctions an exception to the general requirement of finality as a condition to appealability . . . if it intended appellate courts to be mere rubber-stamps save for the rare cases when a district judge has misunderstood the law or transcended the bounds
3820	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; 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
3331	at all times when defendants conspired to obstruct justice. It is sufficient if the United States proves defendants entered into such a conspiracy expecting that judicial proceedings would be instituted in the future and committed an overt act in furtherance of the conspiracy after grand jury proceedings began. To the extent this instruction requires that an overt act occur after the grand jury proceedings began, it may have been unduly favorable to the defense. However, it correctly reflects the law of this Circuit that one can conspire to obstruct an anticipated but as yet uneommenced grand jury proceeding. United States v. Messerlian, 832 F.2d 778, 792-93 (3d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1291, 99 L.Ed.2d 501 (1988); Given the court’s instructions, the jury’s conclusion of guilt necessarily reflects findings that Nelson or Shamy willfully agreed to obstruct the grand jury investigation referred to in count 4 and that, for the purpose of obstructing that proceeding, one of them committed at least one of the alleged overt acts. No more is required to support their conviction for conspiracy. We further note that count 4 does not charge defendants with conspiring to obstruct a “pending” grand jury investigation. While it does describe the grand jury investigation as having commenced in March 1985, the allegations are sufficiently detailed that there could have been no confusion as to what
2968	presen-tence report); United States v. Knupp, 448 F.2d 412 (4th 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. 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
2225	cannot avoid preclusion on the ground that their anticipatory repudiation claim had not yet accrued at the time they filed the declaratory judgment action. ii. Declaratory Judgment Exception Plaintiffs next argue that, even if their anticipatory repudiation claim accrued prior to the filing of their declaratory judgment action, it should nevertheless remain viable under the “declaratory judgment exception” to the doctrine of claim preclusion. In light of the peculiar features of declaratory judgment actions, the majority of jurisdictions have accorded declaratory judgments less preclusive effect than ordinary claims for specific relief such as a claim for damages or an injunction. Among these jurisdictions, however, some have accorded declaratory judgments less preclusive effect than others. See 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
2576	he only claims disability insurance benefits for the period from March, 1969, the date of the disability benefit termination, through February 2, 1972, the date of the second evidentiary hearing. Defendant, however, maintains that (1) the constitutional procedural due process issue is moot, and that (2) there is substantial evidence to support the Secretary’s findings. The resolution of the question of whether an evidentiary hearing must be accorded prior to the termination of benefits depends on a balancing process wherein the Government’s interest in expeditious termination of the disability benefits is weighed against the interest of the plaintiff in continuous receipt of the benefits. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). While the court in  refused to resolve this issue because the Social Security Administration had recently adopted on December 27, 1971 new procedures permitted a pretermination evidentiary hearing, the Supreme Court has recently held in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), that in view of Goldberg a post termination hearing procedure regarding the discharge of a federal employee does not violate due process. Kennedy is applicable to the present case. The plaintiff was employed and not disabled during the period in question. He was afforded two evidentiary hearings which determined his lack of requisite' disability. ' He would have been entitled to the disallowed benefits if he was found to be under the
1036	build out the empty spaces and for the requirements of the projected replacement anchor tenant. In sum, there is little comparison between SM 10k and the case at bar; while it is of course preferable to see a cash cushion in excess of all projected needs, this is not the kind of bare skin and bones attempt to ignore the realities of commercial leasing which was presented in SM 10k. There is also the issue of the projected refinance at the end of year 7 under the plan. First, the Court notes that plans that provide for such a refinance or sale at the end of their term are not unusual. See, e.g., Boulders, 164 B.R. at 105, citing In re SM 104 Ltd., 160 B.R. at 239. If the projections show that there will be a sizeable paydown of the loan or accumulation of substantial cash which will assist the refinancing on favorable terms, this can be sufficient for a finding of feasibility. SM 104 Ltd. at 239, n. 67-69, citing In re Manion, 127 B.R. 887, 890-91 (Bankr.N.D.Fla.1991) and In re Ropt Ltd. Ptsp., 152 B.R. 406, 410 (Bankr.D.Mass.1993). Here, the projections show that at the end of year seven there should be something like $4 million left in accumulated cash even after new construction and after servicing the bank debt at the 8.5% rate. Even if the property has not appreciated a penny over the $31 million
3747	others in the same position as Goldberg. However, there is no finding to that effect, and the record is extremely fragmentary on this point. If there actually are others, then they too are independent contractors, and of course the injunction does not apply to them. Defendant contends that the injunction order errs because it includes within its scope the defendant’s obligations to the employees of those tailors who themselves come within it. But that issue is not before us, since the order does not mention those sub-employees, and since plaintiff advises us that he has no intention of ever asserting that it relates to them. Defendant, relying on United States v. Andolschek, 2 Cir., 142 F.2d 503, and We agree that the doctrine of those cases applies in civil as well as in criminal cases. And, no doubt, the statement might have been relevant, with respect to Margolin’s credibility. But the error was harmless, since the facts to which he testified, so far as relevant, were not in dispute. The experienced trial judge unquestionably ignored Margolin’s testimony that he- considered himself an employee ; for, as his status constituted an issue for the judge’s decision, Margolin’s opinion was of no moment. The exclusion of the statement concerning Twyeffort’s previous record was not error. While the question of general good faith in compliance with the Act is relevant where the violations have
2498	11 M.L.B.S.A. § 9 (providing environmental protection regulations); 11 M.L.B.S.A. § 1002 (regulating waste disposal); 5 M.L.B.S.A. §§ 111(a)-(e), 113 (establishing general tribal court jurisdiction); 24 M.L.B.S.A. § 2-6, 5 M.L.B.S.A. §§ 101, 111-13(asserting various areas of exclusive tribal court jurisdiction within the tribal lands). . A similar letter, sent in 2001, expressly includes only those doing business with the tribe, see Pl.Ex. 18. This letter appears consistent with defendants’ sworn statements. See Twait Dec. at 2; Big Bear Aff. at 1-2. . Similarly, 11 M.L.B.S.A. § 9(e), which provides jurisdiction to enforce environmental regulations, is limited to the extent of United States law. As federal law largely proscribes the broad assertion of tribal jurisdiction over non-Indians, urt will not construe this provision beyond both actual enforcement and its terms. . The cases cited by the County cannot be read to stand for this proposition. See, e.g., Altvater v. Freeman, 319 U.S. 359, 63 S.Ct. 1115, 87 L.Ed. 1450 (1943) (continued dispute over reissued patents gave rise to controversy); Atchison, Topeka & Sante Fe Railway Co. v. O'Connor, 223 U.S. 280, 285-87, 32 S.Ct. 216, 56 L.Ed. 436 (1912) (action to recover taxes paid under protest). Neither case is premised on a defendant’s actual compliance with a law. . Plaintiffs support this contention by pointing to Justice Souter’s concurrence in Nevada v. Hides, 533 U.S. 353, 383, 121 S.Ct. 2304, 150 L.Ed.2d 398 (1995). That case involved a tribal
197	"advances based on goods shipped by plaintiff. However, plaintiff asserts that “without the consent or knowledge of the plaintiff, codefendant American Factors intentionally and/or negligently failed to forward said money to plaintiff, and instead sent the money to Mr. Kallen who improperly used it to solve his own personal problems.” (docket 5, p. 4) . Where the injury involved in the case arises directly out of the non-resident's activities in the forum, a state may assert personal jurisdiction over a non-resident defendant through “Specific jurisdiction”. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), and Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). . See Defendants maintain that their only contact with Puerto Rico is the location of the plaintiff, and that in itself is insufficient contacts for the plaintiff to maintain this action in Puerto Rico, (docket 9, p. 5) . See Villa Marina Yacht Sales, Inc. v. Hatteras Yachts, 915 F.2d 7, 11 (1st Cir.1990). . See Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940); Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927). . Rule 4.7 of the Civil Rules of the Commonwealth of Puerto Rico prays as follows: ""(a) when the person to be served is not within Puerto Rico the general court of justice of"
1968	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 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
397	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); 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
112	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  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 employment and seeking money damages against the United States.” 278 F.Supp.2d at 121. Consequently,
4406	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. 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
3482	new and old, would change the outcome. Colvin, 1 Vet.App. at 174. In finding no “reasonable possibility” that the new evidence would change the outcome in this case, the Board determined the new evidence not to be material and refused to reopen the case. The Court agrees. The evidence of Mr. Ezell is not material. This statement by a lay witness as to the medical condition of the feet of a fellow soldier some 45 years before is simply not of sufficient weight to establish a reasonable possibility that the outcome of the case would change, given the negative physical examinations noted above. See Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992); cf. Tirpak v. Derwinski, 2 Vet.App. 609 (1992); cf. This is not to imply that Mr. Ezell is not being truthful. However, even after according full credibility to Mr. Ezell’s statement, it is nonetheless not of sufficient weight or significance to qualify as “material” evidence. The Board’s January 10, 1992, decision is AFFIRMED.
900	not entitled to the Plan benefits. IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment (Doc. 86) is GRANTED. IT IS FURTHER ORDERED that Plaintiffs Motion for Summary Judgment (Doc. 99) is DENIED. IT IS SO ORDERED. . Doc. 54-1 at 4-5. .Id. at 5. . Doc. 79 at 20-28. . Id. at 20-21. . Fed.R.Civ.P. 56(a). . City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir.2010). . Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing . Adler, 144 F.3d at 670 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir.2010). . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Spaulding, 279 F.3d at 904. . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th
218	generator equipment to operate properly by reason of negligent construction could not possibly be considered as an instrument dangerous to life, limb or property, and plaintiffs make no such contention. It is not contended that the alleged negligence caused any physical harm to the person or property of the plaintiffs. Undoubtedly there is confusion in the many decisions which have discussed this subject. The Huset case may now be entirely outmoded and MacPherson v. Buick Motor Co., supra, and the multitude of cases which have followed it may well have pronounced broader and more realistic principles of liability for negligent manufacturers, Carter v. Yardley & Co., Ltd., 1946, 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559; upp. 609; Todd Shipyards Corp. v. Harborside Trading & Supply Co., D.C.E.D.N.Y., 1950, 93 F.Supp. 601; E. I. Dupont de Nemours & Co. v. Baridon, 8 Cir., 1934, 73 F.2d 26; Mannsz v. Macwhyte Co., 3 Cir., 1946, 155 F.2d 445; Ellis v. Lindmark, 1929, 177 Minn. 390, 225 N.W. 395; but see A. J. P. Contracting Corporation v. Brooklyn Builders Supply Co., 1939, 171 Misc. 157, 11 N.Y.S.2d 662, and Sperling v. Miller, Sup.App.T., 1944, 47 N.Y.S.2d 191; Blich v. Barnett, 1951, 103 Cal.App.2d Supp. 921, 229 P.2d 492; National Iron & Steel Co. v. Hunt, 1924, 312 Ill. 245, 43 N.E. 833, 34 A.L.R. 63; Buckley v. Gray, 1895, 110 Cal. 339, 42 P. 900, 31 L.R.A. 862; Ultramares Corp. v. Touche, 1931,
2116	speaks in terms of a plan having as one of its principal purposes the avoidance of Federal income taxes. When these two statutory provisions are laid side by side, it becomes apparent that the subjective tax-avoidance motive in section 269 acquisitions must be greater than the tax-avoidance motive in section 367 transfers. Consequently, section 269 is instructive in the instant case by defining the nature and scope of the tax-avoidance purpose. However, because of the statutory variance between section 269 and section 367, with respect to the intendment of the respective statutes, we believe that the term “principal purpose” should be construed in accordance with its ordinary meaning. Such a rule of statutory construction has been endorsed by the Supreme Court. Webster’s New Collegiate Dictionary defines “principal” as “first in rank, authority, importance, or degree.” Thus, the proper inquiry hereunder is whether the exchange of manufacturing know-how was in pursuance of a plan having as one of its “first-in-importance” purposes the avoidance of Federal income taxes. Before responding to this inquiry, it is important to summarize exactly what we perceive petitioner’s burden of proof to be. It is to establish from all the underlying facts and circumstances of the case that respondent’s determination was not reasonable in that it was not based upon substantial evidence. In other words, petitioner must prove that there existed insubstantial evidence to support respondent’s determination that one of the principal purposes of petitioner’s plan was the avoidance
4020	are read to give a preference to members of the Association, rather than treating non-members who comply with the pool’s working rules equally with members, see 46 C.F.R. § 401.340, the regulations would then conflict with the controlling statute, 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. 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
3333	of guilt necessarily reflects findings that Nelson or Shamy willfully agreed to obstruct the grand jury investigation referred to in count 4 and that, for the purpose of obstructing that proceeding, one of them committed at least one of the alleged overt acts. No more is required to support their conviction for conspiracy. We further note that count 4 does not charge defendants with conspiring to obstruct a “pending” grand jury investigation. While it does describe the grand jury investigation as having commenced in March 1985, the allegations are sufficiently detailed that there could have been no confusion as to what the government alleged the defendants had done. Accordingly, there was no amendment of or material variance from the indictment. IV. Conclusion For the reasons stated above, we will reverse the convictions for obstruction of justice on counts 5 and 6 and affirm those for conspiracy to obstruct justice on count 4. The matter will be remanded to the district court for a new trial on counts 5 and 6 and for further proceedings consistent with this opinion. . Even though the city was the purchaser there is no question that Nelson should have paid the real estate taxes. There was, however, no transfer fee due on the conveyance as it was exempt. N.J.Stat.Ann. § 46:15-10(b) (West Supp.1988). Thus no provision for the fee should have been made on the closing statement. . The government does not argue that the
3983	years. Section 1322 involved confirmation, not dismissal. Id. at 748. While the court determined that the debtors materially breached a term of their plans within the meaning of § 1307(c)(6) by needing an additional 33 or 53 months to complete the plans — i.e., they had failed to pay their unsecured creditors the promised dividend of 100% plus 10% interest — it decided not to dismiss the debtors’ cases due to their unique circumstances. The debtors or debtor in each case had been consistently performing' over the past 60 months, no real property arrearages continued to drag out and no unsecured creditor had complained about not receiving 100% plus 10% interest over the past five years. Id. at 749-50. See also the court also interpreted § 1322(d) as limiting a plan to a maximum of five years and concluded that allowing a plan to continue an additional twelve to eighteen months beyond that would ignore § 1322(d) and Congress’ clear intent). We agree with the above cases to the extent they hold that, even though a chapter 13 debtor has completed his or her monthly plan payments, failure to pay unsecured creditors the promised percentage dividend constitutes a material default with respect to a term of a confirmed plan. § 1307(c)(6). Because
3775	1251-52 (5th Cir.1995). A party may assert a third party’s rights if they share a close relationship, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (school and parents); Craig v. Boren, 429 U.S. 190, 195, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (bartender and customers); if the third party is unlikely or unable to defend his or her rights in court, Barrows v. Jackson, 346 U.S. 249, 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 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
3485	addition, the Estate argues that Armco removed this case without obtaining consent from the other parties. The Estate also requests sanctions for Armco’s improper use of federal-removal procedure. In response, Armco claims that it proffered adequate proof to satisfy the statutory requirements of § 1442(a)(1) and that removal of this action was appropriate even without consent 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.  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).
836	advertisements in question diluted or blurred the value of its marks. Without addressing Porsche’s dilution claim directly, Liquid Glass seems to argue that dilution would not occur because Porsche’s image would not be disparaged or tarnished by either what Liquid Glass believes to be tasteful magazine ads or the video, which, while containing scenes of a naked woman taking a shower, is supposedly so discreet that it could only be deemed “PG-13 or PG.” PI. Opp. Br. at 16. This court need not reach the issue of whether Liquid Glass’s advertisements either in print or on video are sufficiently tasteless or degrading such that Porsche would suffer negative associations through Liquid Glass’s use of them, see  because dilution can be established independent of disparagement or tarnishment. Dilution may occur when subsequent uses blur the distinctiveness of the mark, regardless of whether the use is degrading. See Illinois High School Ass’n v. GTE Vantage, Inc., 99 F.3d 244, 247 (7th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1083, 137 L.Ed.2d 218 (1997). For many years, Porsche has endeavored to maintain its good will and reputation for producing high quality products catering to an exclusive market of automobile consumers. Liquid Glass’s unauthorized use of Porsche’s trademarks and trade dress is likely to slowly whittle away the distinctiveness of Porsche’s marks, demeaning the Porsche cachet and blurring the value of its famous and strong marks. See Tiffany &
2802	"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 gives suitors a choice of remedies, and the other statute gives vessel owners the right to seek limitation of liability 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 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"
4339	of whether they filed a complaint of discrimination with the USDA. The legal issues for those who never have filed a discrimination complaint, however, are much more difficult than those facing the members of the class as currently defined. The statute of limitations issue still exists for those who never have filed complaints of discrimination because Congress tolled the statute of limitations only for those who filed discrimination complaints by July 1, 1997. Moreover, from the beginning, plaintiffs’ complaint only sought relief for those who had filed discrimination complaints with the USDA. Accordingly, the Consent Decree in this case cannot provide relief for those who never purported to complain to the USDA in any way about the alleged discrimination. Cf. Some also have objected that the class as currently defined does not include all members of the putative Brewington class because under the current class definition, the farmer is required to have filed a complaint of discrimination prior to July 1, 1997, while the proposed class in Brewington would have included African American farmers who had filed their discrimination complaints prior to July 7, 1998. As previously discussed, see page 20 above, the statutory waiver of ECOA’s two-year statute of limitations as recently enacted by Congress applies only to those farmers who filed complaints of discrimination by July 1, 1997. The claims of those who do not meet that deadline face separate and additional legal barriers not faced by the class
3649	a 1992 services agreement between Prime and Kepro, and that the September 1994 offer was withdrawn. Glass filed a six-count cause of action, which he subsequently amended, against defendants, making allegations of fraud, breach of contract, promissory estoppel, equitable estoppel, unjust enrichment, and violation of the Illinois Wage Payment and Collection Act. Defendants now move to dismiss Count VI of Glass’s first amended complaint, alleging violation of the Illinois Wage Payment and Collection Act. II. DISCUSSION A. Standard for motion to dismiss When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See Fed.R.Civ.P. 12(b)(6); Gomez v. Illinois State Board of Educ., 811 F.2d 1030, 1039 (7th Cir.1987). However, the court may dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). B. Analysis of Wage Payment and Collection Act In Count VI of his first amended complaint, Glass seeks recovery of unpaid wages pursuant to the Illinois Wage
3899	112 (Bkrtcy.S.D.N.Y.1985). I agree that § 364(d)(4) can be waived by a lessor. However, it is a fundamental principle of law that a waiver means a voluntary and intentional relinquishment of a known right or a known advantage (emphasis added). Bailey v. Jones, 243 Mich. 159, 219 N.W. 629 (1928); Book Furniture Company v. Chance, 352 Mich. 521, 90 N.W.2d 651 (1958). It is undisputed that R & J was not represented by counsel until mid-August. There is no indication that by accepting the July rent— due on July 1st but tendered late and covering a portion of the post 60-day period — R & J voluntarily and intentionally relinquished its right to request immediate surrender under § 365(d)(4). See Cf. In re T.F.P. Resources, Inc., 56 B.R. 112. In In re Re-Trac Corp., 59 B.R. 251, the bankruptcy court found insufficient as an assumption the debtor’s allegations that its CEO had called the lessor within the 60-day period and stated that the debtor was going to continue to operate out of the leased premises. There is language in Re-Trac that the result might have been different if the debtor could prove the statement was that it intended to assume the sublease. However, this court is unwilling to speculate as to what that court's ultimate decision would be if faced with different facts. Moreover, assuming the Debtor timely verbally advised R & J that it intended to “assume the lease,” the
2985	some genuinely musical bent, these phrases may have lingered in his mind, and become the matrix for what he supposed, honestly enough, to be an original composition. But we need not resort to any such hypothesis, nor do we suggest that it is more than a possibility;. for the evidence was important for quite another reason. Everyone, acquainted with actions for the invasion of musical copyrights, knows how often the same short musical sequences recur spontaneously, and what a feeble proof of plagiarism is their reappearance in a later composition. Upon that scanty basis it is as unfair to impute imitation to a second comer, as it would be to impute it to the author. Yet we are here asked upon the strength of no more to hold that a simple theme, uniformly rejected by many publishers, was secretly purloined by one, who did not use it himself, but sent the stolen copy to the defendant, where it lay unused for five years, when a tiny part of it was incorporated into a new composition by a highly experienced composer. We are further to assume that, although the part in question had repeatedly appeared in earlier compositions, its beauty made it a bait for many other unconscionable plagiarists; and finally, we are asked to hold that the judge, who saw the plaintiff and had opportunity to appraise his credibility, and who held that he had not proved his
1542	FINDINGS OF FACT AND CONCLUSIONS OF LAW REMEDY PHASE JOHN V. PARKER, Chief Judge. A. PRELIMINARY STATEMENT In view of the holding of the Fifth Circuit in  this court assumed that its path was rather clearly staked by the appellate court. However, on May 11, 1990, the decision of the Fifth Circuit came down in League of United Latin Am. Citizens Council No. 4434 v. Clements, 902 F.2d 293 (5th Cir.1990). That ease effectively undercuts the teaching of Chisom because it holds that, although Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, does indeed apply to judicial elections, the use of at-large election districts in the election of Texas trial judges does not violate Section 2. Since Louisiana’s trial judges are also elected at-large, that holding, if it
2779	MEMORANDUM Virgilia del Carmen Ramos de Espinoza, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. 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
1731	Trust, 463 U.S. 1, 13/103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). . Grable & Sons Metal Prods., Inc., v. Darue Eng’g & Mfg.,-U.S. -, 125 S.Ct. 2363, 2368, 162 L.Ed.2d 257 (2005). Accord Broder v. Cablevision Sys. Corp., 418 F.3d 187 (2d Cir.2005). . Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Two exceptions to the well-pleaded complaint rule permit removal of state law actions: when the claims are completely preempted by federal law and 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 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’
1738	"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”). . . 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. Gloucester Envtl. Mgmt. Serv. Inc., 719 F.Supp. 325, 334 (D.N.J.1989) (""If a court dismissed the federal defendant from ... a case [removed pursuant to section 1442(a)(1)], it must use its discretion"
1479	limits of the ’373 patent’s claims, the claims would not be invalid under section 112. See, e.g., W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540, 1557, 220 USPQ 303, 316 (Fed.Cir.1983). Industrial has not carried its burden of persuading us that the ’373 patent is invalid for indefiniteness. C. Recapture Rule Industrial argues that the PTO incorrectly allowed the broadened reissue claims with a scope equivalent to the scope of the preamended claims in the original patent application. The recapture rule does not apply here, however, because there is no evidence that Seattle Box’s amendment of its originally filed claims was in any sense an admission that the scope of that claim was not in fact patentable. See see also Ball Corp. v. United States, 729 F.2d 1429 (Fed.Cir.1984). IV Liability The court must consider Industrial’s liability for infringement, if any, during two distinct time frames. The first period extends between the date the original patent issued, July 11, 1978, and the date the reissue patent issued, August 19, 1980. Seattle Box’s only enforceable patent rights during this period arise from 35 U.S.C. § 252, which allows claims in a reissue patent to reach back under certain circumstances to the date the original patent issued. The second period begins on the date the reissued patent issued, August 19, 1980. During this period, Seattle Box’s broadened patent claims cover a double-concave block with a height
2263	The determination of when a claim arises has proved to be a particularly vexing question where an environmental injury which gives rise to liability occurs pre-petition, but the remediation costs are expended post-petition. Generally, environmental compliance costs which arise from the debtor’s pre-petition conduct are treated as general unsecured claims. Dant and Russell, 853 F.2d at 709; In re Great Northern Forest Products, Inc., 135 B.R. 46, 60-61 (Bankr.W.D.Mich.1991); In re Kent Holland Die Casting & Plating, Inc., 125 B.R. 493, 503 (Bankr.W.D.Mich.1991). However, courts have found an exception to this general rule when the pre-petition environmental contamination also poses an identifiable and imminent harm in the post-petition period which requires the expenditure of funds to contain or remediate the problem. In re Chateaugay Corp., 944 F.2d 997, 1010 (2d Cir.1991); In re Wall Tube & Metal Products Company, 831 F.2d 118, 123-24 (6th Cir.1987); In re Peerless Plating, 70 B.R. 943, 948-49 (Bankr.W.D.Mich.1987). A number of courts which have found that post-petition costs of remedi-ating a pre-petition environmental injury are properly classified as administrative expenses, rely on Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986). See, In re Wall Tube & Metal Products Company, 831 F.2d at 123-24; In re Conroy, 24 F.3d at 570. PLC argues that the holdings in Midlantic and Conroy definitively establish that the Bankruptcy Code does not provide a safe haven for polluters, and
3569	defendant and owned by a copper mining company failed almost a year previous to the plaintiffs shaft. In light of this information, the plaintiffs moved on November 6, 1985 to amend their complaint to add claims for failure to warn of a known defect and for punitive damages. This court denied leave to amend believing that it would be untimely and prejudicial. The defendant then moved for partial summary judgment contending that the plaintiffs’ claim for lost profits was barred by a clause in the sales contract that excluded consequential and special damages. On May 13, 1986, this court granted the motion, and soon thereafter entered an opinion setting forth its reasons for the ruling. See Following this ruling, the parties settled the plaintiffs’ claim for property damages. The plaintiffs subsequently appealed this court’s denial of leave to amend and its entry of partial summary judgment. The Fourth Circuit Court of Appeals affirmed in part and reversed in part. It affirmed that the contract barred consequential and special damages but reversed the denial of plaintiffs’ motion to amend. See Island Creek Coal Co. v. Lake Shore, Inc., 832 F.2d 274 (4th Cir.1987). Accordingly, this court then allowed the plaintiffs to file their amended complaint. The complaint alleges that the defendant intentionally and callously withheld information of defects in the mining shaft and failed to warn the plaintiffs. It seeks consequential and punitive damages. The defendant has filed a
645	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.” This is in point, because the defendant was by order of court permitted to plead to the merits after default. Substantially the same rule is laid down in the case of Martin’s Administrator v. Baltimore & Ohio Railroad Co., 151 U. S. 673, 14 S. Ct. 533, 38 L. Ed. 311. Judge Reed, of Iowa, in the case of Waverly Stone & Gravel Co. v. Waterloo, C. F. & N. Ry. Co. (D. C.) 239 F. 561, and Judge Sanborn, sitting as a Circuit Judge, in the case of These cases are in accord, and in his opinion Judge Sanborn says that the act “which requires the petition for removal to be filed in the state court ‘at the time, or any time before, the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff,’ is imperative, and requires the petition to be filed within the time fixed by the statute (where the statute fixes it), or within the time fixed by the rule of court (where the rule of court fixes it), and not within any time that a defendant may obtain
49	"the district court without jurisdiction to rule on Gallon’s summary judgment motion. In Insurance Affiliates, Inc. v. O'Connor, the district court held that the UILA divested Colorado courts of jurisdiction ""to hear actions involving controverted claims involving out-of-state insurers unless ancillary proceedings have been commenced in Colorado.” 522 F.Supp. 703, 706 (D.Colo.1981). But in Martin, we squarely refused to adopt that position stating, ""[ajlthough we agree with the district court that this case should be dismissed, we do not think dismissal should be based on lack of subject matter jurisdiction in federal courts.” 910 F.2d at 254-55 (concluding that dismissal under the Burford abstention doctrine was more appropriate). . See n.8 and discussion, supra. . See, e.g., ); Claremont Flock Corp. v. Alm, 281 F.3d 297, 299 (1st Cir.2002). . The Superintendent maintains that he has sufficient evidence for a meritorious defense of fraudulent inducement that would preclude summary judgment. Even if Frontier did not waive this defense by failing to plead it in its answer to Callon's complaint, having a meritorious defense does not alone make a case for reversing a district court's Rule 60(b)(6) ruling on appeal. The Superintendent also asserts that the equities of the case militate in favor of Rule 60(b)(6) relief."
818	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); 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 Steel through filing a fictitious name statement with the South Dakota Secretary of State. Doc. 22, Attachment 1. In the fictitious name statement, the owner name is listed as Ace Steel & Recycle. Id. There exists no question that Ace Steel operates Cow
886	See United States v. Crisona, 416 F.2d 107, 112-114 (2d Cir. 1969), cert. denied, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970); United States v. Sopher, 362 F.2d 523, 525-526 (7th Cir.), cert. denied. 385 U.S. 928, 87 S.Ct. 286, 17 L.Ed.2d 210 (1966) ; cf. United States v. Birnbaum, 337 F.2d 490, 497-498 (2d Cir. 1964). . People v. Butler, 33 A.D.2d 675-676, 305 N.Y.S.2d 367, 369 (1969). The New York Court of Appeals affirmed without opinion, 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587 (1971). . Similarly, Jenohs was decided under the Supreme Court’s rule-making powers for the administration of justice in the federal courts rather than as a matter of federal constitutional law. See . Cf. People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 236, 299 N.Y.S.2d 617, 619, 247 N.E.2d 492, 493 (1969). . United States ex rel. Sadowy v. Fay, 284 F.2d 426, 427 (2d Cir. 1960), cert. denied, 365 U.S. 850, 81 S.Ct. 814, 5 L.Ed.2d 814 (1961) ; United States ex rel. Murphy v. Denno, 234 F.Supp. 692, 695 (S.D.N.Y.1964) ; United States ex rel. Birch v. Fay, 190 F.Supp. 105, 107 (S.D.N.Y.1961) ; see Buchalter v. New York, 319 U.S. 427, 429-430, 63 S.Ct. 1129, 87 L.Ed. 1492 (1943). . Cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555
1197	based on allegations of ineffective assistance of counsel. Id. Although the PROTECT Act itself addressed only downward departure-type fast-track programs, the guidelines provided by the 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 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
87	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. In addition to these constitutional requirements, the federal courts have adopted a set of prudential considerations. First, the plaintiff must be asserting “his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth, 422 U.S. at 499, 95 S.Ct. at 2205. Second, exercise of federal jurisdiction is not warranted when the harm asserted is a “generalized grievance” shared equally by all of 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
1052	The AMA did not support the ban because it would impose criminal penalties on physicians performing a partial-birth abortion; the AMA did not address the issue of whether the procedure was medically necessary. (149 Cong. Rec. S3460; July 2002 Hearing at 212.) D. Stenberg v. Carhart As stated above, the Supreme Court passed on the constitutionality of Nebraska’s partial-birth abortion statute in 2000. Because of its importance to the resolution of this case, this Court describes in some detail the facts and majority, concurring, and dissenting opinions in Stenberg. The plaintiff in the case was Dr. Leroy Carhart, an abortion-provider who had challenged a Nebraska statute which banned partial-birth abortion. After a trial, the district court held the statute unconstitutional. See eb.”). The Eighth Circuit affirmed. See Carhart v. Stenberg, 192 F.3d 1142 (8th Cir.1999). In a 5-4 decision, the Supreme Court applied its earlier ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion), to hold that the statute was unconstitutional for two reasons: (1) it did not provide an exception when the procedure was necessary, in appropriate medical judgment, for the preservation of the health of the mother; and (2) it imposed an undue burden on a woman’s ability to choose an abortion. Stenberg, 530 U.S. at 930, 120 S.Ct. 2597. Because this Court does not reach the undue burden question, it will confine its summary of Sten-berg to
528	"of forcing institutionalization of quadriplegics due to inadequate in-home health services); Brantley v. Maxwell-Jolly, 656 F.Supp.2d 1161 (N.D.Cal. 2009) (funding cuts in adult health day-care program); Mental Disability Law Clinic v. Hogan, 2008 WL 4104460 (E.D.N.Y. Aug. 28, 2008) (requiring hospitalization for receipt of outpatient mental health services). . See Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir.2001), quoting Yeskey v. Pa. Dep’t of Corr., 118 F.3d 168, 171 & n. 5 (3rd Cir. 1997), aff’d, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (""Quite simply, the ADA’s broad language brings within its scope `anything a public entity does.’""); Hason v. Med. Bd. of Cal., 279 F.3d 1167, 1172 (9th Cir.2002), quoting ""). . Plaintiffs also allege that OURS administers its federal funds in a manner that favors individuals with less severe disabilities and disfavors those with more severe disabilities and ""does not use available resources to provide vocational assessments and supported employment services to all qualified individuals with intellectual and developmental disabilities.” Complaint, ¶¶ 86, 107. It is unclear whether or to what extent plaintiffs base their claims on the contention that defendants favor less severely disabled individuals, as opposed to failing to offer a meaningful opportunity"
4620	enabling the ship to continue a voyage, which was agreed to be repaid from the proceeds of the freight earned and to become due from the Standard Oil Company. The funds to which appellants had looked for repayment of their loans, as evidenced by -the written understandings, were subsequent to the making of the loans, paid into the United States District Court for the Southern District of New York, and there, in several admiralty and interpleader suits, lawfully distributed by orders of the court to other creditors. Appellants did not share in this distribution. Standard Oil Co. v. Defense Plant Corp. et al., D.C., 57 F.Supp. 13; With one exception, appellants did not make the loans in question, or enter into agreements for extension of their payment, on the obligation of the vessel; they relied solely on its earnings. Such reliance on the earnings as security for the loans amounts to a waiver of lien on the vessel. ' Nor can liability be enforced on the claims of appellants on the theory that the written obligations evidencing the debts are Respondentia Bonds. The agreement for repayment of the loans lacks most of the essentials of those archaic instruments, the use of which has passed, with other appurtenances and trappings of romance of days now remote, when masted ships rode the waters of strange harbors, while their masters, far from their
2145	on the basis of his gender and age when he applied for and was not selected as the best qualified applicant for the position of Program Manager, Occupational Health and Safety Center in the County’s Fire and Rescue Department. Our review of the record and the district court’s opinion discloses that this appeal is without merit. We find that, even assuming arguendo that Holderaft established a prima facie case of gender or age discrimination, he failed to rebut the legitimate, nondiscriminatory reasons the County proffered to support its decision to select the other candidate over him for the position at issue. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254-56, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Specifically, deposition testimony and supporting documentation established the County relied on rank-ordering of candidates by a review panel, based on objective reviews of documentation and subjective interviews during which all candidates were presented with the same questions and rated individually on their answers. Although both Holderaft and Arndt, the candidate ultimately selected, were qualified for the Program Manager position, the final tally of the scores of the initial interview placed Arndt well above Holderaft, who never made it to the second interview round because his score was not among the top three highest. In addition, while Holderaft complains he possessed superior qualifications, his perception of himself, without evidence to support it, is not relevant. Smith v. Flax, 618 F.2d 1062,
4266	such as Butcher’s Union, etc., Co. v. Crescent City Co., 111 U.S. 746, 757, 4 S.Ct. 652, 28 L.Ed. 585 (1884), and Powell v. Com. of Pennsylvania, 127 U.S. 678, 691-692, 8 S.Ct. 992, 32 L.Ed. 253 (1888). Field’s views, expressed as dissent in the Slaughter-House Cases, 16 Wall. 36, 106, 109-111, 21 L. Ed. 394 (1873), received majority acceptance in Allgeyer v. State of Louisiana, 165 U.S. 578, 589-591, 17 S.Ct. 427, 41 L.Ed. 832 (1897). Reaching its apogee in Loehner v. State of New York, 198 U.S. 45, 53, 25 S.Ct. 539, 49 L.Ed. 937 (1905), the dogma of liberty to pursue common callings without regulation was generally believed to have been overthrown in  and West Coast Hotel Co. v. Parrish, 300 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
1038	also the issue of the projected refinance at the end of year 7 under the plan. First, the Court notes that plans that provide for such a refinance or sale at the end of their term are not unusual. See, e.g., Boulders, 164 B.R. at 105, citing In re James Wilson Assocs., 965 F.2d 160 (7th Cir.1992); In re SM 104 Ltd., 160 B.R. at 239. If the projections show that there will be a sizeable paydown of the loan or accumulation of substantial cash which will assist the refinancing on favorable terms, this can be sufficient for a finding of feasibility. SM 104 Ltd. at 239, n. 67-69, citing In re Manion, 127 B.R. 887, 890-91 (Bankr.N.D.Fla.1991) and Here, the projections show that at the end of year seven there should be something like $4 million left in accumulated cash even after new construction and after servicing the bank debt at the 8.5% rate. Even if the property has not appreciated a penny over the $31 million stabilized value in that period (a rather dubious assumption given the longer span of real estate history), and even assuming a similarly adverse credit market such as prevails today, it would still seem that refinancing of a $21 million balance with a then fully-built power center and a track record of payment performance since 2010 should be very feasible since this would be only a 67% loan to value loan. In sum,
3462	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 PSIR’s chronology, he offered no evidence to counter the quantity calculations and he chose not to disavow his prior statements. Furthermore, these statements made during his PSIR interview were non-immunized and against his own interest. When presented with such a challenge, we cannot say that the district court committed clear error in its findings of fact. See United States v. Mustread, 42 F.3d 1097, 1101-02 (7th Cir.1994) (holding defendant may not simply deny the PSIR’s truth, but must produce some evidence that calls the reliability or correctness of the alleged facts into question (citing Therefore, Lister’s due process claim must fail. Affirmed.
2149	MEMORANDUM OPINION CHARLES R. SIMPSON, III, District Judge. This matter is before the court on cross-motions for summary judgment on the claim of the plaintiff, 500 Associates, Inc., to recoup expenses under a provision of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9607(a)(4)(B). A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Felix v. Young, 536 F.2d 1126, 1134 (6th Cir.1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to
1758	"remand absent some other basis. Zbranek, 727 F.Supp. at 326 (citations omitted) (noting that remand was appropriate because state court litigation had advanced considerably; but resting remand decision on finding that defendants had failed to show that another paper pursuant to section 1446(b) had allowed defendants to ascertain removability). See also Adams v. Lederle Labs., 569 F.Supp. 234, 247 (W.D.Mo.1983) (""Where the second paragraph of section 1446(b) provides the operative law for a case, it is obvious that a defendant's acts .in the state court, taken before the case became removable or before the defendant was able to determine that the case was removable, cannot be taken as a waiver of the right to remove.”). .  aff’d, 314 F.2d 45 (4th Cir.1963) (citations omitted). . Objections (quoting Complaint II ¶¶ 8, 10, 37, 41). . See Compl. ¶¶ 10, 37, 41; Complaint I ¶¶ 10, 37, 41; Complaint II ¶¶ 8, 10, 37, 41. . See Complaint III ¶ 248. . Shell Oil does not claim its right to removal was revived, but that the initial pleading was not removable. In their objection, plaintiffs cite inapposite cases where defendants unsuccessfully sought to prove that their right to removal was revived because the initial complaint was amended so "" 'drastically that the purposes of the 30-day limitation would not be served by enforcing it.’ ” Objections at 7-8 (quoting Wilson, 668 F.2d at 964; Cantrell v. Great Republic"
592	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. 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 egregiousness of the conduct, pursuant to the test set forth in Schmid, supra. Sanctions range from the “spoliation inference” to the complete exclusion of the subject evidence, which may lead to judgment against the responsible party if the evidence is key to that party’s case. C. Application to the Instant Case The parties have presented to the court expert opinions which are contradictory in a
76	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 the agency reasonably relied. See Xiao Ji Chen, 471 F.3d at 339. Thus, the agency’s denial of Uddin’s application for asylum was proper. See 8 U.S.C. § 1158(b)(l)(B)(iii). Moreover, because Uddin based his claims for withholding of removal and CAT relief on the same factual predicate as his asylum claim, those claims necessarily fail. See Xue Hong Yang v. U.S. Dep’t. of Justice, 426 F.3d 520, 523 (2d Cir.2005). Finally, Uddin argues that the IJ erred in finding that he failed to provide evidence that he qualified for voluntary departure; however, because this argument merely quarrels with the IJ’s fact-finding, we lack jurisdiction to review it. See Carcamo v. U.S. Dep’t of Justice, 498 F.3d 94, 97 (2d Cir.2007) (citing 8 U.S.C. §§ 1229c(f), 1252(a)(2)(B)©). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for
185	minimum contacts requirement is met if the non-resident conducts any business transaction in Puerto Rico . By signing and executing the contract in Puerto Rico, and by agreeing that the contract shall be governed by the laws of The Commonwealth of Puerto Rico, M.K.M. has benefitted of the laws of Puerto Rico. The plaintiffs alleged damages are further directly related to the activities of defendant in the forum of Puerto Rico (i.e. entering into the contract). Further, the contractual disposition allowed the defendants to enjoy the fruits and benefits derived from a contractual agreement achieved and effected in Puerto Rico. The Court has “in personam jurisdiction” over Andrew and Barbara Kallen pursuant to the doctrine expressed in the case Compliance with the Alvarado doctrine is achieved because plaintiff alleges that Andrew and Barbara Kallen personally participated and negligently contributed to the M.K.M.’s breach of the executed contract, the court has in personam jurisdiction over them. We further note that Andrew Kallen signed the contract in Puerto Rico. In the instant case, jurisdiction is deemed appropriate because the actions of the defendant create a substantial connection with the state. See Asahi Metal Ind. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987). For the reasons stated hereinabove, the court concludes that minimum contacts with the forum exist so as to “carte blanche” the “in personam jurisdiction” of defendants. II. Is Venue
1807	"might have posed to another resident. Id . We balanced the potential for harm against the intrusion on the defendant's privacy and held both the officer's suspicion and entry were reasonable. Id . (citing Terry , 392 U.S. at 21-22, 88 S.Ct. 1868 and Michigan v. Long , 463 U.S. 1032, 1046, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) ). Like the police in Pace , Boyack and Milone articulated objectively reasonable grounds to suspect Richmond was engaged in criminal activity that justified their entry onto the porch. Richmond describes the facts differently. But ""[t]he need to resolve ambiguous factual situations-ambiguous because the observed conduct could be either lawful or unlawful-is a core reason the Constitution permits investigative stops."" Because the aggregate facts support a particularized and objective basis for the officers to suspect Richmond was engaged in criminal activity, their suspicions were reasonable within the meaning of the Fourth Amendment. The sum of all the information known to officers at the time of the stop is considered, including the behavior and characteristics of the suspect. Matz v. Klotka , 769 F.3d 517, 523 (7th Cir. 2014). Here, that information included specific and articulable facts which taken together fostered Boyack's and Milone's reasonable suspicion that ""criminal activity is afoot."" B. The Search We next address whether Milone exceeded the permissible scope of Terry when he partially opened the screen door to search for a gun. Richmond depicts his"
1915	The mortgage is guaranteed by the Department of Housing and Urban Development (“HUD”). Over the bank’s objection, the Government permitted the mortgagor to convert the building into cooperative housing units. In January 1981, the bank brought suit in the United States District Court for the District of Massachusetts seeking a declaratory judgment to the effect that the then-anticipated conversion (that action apparently was not completed until later in 1981) would violate § 207 of the National Housing Act, 12 U.S.C. § 1713 (1980), and breach the plaintiffs mortgage agreement as well as the regulatory agreement between plaintiff and HUD. Some five years later—following the entry of a summary judgment against the bank that was vacated on appeal,  vacated sub nom. Boston Five Cents Savings Bank v. Dept. of Housing, 768 F.2d 5 (1st Cir.1985)—the bank moved to amend its complaint to include a count for money damages. A hearing was held on the matter and, based on the district judge’s findings, an order was entered on May 8, 1986 denying the motion to amend on grounds of inexcusable delay. On December 18, 1986, plaintiff filed its claim for contract damages in this court in order to avoid the expiration of the statute of limitations. Several hours later on the same day, plaintiff filed an identical protective suit in the district court. Thereafter, it moved to stay both proceedings pending the outcome of the original suit in the district court.
3869	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 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 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
3097	PER CURIAM: Tyrone Miller pled guilty to conspiracy to possess more than fifty grams of cocaine base (crack) and more than 500 grams of cocaine with intent to distribute, 21 U.S.C. § 846 (2000), and was sentenced to a term of 170 months imprisonment. Miller’s attorney has filed a brief pursuant to  challenging the adequacy of the guilty plea under Fed.R.Crim.P. 11, but stating that, in his view, there are no meritorious issues for appeal. Miller has been informed of his right to file a pro se supplemental brief, but has not filed a brief. We affirm. Although counsel questions whether the district court fully complied with Rule 11 in accepting Miller’s plea, after a thorough review of the record, we conclude that the court followed all the requirements of Rule 11 to ensure that Miller’s guilty plea was knowing and voluntary. Pursuant to Anders, we have examined the entire record and find no meritorious issues for appeal. Accordingly, we affirm the district court’s judgment. This court requires that counsel inform his client, in
2957	not clear whether petitioner even wanted these witnesses at his trial. When petitioner made his oral statement to the sentencing court, he never mentioned the existence of witnesses who would prove his innocence, although petitioner was vocal on other points about his trial. Petitioner states that his attorneys failed to develop inconsistencies in the Commonwealth’s evidence, particularly in that the depth of the knife wounds on the murder victims was inconsistent with any knife that the state proved petitioner had possessed. However, a defense attorney who nitpicks at the state’s evidence can easily do more harm than good, and this court finds that failure to develop these inconsistencies was a valid trial tactic beyond review. See Tompa, supra; Franklin, supra. In  the accused testified at his jury trial that he shot the victim in self-defense because he believed that the decedent had a knife. The court held that court-appointed counsel’s failure to request production of the knife, when the jury knew of its existence and possible implications, was at most an error of judgment in trial tactics and was not enough to deprive the accused of a constitutional right. Furthermore, the prosecutor did not need to prove that petitioner himself actually knifed the women, and the size of any knife used in the murders would be irrelevant to the defense. In. a jury instruction, later approved by the Virginia Supreme Court in Durham v. Commonwealth, 214 Va. 166, 198 S.E.2d 603 (1973), the
1830	"strides from where he concealed"" what hindsight proved to be a gun. The majority lists this fact as evidence substantiating the officers' concern for their safety. Does this mean that large, physically fit men can be searched at will, in the name of officer safety? I hope not. Yet the government cites Richmond's appearance as one of ""at least five articulable facts [that] support[ed] their suspicion."" It does not. And even if this thin set of facts were enough to justify a working assumption that Richmond had a gun, so what? Generally speaking, to justify an investigatory stop, the police must have ""a particularized and objective basis for suspecting the particular person stopped of criminal activity.""  citing United States v. Cortez , 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Mere possession of a firearm in a high-crime area-assuming for a moment that the police had an adequate basis for even this conclusion-is not good enough. See United States v. Watson , 900 F.3d 892, 896-97 (7th Cir. 2018). As we pointed out in Watson , ""[p]eople who live in rough neighborhoods may want and, in many situations, may carry guns for protection. They should not be subject to more intrusive police practices than are those from wealthy neighborhoods."" Id. at 897. The police did not have the necessary reasonable suspicion to frisk Richmond, had they accosted him before he reached his"
3321	independence of the conspiracies. Thus, when viewed as a whole, the court’s instructions made clear that to return a guilty verdict on count 4 the jury had to find that Nelson or Shamy committed an overt act in furtherance of a conspiracy to obstruct justice, and that to return a guilty verdict on count 1 it was required to find that Nelson or Gassaro committed an overt act in furtherance of a conspiracy to deprive the public of honest government through mail fraud. Inasmuch as the appellants have failed to demonstrate that the evidence was too complex for the jury to compartmentalize, United  and likewise have not overcome the presumption that the jury properly followed the court’s instructions, United States v. Restaino, 405 F.2d 628, 630 (3d Cir.1968), cert. denied, 394 U.S. 904, 89 S.Ct. 1012, 22 L.Ed.2d 216 (1969), we find no grounds for a new trial on count 4 in appellants’ selective reading of the jury charge. C. For the third prong of their attack on the conspiracy convictions, the appellants argue that they were denied a fair trial due to the prejudicial spillover of irrelevant matters from the mail fraud (count 1) and Hobbs Act extortion counts (counts 2 and 3) on which the jury returned guilty verdicts but which the judge later dismissed. They indicate
884	. Jencks v. United cf. United States v. Birnbaum, 337 F.2d 490, 497-498 (2d Cir. 1964). . People v. Butler, 33 A.D.2d 675-676, 305 N.Y.S.2d 367, 369 (1969). The New York Court of Appeals affirmed without opinion, 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587 (1971). . Similarly, Jenohs was decided under the Supreme Court’s rule-making powers for the administration of justice in the federal courts rather than as a matter of federal constitutional law. See Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). . Cf. People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 236, 299 N.Y.S.2d 617, 619, 247 N.E.2d 492, 493 (1969). . United States ex rel. Sadowy
2411	1973. Apparently, petitioner was not advised that relief could be sought before the Army Board of Military Records; in any event, petitioner did not seek such a review before he instituted the pending case. On January 9, 1974, this Court issued a temporary restraining order enjoining respondent from discharging petitioner for a period of ten days. Subsequent orders of this Court have extended that restraining order during the processing of this suit. II. Respondent’s alternative motion is based upon a theory of exhaustion of remedies. Under 10 United States Code § 1552(a), the Army Board for Correction of Military Records (ABCMR) is empowered to review and correct petitioner’s military records, including the findings made by the Physical Review Council. Cf.  As petitioner concedes, he has made no application for relief to the ABCMR and has therefore not exhausted his military remedies. But petitioner’s failure to exhaust his military remedies does not automatically require that this Court dismiss the pending action. In Covington v. Schwartz, 230 F.Supp. 249 (N.D.Cal. 1964) , modified 341 F.2d 537 (9th Cir. 1965) , an Army enlisted man sought to enjoin the Army from dishonorably discharging him pursuant to an allegedly unconstitutional Board of Officers inquiry. The defendants moved to dismiss on the ground that, since no application for relief was made to the ABCMR, plaintiff had failed to exhaust available military remedies. The district court, while agreeing that plaintiff had not exhausted, refused to dismiss the action.
4233	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. United States v. Hartford-Empire Co., 46 F. Supp. 541, 612 (N.D.Ohio W.D.1942); 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.
998	SUMMARY ORDER On August 22, 2012, an arbitration panel awarded royalties to defendants Dorothy Goldwasser, Romi Jones (née Goldwasser), and Good Inventions, LLC (the “Goldwas- sers”) pursuant to a patent license agreement (“PLA”) they had with plaintiff TiVo Inc. (“TiVo”). TiVo now appeals from a judgment denying its motion to vacate the award, granting the Goldwassers’ motion to confirm the award, and entering judgment 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 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
2493	Here, any overlapping jurisdictional claims are highly conjectural, and a decision on these abstracted claims is unwarranted. See Cass County, 570 F.2d at 741-42 (connecting boundary decisions to disputes over taxing authority, criminal jurisdiction, and fishing and hunting rights cases). Plaintiffs cite a number of cases where courts have resolved land disputes through declaratory judgment, but none of them are analogous to this case. In each of the cited cases, there were concrete and specific incidents involving reservation boundaries and sovereignty. See id.; Yankton Sioux Tribe v. South Dakota, 796 F.2d 241 (8th Cir.1986) (conversion and declaratory action arising from non-Indian harvesting on a reservation lake). Plaintiffs ask the Court to focus on the Rosebud Sioux Tribe litigation. See  aff'd 521 F.2d 87 (8th Cir.1975), aff'd 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977). That suit sought a declaration of the original reservation boundaries intact after the defendant county exercised both civil and criminal jurisdiction over tribe members. 430 U.S. at 585, 97 S.Ct. 1361, 51 L.Ed.2d 660. In City of New Town v. United States, 454 F.2d 121 (8th Cir.1972), plaintiff, a North Dakota municipality, sought declaratory relief in the wake of particularized challenges to municipal authority. Even if plaintiffs have tracked the pleadings filed in those cases, their having done so does not make this dispute ripe. The distinction is pristine: Rosebud Sioux and City of New Town presented ripe factual disputes; this one does not. The
3817	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 proceedings. In support of this contention, Plaintiff cites BSA, Inc. v. King County, 804 F.2d 1104, 1110 (9th Cir.1986), and however, both are inapposite. In BSA the Ninth Circuit held that a nude-dancing obscenity ordinance was unconstitutional because it “impermissibly shift[ed] to the defendant the burden of proving the activity did not appeal to prurient interests, and, therefore, is protected expression.” 804 F.2d at 1110. There, however, the violation of the ordinance imposed criminal liability and the burden shifting would have removed the prosecution’s onus to prove all of the elements of an offense — obscenity—beyond a reasonable doubt. Id. The burden-shifting provision that Plaintiff challenges is not one that imposes criminal liability, and BSA is not persuasive. Riley involved a First Amendment challenge to the North Carolina Charitable Solicitations Act, which required, among other
96	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.” The INS asserts that the case is moot because members of the plaintiff class have obtained replacement documentation since the initiation of the suit and the policy announced in the McNary Memorandum regarding the lifting of green cards is now utilized in deportation proceedings. First, while some members of the class have received replacement documentation, nothing ensures that other members of the class will continue to receive adequate documentation in the future. See, e.g., Allende v. Shultz, 845 F.2d 1111, 1115 n. 7 (1st Cir.1988) (issuance of entry visa did not moot challenge to INS policy that led to a previous denial of visa). The continuing vitality of this claim becomes apparent
4475	"be dismissed for cause, using a totality of the circumstances test, but argued that the facts of this case do not amount to bad faith. . See, e.g., Leavitt, 171 F.3d at 1224 (bad faith as cause for dismissal of Chapter 13 petition involves application of a totality of the circumstances test); Ho, 274 B.R. at 879 (""[A]ny finding of § 1307(c) 'cause' would require a totality of the circumstances analysis followed by, if 'cause' is found, consideration of whether conversion or dismissal is in the best interests of creditors and the estate.”); Love, 957 F.2d at 1355 (bankruptcy courts must look at the totality of the circumstances on a case-by-case basis when determining good faith); see also In re Lilley, 91 F.3d 491, 496 (3d Cir.1996) (good faith of Chapter 13 filings must be assessed on a case-by-case basis in light of the totality of the circumstances); Solomon v. Cosby (In re Solomon), 67 F.3d 1128 (4th Cir.1995) (affirming totality of the circumstances standard); In re Schaitz, 913 F.2d 452 (7th Cir.1990) (good faith analysis under Chapter 13 depends on the totality of the circumstances); Fleury, 294 B.R. at 6; Virden, 279 B.R. at 408."
1100	10 Stat. 308, the Surveyor General of New Mexico recommended to Congress the confirmation of the Tierra Amarilla Grant to Francisco Martinez. The grant was subsequently approved and confirmed to the said Francisco Martinez as Private Land Claim Number 3 by the Act of Congress approved June 21, 1860, 12 Stat. 71. See Appendix 1. A reading and thorough study of the Congressional Act just mentioned, conclusively established that Congress confirmed the title to the Tierra Amarilla Grant in Francisco Martinez as a private land grant, and its action is final and not subject to judicial review. The leading case on the proposition that Congress’ action in this sphere is not subject to judicial review is 23 L.Ed. 998. See also Yeast v. Pru, D.C.N.M., 292 F. 598; United States v. Maxwell Land-Grant Co., 121 U.S. 325, 7 S.Ct. 1015, 30 L.Ed. 949 and 122 U.S. 365, 7 S.Ct. 1271, 30 L.Ed. 1211 and Astiazaran v. Santa Rita Land & Mining Co., 148 U.S. 80, 13 S.Ct. 457, 37 L.Ed. 376. After the Congressional confirmation, a patent (see Appendix 2) for the grant was issued to Francisco Martinez February 21, 1881, and was subsequently duly recorded in the office of the County Clerk of Rio Arriba County, New Mexico, on the 9th day of October, 1901. It appears from the evidence adduced on the trial of this cause, including oral testimony and voluminous abstracts, that the plaintiff corporation is
168	stamp taxes therein sought to be recovered were paid under protest.” The question raised by the defendant here becomes startlingly cogent. Judge Thomas in his opinion decided that section 1014(a) of the Revenue Act of 1924, by the force of its amendment, permitted the action to be maintained in behalf of the taxpayer and said: “I am of the opinion that this language changes the rule theretofore prevailing, and that an action may now. be maintained against a collector for the recovery of income taxes 'erroneously paid, regardless of protest.” I am somewhat loath to differ from my associate in his view of the law on this point. He cites as his authority for his conclusion the case of The learned judges whose opinion he follows cite no authority for the conclusion at which they arrive. It may be worthy of note that the Circuit Court of Appeals for the Third Circuit later reversed 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)
1094	"government.”). Both clauses protect against deprivations of a person's liberty without due process of law. See U.S. Const, amends. V, XIV. And the Supreme Court has construed both clauses to include substantive protections. See Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (""We have long recognized that the [Fourteenth] Amendment's Due Process Clause, like its Fifth Amendment counterpart, guarantees more than fair process. The Clause also includes a substantive component that provides heightened protection against government interference with certain fundamental rights and liberty interests.” (internal quotation marks and citations omitted) (citing Washington v. Glucksberg, 521 U.S. 702, 719, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (involving substantive due process rights under the Fourteenth Amendment), and There is no persuasive textual, precedential, or principled argument suggesting that the states may not ban D & X without a health exception but that the federal government may. If there is a due process right to abortion, as the Supreme Court has held that there is, then the constitutional restrictions on regulating abortion apply equally to the federal government as to the states. . The Chasen Study raises concerns about the safety of D & X, but because of its lack of statistical significance, it is not a conclusive study showing that D & X does or does not have safety advantages."
3175	Petitioner’s case. G. Standard of Review Section 2254(d)(1) provides that a federal court may not grant habeas relief with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Under the “contrary to” clause, a federal habeas court may grant the writ only if the state court (1) arrived at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) decided the case differently than the Supreme Court has on a set of materially indistinguishable facts. 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
481	made on the basis of the best information then otherwise available which may include the information submitted in support of the petition. An opportunity to correct inadequate submissions will be provided if the corrected submission is received in time to permit proper analysis and verification of the information concerned; otherwise no corrected submission will be taken into account. Where a party to the proceedings refuses to provide requested information, that fact may be taken into account in determining what is the best available information. 19 C.F.R. § 353.51(b) (1982). It is important to note initially the use of the mandatory term “shall” in the statute, indicating that the best information otherwise available must be used in the enumerated circumstances. The Court also notes the essential nature of cooperation by the parties to the investigation. As stated in Atlantic Sugar, supra, non-cooperation may be “penalized” by the mandatory use of whatever other best information is available. Furthermore, as indicated in Ansaldo Components S.p.A. v. U.S., — CIT-, 628 F.Supp. 198, 205 (1986), the fact that an administering agency does not timely receive a response from a person or party from whom it is requested is, in and of itself, sufficient to sustain Commerce’s use of the best information available. Plaintiff states in its Memorandum in Support of Its Motion for Review that “the ITA never notified Extraco that Extraco had not submitted sufficient information to adequately respond to [petitioners’] allega tion.” However,
2903	amended to include 11 U.S.C. § 1325(b). This section's “ability to pay” criteria subsumes most of the Estus factors and allows the court to confirm a plan in which the debtor uses all of his disposable income for three years to make payments to his creditors. Thus, our inquiry into whether the plan “constitutes an abuse of the provisions, purpose or spirit of Chapter 13,” Estus, 695 F.2d at 316, has a more narrow focus. The bankruptcy court must look at factors such as whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentation to mislead the bankruptcy court; or whether he has unfairly manipulated the Bankruptcy Code. See Estus, 695 F.2d at 317; Barnes v. Whelan, 689 F.2d 193, 200 (D.C. Cir.1982); In re Rimgale, 669 F.2d 426, 432 (7th Cir. 1982); see also 5 Collier on Bankruptcy H 1325.04[2], [3]. Although the bankruptcy court erroneously concluded that the inquiry into good faith ended with the determination that Zellner had committed all of his disposable income to the plan, we believe that the court’s factual findings implicitly support a finding that there was no abuse of the bankruptcy laws. See Wegner, supra, at 1322. The bankruptcy court was satisfied with the accuracy of Zellner’s testimony as to his income and expenses, and EAC did not present evidence, beyond mere speculation, of any errors in the figures. Moreover, the court recognized Zellner’s special circumstances
630	for review now before us. While the proceedings concerning the appropriateness of the all technical unit continued, related proceedings regarding the breadth of a professional unit at the Hospital were taking place. Initially, in December 1979, the Regional Director certified a professional unit of only registered nurses. The unit elected union representation by a 310 to 172 vote. The Hospital then refused to bargain claiming the unit was too narrow. The Board found that the registered nurse unit was appropriate and held that the Hospital violated the Act by refusing to bargain. Upon review, however, we reversed and remanded the case to the Board for reconsideration in light of the “disparity of interests” test espoused in St. Luke’s.  modified sub nom. Beth Israel Hosp. and Geriatric Center v. NLRB, 688 F.2d 697 (10th Cir.) (en banc), appeal dismissed, 459 U.S. 1025, 103 S.Ct. 433, 74 L.Ed.2d 522 (1982). In August 1985, the Regional Director determined on remand that the appropriate bargaining unit was not the unit of only registered nurses as he had previously determined but a unit consisting of all professionals. The Hospital petitioned the Board for a review of this decision contending that the radiologic technologist and respiratory therapist positions belong in the all professional unit and are therefore entitled to vote in this new election. The Board held that the Hospital raised “substantial and material issues” regarding the professional status of the radiologic technologists. Accordingly, the
1508	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 F.2d at 389-390. See also Wynn v. United States, supra note 8, 130 U.S.App.D.C. at 62, 397 F.2d at 623; Williams v. United States, 117 U.S.App.D.C. 206, 207, 328 F.2d 178, 179 (1963); 3 J. Wigmore, Evidence § 951 at 509 (3rd ed. 1940); C. McCormick, Evidence § 40 at 85 (1954). . See also the cases cited infra note 15. . At one point during the trial, even appellant’s counsel argued that by means of the excluded testimony “I can show that this man [the officer] is generally depraved. * * * ” . 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
3273	29 however assumed a requirement that the employee first earn $20,000 for that year before taking holidays or sick days. Under the rejected agreement, vacation pay was pro-rated from an employee’s average pay. Exhibit 29, however, calculated it at the minimum hourly rate, which would be a minimum for the employee’s average pay. The Court concludes that such complex calculations, while necessarily somewhat contrived, do not overstate the value of the Committee’s claim, and most likely understate it. See Laborers Clean-Up Contract Administration Trust Fund v. Uriarte Clean-Up Service, 736 F.2d 516, 521 (9th Cir.1984); Mo-Kan Teamsters Pension Fund v. Creason, 716 F.2d 772, 777-78 (10th Cir.1983), cert. denied, 464 U.S. 1045, 104 S.Ct. 716, 79 L.Ed.2d 178 (1984);  cert. denied, 456 U.S. 991, 102 S.Ct. 2272, 73 L.Ed.2d 1286 (1982); and United Brotherhood of Carpenters, Local 379 v. Day & Zimmerman, Inc., 531 F.Supp. 696, 700 (E.D.Tex.1982). Therefore, the Court concludes that the total losses calculated in Exhibit 29 are reasonably accurate and the debtor’s objections to the calculations must be rejected. 19. Four Local Unions Are Entitled to Damages For the Debtor’s Violation of the Dues Checkoff Provision of the Rejected Agreement. The Committee presented evidence on behalf of four local unions for lost membership dues. The Committee argues that U.S. Truck was obligated under the rejected agreement to check off dues, i.e., to deduct dues from actively working union members’ paychecks, and remit them to the
3358	scarcely have made orders granting or refusing temporary injunctions an exception to the general requirement of finality as a condition to appealability . . . if it intended appellate courts to be mere rubber-stamps save for the rare cases when a district judge has misunderstood the law or transcended the bounds of reason). Carroll v. American Federation of Musicians, 295 F.2d 484, 488-89 (2d Cir. 1961). In trademark cases, a preliminary injunction will lie where there is a likelihood of confusion by shoppers, Hills Bros. Coffee, Inc. v. Hills, Supermarkets, Inc., 428 F.2d 379 (2d Cir. 1970). . Courts have framed relief differently even when the threat of confusion has been much the same. In  the court granted an absolute injunction restraining the use of the name “Dobbs” on hats. Yet in Stetson v. Stetson, 85 F.2d 586 (2d Cir.), cert. denied, 299 U.S. 605, 57 S.Ct. 232, 81 L.Ed. 446 (1936), the district court determined, and the court of appeals affirmed that a “Notice of Disclaimer” would suffice to dissipate public confusion. . See also R. W. Rogers Co. v. Wm. Rogers Mfg. Co., 70 F. 1017 (2d Cir. 1895); Max Factor & Co. v. Factor, 226 F.Supp. 120, 121-22, 125 (S.D.Cal.1963); Champion Spark Plug Co. v. Champion, 23 F.Supp. 638, 640-41 (E.D.Mich. 1938); and cases cited in Pike, Personal Names as Trade Symbols, 3 Mo.L.Rev. 93, 113-14 (1938). . For a general discussion of the
3746	anything but an independent contractor. Appellant claims that there are others in the same position as Goldberg. However, there is no finding to that effect, and the record is extremely fragmentary on this point. If there actually are others, then they too are independent contractors, and of course the injunction does not apply to them. Defendant contends that the injunction order errs because it includes within its scope the defendant’s obligations to the employees of those tailors who themselves come within it. But that issue is not before us, since the order does not mention those sub-employees, and since plaintiff advises us that he has no intention of ever asserting that it relates to them. Defendant, relying on Beekman, 2 Cir., 155 F.2d 580, 584, alleges error in the exclusion of the Margolin statement. We agree that the doctrine of those cases applies in civil as well as in criminal cases. And, no doubt, the statement might have been relevant, with respect to Margolin’s credibility. But the error was harmless, since the facts to which he testified, so far as relevant, were not in dispute. The experienced trial judge unquestionably ignored Margolin’s testimony that he- considered himself an employee ; for, as his status constituted an issue for the judge’s decision, Margolin’s opinion was of no moment. The exclusion of the statement concerning Twyeffort’s previous record was not error. While the question of general good faith in
1269	v. Moore, 154 Fed. Rep. 712, it was held by the United States Circuit Court for the Eastern District of Washington that lands allotted to Indians in severalty under the Moses Agreement and the act of confirmation, and the Executive Order of May 1, 1886, became vested in the allottees in fee simple. The Circuit Court of Appeals reversed this decision. 161 Fed. Rep. 513. The Supreme Court of Washington, in the present case (52 Washington, 138), followed the reasoning and opinion of the Court of Appeals. We concur in the result reached, and have little to add. As to the principles to be kept in view in construing an agreement with the Indians, we adhere to what was said in . be borne in mind that the negotiations for the treaty are conducted, on the part of the United States, an enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; that the treaty is drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no' written language and are wholly unfamiliar with all the forms of legal expression, and whose only knowledge of
3648	2525, 45 L.Ed.2d 562 (1975). Rose does not now argue that his invocation was unknowing, involuntary, or equivocal, nor does he contend that the district court’s colloquy was inadequate. Rather, he contends that the court ought not to have allowed him to proceed pro se given his obvious lack of legal knowledge and training. However, because Rose clearly and unequivocally invoked his constitutional right to self-representation after extensive questioning, the district court had no choice but to allow him to proceed pro se as to do otherwise would have violated his Sixth Amendment rights. See McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); Faretta, 422 U.S. at 835-36, 95 S.Ct. 2525; see also The district court’s judgment is AFFIRMED. 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.
4251	patent as an economic weapon against Clearfield, Borden officials raised the question whether “filling an unsealed tube” as distinguished from “filling a trough shape mold” would be an infringement of the patent. If, as we have hereinabove determined, the essential (though unpatentable) feature of the Brandenberger process is the simultaneous moulding and wrapping of the product, the shape of the trough would not be important. We conclude, therefore, that the patent is invalid. For the foregoing reasons, defendant’s motion for summary judgment should be granted. In the light of this conclusion, there is no occasion to rule on the other pending motions. This opinion shall be deemed to embody the Court’s findings of fact and conclusions of law. . Taxation is also part of the price of civilization, as Justice Holmes often remarked. Compania General de Tabacos v. Collector, 275 U.S. 87, 100, 48 S.Ct. 100, 72 L.Ed. 177 (1927). Military service is another burden which Leviathan does not shrink from imposing upon its constituents. Holmes, cited in Dumbauld, The Declaration of Independence and What It Means Today (1950) 61. Compared with the magnitude of these sacrifices, the exigencies of litigation are ordinarily scarcely more than trifling inconveniences. . Dumbauld, The Constitution of the United States (1964) 154. Similarly, in civil rights cases and cases under the Federal Employers Liability Act the majority of the Supreme Court often regards as a constitutional issue the
68	SUMMARY ORDER Jamal Uddin, a native and citizen of Bangladesh, seeks review of a January 13, 2009 order of the BIA, affirming the July 12, 2007 decision of Immigration Judge (“IJ”) Paul A. DeFonzo, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jamal Uddin, No. [ AXXX XXX XXX ] (B.I.A. Jan. 13, 2009), ajfg No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City July 12, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case. In this case, this Court reviews the decision of the IJ as supplemented by the BIA. See We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008). Substantial evidence supports the IJ’s adverse credibility determination, which was based, in part, on inconsistencies between Uddin’s hearing testimony and his asylum application. See Xiu Xia Lin, 534 F.3d at 165-66; cf. Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.2006). No reasonable adjudicator would be compelled to credit 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
359	out his execution violates the eighth amendment; that the retrospective competency hearing violated his due process rights; that he received ineffective assistance of counsel; and prosecutorial misconduct. After reviewing all of same, we find no basis therein for appellate review. Barber’s request for a certificate of probable cause is DENIED. . Barber requests a Certificate of Appealability (COA); however, because his petition was filed prior to the effective date of the AEDPA his application must be construed as a request for a certificate of probable cause (CPC). Lindh v. Murphy, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The standards for issuing a CPC and the AEDPA-required COA are identical. See Lucas v. Johnson, 132 F.3d 1069 (5th Cir.1998); Blankenship v. Johnson, 106 F.3d 1202 (5th Cir.1997), opinion withdrawn and superseded on rehearing by, 118 F.3d 312 (5th Cir.1997). . 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). . 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Hogue v. Johnson, 131 F.3d 466 (5th Cir.1997). . Dr. Lett otherwise concluded. . Barber v. State, 737 S.W.2d 824 (Tex.Crim.App.1987). . Barber v. State, 757 S.W.2d 359 (Tex.Crim.App.1988), cert. denied, Barber v. Texas, 489 U.S. 1091, 109 S.Ct. 1559, 103 L.Ed.2d 861 (1989). . Dr. Griffith, permitted to testify about Barber's ■ future dangerousness during the punishment phase, testified that Barber did
2460	plaintiffs lack standing to assert their claims. Second, they deny plaintiffs’ claims are ripe for adjudication. Third, they claim sovereign immunity bars the action. Fourth, they claim plaintiffs’ failure to join the United States in this action is a failure to join an indispensable party. Before addressing the merits of their motion, the Court must consider the posture of the motion. The First National Bank of Milaca argues that dismissal, not summary judgment, is the proper remedy for a non-justiciable suit. PL Opp’n Mem. at 8 (citing Fed.R.Civ.P. 12(b)). While the Court agrees that if plaintiffs lack standing dismissal is the proper remedy, it finds defendants have properly raised justiciability arguments through their summary judgment motion. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Defendants are foreclosed from filing a motion to dismiss, having already interposed an answer. Fed.R.Civ.P. 12(b) (“A motion making any [12(b) ] defenses shall be made before pleading if a further pleading is permitted.”); see also 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1361 (Supp. 2002) (“Motions raising [a lack of subject matter defense] may be considered by the court even when interposed after the responsive pleading has been filed, although technically [it is] no longer [a] Rule 12(b) motionf ]•”)• Therefore, because a motion to dismiss is proeedurally barred, the Court employs
3532	operate the facility with less difficulty. When the Salvation Army abandoned the project after only 2 weeks, the City itself took over management of Community House. And when a different non-profit organization demonstrated its desire and ability to take over the City’s efforts to manage a homeless shelter— which would effectuate the City’s policy of caring for the homeless while saving the City money at the same time — the City chose that route. Finally, the individuals involved in the decision of what to do with Community House had to weigh important social demands inherent in the City’s policy of helping the homeless against significant individual rights. Legislators involved in such balancing are generally entitled to absolute legislative immunity. In Kuzinich, a case involving the enactment of an emergency zoning ordinance, we explained why: [T]he manifest need for a rule of absolute immunity is illustrated in this case. Here legislators are involved in balancing social needs against constitutional rights, the kind of balancing which often produces plurality opinions, and almost always dissenting opinions, in the Supreme Court. These legislators now find themselves sued for the total of $2,500,000.00 general damages and $5,000,000.00 punitive damages by a plaintiff whose business, as nearly as we can determine from the record, has not been shut down one day. Id. In other words, it is not the within the province of the courts to second-guess the difficult policy decisions legislators must make simply
118	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”); 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 within the discretionary function exception to the FTCA; and/or (2) a private person would not be liable in like circumstances under Massachusetts law. Citing Horta v. Sullivan, 4 F.3d 2, 21 (1st Cir.1993), and Kelly v. United States, 924 F.2d 355, 362 (1st
3160	conviction. The Warden or other custodian shall not, however, release Petitioner from custody based solely on this Judgment absent additional and specific instructions from the court. REPORT AND RECOMMENDATION PAYNE, United States Magistrate Judge. Introduction James Crandell (“Petitioner”) was indicted by a Bossier Parish grand jury for first degree murder. The trial jury found Petitioner guilty. The jurors could not agree unanimously to impose a death sentence, so Petitioner received a mandatory life sentence. Petitioner pursued a direct appeal and a post-conviction application in the state courts. He now seeks federal habeas relief on several issues. This court originally denied relief on all of the several claims Petitioner asserted. Among them were (1) an equal protection and due process challenge under The court reasoned that Campbell, not decided until after Petitioner’s conviction was final, was a “new rule” for purposes of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) so could not be applied retroactively to this white defendant’s case. The Fifth Circuit later held that Campbell was not a newly recognized and retroactive rule that would delay commencement of the limitations period for the claim under 28 U.S.C. § 2244(d)(1)(C). Peterson v. Cain, 302 F.3d 508 (5th Cir.2002),
3856	against CNIS. The non-existent rights of CBI can no longer serve to shield its wholly-owned subsidiary, CNIS, from liability. CIA contends that CNIS’s use of the Commerce mark infringes CIA’s rights in the mark because CNIS’s use of the mark results in reverse confusion. CIA is entitled to a remand on this claim only if the record contains sufficient evidence from which the District Court could reasonably conclude that: (1) CIA’s Commerce mark is valid and legally protecta-ble; (2) CIA owns the Commerce mark; and (3) CNIS’s use of the Commerce mark results in reverse confusion. See Fisons Horticulture, Inc. v. Vigoro Industries, Inc., 30 F.3d 466, 474 (3d Cir.1994) (adopting the doctrine of reverse confusion); We address each of these issues in turn. A. Although CIA has registered the Commerce mark with the United States Patent and Trademark Office, the mark has yet to achieve incontestability. Therefore, to demonstrate that the Commerce mark is valid and legally protectable, CIA must demonstrate that it had established secondary meaning in the Commerce mark as of 1996, the year in which CNIS began use of the mark. See Ford Motor Co., 930 F.2d at 292. Although CIA’s evidence of secondary meaning suffers from some of the same weaknesses as CBI’s proof, we think CIA’s evidence sufficient to
232	v. Rhude, 1940, 209 Minn. 53, 295 N.W. 304, includes examples of incidental beneficiaries which are strikingly comparable to the present situation, and see examples in Restatement of Contracts, Sections 133 to 147. The conflict of laws problem does not appear to be present. Apparently the contract between the Government and defendant was entered into in the State of Colorado and to be performed in the State of Arizona. No decision from either state has been cited which supports plaintiffs’ position herein as a third party beneficiary. Both states apparently recognize that incidental beneficiaries to contracts have no contract rights therein. Cripple Creek State Bank v. Rollestone, 1921, 70 Colo. 434, 202 P. 115; d 51; Treadway v. Western Cotton Oil & Ginning Co., 1942, 40 Ariz. 125, 10 P.2d 371. As stated, plaintiffs’ rights as third party beneficiaries must be determined as of the time the contract between the Government and the defendant was entered into. No showing is made here why that principle should not apply, and moreover, no showing is made that any additional facts would be developed at the trial which would negate the fact that plaintiffs are anything but incidental beneficiaries. The contract between the Government and this defendant will be searched in vain for any covenants which imply that defendant has undertaken to discharge obligations of the Government to these plaintiffs. In view of the uncontradicted circumstances disclosed by this motion, the Court
1337	the request by officer Cowan for Hawkins to get out of the car. Officer Cowan testified that he requested Hawkins to get out of the car so he could identify him. This, of course, could have been done by the officer requesting Hawkins to hand him his identification through the window. This would seem to indicate that the officer went beyond the scope of the original intrusion. However, when the request for identification is considered with the unusual circumstances justifying the stop plus the darkness and the possibility that Hawkins was holding a gun inside the car beyond the sight of officer Cowan, the request to get out of the car seems reasonable in light of the circumstances. See The last aspect of the problem of the scope of the seizure of Carpenter is whether the police were reasonable in taking him to the police station after they saw what appeared to them to be burglary tools in the petitioner’s auto. It has always been held that it is reasonable to “seize” a person and take him into custody if there is probable cause to arrest for a public offense. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; United States v. Skinner, 8 Cir., 412 F.2d 98; Klingler v. United States, 8 Cir., 409 F.2d 299. The question becomes was there probable cause for arrest. We hold that probable cause did exist for an arrest for possession
3592	OPINION. Love: Counsel for petitioner contends that by reason of the fact that decedent died on April 5, 1924, and the estate tax was not due until one year thereafter, April 5, 1925, and that the 1924 Revenue Act was enacted and became effective on June 2, 1924, and repealed the 1921 Revenue Act, the liability for this tax must be governed by the 1924 Act when it “ accrued,” and that coming under the 1924 Act, and the assignment by the father to the sons having occurred prior to the enactment of the 1924 Act, the case is controlled by the case of We hold that, by reason of the fact that the death occurred during the period when the 1921 Act was in force, the 1921 Act governs the case. Death is the “generating source” that brings into being the tax liability, and the date when that liability is generated must be used to point out the applicable statute. The assignment here involved, as well as the death, occurred during the period when the 1921 Act was in force. Ernest M. Bull, Executor, 7 B. T. A. 993. The next issue to be considered is whether or not the transfer ©f the partnership interest by the father to the sons was made in con-temptation of death. Was it testamentary in character and purpose? The
1265	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 Further, front pay may be denied or reduced when the employee fails to mitigate damages by seeking other employment. Reneau, 945 F.2d at 870. Finally, prejudgment interest should be added to the front pay award. Deloach, 897 F.2d at 822. The relevant length of time for which an employer should be liable for front pay is perhaps the most difficult variable in the formula cited above; the rest of the equation is mathematics. Factors in determining the relevant period are as follows: length of the prior employment, permanency of the position held, nature of the work, age and physical condition of the employee, possible consolidation of jobs, other nondiscriminatory factors that could validly affect the possible post-discharge employment relationship. Reneau,
905	Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). . Adler, 144 F.3d at 670 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir.2010). . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Spaulding, 279 F.3d at 904. . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord . Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir.2000) (quoting Adler, 144 F.3d at 670-71); see Kannady, 590 F.3d at 1169. . City of Herriman, 590 F.3d at 1181. . Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006). . Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). . Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). . Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). . Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). . Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991). . Calia v.
1724	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 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. 1, 13/103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). . Grable & Sons Metal Prods., Inc., v. Darue Eng’g & Mfg.,-U.S. -, 125 S.Ct. 2363, 2368, 162 L.Ed.2d 257 (2005). Accord Broder v.
3688	v. County of Santa Cruz, 39 F.3d 1030 (9th Cir.1994), because the Appellants, unlike the appellant in Miller, sought a writ of mandate under California Code of Civil Procedure § 1094.5. The Court affirms the district court’s ruling that the county ordinance at issue in this case is not unconstitutionally vague. Section 26-08-020 of the Sonoma County Code sets forth permitted uses for land zoned as “Diverse Agricultural.” The code section is amply detailed and, when viewed in the context 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., 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
283	"In his fifth claim for relief, plaintiff alleges that ""[i]n creating false evidence against plaintiff COREY WILLIAMS, in forwarding false evidence and information to prosecutors, and in providing false and misleading testimony, defendants violated plaintiff’s constitutional right to a fair trial under the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution.” Am. Compl. ¶ 58 In his opposition to summary judgment, plaintiff argues that this statement also encompasses a claim for a violation of his Sixth Amendment fair-trial rights. In his complaint, plaintiff specifies his constitutional claims arise from the Fifth and Fourteenth Amendments; he fails to identify the Sixth Amendment. Plaintiff may not amend his complaint through his motion papers, see  and, in any event, any claim under the Sixth Amendment has no more merit than plaintiff's other constitutional claims."
433	"LPSC argues that ""the Johnson Act is a limitation on bankruptcy jurisdiction” and that therefore the bankruptcy court’s order was improper. In Gulf Water Benefaction, we affirmed the lower courts’ determination that the Johnson Act deprived them of jurisdiction to consider a regulated utility’s claim that the rates set by a public utility commission violated the federal constitution as a taking of property without just compensation and without affording the utility due process. See id. at 465. Because our jurisdiction in this case is based on neither diversity of citizenship nor a constitutional claim, the Johnson Act does not apply to the claims we consider here. See ); see also Public Serv. Co. v. Patch, 167 F.3d 15, 25 (1st Cir. 1998) (""The statute does not apply to claims based upon a congressional statute or federal administrative rulings....”). . The debtor in In re Wabash Valley Power Ass’n, a generation and transmission cooperative serving rural electric membership cooperatives, contested its obligation (and its right under rate regulations) to continue to make payments in service of its debt during the pendency of its bankruptcy proceeding, and made these payments into an escrow account. See 72 F.3d at 1308, 1322. The case did not involve a court’s discretion to enjoin"
2259	unsecured claims. The burden is upon the claimant to establish that its claim qualifies for allowance as an administrative expense. In re Hemingway Transport Inc., 954 F.2d 1, 5 (1st Cir.1992). To determine whether a claim should be accorded administrative expense status, it is necessary to consider when the claim arises. Since Code section 503(b) concerns itself with expenses incurred in connection with the bankruptcy estate, the expense must be one which arises post-petition. Typically, only debts incurred for the economic preservation of the bankruptcy estate are entitled to an administrative priority. In re Dant & Russell, Inc., 853 F.2d 700, 706 (9th Cir.1988), citing Matter of Baldwin-United Corporation, 43 B.R. 443, 451 (S.D.Ohio 1984); .Me. 1984); In re Tri-L Corp., 65 B.R. 774 (Bankr.D.Utah 1986) (Administrative expense payments are reserved to those who either help preserve and administer the estate to the benefit of all of the estate’s creditors). The determination of when a claim arises has proved to be a particularly vexing question where an environmental injury which gives rise to liability occurs pre-petition, but the remediation costs are expended post-petition. Generally, environmental compliance costs which arise from the debtor’s pre-petition conduct are treated as general unsecured claims. Dant and Russell, 853 F.2d at 709; In re Great Northern Forest Products, Inc., 135 B.R. 46, 60-61 (Bankr.W.D.Mich.1991); In re Kent Holland Die Casting & Plating, Inc., 125 B.R. 493, 503 (Bankr.W.D.Mich.1991). However, courts have found an
3401	"arbitrarily set SDARS and PSS rates too low. SoundExchange also contends that the Judges erred in defining “Gross Revenues” and eligible deductions for SDARS. Music Choice, a PSS that provides music-only television channels, also appeals the determination, arguing that the Judges arbitrarily set PSS rates too high. Concluding that the Judges acted ""within their broad discretion and on a sufficient record, we affirm the Copyright Royalty Judges’ determination of royalty rates and terms for both SDARS and PSS. I. BACKGROUND A. Statutory and Regulatory Framework Statutory law creates two types of copyrights in musical recordings. First, 17 U.S.C. § 106(4) covers the underlying “musical work” and protects the owner’s exclusive right to perform the work in public. See .C. § 106(4)). Broadcast of a musical work is a performance of the work and therefore requires a license from the copyright owner. Id. Second, since 1972, the law has also protected a limited copyright in a “sound recording,” the musical work as preserved in a recording medium. The law, however, did not recognize an exclusive right in the public performance of a sound recording until 1995. Id. As we noted in SoundExchange, the 1995 amendments to the Copyright Act afford the owner of a copyright of a sound recording “the narrow but exclusive right ‘to perform the copyrighted work publicly by means of a digital audio transmission.’ ” Id. (quoting §§ 106(6), 114(d)). When Congress recognized this exclusive"
780	OPINION AND ORDER LAFFITTE, District Judge. On July 10, 1984, this Court filed its Opinion and Order dismissing plaintiffs pro se complaint, predicated on alleged civil rights violations. 588 F.Supp. 80. Because plaintiffs claim was frivolous and groundless, as well as unreasonable in the light of prior litigation involving the same issues, both in the insular and federal courts, in the sound exercise of the discretion afforded by the Civil Rights Attorneys Fees Award Act, 42 U.S.C. § 1988, the Court ruled that defendants were entitled, as prevailing parties, to an award of attorney’s fees. Defendants filed their application for fees and a hearing thereon was set for September 4, 1984, following denials of plaintiff’s post judgment motions. On August 28, 1984, plaintiff filed a motion to disqualify the undersigned judge on the grounds of personal bias and prejudice against plaintiff “or in favor of any adverse party.” I. TIMELINESS AND SUFFICIENCY OF AFFIDAVIT. We start with the proposition that it is the primary duty of the judge against whom an affidavit of bias or prejudice is filed to pass on the legal sufficiency of the facts alleged in the affidavit, and its timeliness. Action Realty Co. v. Well, 427 F.2d 843 (7th Cir.1970). To safeguard the judiciary from frivolous attacks
2298	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 rulings or remand the case with instructions for further proceedings. Fed.R.Bankr.P. 8013. Conclusions of law are reviewed de novo. 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
3625	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 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
2256	commissions for services rendered after the commencement of the case.” Section 507 of the Code dictates that such expenses will be paid ahead of all other unsecured claims. The burden is upon the claimant to establish that its claim qualifies for allowance as an administrative expense. In re Hemingway Transport Inc., 954 F.2d 1, 5 (1st Cir.1992). To determine whether a claim should be accorded administrative expense status, it is necessary to consider when the claim arises. Since Code section 503(b) concerns itself with expenses incurred in connection with the bankruptcy estate, the expense must be one which arises post-petition. Typically, only debts incurred for the economic preservation of the bankruptcy estate are entitled to an administrative priority.  citing Matter of Baldwin-United Corporation, 43 B.R. 443, 451 (S.D.Ohio 1984); In re Armorflite Precision, Inc., 43 B.R. 14, affirmed 48 B.R. 994 (Bankr.D.Me. 1984); In re Tri-L Corp., 65 B.R. 774 (Bankr.D.Utah 1986) (Administrative expense payments are reserved to those who either help preserve and administer the estate to the benefit of all of the estate’s creditors). The determination of when a claim arises has proved to be a particularly vexing question where an environmental injury which gives rise to liability occurs pre-petition, but the remediation costs are expended post-petition. Generally, environmental compliance costs which arise from the debtor’s pre-petition conduct are treated as general unsecured claims. Dant and Russell, 853 F.2d at 709; In re Great Northern Forest
4846	whose monthly income exceeds the median income for a household of the same size as the debtor’s in the debtor’s state of residence. See 11 U.S.C. § 1325(b)(3). Above-median debtors must file for bankruptcy under Chapter 13 of the Code, as opposed to the more familiar Chapter 7, the most common form of bankruptcy in the United States. See 11 U.S.C. § 707(b)(1)-(2). The practical distinction between proceedings under the two chapters is that individuals who file for bankruptcy relief under Chapter 7 repay creditors by liquidating their nonexempt assets while those who file under Chapter 13 dedicate a portion of their future income toward the repayment of creditors, usually for a period of three to five years. This repayment is governed by the terms of a court-approved Chapter 13 plan. Stephanie Brooks, an Illinois single mother with two minor children, is one such above-median debtor. Brooks’s monthly income totals $6614.50, including $400.00 in child support, which she receives from her ex-husband. On October 4, 2012, Brooks filed for Chapter 13 bankruptcy. Appellant Michael D. Clark was, appointed trustee. Chapter 13 employs a statutory formula to calculate the appropriate monthly repayment amount for above-median debtors. This formula yields a debtor’s total monthly disposable income, all of which must be devoted to reimbursing creditors. See 11 U.S.C. § 1325(b)(1)(B). To compute her disposable income, Brooks completed Official Form 22C, “Chapter 13
3640	conspiracy to possess 500 grams or more of methamphetamine with the intent to distribute, possession of methamphetamine with the intent to distribute, and possession of a firearm by a convicted felon, as well as his resulting life sentence. For the first time on appeal, he argues that the district court violated his Sixth Amendment rights when it denied his motion to substitute counsel and allowed him to proceed pro se. He also asserts for the first time that the district court violated his due process rights and denied him the right to present a defense when it denied his pretrial motion for a continuance to conduct legal research. However, he has abandoned this claim by failing to adequately brief it. See Fed. R. App. P. 28(a)(9); see also Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986). Alternatively, he affirmatively waived the claim by withdrawing his request for a continuance at the pretrial conference and specifically asking the court to proceed with trial as scheduled. See United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir. 2006). Rose’s claim that the district court violated his Sixth Amendment rights by denying his request for the appointment of substitute counsel is without merit. As the district court determined, Rose failed to establish grounds for replacing his counsel, Scott Miller Anderson and substituting new counsel. The court found Rose’s assertion that counsel had lied to him to be incredible, and this court
755	Opinion by Oliver, C. J. In accordance with stipulation of counsel that the kidskin plates are similar in all material respects to those the subject of D. 1480), the claim for free entry under paragraph 1681 was sustained. Ford, J., concurred. Mollison, J., dissented for the reasons set forth in his dissenting opinion in C. D. 1480, supra.
3584	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. § 2612(d)(2)(B); 29 C.F.R. § 825.207(a). Without the substitution of such paid leave, Mr. Chubb would have gone unpaid. The FMLA does not require employers to provide paid leave, 29 U.S.C. § 2612(c), and we decline to punish Omaha for putting Mr. Chubb in a better position than he would have enjoyed had Omaha fulfilled only its minimum duties under the FMLA. See id.; cf. Therefore we conclude that the voluntariness of Mr. Chubb’s election is of no moment, and that Omaha did not violate the FMLA by denying Mr. Chubb an annual leave bonus after he took more than 40 hours of sick leave during his FMLA leave. Affirmed. . The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska.
957	with the Federal Rules of Appellate Procedure and the Bankruptcy Appellate Panel Rules. F.R. A.P. 10(b)(2) provides that: If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion, (emphasis supplied.) While we may, consistent with the clearly erroneous standard, affirm the trial court’s decision based upon any evidence appearing in the record, our task has been made difficult by the failure of either party to provide us with, and specifically .reference to, those portions of the record wherein support for their respective positions is asserted to be found. In  we were similarly faced with a record on appeal the scantness of which made review under the clearly erroneous standard difficult. The appellants there had failed in their brief to cite to the record in support of many of their assertions, and only supplied the Panel with a portion of the record on which the trial court relied. In an attempt to discourage this sort of practice by litigants appearing before us in the future, we observed that: There is a trend in appellate courts to have the parties supply excerpts of the trial record for review on appeal. The practice is an attempt to improve efficiency by reducing the size of extraneous material the Panel must review. The
3876	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 prescription medications; (2) Dr. Basse’s failure to treat his infected toenail; (3) the State’s failure to award good time credits; and (4) the denial of his right to humane conditions of confinement are raised for the first time on appeal and are factual in nature; therefore, we do not consider them. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.1999) (stating that this court will not allow a party to raise a claim for the first time on appeal). Bonneville’s appeal is without arguable merit and, therefore, frivolous. See Accordingly, the appeal is dismissed as frivolous. See 5th Cir. R. 42.2. In light of the foregoing and because Bonneville has not shown the existence of exceptional circumstances warranting the appointment of counsel, his motion is denied. See Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir.1982). The district court’s dismissal of Bonneville’s complaint as frivolous and this court’s dismissal of his appeal as frivolous count as two strikes for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.1996). Bonneville is hereby cautioned that if he accumulates three strikes he will no longer be allowed to proceed IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless
4467	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 Auto Supply Co. v. Savage Arms, Inc. (In re Savage Indus., Inc.), 43 F.3d 714, 719-20 n. 8 (1st Cir.1994). A bankruptcy court’s decision to dismiss or convert a case under § 1307(c) is reviewed for an abuse of discretion. See Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1222-23 (9th Cir.1999); see also A court abuses its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact. Ho, 274 B.R. at 871. A finding of bad faith, as a basis for granting a motion to convert or dismiss under § 1307(e), is reviewed for clear error. Leavitt, 171 F.3d at 1223. The clearly erroneous standard requires this Panel to give great deference to the bankruptcy court as the trier of fact. Under this standard, a finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.
3124	involving chattel mortgages, conditional sales, lending money with the vehicles as security for the loan, in all of which it is customary to make credit inquiries about those who are to have possession of the vehicle.” Harris v. 59 S.Ct. 861, 83 L.Ed. 1249. There the Court affirmed a decision of this Court, which in turn approved the reasoning of the Fourth Circuit case of United States v. One 1936 Model Ford V-8, 4 Cir., 93 F.2d 771. In construing the very same section of this statute the Supreme Court held that there was no duty on the lienor to make inquiry as to the record of an undisclosed real owner where the purchase was made by his “straw man,” even though the letter of the statute would require such inquiry. The Court said: “Manifestly, section 204 is a remedial measure. It empowers the courts, exercising sound discretion, to afford relief to innocent parties having interests in condemned property where the
1275	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 Raymond Miller’s alleged defamatory statements. Aside from Brittingham’s statements, Nichols’s offered no evidence of defamation. Accordingly, because we conclude that the District Court did not abuse its discretion in excluding Brittingham’s statements as hearsay, see supra Part III.A, we reach the further conclusion that the District Court did not err in granting summary judgment in favor of Allen’s on Nichols’s defamation claim. 2. Discrimination under § 1981 and the DDA Claims under both § 1981 and the DDA are analyzed according to the familiar McDonnell-Douglas standard, and both require proof of discriminatory intent. See Rizzitiello v. McDonald’s Corp., 868 A.2d 825, 830 (Del.Super.Ct.2005) (stating same requirement under DDA). As noted above, see supra Part I.B, the District Court found, as to each of Nichols’s discrimination claims, that Nichols failed to establish a triable issue at the third step of the McDonnell-Douglas analysis — pretext. At the third McDonnell-Douglas step, to defeat summary judgment when the defendant answers the plaintiffs prima facie case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more
671	of the Loveladies decision. Otherwise, claimants would be able to file in the Court of Federal Claims as an afterthought, once their challenge in the district court was resolved. Requiring that suits be filed contemporaneously, as in Loveladies, better insures the claimants’ good faith and rewards the diligent prosecution of grievances. It also encourages claimants to muster their evidence early, and to preserve it. In addition, it prevents claimants from surprising the Government with potentially stale claims based on events that transpired many years before. Not coincidentally, these are the very reasons that statutes of limitation themselves exist. See Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628 (1945); In addition, a federal district judge told the claimants as early as 1980 that the Court of Federal Claims was the proper forum in which to seek compensation. Creppel, 500 F.Supp. at 1120. This court will not invent a new reason to toll the statute of limitations and pretend that the claimants filed their takings claim contemporaneously with their 1976 challenge to the Wilson Order. The claimants’ temporary taking claim is therefore time-barred. IV. The claimants’ permanent taking claim presents different questions. As this court recently held, a claim under the Fifth Amendment accrues when the taking action occurs. Alliance of Descendants of Texas v. United States, 37 F.3d 1478, 1481 (Fed.Cir. 1994), citing
408	that, with respect to Ki-barra, this request presents (1) a potential jurisdictional problem under 8 U.S.C. § 1252(a)(2)(B)(i) because Kibarra’s derivative adjustment application was denied in 2001 and (2) a pragmatic concern because she does not have a pending application that could be granted under § 1255(a). Nonetheless, we do not address these issues because we conclude that Nyaga is not eligible to receive a visa. Because he is not eligible to receive a visa, it necessarily follows that Ki-barra is not eligible to receive a visa as his spouse. . The Plaintiffs cite cases that, while arguably distinguishable from this case, could be read to support the proposition that the INS can issue visas after the fiscal year has ended. Marcetic v. INS, 1998 WL 173129 (N.D.Ill. Apr. 6, 1998) (unpublished). . The Plaintiffs also argue that our interpretation of § 1154(a)(l)(I)(ii)(II) undermines Congress’s intent. The Plaintiffs present three arguments related to congressional intent: (1) Congress could not have intended for an alien to lose visa eligibility due solely to the INS’s inaction; (2) Congress authorized the Secretary of State to establish a processing fee that will allow the State Department to recover the costs of processing all diversity visa applications; and (3) Congress's enactment of § 1153(c)(l)(E)(iv), which permits the redistribution of visa numbers among regions, reflects Congress's intent that all 55,000 available visas be issued. While we rest our decision upon the plain meaning of § 1154(a)(l)(I)(ii)(II), it is
4229	defending against un-meritorious lawsuits is one of the inescapable concomitants of living in a 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 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
3342	N.Y. 427 (1875). See McCarthy, Trademarks in Unfair Competition, § 13.3 pp. 459-560 (1973 ed.). With the passage of the Federal TradeMark Act of 1905, 33 Stat. 724, and an increasing commercial reliance on marketing techniques to create name recognition and goodwill, the courts adopted a more flexible approach to the conflicting property interests involved in surname trademark infringement cases. By 1908, the Supreme Court was willing to enjoin the use of a surname unless accompanied by a disclaimer. Herring-Hall-Marvin Safe Co. v. Hall’s Safe Co., 208 U.S. 554, 559-60, 28 S.Ct. 350, 52 L.Ed. 616 (1908). Shortly thereafter, in Thaddeus Davids Co. v. Davids, 233 U.S. 461, 34 S.Ct. 648, 58 L.Ed. 1046 (1914) and  the Supreme Court established what has since become a guiding principle in trademark surname cases. Once an individual’s name has acquired a secondary meaning in the marketplace, a later competitor who seeks to use the same or similar name must take “reasonable precautions to prevent the mistake.” L. E. Waterman Co., supra, at 94, 35 S.Ct. at 92. It is, however, difficult to distill general principles as to what are “reasonable precautions” from the Supreme Court’s decisions in Thaddeus Davids and Waterman. In Davids, supra, the Court affirmed without modification a lower court decree enjoining entirely the use of the words “Davids” or “Davids Mfg. Co.” in connection with the manufacturing and sale of inks. 233
459	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 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
1288	court dismissed his complaint without prejudice, and denied his numerous post-judgment motions. Upon careful review, we first conclude that Collum’s notice of appeal (NOA) was timely only as to the district court’s final postjudgment order, which essentially denied him relief under Federal Rule of Civil Procedure 60(b), and imposed certain restrictions on Collum’s future filings in the district court. See Fed. RApp. P. 4(a)(1)(A) (30 days to file NOA in civil case), (a)(4)(A)(vi) (time to file appeal runs for all parties from entry of order disposing of motion for relief under Rule 60 if motion is filed no later than 28 days after judgment is entered). We further find no reason to disturb the district court’s final postjudgment order. See if movant fails to present reasons not previously considered by district court, that alone is controlling factor against granting motion); cf. In re Tyler, 839 F.2d 1290, 1290-91, 1293 (8th Cir.1988) (per curiam) (endorsing proposition that court may impose reasonable restrictions that limit or place conditions upon future filings). We thus affirm. See 8th Cir. R. 47B. . The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska.
3664	he did below, that these stipulations served to corroborate his defense that the funds claimed by the Government to be unreported income of Pollock actually belonged to the distributors. We believe that the district judge’s ruling that the first group of exhibits was inadmissible, if erroneous at all, amounted to mere harmless error which had no effect on the substantial rights of Pollock. The judge exhibited a great deal of liberality in permitting Pollock to testify and introduce evidence supporting his defense. All of the material contained in the first group of excluded exhibits was before the jury for its consideration through the testimony of Pollock and his accountant and other exhibits introduced by Pollock that were admitted into evidence. Ballantyne v. United States, 293 F.2d 112 (5th Cir. 1961), cert. denied, 369 U.S. 802, 82 S.Ct. 641, 72 L.Ed.2d 549 (1962). In addition, the district judge properly excluded Pollock’s exhibits relating to the civil litigation. In so doing, he stated: I don’t think we can start dumping into the laps of the jury that whole civil case. This man and company [Pollock and Vilter] have been litigating now, * * * for five years, and this [civil] trial lasted twenty-six days, and we can’t incorporate that trial by reference to this trial. We agree that the terms of the stipulation would have no relevancy unless the issues and
761	to accompany the goods with actual intent to deceive, — an intent which may be derived from the facts and circumstances, but which must be established.” The owner has a right to give his views regarding the effect of his drugs, Seven Cases v. United States, supra, but he must be mindful that the statute condemns every statement which may mislead or deceive. If an article is not the identical thing that the statement indicates it to be, it is misbranded, United States v. Ninety-Five Barrels, etc., of Vinegar, 265 U.S. 438, 44 S.Ct. 529, 68 L.Ed. 1094, and if the drugs are worthless, he cannot escape by hiding behind the phrase the “doctors say”, Moreover, proof of the false and fraudulent character of any one of the various claims is sufficient, Goodwin et al. v. United States, 6 Cir., 2 F.2d 200. There can be no doubt that enough was proved to justify an inference that the defendants knew the articles did not possess the curative or therapeutic qualities claimed for them in the statements appearing on the containers and labels, and that the court was justified in holding that they were made with a fraudulent purpose. See Simpson v. United States, 6 Cir., 241 F. 841. Defendants assigned as further grounds for error rulings on the admission and exclusion of evidence. Counsel has failed to quote the evidence alleged to have been improperly admitted or excluded,
1105	by conveyances to corporations and individuals, and by conveyances from the latter groups, have conveyed title to the Payne Land & Livestock Company, a corporation. A search of the abstracts of title reveals not only the conveyance of title, as above recited, but also the perfection of title by adverse possession in plaintiff company and its predecessors. The defendants seek to establish title by adverse possession and “Hijuelas” (see Appendix 3), and easements for pasturage and wood hauling and timber cutting by prescription. Before title can ripen by adverse possession in New Mexico, three elements must be presented: (1) Actual, visible, exclusive, hostile and continuous possession; (2) under color of title; (3) for a period of ten years. See In this connection see also Catron v. Laughlin, 11 N.M. 604, 72 P. 26. This case deals with the Eaton Land Grant in Santa Fe County, but it is equally applicable to the case at bar, insofar as it holds that there was no proof in the record sufficient to support a finding that the defendants had title to the grant by adverse possession against their co-tenants. The case also stands for the proposition heretofore enunciated that the action of Congress confirming a claim for land under a grant made by Mexico is to be treated as an adjudication, and the courts cannot revise what has been done by Congress. Under the dual claims of adverse possession and prescriptive right, none of the
435	"during the pendency of its bankruptcy proceeding, and made these payments into an escrow account. See 72 F.3d at 1308, 1322. The case did not involve a court’s discretion to enjoin a public utility commission's consideration of a rate decrease based on the suspension of debt service or to terminate a commission’s establishment of an escrow for such funds, and the decision therefore does not affect our resolution of that issue in this appeal. . Section 105(a) gives bankruptcy courts the equitable power to issue any order ""that is necessary or appropriate to carry out the provisions” of the Bankruptcy Code, and it is in this section that bankruptcy courts find their genera] equitable powers. See Those powers, however, ""have their limits,” id., and ""can only be exercised within the confines of the Bankruptcy Code.” Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988); see Southmark Corp. v. Grosz (In re Southmark Corp.), 49 F.3d 1111, 1116 (5th Cir.1995) (stating that § 105(a) ""does not authorize the bankruptcy courts to create substantive rights that are otherwise unavailable under applicable law,” or ""to act as roving commissions to do equity”) (internal quotation marks omitted); In re Fesco Plastics Corp., 996 F.2d 152, 154 (7th Cir. 1993) (""Under this section, a court may exercise its equitable power only as a means to fulfill some specific Code provision. By the"
2647	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 have been the object of state discrimination, to develop and use a system that will result in a fair cross section of qualified persons in the community being placed on the jury rolls and to follow a procedure which will not operate to discriminate in the selection of jurors on racial grounds. Rabinowitz v. United States, 5 Cir., 1966, 366 F.2d 34, 57, 73 (concurring opinion) ; d 1; Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953). There seems to be no controversy as to the constitutional and statutory principles — the question involved is the application of these principles to the facts disclosed in the record. Cf. Whitus v. State of Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). That is the problem here, and the difficulty is that we do not have all the facts which appellant alleges are necessary to a decision in this case — facts which he asserts would assist us in deciding whether there has been a violation of his constitutional rights so as to require setting aside of the judgment of conviction. Appellant states
3611	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 On remand, in Greyhound II, we reversed our decision in Greyhound I, holding that the injunction was improperly issued where it was clear that “the arbitration of the dispute [would] be unaffected by Greyhound’s alteration of the status quo,” and where there was “neither an express nor implied in fact promise by Greyhound to preserve the status quo.” 550 F.2d at 1239. Notwithstanding the reversal of Greyhound I, other circuits have cited and approved of the analysis in Greyhound I regarding the issue of when a party is wrongfully enjoined in a reverse Boys Markets context. In Lever Brothers Co. v. International Chemical Workers Union, 554 F.2d 115 (4th Cir.1976), the district court granted the union’s
3495	(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, 1315 (9th Cir.1981). 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 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
4247	not infringe the Brandenberger patent on which plaintiff relies” (Par. 5). He also points out (par. 7) that product claims 18 and 19 were cancelled during proceedings in the Patent Office (thus creating a file wrapper estoppel); and that Gage patent No. 1,654,871 (for tamales) discloses every feature of the alleged infringement by defendant of the Brandenberger process (par. 8). Coming to the legal contentions of the parties, we agree of course that Rule 56 applies to patent cases, as well as other cases, and permits entry of summary judgment where no genuine issue as to material facts exists and the moving party is entitled to judgment as a matter of law. Defendant contends that this is a case of file wrapper estoppel. The argument is that since claims 18 and 19 were can-celled during pendency of Patent Office proceedings, the claims granted can not be interpreted as including anything covered by the abandoned claims. Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211, 218, 220-221, 61 S.Ct. 235, 85 L.Ed. 132 (1940). However, it will be noted that these were product claims. The patent as finally granted related to a process. The reason for rejection of the product claims appears to be primarily that the product has no intrinsic or independent identity, but is described in terms of the process of its production. Also, they do not accurately define the
4519	Maricopa County’s motion and granted Arpaio and MCSO’s motion in part. (Doc. 56). MCSO was dismissed from the case based on the Arizona Court of Appeals decision, Braillard v. Maricopa County, which held MCSO is a non-jural entity, lacking the capacity to sue and be sued. 224 Ariz. 481, 487, 232 P.3d 1263 (Ariz.Ct.App.2010). The remaining parties proceeded with discovery. The United States and Arpaio now each move for partial summary judgment. (Doc. 332, 345). Maricopa County moves for summary judgment on all claims. (Doc. 334). ANALYSIS I. Legal Standard Under Rule 56, summary judgment is appropriate when the moving party demonstrates the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law. A fact is material when, under governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir.2009). A dispute is genuine if a reasonable jury could return a 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
4465	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); A bankruptcy court’s decision to dismiss or convert a case under § 1307(c) is reviewed for an abuse of discretion. See Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1222-23 (9th Cir.1999); see also Ho v. Dowell (In’re Ho), 274 B.R. 867, 870-71 (9th Cir. BAP 2002). A court abuses its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact. Ho, 274 B.R. at 871. A finding of bad faith, as a basis for granting a motion to convert or dismiss under § 1307(e), is reviewed for clear error. Leavitt, 171 F.3d at 1223. The clearly erroneous standard requires this Panel to give
782	denials of plaintiff’s post judgment motions. On August 28, 1984, plaintiff filed a motion to disqualify the undersigned judge on the grounds of personal bias and prejudice against plaintiff “or in favor of any adverse party.” I. TIMELINESS AND SUFFICIENCY OF AFFIDAVIT. We start with the proposition that it is the primary duty of the judge against whom an affidavit of bias or prejudice is filed to pass on the legal sufficiency of the facts alleged in the affidavit, and its timeliness. Action Realty Co. v. Well, 427 F.2d 843 (7th Cir.1970). To safeguard the judiciary from frivolous attacks on its dignity and integrity, affidavits of disqualification for bias are to be strictly construed for form, timeliness and sufficiency. Bumpus v. Uniroyal Tire Co., 385 F.Supp. 711 (D.C.Pa.1974); Town of East Haven v. Eastern Air Lines, Inc., 304 F.Supp. 1223 (D.C.Conn.1969); U.S. v. Moore, 405 F.Supp. 771 (D.C.W.Va.1976). A. TIMELINESS. The motion to recuse comes after judgment was entered and post trial motions were denied. The Opinion and Order dismissing the complaint was filed on July 10, 1984, and judgment was entered thereon on July 20, 1984. The motion for recusal was filed on August 28, 1984, subsequent to this Court’s order of August 22, 1984, scheduling a hearing on defendant’s application for attorneys’ fees. In order to disqualify a judge, a timely objection must be made, otherwise the objection is waived. U.S. v. Hall, 424 F.Supp. 508, affmd., 536 F.2d
2456	the permittee was simply-selling to itself and using the Mohank Sales Company as a method of diversion for illegal purposes. Driscoll v. Campbell, 33 F.(2d) 281 (C. C. A. 2); Solax Drug Co. v. Doran, 27 F.(2d) 522 (C. C. A. 3). The testimony justified .the refusal to grant the 1930 permit. It is argued that section 4, title 2, of the National Prohibition Act (chapter 85, Act Oct. 28,1919, 41 Stat. 305, 309 [27 USCA § 13]), specifically exempts finished toilet preparations from its provisions, and that therefore there is no need for a permit to withdraw specially denatured alcohol. Campbell v. Long & Co., 281 U. S. 610, 50 S. Ct. 415, 74 L. Ed. 1070, and but do not support this claim. Specially denatured alcohol is not controlled by the provisions of title 2. It does, however, come under section 13, title 3 (27 USCA § 83). Driscoll v. Campbell, 33 F.(2d) 281 (C. C. A. 2); Elsinore Perfume Co. v. Campbell, 31 F.(2d) 235 (C. C. A. 2). Decree affirmed.
1186	"violation or three or more class C or D violations under ADPP."" The ADPP is the Adult Disciplinary Policy and Procedure. In order to qualify for transfer on the basis of accumulating thirly-six vested months, the last six months must be consecutive without a conviction for either a Class A or B violation. . Defendants’ earlier Motion to Dismiss the appeals for lack of jurisdiction was granted in part, denied in part, and denied in part as moot in our order of January 25, 1995. We determined then that no final merits judgment has been entered in this case as plaintiffs' claims for damages remained unresolved. Accordingly, we do not have appellate jurisdiction under 28 U.S.C. § 1291. . See, e.g., Croyden Associates v. Alleco, Inc., 969 F.2d 675 (8th Cir.1992), cert. denied, 507 U.S. 908, 113 S.Ct. 1251, 122 L.Ed.2d 650 (1993); Walker v. City cf Mesquite, 858 F.2d 1071 (5th Cir.1988); Guthrie v. Evans, 815 F.2d 626 (11th Cir. 1987). .The agreed entry does not refer to the MCC as either a ‘'supermaximum"" security institution or a ""disciplinary segregation institution.” The agreed entry does provide that once a prisoner has been assigned to the MCC, the prisoner will be assigned a Security Classification Designation of Level 5. The significance of this classification is not clear from the record. Even assuming arguendo that this is a ""supermaximum” classification, objecting members fail to cite any Indiana authority that would render such"
3888	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 factors must be considered: 1. A likelihood that the parties seeking the stay will prevail on the merits of the appeal; 2. The movant will suffer irreparable injury unless the stay is granted; 3. Other parties will suffer no substantial harm if the stay is granted; 4. The public interest will not be harmed if the stay is granted. In re Baldwin United Corp., 45 B.R. 385, 386 (Bkrtcy.S.D.Ohio 1984); accord, In re Great Barrington Fair and Amusement, Inc., 53 B.R. 237, 239 (Bkrtcy.D.Mass.1985); Hunter v. S.K. Austin Co. (In re Beck), 26 B.R. 945, 946 (Bkrtcy.N.D.Ohio 1983); In re Hotel Associates, Inc., 7 B.R. 130, 131-32 (Bkrtcy.E.D.Pa.1980); Cf. Unsecured Creditors’ Committee v. DeLorean (In re DeLorean Motor Co.), 755 F.2d 1223, 1228 (6th Cir.1985) (four factors regarding grant or denial of preliminary injunction); Hamlin Testing Laboratories, Inc. v. United States Atomic Energy Comm’n, 337 F.2d 221, 222 (6th Cir.1964) (factors to be considered respecting motion to stay administrative order pending judicial review). Based upon this Court’s decision on the merits of the appealed orders, including a reconsideration of the governing statutory provisions and applicable bankruptcy rules discussed in this and
4244	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 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”; the “exclusive Right” conferred by the patent is merely the means of accomplishing the intended result. Ibid., 836-837, 70 S.Ct. 899; Great A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147, 154-156, 71 S.Ct. 127, 95 L.Ed. 162 (1950); U.S.Const. Art. I, sec. 8, cl. 8. “It follows, from the language used in the Constitution, limiting patentability to inventions which in fact contribute to the ‘progress’ of science that every case involving the validity of a patent presents
3451	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 Neither of these concerns are present upon review of Lister’s sentencing. The district court calculated the appropriate range of 324-405 months based upon his guilty plea, relevant conduct, and criminal history. 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
3207	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 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 the correctness or wisdom of the agency’s decision. Id. at 1160-61. The statutory scheme here strongly suggests that
1965	allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for the crime charged is the single offense of conspiracy, however diverse its objects. See Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942); United States v. Margiotta, supra; United States v. Murray, supra. Additionally, the court has reviewed Count I of the Indictment and finds it facially sufficient. Title 18 U.S.C. § 371 prohibits a conspiracy to “defraud the United States, or any agency thereof in any manner or for any purpose____” The court finds that paragraph (3) of the conspiracy count tracks the statutory language and adequately alleges a violation thereof. See Hamling, supra; see also  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.
152	limited to issues of federal law. In their reply memorandum, the Federal Defendants argue that postponing the dismissal of the Plaintiffs’ Section 1983 claims pending further discovery would enable the Plaintiffs to go on a “purely dilatory and needless” fishing expedition. They point out that the Attorney General has certified that Mueller and Anderson acted within the scope of their employment at all relevant times, and note that the Plaintiffs have not challenged this certification. I conclude that counts II and III of the complaint must be dismissed, because none of the Federal Defendants can be said to have acted under “color of state law.” Section 1983 is based on the Fourteenth Amendment and is, therefore, limited in scope. 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
3929	of handicap discrimination, the Burdine test requires that (1) [t]he plaintiff must establish a prima facie case by showing that he was an otherwise qualified handicapped person apart from his handicap, and he was rejected under circumstances which gave rise to the inference that his rejection was based solely on his handicap; (2) Once plaintiff establishes his prima facie case, defendants have the burden of going forward and proving that plaintiff was not an otherwise qualified handicapped person, that is one who is able to meet all of the program’s requirements in spite o/his handicap, or that his rejection from the program was for reasons other than his handicap. Harris, 873 F.2d at 932 (emphasis in original) (citing Defendants claim that plaintiff was never qualified for his position because honesty and truthfulness are employment prerequisites for PTF mail carriers. In support of that contention, defendants have submitted Wesley’s affidavit, which states [h]ad I become aware before I hired Dotson that Dotson was or had been working for the Michigan Department of Corrections in 1986 and had omitted this fact from his answer to Box 11 of the PS Form 2591 employment application he signed on October 8, 1986, I would not have hired Dotson because that omission demonstrates that he is untruthful and I expect all of my employees to be honest. Similarly, had I become aware of this fact while Dotson was working for the
2447	78 months for the two drug convictions. Given the magnitude of the mistake, the government concedes that the oversight constituted plain error warranting resentencing, and we accept the concession. Although after United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the guidelines are advisory, a sentencing court still must calculate and consider the advisory range. United States v. Dean, 414 F.3d 725, 727-30 (7th Cir. 2005); United States v. Baretz, 411 F.3d 867, 877 (7th Cir.2005). And whether pre- or post-Booker, basing a sentence on a miscalculated range is an error that affects substantial rights and may constitute plain error. Baretz, 411 F.3d at 877; United States v. Hall, 212 F.3d 1016, 1022 (7th Cir.2000); Accordingly, we VACATE the sentence and REMAND for resentencing.
3186	from service of this report and recommendation to file specific, written objections with the Clerk of Court, unless an extension of time is granted under Fed.R.Civ.P. 6(b). A party may respond to another party’s objections within ten (10) days after being served with a copy thereof. Counsel are directed to furnish a courtesy copy of.any objections or responses to the District Judge at the time of filing. A party’s failure to file written objections to the proposed findings, conclusions and recommendation set forth above, within 10 days after being served with a copy, shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. See Aug. 6, 2004. . A claim may be procedurally barred if the state court bases its denial of relief on a state procedural default and alternatively reaches the merits of a claim. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, n. 10, 103 L.Ed.2d 308 (1989); Cotton v. Cockrell, 343 F.3d 746, 754 (5th Cir.2003). . Judge Burchett offered similar testimony at the hearing in the Hicks case. The parties in Hicks also stipulated that the procedure described by Judge Burchett “was the same selection process that was done by the other judges who were contemporaries of Judge Burchett and those who preceded him, also.” 97 CV 2460; Doc. 27, p. 5. . It is unknown how many
2831	be inadmissable at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Id. The party opposing discovery has the burden to raise an objection, then the party seeking discovery must demonstrate the relevancy of the requested information. Amcast Indus. Corp. v. Detrex Corp., 138 F.R.D. 115, 118 (N.D.Ind.1991). Once this showing is made, the burden switches again to the party opposing discovery to show why discovery should not be permitted. Id. Relevancy is broadly construed, and determined in relation to the facts and circumstances of each case. Stabilus v. Haynsworth, Baldwin, Johnson & Greaves, P.A., 144 F.R.D. 258, 265-66 (E.D.Pa.1992) (citing Continental Access Control Sys. v. Racal-Vikonics, 101 F.R.D. 418 (E.D.Pa. 1983); When there is doubt about relevance, a court should tend toward permitting discovery. Id. at 265 (citing Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1024 (Fed.Cir.1986)). We find that Davne’s financial or other involvement in AcroMed is relevant to Plaintiffs assertion of a conflict of interest. Contrary to Davne’s argument, this information is not relevant solely on the issue of conspiracy, a claim that has been dismissed, or on Plaintiffs punitive damages claim. Davne has responded to request number 24 that he has no responsive documents, but has not responded to request number 34. We DENY as MOOT Plaintiffs Motion to Compel answer to Document Request number 24, but remind Davne of Federal Rule of Civil Procedure
3375	and “Mother’s Pride” used on containers of flour. See Avrick v. Rockmont Envelope Co., supra. From a consideration of the entire record, we agree with the trial court’s finding that the mind of an ordinary purchaser, exercising due care in the market place, would not be confused as to the two trademarks, and that there is no colorable imitation of the Beatrice trademark which is likely to cause confusion or deceive a prudent purchaser as to the source of the product even though the packages are sold from the same shelves in the same stores. It is unnecessary to consider other grounds upon which the trial court based its decision. Affirmed. . In f the psychological function of symbols. If it is true that we live by symbols, it is no loss true that we purchase goods by them. A trademark is a merchandising short-cut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed, the aim is the same —to convey through the mark, in the minds of potential customers, the desirability of the commodity
820	is listed as Ace Steel & Recycle. Id. There exists no question that Ace Steel operates Cow Country Equipment, with the parties disagreeing on whether Cow Country Equipment is a d/b/a for Ace Steel or a “separate subsidiary” of Ace Steel. “When a corporation does business under another name, it does not create a distinct entity.” 18 C.J.S. Corps. § 133 (2011); see also 18A Am.Jur.2d Corps. § 236 (“A corporation’s use of a fictitious or assumed business name ... does not create a legal entity separate from the corporation.”) That is, doing business under a fictitious name does not create an entity distinct from the person or entity operating the business. Nothing in S.D. Codified Laws (“SDCL”) 37-11, the chapter under which Ace Steel made its fictitious name filings, contemplates that a fictitious name filing creates a new and separate legal entity. Ace Steel’s use of the fictitious name Cow Country Equipment does not create an entity separate from Ace Steel. There are two additional reasons why Cow Country Equipment should not be considered a distinct legal entity from Ace Steel thereby averting application of Title VII. First, if a business could categorize certain employees into an unincorporated “subsidiary” by merely using a fictitious name, businesses thereby could structure themselves in a way to avoid Title VII responsibility. Second, there is no way for Nelson to sue or name Cow Country
877	1726, 23 L.Ed.2d 284 (1969). . Cf. United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973) ; United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972) ; United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969) ; United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied, 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970). . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). . 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). .  subsequently codified in 18 U.S.C. § 3500. . But cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), holding that a statement that would support impeachment for bias and interest “relates” to the witness’ testimony under 18 U.S.C. § 3500. See also Rosenberg v. United States, 360 U.S. 367, 370, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959). . See United States v. Crisona, 416 F.2d 107, 112-114 (2d Cir. 1969), cert. denied, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970); United States v. Sopher, 362 F.2d 523, 525-526 (7th Cir.), cert. denied. 385 U.S. 928, 87 S.Ct. 286, 17
693	orders of removal in immigration cases, this case would have required a straightforward inquiry. If, as the government argued, Miguel Angel Ramos was being removed because he had been convicted of a controlled substance offense, we would have had jurisdiction only to ensure that he was indeed the correct person, that the offense qualified as one covered by § 242(a)(2)(C) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1252(a)(2)(C), and that Ramos raised no “substantial” constitutional claims. See Yang v. INS, 109 F.3d 1185, 1192 (7th Cir.1997); Lara-Ruiz v. INS, 241 F.3d 934, 939 (7th Cir.2001). If those preliminary inquiries demonstrated no flaws in the removal order, we would have lacked jurisdiction to proceed any further with the case. The REAL ID Act has changed all of that. It amended INA § 242(a) to permit the courts of appeals on a proper petition for review to consider constitutional claims and questions of law. See REAL ID Act § 106(a)(l)(A)(iii), amending 8 U.S.C. § 1252(a)(2) by adding a new subpart (D). This amendment was effective on the date of the enactment of the statute, May 11, 2005, and applies to all appeals from removal orders “issued before, on, or after the date of enactment.” REAL ID Act § 106(b). We must therefore consider Ramos’s arguments that the government violated his constitutional rights in the proceedings that led to his order of removal. We conclude that his rights were not infringed,
667	a takings daim. The temporary taking allegedly ended on August 13, 1984, when the federal district court ordered the original Project to proceed. By restoring some measure of value to the claimants’ property, this action concluded the “temporary” taking. See Hendler v. United States, 952 F.2d 1364, 1376 (Fed.Cir.1991). The claimants’ property value remained intact for at least four months, until the district court suspended its August Order on December 14, 1984. During that time, the claimants regained their expectation of development, and could presumably have sold the land if they so wished. Because the claimants’ temporary taking claims accrued with the August 1984 Order, the statute of limitations bars their claims. III. This court’s recent opinion in  gives rise to a question of tolling the statute of limitations for the alleged temporary taking. In Lovela-dies, a claimant sought to challenge the validity of a Government action in district court and simultaneously to challenge its economic consequences as a taking in the Court of Federal Claims. This court found it foreseeable that the district court would not adjudi cate the challenge before expiration of the statute of limitations on the takings claim. Id. at 1555. The court determined that a claimant may commence a challenge in the district court and in the Court of Federal Claims without facing the ticking jeopardy of the six year bar. Id. at 1556. The court stated: “[I]t would not be sound policy
3940	the bank is located, or at a rate of 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal reserve bank in the Federal reserve district where the bank is located, whichever may be greater, and no more, except where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this chapter_ (Emphasis added). Thus, section 85 plainly provides that a national bank may charge interest at the rate allowed by the laws of the state in which the bank is located. A determination of the rate of interest allowed by state law has been accomplished by reference to the state court’s interpretation of the state’s constitution and statutes. First National Bank in Mena v. Nowlin, 509 F.2d 872, 876 (8th Cir.1975), citing Citizens National Bank v. Donnell, 195 U.S. 369, 374, 25 S.Ct. 49, 50, 49 L.Ed. 238 (1904). As such, 12 U.S.C. § 85 does not merely incorporate the numerical rates established by the state, but adopts and encompasses the entire body of case law interpreting the state’s limitation of usury. Nowlin, 509 F.2d at 876. Under § 75-17-1, et seq., Miss.Code Ann. (1972 and its supplement), each provision of the statute establishes a
3642	denied his motion to substitute counsel and allowed him to proceed pro se. He also asserts for the first time that the district court violated his due process rights and denied him the right to present a defense when it denied his pretrial motion for a continuance to conduct legal research. However, he has abandoned this claim by failing to adequately brief it. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Fed. R. App. P. 28(a)(9); see also Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986). Alternatively, he affirmatively waived the claim by withdrawing his request for a continuance at the pretrial conference and specifically asking the court to proceed with trial as scheduled. See Rose’s claim that the district court violated his Sixth Amendment rights by denying his request for the appointment of substitute counsel is without merit. As the district court determined, Rose failed to establish grounds for replacing his counsel, Scott Miller Anderson and substituting new counsel. The court found Rose’s assertion that counsel had lied to him to be incredible, and this court will not revisit that determination. See United States v. Hoskins, 910 F.2d 309, 311 (5th Cir. 1990). The record indicates that Rose’s request was based on his disagreement with counsel’s strategy, which is insufficient to warrant the substitution of new counsel. See United States v. Fields, 483 F.3d 313, 353 (5th Cir. 2007); cf. Morris v. Slappy,
2742	99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)). In light of this intent requirement, an equal protection challenge to a law or policy may proceed under one of several theories. First, a law, policy, or action may be discriminatory on its face. See United States v. Virginia, 518 U.S. 515, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). Second, a law, policy, or action, neutral on its face, may be applied such that it discriminates against a certain group. See Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Finally, a law, policy, or action, neutral on its face and in its application, may have been promulgated with discriminatory intent. See In this last instance, although evidence of a disparate impact may serve as evidence of discriminatory intent, it rarely will carry the day in the absence of other evidence of discriminatory design. The First Circuit has noted that “evidence of a widely disproportionate impact on the plaintiff class normally is not enough, standing alone, to establish an equal protection violation.... Rather, [the plaintiff] must adduce competent evidence of ‘purposeful discrimination.’ ” Hayden, 134 F.3d at 453 (citations omitted). Plaintiff does not attempt to pursue either of the first two theories outlined above. He cannot point to any policy on the part of Defendants that facially dis criminates against older persons. Nor can he argue that
4770	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 of a prior felony conviction, see 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
1140	U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233; Morgantown v. Royal Insurance Co., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347; Ettelson v. Metropolitan Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176; Enelow v. New York Life Insurance Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440; Shanferoke Coal & Supply Corporation of Delaware v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583; Lummus Co. v. Commonwealth Oil Refining Co., 2 Cir., 297 F.2d 80; Chronicle Publishing Co. v. National Broadcasting Co., 9 Cir., 294 F.2d 744; Ferguson v. Tabah, 2 Cir., 288 F.2d 665; Glen Oaks Utilities, Inc. v. City of Houston, 5 Cir., 280 F.2d 330; Thibodaux v. Louisiana Power & Light Co., 5 Cir., 255 F.2d 774, reversed, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058; United Gas Pipeline Co. v. Tyler Gas Service Co., 5 Cir., 247 F.2d 681; Day v. Pennsylvania Railroad Co., 3 Cir., 243 F.2d 485; Council of Western Electric Technical Employees-National v. Western Electric Co., 2 Cir., 238 F.2d 892. . Council of Western Electric Technical Employees-National v. Western Electric Co., 238 F.2d 892 at 894.
2097	MEMORANDUM Elmer Lopez-Ordenas, a native and citizen of Guatemala, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review the agency’s factual findings for substantial evidence,  and we dismiss in part and deny in part the petition for review. We lack jurisdiction to consider any challenge to the IJ’s finding that Lopez-Ordenas is statutorily ineligible for asylum following the reinstatement of his prior removal order because he did not exhaust it before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). We similarly lack jurisdiction to consider Lopez-Ordenas’ arguments regarding cancellation of removal or his class membership in Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D.Cal.1991) because he failed to raise them before the BIA. See id. Even if credible, substantial evidence supports the agency’s denial of Lopez-Ordenas’ withholding of removal claim because he failed to establish a nexus between any past or
103	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 of substantial deference have involved questions concerning the admittance or exclusion of aliens who have never been lawfully admitted to the United States. See id. (exclusion of an unadmitted and nonresident alien); Here, the plaintiff class consists of aliens who have been lawfully admitted to the United States. As LPRs, their legal status has been altered and their rights enhanced. While we think the Executive still enjoys discretion when dealing with these individuals, we believe that the exer cise of that discretion is subject to more intense judicial scrutiny. Here, the district court ruled that the INA, which provides for LPR status, and IRCA, which requires employers to verify employment authorization, taken in combination impose a duty on the INS to provide LPRs with documentation that accurately reflects their immigration status and eligibility to work. The fundamental question, therefore, is whether the INS procedures at issue
1433	in order to protect these same priceless state coastal resources is reasonable under the commissions’ exercise of police power. Accordingly, since this action satisfies the requirements of Canton, the Pullman type of abstention is appropriate. Pullman abstention, however does not provide for dismissal. Under this theory of abstention, jurisdiction is to be retained. The federal action is to be stayed pending adjudication of the state action. 2. The Burford Doctrine A second abstention doctrine is that a federal court should refrain from exercising its jurisdiction in order to avoid needless conflict with the administration by a state of its own affairs. This type of abstention is known as Burford abstention and is derived from the Supreme Court decision in In that decision the Court held that the federal court should have dismissed the complaint in a ease involving proration orders in Texas oil fields, on the ground that the issues involved a specialized aspect of a complicated regulatory system of local law, which should be left to the local administrative bodies and courts. Under this type of abstention, since adequate state court review of an administrative order based upon pre dominantly local factors is available, intervention of a federal court is not necessary for the protection of federal rights. Alabama Public Service Comm. v. Southern R. Co., 341 U.S. 341, 349, 71 S.Ct. 762, 95 L.Ed. 1002 (1951). Important federal constitutional rights are adequately protected
4477	of § 1307(c) 'cause' would require a totality of the circumstances analysis followed by, if 'cause' is found, consideration of whether conversion or dismissal is in the best interests of creditors and the estate.”); Love, 957 F.2d at 1355 (bankruptcy courts must look at the totality of the circumstances on a case-by-case basis when determining good faith); see also Mason v. Young (In re Young), 237 F.3d 1168, 1174 (10th Cir.2001) (determination of good faith is made on a case-by-case basis, looking at the totality of the circumstances); In re Lilley, 91 F.3d 491, 496 (3d Cir.1996) (good faith of Chapter 13 filings must be assessed on a case-by-case basis in light of the totality of the circumstances); In re Schaitz, 913 F.2d 452 (7th Cir.1990) (good faith analysis under Chapter 13 depends on the totality of the circumstances); Fleury, 294 B.R. at 6; Virden, 279 B.R. at 408.
4911	"force us to ""cobble together ... various statements"" and ""comb the entirety of its text"" in search of ""isolated statements that may add up to a partial list of class claims, issues, or defenses."" Wachtel , 453 F.3d at 188 n.10, 189. The District Court's order here requires us to do just that, and thus remand is warranted. B. Rule 23 's Commonality and Predominance Class Certification Prerequisites Citizens contends that the District Court erred in finding that Plaintiffs' evidence satisfied Rule 23(a) 's commonality requirement and Rule 23(b)(3) 's predominance requirement. Rule 23(a)(2) 's commonality requirement requires that the putative class members ""share at least one question of fact or law in common with each other."" "" Rule 23(b)(3) 's predominance element in turn requires that common issues predominate over issues affecting only individual class members."" Id. at 528 (citing Fed. R. Civ. P. 23(b)(3) ). We have held that Rule 23(b) 's predominance requirement incorporates Rule 23(a) 's commonality requirement because the former, although similar, is ""far more demanding"" than the latter. Id. Like the commonality requirement, ""[p]redominance tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation."" In re Hydrogen Peroxide , 552 F.3d at 310-11 (quotation omitted). However, the ""predominance requirement imposes a more rigorous obligation upon a reviewing court to ensure that issues common to the class predominate over those affecting only individual class members."" Sullivan v."
2126	Revenue Code in which the Commissioner is given the discretionary authority to act; that is, Congress contemplated that his action would be sustained by the courts unless he acted arbitrarily or unreasonably. For example, section 166(c) provides that there shall be allowed, in the discretion of the Commissioner, a deduction for a reasonable addition to a reserve for bad debts. Because of the discretionary authority specifically granted in the allowance of deductions under the reserve method, the Commissioner’s determinations regarding the reasonableness of additions to bad debt reserves carry more than the usual presumptive correctness, and the taxpayer’s burden of proof is greater than merely overcoming such presumption. Thor Power Tool Co. v. Commissioner, 439 U.S. 522 (1979); Roanoke Vending Exchange, Inc. v. Commissioner, 40 T.C. 735 (1963). Thus, the taxpayer must not only demonstrate that its addition to its reserve for bad debts was reasonable, but also that the Commissioner’s disallowance of such addition amounted to an abuse of discretion. Similarly, section 446(b) authorizes the Commissioner to change the method of accounting used by a taxpayer when he finds that such method does not clearly reflect income. In Thor Power Tool Co. v. Commissioner, supra, the Supreme Court held that when the Commissioner changes a taxpayer’s method of accounting, the Court should accept the Commissioner’s action unless the Court finds that he has abused his discretion. And section 482 allows the Commissioner to distribute, apportion, or allocate income
381	"436 (7th Cir.1995) (federal habeas corpus courts should apply the Kotteakos standard even if state courts have not conducted a Chapman analysis.) . 131 F.3d 466 (5th Cir.1997). . 131 F.3d at 499; see Davis v. Executive Director of Dep’t of Corrections, 100 F.3d 750 (10th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 1703, 137 L.Ed.2d 828 (1997); Sherman v. Smith, 89 F.3d 1134 (4th Cir.1996), cert. denied, - U.S. -, 117 S.Ct. 765, 136 L.Ed.2d 712 (1997); Tyson v. Trigg, 50 F.3d 436 (7th Cir.1995), cert. denied, 516 U.S. 1041, 116 S.Ct. 697, 133 L.Ed.2d 655 (1996); Horsley v. State of Alabama, 45 F.3d 1486 (11th Cir.), cert. denied, 516 U.S. 960, 116 S.Ct. 410, 133 L.Ed.2d 328 (1995); . Hogue, 131 F.3d at 499. Texas courts have also stated ""[i]t is clear that for direct review constitutional error, the state applies Chapman."" It appears that even state courts broadly assume that Chapman need not apply to collateral review of constitutional errors. Ex Parte Fierro, 934 S.W.2d 370, 372 (Tex.Crim.App.1996). . Brecht, 507 U.S. at 635, 113 S.Ct. at 1720. . Brecht, 507 U.S. at 636, 113 S.Ct. at 1721. . Ketchum v. Gulf Oil Corp., 798 F.2d 159 (5th Cir.1986). DENNIS, Circuit Judge, specially concurring:. Although I recognize that this panel is bound by this court’s prior decision in Hogue v. Johnson, 131 F.3d 466"
3726	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. 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
654	allege that the limitations period began only when the district court upheld the EPA’s Final Determination on June 30, 1988. The Court of Federal Claims held that the claimants’ cause of action accrued when the Wilson Order issued on November 16, 1976. The court granted summary judgment to the Government. Creppel v. United States, 30 Fed.Cl. 323 (1994). This appeal followed. DISCUSSION A trial court properly grants summary judgment only when no genuine issue of material fact exists and the law entitles the movant to judgment as a matter of law. Fed.R.Civ.P. 56(c); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed.Cir.1987). This court reviews a grant of summary judgment by the Court of Federal Claims de novo. A six-year statute of limitations governs claims before the United States Court of Federal Claims: [E]very claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the [claim] thereon is filed within six years after such claim first accrues. 28 U.S.C. § 2501 (1988 & Supp. V 1993). A claim accrues when all events have occurred that fix the alleged liability of the Government and entitle the plaintiff to institute an action. Japanese War Notes Claimants Ass’n v. United States, 373 F.2d 356, 358 (Ct.Cl.), cert, denied, 389 U.S. 971, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967). The question here is whether “all events” occurred to fix the alleged liability of the Government six years
3079	First, the Court holds that a lifting restriction alone is not sufficient to establish a substantial impairment to the major life activity of working. See Thompson v. Holy Family Hosp., 121 F.3d 537, 541 (9th Cir.1997); Williams v. Channel Master Satellite Sys., 101 F.3d 346, 349 (4th Cir.1996) (Holding as a matter of law that a 25-pound lifting limitation does not constitute a disability); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir.1996). Other courts have held that even lesser amounts were not substantial limitations. See Marinelli v. City of Erie, Pa., 216 F.3d 354, 364 (3rd Cir.2000) (10 pounds); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 644 (2nd Cir.1998) (10-20 pounds); McKay v. Toyota Motor Mfg., US.A., Inc., 110 F.3d 369, 373 (6th Cir.1997) (20 pounds); Wooten v. Farmland Foods, 58 F.3d 382, 384-86 (8th Cir.1995) (10-20 pounds); Piascyk v. City of New Haven, 64 F.Supp.2d 19, 29-31 (D.Conn.1999) (15 pounds), aff'd 216 F.3d 1072 (2nd Cir.2000) (Table case); Gerdes v. Swift-Eckrich, 949 F.Supp. 1386, 1400 n. 5 (N.D.Jowa 1996) (10 pounds) aff'd 125 F.3d 634 (8th Cir.1997). Recognizing that a lifting restriction alone would not suffice, Plaintiff has offered Figueroa’s declaration, which the Court finds contains only bald assertions and conclusory statements, and fails to meet Plaintiffs specific burden of production in ADA “working” cases. The first obstacle that the Figueroa declaration faces is it conclusion: that Plaintiff
4088	telling them that he did it. He states he denied it.” The situation presented is analogous to that recently before this Court in United States v Cotton, 13 USCMA 176, 32 CMR 176. There we distinguished between matters bearing on truthfulness and credibility, and voluntariness and admissibility. We pointed out that attacks on the truthfulness of a statement generally went to weight, not admissibility. In the case at bar, as we have previously noted, no issue as to admissibility was reasonably raised by the evidence accused gave. But that does not dilute in anywise the impact of his testimony on the weight to be accorded extrajudicial admissions which he denied making, concerning events he asserted he could not remember. 33 CMR 246; United States v Cotton, supra; United States v Ledlow, 11 USCMA 659, 29 CMR 475; United States v McQuaid, 9 USCMA 563, 26 CMR 343; United States v Spivey, 8 USCMA 712, 25 CMR 216. For this additional reason also, therefore, it is clear that accused opened the door to cross-examination touching the general issue. Accordingly, the certified question must be answered in the affirmative. II We turn next to the issue upon which we granted accused’s petition for review. It also arose during trial counsel’s cross-examination of accused, after the occurrence of the events previously discussed. In purporting to undermine accused’s truthfulness the prosecutor asked him whether he had stolen any money or other articles while stationed at the
4788	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 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 U.S.C.A. § 1331, the phrase “all civil actions” does not enlarge the jurisdiction of the district courts to vest in them general original jurisdiction in cases of mandamus. We hold, except as otherwise specifically provided by statute, that there is no original jurisdiction
4214	court wül rely on the affidavits previously filed in this matter absent specific objection from defendants. (J.A. at 30 (emphasis added).) The district court further provided that after Plaintiffs’ counsel submitted fee affidavits, the State had ten days to “draw the court’s attention to any perceived inadequacies in the form of Plaintiffs’ fee submission to the court.” (J.A. at 30.) Plaintiffs then had an opportunity to respond, after which the State had fifteen additional days to object to the submission of fees. The State, however, neither objected to the fees on the basis of any of the Barber factors nor objected to the district court’s fañure to expressly address the Barber factors. Nevertheless, we may correct a forfeited error. See A review of the record, however, reveals that the district court did not err. To the contrary, there is ample evidence demonstrating that the district court carefidly reviewed the fee applications and determined their reasonableness. As noted, the district court set forth a specific procedure for attorney’s fee applications such that the State had ample opportunity to object to any submissions by the Plaintiffs. The State made several objections to the fee applications, including general claims of over-billing, billing time for secretarial services, and billing for multiple people unnecessarily attending the same proceedings. The district court examined the objections and, agreeing with the State in part, reduced one fee award by $6,500 (J.A. at
4353	changes to the original Consent Decree would be that the Monitor would provide copies of his report to the Court. That change was not reflected in the revised Consent Decree that was filed by the parties on March 19, 1999, but the parties have since filed a corrected page 21 of the revised Consent Decree so that the Monitor in fact will be required to provide copies of the report to the Court. See Notice of Filing of April 9, 1999. . The Third Circuit has adopted a nine-factor test for determining the fairness of a settlement of a class action, see Girsh v. Jepson, 521 F.2d 153 (3rd Cir.1975), while the Tenth Circuit has adopted a four factor test, see  and the Eleventh Circuit has developed a six factor test. See Bennett v. Behring Corp., 737 F.2d 982 (11th Cir.1984). Other circuits, including ours, have not imposed such rigid sets of factors, instead recognizing that the relevant factors may vary depending on the factual circumstances. See Thomas v. Albright, 139 F.3d at 231; Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375-76 (9th Cir.1993), cert. denied sub nom. Reilly v. Tucson Elec. Power Co., 512 U.S. 1220, 114 S.Ct. 2707, 129 L.Ed.2d 834 (1994). To the extent that tire factors enumerated by the other circuits are at all relevant to the determination of whether this Consent Decree is fair, adequate and reasonable, however, the Court has considered and addressed
20	arbitrated, must then be resolved in court with nonsignatory parties. But we have held that any inconvenience or duplication of effort is a consequence of having agreed to arbitrate. Specifically, duplication of effort, redundant testimony, and the possibility of inconsistent findings ... are the risks that parties to an arbitration clause must be considered to have contemplated at the time they struck their bargain. The relevant federal law requires piecemeal resolution when necessary to give effect to an arbitration agreement. This is so notwithstanding the presence of other persons who are parties to the underlying dispute but not to the arbitration agreement, meaning that parties subject to arbitration will have to re-litigate issues with non-parties. The Rice Company see also Cargill Ferrous Int’l v. M/V JIA QIANG, No. 07-1330, 2009 WL 911087, at *5-6 (E.D.La. Mar. 31, 2009) (finding it proper to stay the third-party complaint pending the arbitration in London even though piecemeal litigation may occur). Monda Marine itself admits in its submission papers that “piecemeal litigation is sometimes acceptable.” And, the fact that the third-party defendants might have previously waived their rights to arbitration in a completely unrelated case in 2007 has no bearing here; this case presents independent insurance contracts with their own power to bind Monda Marine to the terms to which it agreed. Accordingly, IT IS HEREBY ORDERED the third-party defendants’ motion to stay proceedings and compel
3289	"237 (2d Cir.1977), cert. denied, 439 U.S. 825, 99 S.Ct. 95, 58 L.Ed.2d 117 (1978), (weighing the policies for adjudication in the two forums, and which issues are appropriate for each; the union did not waive its right to grievance arbitration by filing its claim in bankruptcy); In re Continental Airlines Corporation, 64 B.R. 865, 868-71 (Bankr.S.D.Tex.1986); In re Continental Airlines Corporation, 64 B.R. 882, 886-87 (Bankr.S.D.Tex.1986), (refusing to order arbitration and asserting bankruptcy court jurisdiction over claims involving the Railway Labor Act); United Food and Commercial Workers Local 626 v. Flechtner Packing Company, 63 B.R. 585 (Bankr.N.D.Ohio 1986) (refusing arbitration of pre-petition grievances as burdensome; finding that rejection nullified post-petition grievances);  (refusing arbitration as burdensome); General Drivers, Warehousemen and Helpers Local 89 v. Midwest Emery Freight System, Inc., 48 B.R. 566 (Bankr.N.D.Ill.1985), (applying Bildisco to find arbitration clause unenforceable for post-petition grievances; applying Nolde to order arbitration of pre-petition grievances.) . U.S. Truck’s volunteerism in retaining grievance procedures and other contract terms does not alter the status of the rejected agreement. U.S. Truck petitioned for contract rejection and was granted it, thus rendering the contract unenforceable except through the bankruptcy claims procedure. It could not revive the legal effect of the grievance procedure. ""The debtor in possession cannot ask for partial rejection of a contract,_” Note, The Labor-Bankruptcy Conflict: Rejection of a Debtor’s Collective Bargaining Agreement, Mich.L.Rev. 134, 151 (1981). . The"
3101	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 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 suspend sentence and place Worcester on probation, conditioned the offer on the waiver of his right to appeal from the criminal conviction. Id., 370 F.2d at 718. Worcester clearly fits into
1169	settlement. Thus, regardless of whether we were to dismiss the appeals for lack of jurisdiction or to reach the merits of the appeals, the settlement would stand. Although jurisdictional issues are normally resolved prior to a determination of the merits, under the circumstances here, we may disregard potentially difficult jurisdictional issues and proceed directly to the merits where there is no practical difference in the outcome. See e.g., Norton v. Mathews, 427 U.S. 524, 532, 96 S.Ct. 2771, 2775, 49 L.Ed.2d 672 (1976); Safeco Life Insurance Company v. Musser, 65 F.3d 647, 650 (7th Cir.1995); Rekhi v. Wildwood Industries, Inc., 61 F.3d 1313, 1316 (7th Cir.1995); Tisza v. Communications Workers of America, 953 F.2d 298, 300 (7th Cir.1992); Browning-Ferris Industries of South Jersey, Inc. v. Muszynski, 899 F.2d 151, 154-60 (2d Cir. 1990). We believe it is prudent to do so here. III. Federal courts naturally favor the settlement of class action litigation. E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 888-89 (7th Cir.1985), cert. denied, 478 U.S. 1004, 106 S.Ct. 3293, 92 L.Ed.2d 709 (1986); Metropolitan Housing Development Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1013 (7th Cir.1980); Armstrong v. Board 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
441	"a rule under § 502(b)(2) or elsewhere. . We have previously recognized that significant authority exists suggesting that courts may properly invoke § 105(a) to enjoin proceedings that are excepted from the automatic stay under § 362(b)(4). See Commonwealth Oil Refining Co., 805 F.2d at 1188 n. 16 (noting that, although ""[c]ourts considering the scope of § 105 have seen it as an avenue available for staying actions that are found to fall within an exception to the automatic stay,” a court’s powers under § 105 ""are not unlimited.”); Browning, 743 F.2d at 1084 (""A bankruptcy court has the power to enjoin proceedings excepted from a § 362 stay under 11 U.S.C. § 105[]....”); cf. it did not eliminate the bankruptcy court's power to enjoin the enforcement of local regulation which is shown to be used in bad faith.”) (internal quotation marks omitted); Corporación de Servicios Medicos Hospitalarios de Fajardo v. Mora (In re Corporación de Servicios Medicos Hospitalarios de Fajardo), 805 F.2d 440, 449 n. 14 (1st Cir.1986) (""We reaffirm, however, that a bankruptcy court does possess the power, in exceptional circumstances, to enjoin even administrative proceedings that are exempt from the automatic stay pursuant to section 362(b)(4), (5).”). Because we conclude that the bankruptcy court abused its discretion by entering the injunction"
2710	"notice of appeal from the Judgment extended the time for Ventura to file its notice of cross-appeal, and that notice was timely. See Fed. R. Bankr.P. 8002(a). . These concepts are more fully explicated in Associated Vintage Group, 283 B.R. 549, 554-65. . In fact, the total amount of property tax debt may be different from the ""amount in default” that is placed in class two of the Plan. Taxes can be assessed but not yet “in default.” . Section 102(2) provides that "" 'claim against the debtor’ includes claim against property of the debtor[J” 11 U.S.C. § 102(2). Therefore, although Ventura’s ad valorem taxes are not Debtors’ personal liability they are still a claim against the bankruptcy estate. . See Home State Bank, 501 U.S. 78, 82-84, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991). . Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S.Ct. 2150, 115 L.Ed.2d 66 (1991). . Alan N. Resnick & Henry J. Sommer, Collier on Bankruptcy § 506.06(l)(a) (15th ed.2005). . Emphasis added. . The Bankruptcy Court did not necessarily err. My point is that because of mootness, it does not matter whether it erred. . Lomas Mortgage USA v. Wiese, 980 F.2d 1279, 1284 (9th Cir.1992) (quoted in In re Ivory (Multnomah County v. Ivory), 70 F.3d 73, 75 (9th Cir.1995))."
673	788 (1944). In addition, a federal district judge told the claimants as early as 1980 that the Court of Federal Claims was the proper forum in which to seek compensation. Creppel, 500 F.Supp. at 1120. This court will not invent a new reason to toll the statute of limitations and pretend that the claimants filed their takings claim contemporaneously with their 1976 challenge to the Wilson Order. The claimants’ temporary taking claim is therefore time-barred. IV. The claimants’ permanent taking claim presents different questions. As this court recently held, a claim under the Fifth Amendment accrues when the taking action occurs. Alliance of Descendants of Texas v. United States, 37 F.3d 1478, 1481 (Fed.Cir. 1994), citing The Court of Federal Claims determined that the Government could have taken nothing permanently because the property’s value remained unchanged after the temporary taking precipitated by the Wilson Order: “The EPA Final Determination did not diminish the value of the land any more than it had been diminished by the Wilson Order.” Creppel, 30 Fed.Cl. at 331. The sequence of events discloses an error in the trial court’s conclusion. On August 13, 1984, the federal district court ordered that the original Project proceed. Creppel, No. 77-25 (E.D.La. Aug. 13, 1984). This order rendered the Wilson Order nugatory. The EPA then commenced proceedings on December 17, 1984 to determine whether it would issue a veto under section 404(c). The
2655	with its Rule 26(a)(1) disclosures should satisfy its obligations under Rule 34(b). Rule 26(a)(1) does not require the production of any documents, and it certainly does not excuse a party from complying with any other discovery rule. Rule 34(b) provides that, absent an agreement by the parties or a court order, “(i) a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.” Fed.R.Civ.P. 34(b)(i). There is no indication that Plaintiff produced its Rule 26(a)(1) disclosures as they were kept in the usual course of business or that they were otherwise organized and labeled. See In asserting that its Rule 26(a)(1) disclosures suffice in responding to the Rule 34 requests without showing that the Rule 26(a)(1) disclosures were produced as they were kept in the usual course of business, Plaintiff clearly did not comply with the requirements of Rule 34(b). In addition, Plaintiffs boilerplate objections are not acceptable. There is abundant easelaw to the effect that boilerplate objections to Rule 34 document requests are inappropriate. In the
1551	factors must be established before it becomes necessary to undertake an examination of the totality of the circumstances (the so-called “Zimmer” factors): (1) The minority group must be sufficiently large and geographically compact to constitute a (voting) majority in a single-member district; (2) The minority group must be politically cohesive; and (3) The minority must demonstrate that the white majority votes sufficiently as a bloc to enable the majority to usually defeat the cohesive minority’s preferred candidate. While satisfying these threshold factors does not prove a violation of Section 2, failure to establish all of them may eliminate the necessity to even conduct a totality of the circumstances examination. Overton v. City of Austin, 871 F.2d 529 (5th Cir.1989). Although the Fifth Circuit has apparently not yet squarely so held, it seems rather clear that the majority population with which Thornburg v. Gingles is concerned is a voting majority, not simply a population majority. The Court of Appeals has at least implied that the single-member district which is created must contain at least a voting age majority of the minority group. See Houston v. Haley, 859 F.2d 341 (5th Cir.1988), vacated on other grounds, 869 F.2d 807 (1989), (where the court referred to this issue as “critical”); Brewer v. Ham, 876 F.2d 448, 452 (5th Cir.1989); Overton v. City of Austin, 871 F.2d 529, 542 (5th Cir.1989), Jones, J., concurring.
3433	"conduct was proven sufficiently, as the government proffered a certified copy of the guilty plea, and Terrell does not dispute the validity of the evidence. . Rule 403 states: ""[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R.Evid. 403. Rule 403 is ""an extraordinary remedy which the district court should invoke sparingly, and [t]he balance ... should be struck in favor of admissibility.” United States v. Dodds, 347 F.3d 893, 897 (11th Cir. 2003) (citation and internal quotation marks omitted). . Terrell’s reliance on  is misplaced. In that case, the government sought to admit evidence of prior violent felonies in order to establish that the defendant had a prior felony conviction, and the defendant had offered to stipulate to the prior convictions. 519 U.S. at 191-92, 117 S.Ct. 644. In contrast, in this case, the government is offering the evidence to establish Terrell's knowledge. The evidence did not apply to whether Terrell had a prior conviction as required under § 922(g). The U.S. Supreme Court did not discuss the evidence in the context of this first prong of the test, and, therefore, Old Chief is not dispositive. . ""The decision of whether to grant a mistrial lies within the sound"
3896	entitled to receive rent. See § 365(d)(3). Finally, while the premises at issue here is used by the Debtor for storage and assembly of its products, the lease in Cybernetics was also crucial to that Debtor as it was that estate’s only asset of significant value. Debtor’s counsel has brought no cases to the court’s attention in which a bankruptcy court has ruled that a debtor’s verbal statement of intent to assume a nonresidential lease, without more, met the very specific requirements of § 365(a) and Bankruptcy Rules 6006 and 9013. One of the cases cited by the Debtor did hold that the Trustee’s timely oral notification was sufficient to permit the Trustee to assume an executory real estate contract. Nostromo, however, was decided under § 70(b) of the Bankruptcy Act, 11 U.S.C.A. § 110(b), and dealt with assumption or rejection of an executory contract, including an unexpired lease of real property. Finding the oral notification adequate, the court noted “The Act does not provide any formal manner in which the trustee shall make the assumption, and in this instance the notice of assumption was made orally, but well within 30 days after the qualification of the trustee.” 388 F.2d at 84. The instant case, however, is not governed by the Act, but by Bankruptcy Code §§ 365(a) and (d), and Bankruptcy Rules 6006 and 9014. The remaining cases cited by the Debtor do not persuade me that there is any
2074	ordered her to get out from the back of the car, she claimed that her husband, Miguel Rodriguez Colón, had invited her for a ride, but rejected her husband’s contention that they were going to the Hawaiian Hut. Furthermore, she acknowledged that all of the defendants — Rodriguez Colón, Fernandez Santana, Mauricio Guerrero and herself — were together ,in the car. This statement belies the allegation that she was an innocent bystander, completely unaware of the drug transaction. The Supreme Court has clearly stated that probable cause must exist with respect to each person arrested, and a person’s mere proximity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. See See also United States v. Sepulveda, 102 F.3d 1313 (1st Cir.1996). Consequently, defendant Berrocal may also plausibly argue that mere familiarity or kinship with other people for whom there is probable cause to arrest is not sufficient to establish probable cause against her. We must assess not only her mere proximity to the other defendants, but her relationship to them at the time of the arrest. In the present case, the agent was armed with the collective knowledge of his fellow officers that several people would be waiting near the Black Angus area for the cocaine shipment recently seized from the Eagle Caribe. Agent Andaluz had specific knowledge that Mauricio Guerrero, Miguel Rodriguez Colón
3292	PER CURIAM. Jorge Alarcon pled guilty to conspiring to distribute more than 1,000 kilograms of marijuana, in violation of 21 U.S.C. § § 846 and 841(b)(1)(A), and the district court sentenced him to the statutory minimum of 120 months in prison. On appeal, his counsel has moved to withdraw and has filed a brief under Alarcon seeks appointment of new counsel and has filed a pro se supplemental brief. Counsel argues in the Anders brief that the sentence imposed is unreasonable. We disagree. See United States v. Vaughn, 519 F.3d 802, 804-05 (8th Cir. 2008) (reviewing sentence for procedural error and substantive reasonableness), cert. denied, — U.S. —, 129 S.Ct. 998, 173 L.Ed.2d 297 (2009); see also United States v. Rojas-Coria, 401 F.3d 871, 874 n. 4 (8th Cir.2005) (Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), has no impact on case involving sentence imposed as result of statutory minimum). Alarcon’s pro se argument that his guilty plea was not knowing or voluntary is not cognizable in
1242	"with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default.” N.Y. C.P.L.R. § 305(b). . The Whitaker court noted that in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 349-56, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999), the Supreme Court held that ""the removal period could only be triggered by formal service of process,” but did not address ""whether a pleading other than a complaint can constitute the initial pleading under section 1446(b).” Whitaker, 261 F.3d at 202. .  which Plaintiffs rely on heavily, is distinguishable. In U.S.E., the plaintiffs filed a summons with notice asserting breach of contract, without any specification as to what contract was at issue. See id. at 214. The court stated that the defendant ""apparently ha[d] some idea of the nature of th[e] lawsuit because its petition for removal identifies the contract which it believes is” at issue. Id. The court then held that the summons with notice was not an initial pleading and that the defendant's removal, based on a fraudulent joinder claim, was premature. Id. at 215. As Defendants point out, unlike the Summons with Notice here, the summons with notice in U.S.E. did not specify a contract so as to allow the defendants"
66	between the two cannot be clearly erroneous. Fors, 259 B.R. at 135-36. If the trial court’s account of the evidence is plausible in light of the entire record, an appellate court cannot substitute its judgment for that of the trier of fact. Id. at 136. DISCUSSION Pursuant to 11 U.S.C. § 523(a)(6), a discharge does not discharge an individual from a debt for willful and malicious injury. In this context, the term willful means deliberate or intentional. Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 977, 140 L.Ed.2d 90 (1998); Hobson Mould Works, Inc. v. Madsen (In re Madsen), 195 F.3d 988, 989 (8th Cir.1999);  cert. denied, 528 U.S. 931, 120 S.Ct. 330, 145 L.Ed.2d 258 (1999); Johnson v. Fors (In re Fors), 259 B.R. 131, 136 (8th Cir. BAP 2001). The injury, and not merely the act leading to the injury, must be deliberate or intentional. Geiger, 523 U.S. at 61-62, 118 S.Ct. at 977. Malice requires conduct which is targeted at the creditor, at least in the sense that the conduct is certain or almost certain to cause financial harm. Madsen, 195 F.3d at 989; Scarborough, 171 F.3d at 641; Waugh v. Eldridge (In re Waugh), 95 F.3d 706, 711 (8th Cir.1996); Barclays Amer./Bus. Credit, Inc. v. Long (In re Long), 774 F.2d 875, 881 (8th Cir.1985); Fors, 259 B.R. at 136. In order to except a debt from discharge under 11 U.S.C. §
1464	institution operated by the State of Iowa. His release has mooted his claims for declaratory and injunctive relief but has not mooted his claim for monetary damages. In passing upon the defendants’ motion for summary judgment the district court was required, and we are required, to view the case in the light most favorable to Watts and to give him the benefit of all inferences in his favor that reasonably may be drawn from the evidence. Moreover, even though the facts in a case may be undisputed, it does not necessarily follow that summary judgment under Rule 56 is appropriate; the court must still consider the legal questions raised by the undisputed facts. See  and cases cited. We have carefully considered the record before us, and we affirm without difficulty the action of the district court in granting summary judgment against Watts and dismissing his complaint. First, let us point out that there are three things that this case does not involve. It does not involve the right of an inmate of a prison or jail to have access to the federal courts to seek relief from his imprisonment or from the conditions thereof. That right has been established since the decision of the Supreme Court in Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Neither does the case involve the right of an inmate to have the
903	. City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir.2010). . Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). . Adler, 144 F.3d at 670 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . d at 671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir.2010). . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Spaulding, 279 F.3d at 904. . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). . Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir.2000) (quoting Adler, 144 F.3d at 670-71); see Kannady, 590 F.3d at 1169. . City of Herriman, 590 F.3d at 1181. . Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006). . Celotex, 477 U.S. at 327,
4052	"§ 157(b)(1) (granting authority to bankruptcy judges to hear core proceedings). . Plaintiffs also discovered, in August 2009, that Jacobson included in his invoices to Plaintiffs a bill from Complete Construction for $5000 that Complete Construction informed Jacobson was a mistaken bill that should not be paid. . Corbels are decorative brackets that are placed under the eaves of homes. The corbels Plaintiffs hired Jacobson to build were custom made and designed only for Plaintiffs’ home. . Fed.R.Civ.P. 56(a). Rule 56 is applicable to bankruptcy adversary proceedings via Federal Rule of Bankruptcy Procedure 7056. . LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir.2004). . Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir.2003) (citing . Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Id. (citing Federal Rule of Civil Procedure 56). . Diaz v. Paul J. Kennedy Law Firm, 289 F.3d 671, 674 (10th Cir.2002) (internal quotations omitted). . Celotex Corp., 477 U.S. at 327, 106 S.Ct. 2548. .Doc. 36 at 1. . Id. at 1-2. . Id. at 2. . Fed.R.Civ.P. 56(c); see also Diaz, 289 F.3d at 674 (""[T]he non-movant- must either establish the existence of a triable issue of fact under Fed.R.Civ.P. 56[ (c) ] or explain why he cannot ... under Rule 56[ (d)"
2316	"copy he discovered. . Plaintiff, Don Jarvis, James Rolfe, Gary Richardson, Gary L. Richardson & Associates (Richardson's law firm), and Gerald Hilsher (a former associate attorney at Richardson & Associates) had all been sued by Tex, Charles, and Richard W. Moncrief (son of Tex Moncrief) as third-party defendants in the litigation Michael Moncrief commenced on March 7, 1995. Plaintiff was alleged to have breached his fiduciary duty in the course of his employment by the Moncrief family, to have stolen and intentionally disclosed confidential documents, and to have intentionally misrepresented facts about the Moncrief family to the IRS, Michael Moncrief, and plaintiff's advisors. The complaint also listed causes of action for conspiracy and intentional infliction of emotional distress. . See . Plaintiff made the remarkable assertion during cross examination that only the IRS had possession of tax information, as a taxpayer only retains file copies: A. ""...if you get real technical about it, these weren’t real tax returns because they had not been filed, Mr. King.’’ Q. “These were the taxpayers copies of the tax — these were the Moncriefs file copies of their tax returns?” A. “That's correct.” Tr. p. 676. If this bit of sophistry were accepted, Jarvis could only have violated the agreement by first obtaining original filed copies of tax returns from the IRS. . Rolfe testified that he only did a cursory reading of the contract. . Samuel Graber testified that he"
1916	objection, the Government permitted the mortgagor to convert the building into cooperative housing units. In January 1981, the bank brought suit in the United States District Court for the District of Massachusetts seeking a declaratory judgment to the effect that the then-anticipated conversion (that action apparently was not completed until later in 1981) would violate § 207 of the National Housing Act, 12 U.S.C. § 1713 (1980), and breach the plaintiffs mortgage agreement as well as the regulatory agreement between plaintiff and HUD. Some five years later—following the entry of a summary judgment against the bank that was vacated on appeal, A hearing was held on the matter and, based on the district judge’s findings, an order was entered on May 8, 1986 denying the motion to amend on grounds of inexcusable delay. On December 18, 1986, plaintiff filed its claim for contract damages in this court in order to avoid the expiration of the statute of limitations. Several hours later on the same day, plaintiff filed an identical protective suit in the district court. Thereafter, it moved to stay both proceedings pending the outcome of the original suit in the district court. A stay was granted in the district court. DISCUSSION As indicated, the Government opposes the motion
1739	"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). . Accord New Jersey Dep’t of Envtl. Prot. v. Gloucester Envtl. Mgmt. Serv. Inc., 719 F.Supp. 325, 334 (D.N.J.1989) (""If a court dismissed the federal defendant from ... a case [removed pursuant to section 1442(a)(1)], it must use its discretion to decide whether to remand the remaining ancillary claims to state court or to maintain jurisdiction over those claims.”). . See Mesa v. California, 489 U.S. 121, 136, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989). . Jefferson County v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069, 144"
653	Government moved for summary judgment on the basis of a time bar under the statute of limitations. The claimants sought to amend their complaints to allege that the limitations period began only when the district court upheld the EPA’s Final Determination on June 30, 1988. The Court of Federal Claims held that the claimants’ cause of action accrued when the Wilson Order issued on November 16, 1976. The court granted summary judgment to the Government. Creppel v. United States, 30 Fed.Cl. 323 (1994). This appeal followed. DISCUSSION A trial court properly grants summary judgment only when no genuine issue of material fact exists and the law entitles the movant to judgment as a matter of law. Fed.R.Civ.P. 56(c); This court reviews a grant of summary judgment by the Court of Federal Claims de novo. Turner v. United States, 901 F.2d 1093, 1095 (Fed.Cir.1990). A six-year statute of limitations governs claims before the United States Court of Federal Claims: [E]very claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the [claim] thereon is filed within six years after such claim first accrues. 28 U.S.C. § 2501 (1988 & Supp. V 1993). A claim accrues when all events have occurred that fix the alleged liability of the Government and entitle the plaintiff to institute an action. Japanese War Notes Claimants Ass’n v. United States, 373 F.2d 356, 358 (Ct.Cl.), cert, denied, 389 U.S. 971,
1095	for the defendant by the plaintiff within this state if such performance within this state was authorized 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 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
624	as aforesaid did so escape by or with or by reason of any permission, connivance, knowledge, or negligence on the part of said steamship company or of the defendant herein. “(9) That none of the escapes of the Chinese laborers herein mentioned occurred by reason of vis major or inevitable accident. 1. The defendant, in causing the Chinese persons named in the indictment to be taken from the steamer of which he was master, and placed in what is termed in the agreed statement of facts the “detention shed,” did not land, or permit the landing of, such Chinese persons, within the meaning of the law. The case in this respect is the same in principle as those of 35 L. Ed. 1146, In re Ah Kee (C. C.) 21 Fed. 701, and In re Way Tai (C. C.) 96 Fed. 484, in each of which cases it was held that the mere removal of a passenger from the vessel to the shore did not constitute a landing, so long as he was not left free to go at large. It was also so held in United States v. Duffy, tried in this court in the year 1902. The defendant in that case was charged with having aided and abetted the landing in the United States of one Ma Foo, a Chinese person, from a vessel, and it was shown upon the trial that such Chinese person
1639	incurred the hatred, disrespect and even contempt of those who held contrary beliefs.” Engel v. Vitale, supra, 370 U.S. at 431, 82 S.Ct. at 1267. The Supreme Court has again and again condemned exactly the practice which the named officials of Alabama now seek to effect. School District of Abington v. Schempp, supra; Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711; Engel v. Vitale, supra ; Cantwell v. Connecticut, supra; Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292; People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649; McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393; 81 S.Ct. 1680, 6 L.Ed.2d 982; West Virginia Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628. In People of State of Ill. ex rel. McCollum v. Board of Education, 333 U.S. at 227, 68 S.Ct. at 473, the Court stated, “the Constitution * * * prohibited the Government common to all from becoming embroiled, however innocently, in the destructive religious conflicts of which the history of even this country records some dark pages.” Then in Zorach v. Clauson, supra, 343 U.S. at 312, 72 S.Ct. at 683, the Court stated, “There cannot be the slightest doubt that the First Amendment reflects the philosophy that Church and State should be separated.” On the other hand, the Supreme Court
2292	files during office hours while Mr. Center chatted with firm members. Therefore, we agree with the district court’s finding that Mr. Center had implicit permission from the firm to copy documents. Finally, Mr. White alleges that outrageous conduct by the government justifies reversal of his conviction. We have previously noted that there is doubt as to the validity of the outrageous governmental conduct doctrine. United States v. D’Antoni, 874 F.2d 1214, 1219 (7th Cir.1989); United States v. Bontkowski, 865 F.2d 129, 131 (7th Cir.1989); but see United States v. Miller, 891 F.2d 1265, 1267 n. 2 (7th Cir.1989). In any event we have never reversed a conviction on this ground. United States v. Duncan, 896 F.2d 271, 275 (7th Cir.1990); In the initial opinion in this case, we suggested that: [i]f, however, the government, having the kind of hold over an attorney that it had over Center—for when it approached him he had been convicted but not yet sentenced—extracts from him client secrets that it then uses in a criminal trial of the client to the latter’s substantial prejudice, this might be the kind of serious governmental misconduct that would violate a criminal defendant’s rights under the due process clause of the Fifth Amendment. 879 F.2d at 1513. Of course, based on our earlier conclusions in this case, there were no actions which could be claimed to constitute outrageous conduct. The government solicited Mr. Center’s cooperation to confirm the information
1743	"to maintain jurisdiction over those claims.”). . See Mesa v. California, 489 U.S. 121, 136, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989). . Jefferson County v. Acker, 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999). Accord Mesa, 489 U.S. at 133-35, 109 S.Ct. 959; In re Agent Orange Prod. Liab. Litig., 304 F.Supp.2d 442, 446 (E.D.N.Y.2004); 16 James Wm. Moore et al., Moore's Federal Practice (""Moore's”), ¶ 107.15[1][b][ii]. . The requirement for a federal defense is broadly construed; a defense need only be colorable, not clearly sustainable. See Jefferson County, 527 U.S. at 431, 119 S.Ct. 2069 (""We ... do not require the officer virtually to 'win his case before he can have it removed.’ ”) (citation omitted); . The statute provides in pertinent part: ""[A] notice of removal of a civil action or proceeding shall be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b). . See Somlyo, 932 F.2d at 1046 (""federal courts rigorously enforce the statute's thirty-day filing requirement”)."
811	"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 by 28 U.S.C. § 455(a). Even though waiver by the parties is permitted under Section 455(a) the undersigned judge shall disqualify himself in Mr. Nachman’s cases before this Court for a period of two years from the date of this judge’s induction. Wherefore, I hereby disqualify myself from this case. The Clerk is hereby instructed to return the case to the assigning judge. IT IS SO ORDERED. In San Juan, Puerto Rico, this 21st day of September, 1983. /s/ Hector M. Laffitte Hector ,M. Laffitte U.S. District Judge . The statute provides in relevant part: ""In any action or proceeding to enforce a provision of ... the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fees as part of the costs.” . The Court must focus on the legal sufficiency of the affidavit, but cannot consider the truth or falsity of the allegations. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65"
2352	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 physician, with its extra weight, and any substantial evidence to the contrary remains the responsibility of the fact-finder. Schisler v. Heckler, 787 F.2d at 81 (citing Bluvband, 730 F.2d at 892-93; Aponte v. Secretary of HHS, 728 F.2d 588, 591 (2d Cir.1984); Gold v. Secretary of HEW, 463 F.2d 38, 42 (2d Cir. 1972)). The merits of the treating physician rule are not at issue in the present case. This panel is bound by our prior decisions. While the Secretary understandably might disagree with the rule, he has made no attempt to take the issue to the Supreme Court. He also denies that he is following a policy of nonacquiescence, Stieberger, 801 F.2d at 36, and vigorously professes to follow the rule in adjudicating all disability claims. See Schisler, 787 F.2d at 83. Notwithstanding this seemingly broad area of agreement, the AU’s decision made no express, implied, or even oblique reference to the treating physician rule. That he discounted Dr. Mulbury’s
4250	for critics for the Supreme Court’s constitutional decisions. It is not likely to occur in the course of the commercial conflicts of competing cheese-mongers. One could readily believe that Colonel Frederick Bernays Wiener, for example, if required to make an affidavit, in advance of the decision in Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed. 2d 620 (1964), regarding the outcome of that case might well predict that the Court would not be convinced by his able argument that to restrict Delaware’s historic freedom to mould her own governmental institutions as a State would be to revive in a particularly pernicious form the doctrines of “substantive due process” so vigorously castigated by Justice Black in his opinion in But with regard to a decision on the scope of the Brandenberger patent, we do not attribute to Mr. Lutz any such thought of a discrepancy between law as known by lawyers and as unknown by judges, and we accept (under all the circumstances of the case, especially the past dealings between the parties) his testimony as proving non-infringement. This is not one of the cases where it is easier to reach a determination of non-infringement than to deal with the issue of invalidity. Were it such, the Supreme Court’s admonition that the greater public interests attaches to the latter determination would be timely. Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 330,
2585	liability before filing a motion for class certification. Plaintiffs’ counsel may have had insufficient time to handle the motions for class certification and amendment simultaneously, but they themselves created that problem by agreeing to an unrealistic briefing schedule. Plaintiffs, not defendants, must bear the cost of that mistake. In their stipulation of June 17, 1977, plaintiffs did not reserve the right to make an untimely motion to amend their complaint. Plaintiffs may assert the claims of breach of broker fiduciary duty in their individual actions. The brokers have alleged no prejudice in this regard, and the Court is not convinced that the claims under Rule 10b-5 as well as under Rules of the NYSE and the NASD are legally insufficient. See The Court does not decide the legal sufficiency of those claims at this time and only allows plaintiffs to amend their complaint in that respect. The other proposed amendments are permissible. The new allegation that plaintiff Sullivan received, directly or indirectly through her family, copies of Performance Chart No. 2 from Witter does not prejudice Witter because Witter was aware of and responded to this contention, and the Court has an insufficient basis to conclude, as Witter urges, that plaintiffs are engaging in sham pleading. Most of the remaining changes are not substantive and do not merit individual discussion. In this Memorandum of Opinion, the Court will rely on the amended, rather than the original, complaint because it provides a current
2119	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); 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 property (other than stock or securities of a foreign corporation which is
3521	facility “on the terms generally set forth in Boise City Ordinance No. 6404,” which contained the single-men-only restriction. The City closed Community House on September 6, 2005. The BRM reopened the facility in October and renamed it the River of Life Rescue Mission. The City repaid CHI’s outstanding FHLB loan and, “by doing so, obtained a release of liability on behalf of both the City of Boise and CHI.” The BRM exercised its purchase option on January 9, 2007. E. Litigation CHI filed suit the same day as the auction in July 2005. The district court denied in part its request for a preliminary injunction, but a previous panel of this court reversed and remanded for reconsideration. House I ”). The initial question in the previous appeal was whether the FHA, which applies only to “dwellings,” applied to Community House. Id. at 1048 n. 2. We noted that the Ninth Circuit had “never squarely addressed the issue of whether all temporary shelters fit within the [FHA’s] definition of ‘dwelling,’” but did not decide the issue. Id. Based on evidence that Community House (under CHI’s control) generated up to $125,000 in annual rent from the transitional housing units and SROs, in which the occupants resided for up to a year and a half, we had “little trouble concluding that at least part of the facility” was intended as a residence and that therefore the FHA applied. Id. We
2595	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 substantial in order to determine whether common questions of materiality predominate. See The evidentiary material submitted to the Court suggests that individual variations in the total mix of information available to CIS investors do not destroy predominance. In general, the past performance of an investment adviser is a material fact to its clients, and the existence of information about other subjects relevant to the selection of an investment adviser is unlikely to make its past performance immaterial to the reasonable investor. Whether information about past performance in general is material is a predominating common question. The issue then becomes whether clients of CIS had significant other sources of information about past performance that conflicted with or modified Performance Chart No.
4189	see 42 U.S.C.A. §§ 12101-12213 (West 1995 & Supp.1997) — challenging the conditions of confinement of juveniles housed in the Department of Juvenile Justice facilities operated by the State. Plaintiffs alleged that the State violated a number of their constitutional and federal statutory rights. After exhaustive discovery and a three-month bench trial, the district court concluded that certain aspects of confinement violated Plaintiffs’ rights under the Due Process Clause of the Fourteenth Amendment. Plaintiffs, therefore, prevailed in proving that actual constitutional violations occurred in the juvenile facilities. In its order of January 25,1995, the district court cited constitutional and statutory deficiencies in the areas of fire safety, food services, medical services, programming, overcrowding, and staffing levels. See The court also found that the Plaintiffs’ constitutional rights had been infringed upon by the improper use of CS gas, a potent form of tear gas used for riot control, and by the State’s failure to adequately identify those Plaintiffs who suffer from a “disability” for purposes of the facilities’ educational programs. See id. at 785-88. Accordingly, the district court ordered the State to devise and implement a remedial plan to cure each violation. It also stated its intent to appoint a special master to monitor the implementation of the program. See id. at 803-05. The State did not appeal. On November 22, 1995, after submissions and arguments, the district court issued an order awarding Plaintiffs attorney’s fees for work relating
2112	Tax Court Rules of Practice and Procedure. Because tax avoidance may be achieved when assets, including manufacturing know-how, are transferred to a foreign corporation, the guideline at section 2.02, Rev. Proc. 68-23, requires, inter alia, valid business reasons to exist for such a transfer. Absent a substantial business reason, the guideline presumes that the transferor consummated the transfer in pursuance of a plan having as one of its principal purposes the avoidance of Federal income taxes. In addition, the section 367 guidelines set out at Rev. Proc. 68-23, 1968-1 C.B. 821, are not positive enactments of law but are merely official interpretations of the law made by respondent for guidance to those taxpayers seeking a section 367 ruling. See also Clark v. Commissioner, 58 T.C. 94, 103 (1972). Section 367, on the other hand, is positive law and must be the basis upon which the instant case is decided. The relevant language thereunder is that “such exchange is not in pursuance of a plan having as one of its principal purposes the avoidance of Federal income taxes.” Neither Congress in its hearings nor respondent in his rulings has ever defined what is meant by a “principal purpose.” Although we have never interpreted the term principal purpose within the context of section 367, nonetheless, we have interpreted the meaning of principal purpose in a somewhat analogous provision under section 269. That section, unlike section 367, focuses on whether the principal
2876	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 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 trials are expedited and justice is served by such disclosure of matters upon which the attacker intends to rely; and the party defending the validity of the patent should have an opportunity to examine the publications and the instances of alleged prior use and sale, in
2114	of a plan having as one of its principal purposes the avoidance of Federal income taxes.” Neither Congress in its hearings nor respondent in his rulings has ever defined what is meant by a “principal purpose.” Although we have never interpreted the term principal purpose within the context of section 367, nonetheless, we have interpreted the meaning of principal purpose in a somewhat analogous provision under section 269. That section, unlike section 367, focuses on whether the principal purpose for which an acquisition was made is the evasion or avoidance of Federal income tax. For section 269 to apply, principal purpose has been interpreted to mean a tax-evasion or avoidance purpose which outranks or exceeds in importance, any other purpose. v. Commissioner, 65 T.C. 162, 178 (1975). In contrast to section 269, section 367 speaks in terms of a plan having as one of its principal purposes the avoidance of Federal income taxes. When these two statutory provisions are laid side by side, it becomes apparent that the subjective tax-avoidance motive in section 269 acquisitions must be greater than the tax-avoidance motive in section 367 transfers. Consequently, section 269 is instructive in the instant case by defining the nature and scope of the tax-avoidance purpose. However, because of the statutory variance between section 269 and section 367, with respect to the intendment of the respective statutes, we believe that the term “principal purpose” should be construed in accordance with
4558	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, ‘ 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 poli-cymaking authority with respect to County law enforcement and jails, and [based on that,] the County can be held responsible for constitutional violations resulting from these policies.” United States v. Maricopa Cnty., Ariz., 915 F.Supp.2d 1073, 1082-84 (D.Ariz.2012); (Doc.56). Title VI does not explicitly provide liability for entities which cause others to violate the statute. Title VI provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the
146	are present here. In Williams, 450 F.Supp. at 1040-41, the plaintiff sued the United States under the FTCA to recover for the wrongful death of the plaintiffs decedent who was killed one day 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  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
1979	Ltd. operations. Luxall Ltd. provided sales, marketing and advertising services for Envirotek, Alpha Svenska Ltd. was used by Envirotek to register the motor vehicles which transported hazardous wastes, and Arrowhead Environmental acted as a marketing agent for Envirotek. See Cain Affidavit, Exhibit A to Government’s Response, filed August 17, 1993, at paras. 25 — 28. All four companies, it is alleged, were used to further 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  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
1370	51 Cal.4th 310, 120 Cal.Rptr.3d 741, 246 P.3d 877; In re Actimmune Mkt. Litig., No. 08-2376, 2010 WL 3463491, at *8 (N.D.Cal. Sept. 1, 2010), aff'd, 464 Fed. Appx. 651 (9th Cir.2011); Brazil v. Dole Food Co., 935 F.Supp.2d 947 (N.D.Cal. 2013); Kane v. Chobani, No. 12-CV-02425-LHK, 973 F.Supp.2d 1120, 1129, 2014 WL 657300, at *5 (N.D.Cal.2014). The federal and state statutes relied on by Plaintiff prohibit a particular type of consumer deception, the mislabeling of food products. As such, the actual reliance requirement applies to Plaintiffs claims under all prongs of the UCL. See Figy v. Amy’s Kitchen, No. 13-CV-03816-SI, 2013 WL 6169503 (N.D.Cal. Nov. 25, 2013); Kwikset, 51 Cal.4th 310, 120 Cal. Rptr.3d 741, 246 P.3d 877; Defendant argues that Plaintiff cannot establish standing because Plaintiff cannot demonstrate that he was deceived by Defendant’s alleged conduct. However, Plaintiff counters that he purchased Defendant’s products in reliance on the “no trans fat” and “no cholesterol” representations. Dkt. No. 47 ¶¶ 10 n.l, 13, 27, 56, 76. Plaintiff notes that he relied “1) on the Defendant’s explicit representations that its products contained ‘0g Trans Fat’ and ‘No Cholesterol’ and were thus healthier than other potato chips lacking such statements and 2) the Defendant’s implicit representation based on Defendant’s material omission of material facts that the Defendant’s Cheddar & Sour Cream Chips purchased by the Plaintiff were legal to sell and possess.” Id. ¶13. Plaintiff does no.t argue that the labels were
3128	Section 105 of the Bankruptcy Code does not authorize payments of pre-petition debts to critical vendors. On October 17, 2013, the Debtor filed a Reply to Opposition to Motion Requesting Authori zation to Denominate Critical Vendors (Docket No. 46) sustaining that the products and services provided by the critical vendors are necessary for it to continue operating and turn a profit. On October 18, 2013, the court held the scheduled hearing. See Docket Nos. 55 (Audio File) and 64 (Minute Entry). The court ruled, inter alia, that the Motion Requesting Authorization to Denominate Critical Vendors (Docket No. 16) would be granted through a separate order. The court partially disagreed with the legal assumptions made by the Debtor in regards to  but determined that the evidence during the hearing supported the request for critical vendors as to the way they were designated and in the amounts they were designated as they have been budgeted to be paid in the projections prepared (capped at $5,000 per month). See the Minute Entry (Docket No. 64, pp. 7-8). Jurisdiction The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334. This is a core proceeding 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
3788	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 hours of operation and the physical size of adult entertainment establishments as time, place, and manner restrictions); Brownell, 190 F.Supp.2d at 486 (applying O’Brien to ordinance restricting specified sexual activities including erotic touching);  aff'd in part, rev’d in part, vacated in part, 470 F.3d 1074 (4th Cir.2006). The AEC’s criminal provisions, which directly regulate nude dancing, will be analyzed under the intermediate scrutiny of O’Brien. VIII. Plaintiffs Constitutional Challenges to the AEC’s Criminal Provisions Plaintiff contends that three of the AEC’s criminal provisions unconstitutionally limit protected expression. Plaintiff claims that the third definition of SSA, AEC § 3-6(3), as prohibited by section 3-129(3), and the entire definition of SSA, AEC § 3-6, as applied in section 3-129(6), violate the First and Fourteenth Amendments. Additionally, Plaintiff asserts that the limited no-touch provision of section 3-129(9) violates the First, Fifth, and Fourteenth
4257	of the Supreme Court often regards as a constitutional issue the procedural ques tion whether there was sufficient evidence to go to the jury. Thompson v. City of Louisville, 362 U.S. 199, 204, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Garner v. State of Louisiana, 368 U.S. 157, 163, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961). Justice Frankfurter protested that consideration of such cases diverted the energies of the Court from the important problems suitable for consideration by the nation’s highest tribunal. Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 525, 540, 547, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957). See also Dick v. New York Life Ins. Co., 359 U.S. 437, 456-459, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959); . Clean hands is a good defense in a patent infringement suit, as Judge. Maris points out in De-Raef Corp. v. Horner Sales Corp., 10 F.R.D. 28 (W.D.Pa. 1950). See also Keystone Driller Co. v. General Excavator Co., 290 U.S. 240, 245-247, 54 S.Ct. 146, 78 L.Ed. 293 (1933); Mercoid Corp. v. Mid-Continent Inv. Co., 320 U.S. 661, 684, 64 S.Ct. 268, 88 L.Ed. 376 (1944). . For that Court, as Professor Wechsler observes, “above all others has the faculty of rendering decisions that accord a quality of rapid obsolescence to the learning we law teachers [and practicing lawyers] claim to have.” Herbert Wechsler, “The Courts and the Constitution,” 65 Col.L.R. (No. 6, June, 1965)
3554	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 BRM, is not a dwelling.  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
227	the assembly of such units. There are a multitude of cases which sustain the principle that, as an indispensable condition precedent to liability for interference with the performance of one’s contract, there not only must be knowledge of the contract, but there must be an intentional interference therewith. Robins Dry Dock & Repair Co. v. Flint, 1927, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290; Baruch v. Beech Aircraft Corp., 10 Cir., 1949, 175 F.2d 1; New York Trust Co. v. Island Oil & Transport Corp., 2 Cir., 1929, 34 F.2d 649; The Federal No. 2, 2 Cir., 1927, 21 F.2d 313; d 61; Tipton v. Burson, 1951, 73 Ariz. 144, 238 P.2d 1098; Dewey v. Kaplan, 1937, 200 Minn. 289, 274 N.W. 161; Brink v. Wabash R. Co., 1901, 160 Mo. 87, 60 S.W. 1058, 53 L.R.A. 811; see Twitchell v. Glenwood-Inglewood Co., 1915, 131 Minn. 375, 155 N.W. 621; see Cat’s Paw Rubber Co. v. Bario Leather & Findings Co., D.C.S.D.N.Y., 1951, 12 F.R.D. 119, 121; Phillips v. Belding Heminway, D.C.S.D.N.Y., 1943, 50 F.Supp. 1015, 1019; see Prosser, Torts 991-996 (1941); 30 Am.Jur. Interference § 22; Note, 26 A.L.R.2d 1227, 1246. This is also the view adopted by the American Law Institute. See Restatement, Torts, § 766, comment d. Plaintiffs’ contention as set forth in Paragraphs VI to IX of their amended complaint wherein it
1891	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 making allowances for exploration and development is determining whether the money will actually be spent for that purpose. The Commission’s “work off” policy solved that problem by excusing the refund obligations to the extent exploration funds produced discoveries that were dedicated to interstate commerce. The Commission held that the work off procedure was sufficient to negate Gillring’s equitable claim for exploration and development funds, and that judgment was within its discretion to make. The subsequent abandonment of work off in Opinion No. 699, affirmed,  cert. denied, 426 U.S. 941, 96 S.Ct. 2661, 49 L.Ed.2d 394 (1976), does not help Gillring, for the price incentive for exploration and development under Opinion No. 699 replaced the incentive provided by work off. See 520 F.2d at 1082-1083. The higher price allowed by Opinion No. 699 for new gas — 50 cents/mcf — makes Gillring’s equitable claim for development funds weaker, not stronger. Finally, Gillring’s complaint that the rates it charged were at all times below the 18 cents/mcf minimum rate established in Opinion No. 749 is misplaced. The Commission has gone from area to national rate-making, and the Opinion No. 749 minimum rate now applies to all gas from wells commenced before January 1, 1973. The Opinion
1562	"on liability that there is a current dilution of black voting strength in Orleans Parish. Plaintiffs contend that the fact that Orleans Parish has a majority black population is not dispositive under the case law and because of state-sanctioned historical discrimination and resulting socioeconomic burdens, blacks are a minority of those voting in at-large judicial elections. Plaintiffs further contend that black electoral success in nonjudicial offices should not defeat an otherwise meritorious Section 2 claim. Alternatively, plaintiffs argue that even if black voting strength is not presently diluted, the “power of incumbency"" of white judges (elected when at-large elections diluted black voting strength) perpetuates the effects of prior dilution and the system must be changed under In view of Dr. Engstrom’s testimony at the liability phase and again at the remedy phase that there is presently no dilution of black votes in Orleans Parish, plaintiffs simply have not established a Section 2 claim under Gingles. Plaintiffs’ reliance upon Kirksey which deals with perpetuation of intentional and purposeful discriminatory denial of access in violation of the Constitution is not persuasive here. Nor is it clear from the evidence presented that dilution will be perpetuated due to the incumbency of white judges."
1555	the circumstances examination. Monroe v. City of Woodville, Miss., 881 F.2d 1327 (5th Cir.1989), on petition for rehearing, 897 F.2d 763 (5th Cir.1990); Overton v. City of Austin, 871 F.2d 529 (5th Cir.1989). Although the Fifth Circuit has apparently not yet squarely so held, it seems rather clear that the majority population with which Thornburg v. Gingles is concerned is a voting majority, not simply a population majority. The Court of Appeals has at least implied that the single-member district which is created must contain at least a voting age majority of the minority group. See Houston v. Haley, 859 F.2d 341 (5th Cir.1988), vacated on other grounds, 869 F.2d 807 (1989), (where the court referred to this issue as “critical”); Overton v. City of Austin, 871 F.2d 529, 542 (5th Cir.1989), Jones, J., concurring. This court concludes that in order to be viable under the Thornburg v. Gingles rationale any such district must contain at least a voting age majority of the minority group. In the absence of sufficient votes to effectively compete, clearly it is not the existence of the multimember district that deprives the minority group of the opportunity to elect its preferred candidates. In this case the defendants’ expert, Dr. Weber, had accurate voter registration data available. In drawing subdistricts he attempted to form black voter registration majorities. Although it may not be appropriate to use registration figures in every vote dilution case, it strikes this court
1388	early and for failing to ring up his final sale. The following day, Phil Snider, a white male who had been working in another Southland 7-Eleven store, worked Mr. Ashagre’s shift and continued to do so for about two weeks. Thereafter, Carmen Luevano Kalil, a Hispanic female, was hired to replace Mr. Snider. At trial, Mr. Ashagre testified that after he was fired he applied for at least two jobs with different companies and that he was not hired. He testified that he felt it was because Southland gave out false work references on him. His testimony was uncorroborated by any other evidence. In a Title VII case, the plaintiff must establish a prima facie case of employment discrimination. If the plaintiff proves, by the preponderance of the evidence, a prima facie case of discrimination, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. If defendant meets this burden, the plaintiff must then prove by a preponderance of the evidence that the reasons offered by defendant were not the true reasons for discharge, but only a pretext for discrimination. Id. at 804, 93 S.Ct. at 1825. A review of the entire record in this case indicates that Mr. Ashagre failed to establish a prima facie case of discrimination on the basis of race and/or national origin. Even assuming that he did make such a showing,
2560	claims to the escrow fund adjudicated in the Virginia court. The parties were at liberty to waive this right. Harris v. Avery Brundage Co., 305 U.S. 160, 164, 59 S.Ct. 131, 83 L.Ed. 100, rehear. den., 305 U.S. 674, 59 S.Ct. 247, 83 L.Ed. 437, aff’g. In re Tax Service Association v. Avery Brundage Co., 95 F.2d 373 (7th Cir. 1938); MacDonald v. Plymouth County Trust Co., 286 U.S. 263, 267, 52 S.Ct. 505, 76 L.Ed. 1093 (1932). The waiver was effective to permit the exercise of summary jurisdiction by the court even though the escrow fund had been attached in the state action. See Taubel-Scott-Kitzmiller Co. v. Fox, 264 U.S. 426, 433, 434, 44 S.Ct. 396, 68 L.Ed. 770 (1924); O’Dell v. United States, 326 F.2d 451, 455, 456 (10th Cir. 1964); cf. Schumacher v. Beeler, 293 U.S. 367, 55 S.Ct. 230, 79 L.Ed. 433 (1934); 5 Remington on Bankruptcy (5th ed. 1953) § 2200. The appellants rely upon In re Consolidated Container Carriers, Inc., 385 F.2d 362 (3rd Cir. 1967). In that case the court sustained an objection to the summary jurisdiction of the bankruptcy court over a fund that had been attached in a state action. The court pointed out, however, that at least one and possibly both of the objecting parties had “steadfastly refused to consent to the bankruptcy court’s summary jurisdiction”. 385 F.2d at 365. The ease is therefore distinguishable from the one
2054	U.S. at 21-22, 103 S.Ct. at 940. Abstention may be warranted where a considerable amount of time has elapsed, substantial discovery has already been conducted, or significant proceedings have been held in the state court case. See, e.g., Nakash v. Marciano, 882 F.2d 1411, 1413, 1415 (9th Cir.1989) (Abstention was warranted where state court case had been filed four years earlier and proceedings in state court case included 70 hearings, 100 depositions, and the production of 300,000 documents); Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d 306, 310 (1st Cir.1986) (The fact that Puerto Rico court had obtained jurisdiction four years before filing of federal action militated against allowing case to proceed in federal court); see also Moses H. Cone, 460 U.S. at 22 n. 26, 103 S.Ct. at 940 n. 26 (District court’s abstention was not proper when no substantial proceedings had taken place in the state court case and the parties in the federal case had already submitted briefs, affidavits, and documentary evidence on contested issue); Grafica, 48 F.3d at 52 (Abstention was not warranted when state court action consisted of an appeal of a dismissal for lack of pei-sonal jurisdiction; if the dismissal was affirmed the state action would be ended
861	evidence against Butler, an instruction which was given and underscored whenever' evidence was offered as to declarations by Conroy outside the presence of Butler. . 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), made retroactive in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968). . In each instance when Conroy’s statements were testified to, the court, following Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), which was in effect when this case was tried, instructed the jury that Conroy’s admissions were received only as against him and were to be disregarded in determining Butler’s guilt or innocence. The instruction was repeated in the court’s charge. . See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) ; United States ex rel. Siegel v. Lennox, 460 F.2d 690 (3d Cir. 1972) ; United States ex rel. Ross v. La Vallee, 448 F.2d 552 (2d Cir. 1971) ; Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971) ; United States ex rel. Joseph v. LaVallee, 415 F.2d 150 (2d Cir. 1969), cert. denied, 397 U.S. 951, 90 S.Ct. 976, 25 L.Ed.2d 133 (1970) ; United States ex rel. Dukes v. Wallack, 414 F.2d 246 (2d Cir. 1969). . Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972) ; see Harrington v. California, 395 U.S.
4926	"also In re Montgomery County , 215 F.3d 367, 375-76 (3d Cir. 2000) (citation omitted). Further, the doctrine is ""available only to the extent necessary to ensure meaningful review of an unappealable order."" Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. City Sav., F.S.B. , 28 F.3d 376, 382 (3d Cir. 1994)as amended (Aug. 29, 1994) (citation omitted). Following the Supreme Court's decision in Swint v. Chambers County Commission , 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), we concluded that pendent appellate jurisdiction is restricted to two circumstances: (1) ""inextricably intertwined"" orders or (2) ""review of [a] non-appealable order where it is necessary to ensure meaningful review of [an] appealable order."" . DuPont , 269 F.3d at 203 ). ""Issues are 'inextricably intertwined' only when the appealable issue 'cannot be resolved without reference to the otherwise unappealable issue.' "" Invista S.A.R.L. v. Rhodia, S.A. , 625 F.3d 75, 88 (3d Cir. 2010) (quoting Am. Soc'y for Testing & Materials v. Corrpro Companies, Inc. , 478 F.3d 557, 580-81 (3d Cir. 2007) (citations omitted) ). ""[T]he existence of an ... appealable order [does not] confer pendent appellate jurisdiction over an otherwise unappealable order just because the two orders arise out of the same factual matrix ..."" even if considering the orders together may be encouraged under ""considerations of efficiency."" Hoxworth v. Blinder, Robinson & Co. , 903 F.2d 186, 209"
3361	Inc. v. Hills, Supermarkets, Inc., 428 F.2d 379 (2d Cir. 1970). . Courts have framed relief differently even when the threat of confusion has been much the same. In Hat Corporation of America v. D. L. Davis Corp., 4 F.Supp. 613 (D.Conn.1933), the court granted an absolute injunction restraining the use of the name “Dobbs” on hats. Yet in Stetson v. Stetson, 85 F.2d 586 (2d Cir.), cert. denied, 299 U.S. 605, 57 S.Ct. 232, 81 L.Ed. 446 (1936), the district court determined, and the court of appeals affirmed that a “Notice of Disclaimer” would suffice to dissipate public confusion. . See also R. W. Rogers Co. v. Wm. Rogers Mfg. Co., 70 F. 1017 (2d Cir. 1895); Champion Spark Plug Co. v. Champion, 23 F.Supp. 638, 640-41 (E.D.Mich. 1938); and cases cited in Pike, Personal Names as Trade Symbols, 3 Mo.L.Rev. 93, 113-14 (1938). . For a general discussion of the business functions of a personal name, see 3 Callmann, Unfair Competition, Trademarks, and Monopolies, § 83.3(a)(1) pp. 90-92 (3d Ed. 1969). . In National Distillers Products Corp. v. K. Taylor Distilling, supra, the court restrained the defendant from using “Taylor” in its corporate name or in any of its whiskey labels or advertising matter, unless accompanied by a statement plainly 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
3306	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. 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
2335	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. Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U.S. 428, 434, 435, 31 S.Ct. 444, 55 L.Ed. 527; Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 63, 43 S.Ct. 322, 67 L.Ed. 523; JensenSalsbery Laboratories, Inc., v. Salt Lake Stamp Co., 8 Cir., 28 F.2d 99, 101, 102, and cases cited; Donner v. Sheer Pharmacal Corp., 8 Cir., 64 F.2d 217, 221, 222 and cases cited; Strong-Scott Mfg. Co. v. Weller, 8 Cir., 112 F.2d 389, 394. The following language from the case of Trane Co. v. Nash Engineering Co., 1 Cir., 25 F.2d 267, 269, is pertinent here: “The Eibel Case [261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523] certainly admonishes this court to give
1497	the ‘appropriate named fiduciary’ for purposes of this section.” 29 C.F.R. § 2560.503-1(g). Thus under the Benefit Plan pursuant to which plaintiff is seeking benefits, Hartford is the “appropriate named fiduciary” because Hartford provides the benefits and determines benefit entitlement through all administrative appeals, as required under the regulation. Because Hartford is a fiduciary under the regulations, and because Hartford has the discretion to make eligibility determinations, under Firestone and Reinking this Court should review Hartford’s determination regarding the plaintiff’s eligibility for disability benefits under an arbitrary and capricious standard. C. The Merits Part of Hartford’s duties as a plan fiduciary is to assemble a factual record which will assist a court in reviewing the fiduciaries’ actions. Hartford has submitted to the Court an “Administrative Record” which consists of the entire claim file assembled during the course of Hartford’s determination of Prince’s claims. Based on a review of that Administrative Record, the Court finds that Hartford’s determinations with respect to the plaintiff are supported by substantial evidence. While there is no dispute that Prince did in fact suffer an injury, no doctor has opined that Prince has suffered a total disability. The medical reports indicate that the plaintiff is not prevented by his disability from doing work for which he is “or could become qualified by training, education, or experience.” Summary Judgement is appropriate if there is no issue as to any material fact and the moving
1393	every fact pattern. As noted by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), “[t]he facts necessarily will vary in Title VII cases, and the specification [in the four prong test] of the prima facie proof required ... is not necessarily applicable in every respect to differing factual situations.” Id. at 802 n.13, 93 S.Ct. at 1824 n.13. Thus, while failure to meet' the fourth requirement by showing that a nonminority was hired to replace the plaintiff may amount to failure to establish a prima facie case in certain cases, see, e.g., Coleman v. Braniff Airways, Inc., 664 F.2d 1282 (5th Cir. 1982), it may not in other cases, e.g.,  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,
4863	owed less. The authorities cited by respondent for his position on this; point contain language condemnatory of ingenious schemes hatched by taxpayers to divert or conceal receipt of income while actually enjoying its benefits. They are inapplicable here. We think that two lines of authority entitle petitioner to prevail. The first of these is that an owner of property is not taxable on appreciation in its value while the property remains in his hands, that is, on unrealized appreciation in value. Lynch v.Turrish, 247 U. S. 221; General Utilities Co. v. Helvering, 296 U. S. 200. It is only when he has sold or disposed of the property that he becomes taxable on its increase in value. Eisner v. Macomber, 252 U. S. 189. Petitioner never parted with the stock which was not required for distribution to participating employees. Therefore, to tax it on the appreciation in the market value of the stock which had occurred at the termination date, over the amounts paid out under the plan to employees would clearly be taxing something which is not income. There is a second ground supporting petitioner’s position in the cases which hold that where a corporation contracts to sell its stock on the installment plan, installments forfeited to the corporation for nonpayment of the balance do not constitute income to the seller corporation, even though it never issues the stock. Commissioner v. Inland Finance Co., 63 Fed. (2d) 886;
2853	respects: (1) the entire building was under lease to the defendant; and (2) “there was no real division in fact or in use of the building into separate halves.” Id. at 502-503, 45 S.Ct. at 416. The Supreme Court held: “It is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.” Id. Under that rule as applied to those facts the warrant was upheld. Search warrants with faulty descriptions of the place to be searched have been upheld in a number of cases. See, e.g., Hanger v. United States, 398 F.2d 91 (8th Cir.1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969); United States v. Pisano, 191 F.Supp. 861 (S.D. N.Y.1961); United States v. Joseph, 174 F.Supp. 539 (E.D.Pa.1959), aff’d 278 F.2d 504 (3d Cir.), cert. denied, 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960); United States v. Contee, 170 F.Supp. 26 (D.D.C.1959). In United States v. Sklaroff, 323 F.Supp. 296 (S.D.Fla. 1971), the court reviewed these prior decisions and concluded, at page 321: The foregoing decisions illustrate the principle that the determining factor [in deciding] whether a search warrant describes the premises to be searched with sufficient particularity is not whether the description given is technically accurate in every detail but rather whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort,
4157	should remand the case to Secretary or reverse outright and order payment of benefits to Paige. Section 405(g) confers judicial authority to affirm, modify or reverse Secretary’s decision “with or without remanding the cause for a rehearing” (see also 4 Social Security Law and Practice § 55:60). Only the distressing length of Paige’s tortuous path through the system would ordinarily counsel reversal here. In other respects it appears remand is the appropriate remedy, for it cannot fairly be viewed as a foregone conclusion (though it seems most probable) that Paige is “disabled” under the appropriate rules and regulations. One of this Court’s colleagues, Honorable James Moran, recently summarized the relevant factors in deciding whether or not to remand a disability case. .; when the secretary has had an opportunity to develop the record on an outcome-determinative issue and has failed to produce substantial evidence ...; or when it appears virtually impossible that the Secretary would be able to meet his burden of showing that the claimant can
4120	are null and unenforceable, any claims for payment made by the Contractors to FEMA were “false” under the FCA. The relators point to Article 2030 of the Louisiana Civil Code, which states: A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. A contract that is absolutely null may not be confirmed. Absolute nullity may be invoked by any person or may be declared by the court on its own initiative. La. Civ. Code Ann. art. 2030. To support their contract nullity argument, the relators during oral argument pointed to two cases from within this circuit: Davis v. Parker, 58 F.3d 183 (5th Cir. 1995), and In Davis, an attorney entered into a business transaction with his client in violation of Rule 5-104(A) of the Louisiana Code of Professional Responsibility, Davis, 58 F.3d at 189-90. Under this rule, before an attorney may enter into a business transaction with a client, the attorney has a fiduciary obligation to “fully disclose” all relevant information and inform the client that the client should contact outside counsel. Anything less than full disclosure may constitute a breach of fiduciary duty by the attorney. Although the case was primarily focused on the relevant statute of limitations rather than the issue of nullity, this court in Davis accepted the client’s classification of the claim based on a contract that led to a breach
4054	"eaves of homes. The corbels Plaintiffs hired Jacobson to build were custom made and designed only for Plaintiffs’ home. . Fed.R.Civ.P. 56(a). Rule 56 is applicable to bankruptcy adversary proceedings via Federal Rule of Bankruptcy Procedure 7056. . LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir.2004). . Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir.2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Id. (citing Federal Rule of Civil Procedure 56). . . Celotex Corp., 477 U.S. at 327, 106 S.Ct. 2548. .Doc. 36 at 1. . Id. at 1-2. . Id. at 2. . Fed.R.Civ.P. 56(c); see also Diaz, 289 F.3d at 674 (""[T]he non-movant- must either establish the existence of a triable issue of fact under Fed.R.Civ.P. 56[ (c) ] or explain why he cannot ... under Rule 56[ (d) ].”). . Fed.R.Civ.P. 56(e)(2). . Fed.R.Civ.P. 56(e)(3). . See, e.g., Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) (""Although a 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"
1078	the two procedures, with the slightest potential difference requiring the invalidation of the law”); 530 U.S. at 1009, 120 S.Ct. 2597 (Thomas, J., dissenting) (interpreting the standard to mean “unless a State can conclusively establish that an abortion procedure is no safer than other procedures, the State cannot regulate that procedure without including a health exception”). Thus, the Government’s interest-based, medically based, and institutional competency arguments all fail to meaningfully distinguish the evidentiary circumstances present here from those that Stenberg held required a health exception to a ban on partial-birth abortion. The lack of a health exception also renders this Act unconstitutional. See, e.g., Planned Parenthood, 320 F.Supp.2d at 1033-34; Planned Parenthood v. Owens, 287 F.3d 910, 917-18 (10th Cir.2002); Eubanks v. Stengel, 224 F.3d 576, 577 (6th Cir.2000); Causeway Med. Suite v. Foster, 221 F.3d 811, 812 (5th Cir.2000); Planned Parenthood v. Farmer, 220 F.3d 127, 152 (3d Cir.2000) (Alito, J., concurring); Richmond Med. Ctr. for Women v. Gilmore, 219 F.3d 376, 377 (4th Cir.2000). IV. CONCLUSION While Congress and lower courts may disagree with the Supreme Court’s constitutional decisions, that does not free them from their constitutional duty to obey the Supreme Court’s rulings. As Judge J. Michael Luttig of the Court of Appeals for the Fourth Circuit stated in a concurring opinion soon after the Supreme Court decided Stenberg: As a court of law, ours is neither to devise ways in which to circumvent the opinions of
315	"Hersey and Priolet revocation letters were ineffective for failure to mention the property report requirement. Defendant not having challenged the validity of the Hersey/Priolet letters on that basis, the Court will not explore sua sponte whether a revocation notice under the ILSFDA must include any particular talismanic words or phrases in order to be effective. . See also Stein v. Paradigm Mirsol, LLC, 551 F.Supp.2d 1323, 1327 (M.D.Fla.2008) (""The ILSFDA is an anü-fraud statute that uses disclosure as its primary tool to protect purchasers from unscrupulous sales of undeveloped home sites.”); Pugliese v. Pukka Development, Inc., 524 F.Supp.2d 1370, 1371 (S.D.Fla.2007) (explaining that the Act was ""designed to discourage fraud by keeping buyers informed through rigorous disclosure requirements”); . Although the statutory language is phrased in terms of ""lots,"" it is well-established that the Act’s requirements encompass condominium sales such as those herein. See Winter, 777 F.2d at 1449 (holding that the ILSFDA is applicable to the sale of condominiums); Stein, 551 F.Supp.2d at 1327 (""Selling a condominium unit falls within the definition of selling a lot within the meaning of the ILSF-DA.""); Schatz, 604 F.Supp. at 541 (""this Court holds that condominiums, or unit properties, are within the application of the federal statute”). . Sanibel repeatedly insists that any right of"
63	re Leuang), 211 B.R. 908, 909 (8th Cir. BAP 1997). Where the evidence is susceptible to two permissible views, the trial court’s choice between the two cannot be clearly erroneous. Fors, 259 B.R. at 135-36. If the trial court’s account of the evidence is plausible in light of the entire record, an appellate court cannot substitute its judgment for that of the trier of fact. Id. at 136. DISCUSSION Pursuant to 11 U.S.C. § 523(a)(6), a discharge does not discharge an individual from a debt for willful and malicious injury. In this context, the term willful means deliberate or intentional. Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 977, 140 L.Ed.2d 90 (1998); Fischer v. Scarborough (In re Scarborough), 171 F.3d 638, 641 (8th Cir.1999), cert. denied, 528 U.S. 931, 120 S.Ct. 330, 145 L.Ed.2d 258 (1999); Johnson v. Fors (In re Fors), 259 B.R. 131, 136 (8th Cir. BAP 2001). The injury, and not merely the act leading to the injury, must be deliberate or intentional. Geiger, 523 U.S. at 61-62, 118 S.Ct. at 977. Malice requires conduct which is targeted at the creditor, at least in the sense that the conduct is certain or almost certain to cause financial harm. Madsen, 195 F.3d at 989; Scarborough, 171 F.3d at 641; Waugh v. Eldridge (In re Waugh), 95 F.3d 706, 711 (8th Cir.1996); Barclays Amer./Bus. Credit, Inc. v. Long (In re Long),
4799	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 Defendants were not brought into the courtroom in an effort to assist the eyewitnesses in identifying them as the robbers. Moreover, there is nothing to indicate that if defendants’ counsel had then been present they would have done any more to alleviate the supposed prejudice than they did at the subsequent suppression hearing and trial, as described above. We conclude that this incident did not de prive defendants of the assistance of counsel. On the afternoon of the day of the robbery, April 28, 1970, officers found items in a trash can outside Rooms 19 and 20 of Hall’s Motel, Phoenix, Arizona, which were received in evidence as Government’s exhibits 5, 7 and 8. They also found an item
1180	that “vested months” as contemplated in this settlement are equivalent to “earned credit time.” Again, we need not venture into unsettled areas of Indiana law. Armstrong, 616 F.2d at 320-21.' To the extent that objecting members implicate the Fourteenth Amendment, we note that the accumulation or loss of “vested months” only affects the length of a prisoner’s assignment to the MCC, it has no effect upon the length of the prisoner’s sentence or of his commitment to the DOC. In any event, the agreed entry specifies that accumulated vested months can only be taken away after a conviction for disciplinary violations by a conduct adjustment board, presumably upon proper notice and hearing subject to the due process procedural protections sanctioned by Recognizing, again, that we do not here determine or reach the merits of objecting members’ federal constitutional claim, for our present purposes it cannot be said that the vested month provisions appear, on their face, to be unconstitutional with legal certainty. Armstrong, 616 F.2d at 320-21. We next consider whether the district court abused its discretion when it determined that the settlement was fair, reasonable and adequate. The district court properly recognized that a number of factors have been consistently employed by the district courts to aid them in determining the “fairness” of class action settlements. Taifa, 846 F.Supp. at 726. These include the strength of plaintiffs’ case compared to the amount of defendants’ settlement offer,
166	He says: “ * * * Counsel .for the defendant argues that the complaint should be dismissed because nothing appears from the record to indicate that the payments in question were made under duress and protest. I am inclined to the opinion that this objection would have been sound, had it been made prior to the passage of the Revenue Act of 1924. * * * jjje theory of the action against the collector was that the payment had been exacted under duress, and for that reason a protest accompanying the payment was a condition precedent to a right of action against him. Fox v. Edwards (C. C. A.) 287 F. 669, 34 A. L. R. 973; be maintained against a collector for the recovery of income taxes
4916	"brought by a putative class are 'capable of proof at trial through evidence that is common to the class rather than individual to its members.' "" Gonzalez v. Corning , 885 F.3d 186, 195 (3d Cir. 2018) ; Tyson Foods, Inc. v. Bouaphakeo , --- U.S. ----, 136 S.Ct. 1036, 1045, 194 L.Ed.2d 124 (2016) (citation omitted). In practice, this means that a district court must look first to the elements of the plaintiffs' underlying claims and then, ""through the prism"" of Rule 23, undertake a ""rigorous assessment of the available evidence and the method or methods by which [the] plaintiffs propose to use the evidence to prove"" those elements. Marcus , 687 F.3d at 600 (citing ""If proof of the essential elements of the [claim] requires individual treatment, then class certification is unsuitable."" Newton v. Merrill Lynch, Pierce, Fenner & Smith Inc. , 259 F.3d 154, 172 (3d Cir. 2001) (citation omitted). To satisfy their wage-and-hour claims, Plaintiffs must show that: (1) pursuant to Citizens' unwritten ""policy-to-violate-the-policy,"" the class MLOs performed overtime work for which they were not properly compensated; and (2) Citizens had actual or constructive knowledge of that policy and of the resulting uncompensated work. See Kellar v. Summit Seating Inc. , 664 F.3d 169, 177 (7th Cir. 2011) (citing Reich v. Dep't of Conservation & Natural Res. , 28 F.3d 1076, 1082 (11th Cir. 1994) ); see generally Davis v. Abington"
2041	answer to the issue before us does not, however, require that the decision of the board of review be reversed. That body, having concluded that it was error to deny the requested instruction and to refuse to permit the trial defense counsel to argue to the court-martial concerning the possibility of adjudging an administrative discharge, sought to remove the prejudice flowing therefrom by reassessment of the sen tence. Ultimately, it concluded that the adjudged sentence to bad-conduct discharge, forfeiture of all pay and allowances, and confinement at hard labor for one year was appropriate. While we do not believe that harm which solely involves the question of the accused’s punitive separation from the armed forces may be so purged, n the case. The decision of the board of review is affirmed.
4182	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); Berkemer v. McCarthy, 468 U.S. 420, 436-37, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). The Plaintiffs persuasively argue that no reasonable person would believe that they are free to leave when they are pulled over by a police officer for a traffic stop and ordered by an officer to show their hands at gunpoint. . The Plaintiffs also argue that Officers Zotz and Ross used excessive force when they fired shots into the backseat of the vehicle, severely injuring the Plaintiffs. Under the factors
3082	Sys., 101 F.3d 346, 349 (4th Cir.1996) (Holding as a matter of law that a 25-pound lifting limitation does not constitute a disability); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir.1996). Other courts have held that even lesser amounts were not substantial limitations. See Marinelli v. City of Erie, Pa., 216 F.3d 354, 364 (3rd Cir.2000) (10 pounds); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 644 (2nd Cir.1998) (10-20 pounds); Helfter v. United Parcel Service, Inc., 115 F.3d 613, 617-18 (8th Cir.1997) (10-20 pounds); McKay v. Toyota Motor Mfg., US.A., Inc., 110 F.3d 369, 373 (6th Cir.1997) (20 pounds); Wooten v. Farmland Foods, 58 F.3d 382, 384-86 (8th Cir.1995) (10-20 pounds);  aff'd 216 F.3d 1072 (2nd Cir.2000) (Table case); Gerdes v. Swift-Eckrich, 949 F.Supp. 1386, 1400 n. 5 (N.D.Jowa 1996) (10 pounds) aff'd 125 F.3d 634 (8th Cir.1997). Recognizing that a lifting restriction alone would not suffice, Plaintiff has offered Figueroa’s declaration, which the Court finds contains only bald assertions and conclusory statements, and fails to meet Plaintiffs specific burden of production in ADA “working” cases. The first obstacle that the Figueroa declaration faces is it conclusion: that Plaintiff is “virtually unemployable” in the manual labor field. This conclusion is made with casual disregard for statements by Plaintiff that she performed her employment at Hilton as a Control Guard without regard to her condition (Docket # 37, Ex. 4 at
1941	listed hazardous wastes. See Government’s Response, filed August 17, 1993, at 19-29. 5. Analysis of Dismissal Motion. An indictment is facially valid and sufficient if it contains the elements of the offense charged, fairly informs a defendant of the charges against which he must defend, and enables a defendant to plead an acquittal or a conviction in bar of further prosecution for the same offense. See Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). An indictment need only track the language of the statute and, if necessary to apprise the defendant of the nature of the accusation against him, state the time and place of the alleged offense in approximate terms. See United States v. Covino, 837 F.2d 65, 69 (2d Cir.1988); United States v. Bagaric, 706 F.2d 42, 61 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); United States v. Ferrara, 701 F.Supp. 39, 44 (E.D.N.Y.), aff'd, 868 F.2d 1268 (2d Cir.1988). Where the statute, as an element of the criminal offense, requires that a defendant’s conduct violate a regulation promulgated as part of the statute’s regulatory scheme, a district court may consider whether the regulation “on its face” is within the terms of the statute. See Adamo Wrecking Co. v. United States, 434 U.S. 275, 285, 98 S.Ct. 566, 573, 54 L.Ed.2d 538 (1978) (regulation held not to
2251	Carone v. Carlson, et al., Civ. No. 86-1478, slip op. (M.D.Pa. July 27, 1988) (Compensatory and punitive damages for mistreatment and removal from prison employment); Carone v. Quinlan, et al., Civ. No. 87-1592, slip op. (M.D.Pa. July 27, 1988) (Defendants conspired to force payment of Inmate Financial.Responsibility Program assessment of $50.00); Carone v. Whalen, et al., Civ. No. 87-1013, slip op. (M.D.Pa. July 29, 1988) (Monetary relief for denial of furlough), and the instant matter of Carone v. Whalen, Civ. No. 87-1328 (Compensatory and punitive damages for the failure on the part of prison officials to forward documents to Parole Commission)'. By doing so, however, it is clear that Plaintiff is attempting to circumvent the exhaustion requirements of Bivens type actions. Durham v. Edwards, Civ. No. 87-0602, slip op. (M.D.Pa. June 16, 1987 Muir. J.). . Since the steady stream of litigation filed by the Plaintiff has ceased after Carone was removed from the jurisdiction of the Middle District of Pennsylvania, we see no need to impose Rule 11 sanctions as requested by the Defendants.
371	"(11) the development of extremely strong sex drives with a tendency toward sexual deviancy. He also testified that petitioner’s behavior was becoming increasingly violent and that he would continue to pose a threat to the safety of others even if he were to be incarcerated. . See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). . Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); Woods v. Johnson, 75 F.3d 1017 (5th Cir.), cert. denied, — U.S. -, 117 S.Ct. 150, 136 L.Ed.2d 96 (1996). . . Chapman, 386 U.S. at 24, 87 S.Ct. at 828. . 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). . Brecht, 507 U.S. at 623, 113 S.Ct. at 1714. . The Texas Court of Criminal Appeals was silent as to which standard it applied. . The district court applied the standard espoused in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (Whether the error ""had substantial and injtirious effect or influence on the jury’s verdict""). . 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (""harmless beyond a reasonable doubt”). . Some courts have held that the Brecht standard is applicable only when the state appellate court previously"
868	as against him and were to be disregarded in determining Butler’s guilt or innocence. The instruction was repeated in the court’s charge. . See 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) ; United States ex rel. Siegel v. Lennox, 460 F.2d 690 (3d Cir. 1972) ; United States ex rel. Ross v. La Vallee, 448 F.2d 552 (2d Cir. 1971) ; Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971) ; United States ex rel. Joseph v. LaVallee, 415 F.2d 150 (2d Cir. 1969), cert. denied, 397 U.S. 951, 90 S.Ct. 976, 25 L.Ed.2d 133 (1970) ; . Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972) ; see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). . Cf. United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973) ; United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972) ; United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969) ; United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied, 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970). . 373 U.S. 83, 83 S.Ct. 1194, 10
2849	32 F.Supp. 994; United States v. Chin On, D.C., 297 F. 531; United States v. Innelli, D.C., 286 F. 731; United States v. Mitchell, D.C., 274 F. 128. The basic requirement is that the officers who are commanded to search be able from the “particular” description of the search warrant to identify the specific place for which there is probable cause to believe that a crime is being committed. This requirement may be satisfied by giving the address of the building and naming the person whose apartment is to be searched. Kenney v. United States, 81 U.S.App.D.C. 259, 157 F.2d 442; Shore v. United States, 60 App.D.C. 137, 49 F.2d 519. Hinton was recently held to be controlling precedent in The Government has argued that the premises at 4637 Newport, while being constructed as a two-family dwelling, were nevertheless being used as a single, two-story unit, and that there was thus no need to identify either unit in the search warrant. The evidence, however, indicates that while there is some question as to who, if anyone, was actually renting the first floor unit in which the defendants were arrested, the second floor was rented to and was occupied by Mr. and Mrs. Maurice Phillips. Even though it was admitted that Mr. Phillips was and is related to the defendant Gladys Harris, it cannot be concluded that the entire structure was being occupied or used as a single unit. The exception to
856	"likelihood of confusion. PI. Opp. Br. at 18. Disclaimers have frequently been found to be insufficient to avoid consumer confusion in the marketplace. See, e.g., International Kennel Club of Chicago, Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1093 (7th Cir.1988)(""we are convinced that plaintiff’s reputation and goodwill should not be rendered forever dependent on the effectiveness of fineprint disclaimers often ignored by consumers”); United States Jaycees v. Philadelphia Jaycees, 639 F.2d 134, 142 (3d Cir.1981). Indeed, courts are so skeptical about the effectiveness of disclaimers that the burden has been shifted from the mark owner to show how a disclaimer would not prevent confusion, to the infringer to show that the disclaimer would prevent confusion. Furthermore, disclaimers will never remedy dilution because consumer confusion is irrelevant in establishing a dilution claim. See 15 U.S.C. § 1127. It is unlikely that a disclaimer either at the beginning of the video or in the comer of a magazine advertisement would cure the likelihood of consumer confusion. In any event, on a motion for a preliminary injunction, this court need not reach what Liquid Glass could do to alter its video and its ads, but must simply examine whether what is presented is likely to be infringing or diluting. ■ . . This court also rejects out of hand Liquid"
4014	"the court will not consider the additional evidence submitted by Defendant on this issue as Defendant has not demonstrated that this evidence could not have been presented earlier. . Defendant now argues that it does not perform the step of driving a craft up and onto the dock. This argument is addressed infra. . Again, Defendant now argues that it does not perform the step of driving a craft up and onto the dock. This argument is addressed infra. . Such a sale may be indirect infringement, see infra. . Once there is a finding of direct infringement, Defendant can be held liable for indirect infringement under § 271(b) and (c), discussed infra. . Defendant's cited case,  Id. at 1315. The court noted that the territorial reach of § 271 is limited and held that ""a process cannot be used 'within' the United States as required by section 271(a) unless each of the steps is performed within this country.” Id. at 1318. . This court will consider Defendant’s liability for inducing infringement infra."
3133	permits payment of pre-bankruptcy unsecured claims only when such payment is needed so that trade.vendors or other creditors, will not refuse to supply critical goods and services after the debtor files for bankruptcy protection.” Id. at 187. This doctrine at first was only applied in railroad reorganization cases for which success was considered vital to the public interest. Thus, giving preference to some creditors at the expense of others became acceptable because the public depended on continued rail operations. Id. at 187. With time, courts expanded the use of the doctrine of necessity to cases that do not involve railroad reorganization, and courts eventually further utilized the doctrine to protect the interests of creditors and reorganization efforts more generally. See Unlike the six-month rule, the “doctrine of necessity” was never codified in the Bankruptcy Reform Act of 1978. See Bankruptcy Reform Act of 1978, Pub.L. No. 95-598, 92 Stat. 2549 (effective October 1, 1979, codified as amended at 11 U.S.C. §§ 101 et seq. (2000)). Still, most courts that have expanded the doctrine of necessity beyond railroad reorganization cases have done so relying on the equitable power provided in Section 105(a) of the Bankruptcy Code. See In re Just for Feet, Inc., 242 B.R. 821, 824 (D.Del.1999) (explaining that even if the doctrine of necessity is not codified in the Bankruptcy Code, courts have authorized pre-petition claims when necessary using their equitable powers under Section 105(a)). (B) The
2340	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 F. 452, 457; Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U.S. 428, 434, 435, 31 S.Ct. 444, 55 L.Ed. 527; Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 63, 43 S.Ct. 322, 67 L.Ed. 523; JensenSalsbery Laboratories, Inc., v. Salt Lake Stamp Co., 8 Cir., 28 F.2d 99, 101, 102, and cases cited; Donner v. Sheer Pharmacal Corp., 8 Cir., 64 F.2d 217, 221, 222 and cases cited; The following language from the case of Trane Co. v. Nash Engineering Co., 1 Cir., 25 F.2d 267, 269, is pertinent here: “The Eibel Case [261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523] certainly admonishes this court to give great weight to the practical results from a claimed invention; to look beyond the paper expression to the state of the art, before and after an alleged invention which is tested in actual practice. Dubilier Condenser Corp. v. New York Coil Co. (C.C.A.) 20 F.2d 723, 725; Minerals Separation v. Hyde, 242 U.S. 261, 270, 37 S.Ct. 82, 61 L.Ed. 286. “An invention is a real thing; a patent is the description of it in words and/or drawings. McClain v. Ortmayer, 141
2543	weighty to justify the award against Bridgeport? The district court specifically pointed to Bridgeport’s “pressing of a futile claim” as another part of the pattern of the company’s “overly aggressive litigation tactics” which the district court had identified in its earlier opinion. R & R at 7. Other parts of this pattern include: filing a single complaint over 900 pages long with hundreds of separate claims and defendants; engaging in discovery abuses; abusing the summary judgment process by submitting massive statements of disputed facts which included legal conclusions and immaterial and argumentative assertions; and engaging in sharp pre-trial practices. This court has approved prior awards of fees and costs against Bridgeport in companion cases for similar reasons. See Diamond Time, 371 F.3d at 896 (affirming award based in part on improper motivation of Bridgeport and deterrence); cf. Bridgeport Music, Inc. v. Sony Music Entm’t, Inc., 114 Fed.Appx. 645, 651-53 (6th Cir.2004) (unpublished) (explaining that deterrence is a “particularly relevant factor to be considered” but that it was an abuse of discretion to base the award solely on Bridgeport’s voluminous pleadings and conduct of counsel). As the district court reiterated on remand, Bridgeport’s theory had some support in law and in fact — it was objectively reasonable. The district court’s negative evaluation of the theory in the case against the Warner defendants did not somehow dissolve the theory’s legal and factual merits
4444	there was a finding of liability, there would then be a separate hearing before a special master to ascertain damages. These damages hearings were often both lengthy and costly. Congress intended 28 U.S.C. § 1292(a)(3) to permit parties to appeal the finding of liability on the merits, before undergoing the long, burdensome, and perhaps unnecessary damages proceeding. Section 1292(a)(3) was not intended to clutter the federal docket with interlocutory odds and ends. City of Fort Madison, 990 F.2d at 1089 (internal quotations and citations omitted). This understanding of the statute’s purpose is universal. E.g., Burghacher v. University of Pittsburgh, 860 F.2d 87, 88 (3d Cir.1988); Seattle-First Nat’l Bank, 772 F.2d at 568; The SS TROPIC BREEZE, 456 F.2d 137, 139 (1st Cir.1972); 9 James Wm. Moore et ah, Moore’s Federal Practice ¶ 110.19[3] (2d ed. 1994); 16 Charles Alan Wright et al., Federal Practice and Procedure § 3927 (1977). Indeed, this circuit indicated that this was its understanding of the purpose of the statute in Medomsley Steam Shipping Co. v. Elizabeth River Terminals, Inc., 317 F.2d 741 (4th Cir.1963), where, quoting from the Second Circuit’s opinion in The Maria, supra, it stated: That statute [now 28 U.S.C. § 1292(a)(3) ] was primarily intended to avoid the expense and delay of a reference to compute damages, since it is always possible that the libelant may later turn out to have no right to recover at all. Medomsley Steam Shipping Co., 317 F.2d at 742.
3486	claims that it proffered adequate proof to satisfy the statutory requirements of § 1442(a)(1) and that removal of this action was appropriate even without consent 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. 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
2575	prior to the termination of disability benefits. While plaintiff maintains he still is under the requisite disability, he only claims disability insurance benefits for the period from March, 1969, the date of the disability benefit termination, through February 2, 1972, the date of the second evidentiary hearing. Defendant, however, maintains that (1) the constitutional procedural due process issue is moot, and that (2) there is substantial evidence to support the Secretary’s findings. The resolution of the question of whether an evidentiary hearing must be accorded prior to the termination of benefits depends on a balancing process wherein the Government’s interest in expeditious termination of the disability benefits is weighed against the interest of the plaintiff in continuous receipt of the benefits. While the court in Richardson v. Wright, 405 U.S. 208, 92 S.Ct. 788, 31 L.Ed.2d 151 (1972), refused to resolve this issue because the Social Security Administration had recently adopted on December 27, 1971 new procedures permitted a pretermination evidentiary hearing, the Supreme Court has recently held in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), that in view of Goldberg a post termination hearing procedure regarding the discharge of a federal employee does not violate due process. Kennedy is applicable to the present case. The plaintiff was employed and not disabled during the period in question. He was afforded two evidentiary hearings which determined his lack of requisite' disability. '
2061	was justified because the earlier examination took place shortly after the claimant temporarily relapsed into heroin abuse. Also, the ALJ’s adverse credibility determination which led him to accept certain aspects of the claimant’s account of her daily activities and disbelieve others was proper. The contradictory content of the claimant’s account supports the ALJ’s credibility determination. Because the hypothetical posed to the vocational expert reflected claimant’s RFC, and that RFC is supported by substantial evidence, we affirm the ALJ’s determination that claimant is not disabled. Furthermore, because we find no error in the hypothetical posed or the determination of claimant’s RFC, we hold that the ALJ satisfied the heightened obligation to develop the record when claimants appear without the assistance of counsel. 
2385	"invariably involve wrongfulness or injustice often amounting to bad faith.”) (internal citation omitted). . Moreover, the other cases cited by plaintiff involved bad faith on the part of the non-prevailing party. See Vaughan v. Atkinson, 369 U.S. 527, 530-31, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962) (""In the instant case respondents were callous in their attitude, making no investigation of libellant’s claim and by their silence neither admitting nor denying it. As a result of that recalcitrance, libellant was forced to hire a lawyer and go to court to get what was plainly owed him under laws that are centuries old. The default was willful and persistent.”); The only issue was the amount.... [I]t became clear that Defendants had very little, if any, basis in fact for disputing the salvage award they had agreed to, contracted for, and paid.”); Cobb Coin Co., Inc. v. Unidentified, Wrecked and Abandoned Sailing Vessel, 549 F.Supp. 540, 563 (S.D.Fla.1982) (finding ""bad-faith harassment” engaged in by non-prevailing party). . This relatively uncomplicated case worth less than $5,000.00 has generated a myriad of motions, legal briefs and hearings. . Allstate does not contend it hand-delivered its cross-claim to Nelson. Therefore, Rule 4(e)(2) does not apply."
3780	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., Each of the criminal provisions, however, attempts to regulate 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
4061	". 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)). . . 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) (concluding that debt was nondischargeable when a broker deprived a customer of his property by deliberately disposing of it); State Farm Fire & Cas. Co. v. Edie (In"
2845	A single warrant may cover several different places or residences in a single building. But probable cause must be shown for searching each residence unless it be shown that, although appearing to be a building of several apartments, the entire building is actually being used as a single unit. Federal courts have consistently held that the Fourth Amendment’s requirement that a specific “place” be described when applied to dwellings refers to a single living unit (the residence of one person or family). Thus, a warrant which describes an entire building when cause is shown for searching only one apartment is void. United States v. Barkouskas, D.C., 38 F.2d 837; United States v. Diange, D. C., 32 F.Supp. 994; United States v. Innelli, D.C., 286 F. 731; United States v. Mitchell, D.C., 274 F. 128. The basic requirement is that the officers who are commanded to search be able from the “particular” description of the search warrant to identify the specific place for which there is probable cause to believe that a crime is being committed. This requirement may be satisfied by giving the address of the building and naming the person whose apartment is to be searched. Kenney v. United States, 81 U.S.App.D.C. 259, 157 F.2d 442; Shore v. United States, 60 App.D.C. 137, 49 F.2d 519. Hinton was recently held to be controlling precedent in United States v. Higgins, 428 F.2d 232 (7th Cir.1970). The Government has argued that the
2027	“although his MOS had been power generator equipment mechanic, he had never performed that duty while he was in Vietnam” and that instead he had been assigned, among other duties, to work on convoys and to perform guard duty. Br. at 17. The appellant contends that his experiences with mortar and rocket attacks and sniper fire are entirely consistent with the type of duty, i.e., guard and convoy, that he performed in Vietnam and that his testimony supports a finding that his stressors were related to combat. In this case, the Board failed to make a finding as to the credibility of the veteran’s sworn testimony describing his duties while in Vietnam, see Lizaso v. Brown, 5 Vet.App. 380, 386 (1993); Hatlestad v. Derwinski, 1 Vet.App. 164, 169, 170 (1991), and the Board failed to articulate clearly whether it found the veteran to have engaged in combat. In order for this Court to be able to carry out effective review of a BVA denial of a PTSD service-connection claim, the Board must generally make specific findings of fact, supported by an adequate statement of reasons or bases under section 7104(d)(1), as to whether or not the veteran was engaged in combat with the enemy, and, if so, whether the claimed stressor was related to such combat. See Zarycki, 6 Vet.App. at 98; see also Caluza, Gabrielson, and Gilbert, all supra. Because of the Board decision’s lack of an express finding with respect
2577	that (2) there is substantial evidence to support the Secretary’s findings. The resolution of the question of whether an evidentiary hearing must be accorded prior to the termination of benefits depends on a balancing process wherein the Government’s interest in expeditious termination of the disability benefits is weighed against the interest of the plaintiff in continuous receipt of the benefits. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). While the court in Richardson v. Wright, 405 U.S. 208, 92 S.Ct. 788, 31 L.Ed.2d 151 (1972), refused to resolve this issue because the Social Security Administration had recently adopted on December 27, 1971 new procedures permitted a pretermination evidentiary hearing, the Supreme Court has recently held in  that in view of Goldberg a post termination hearing procedure regarding the discharge of a federal employee does not violate due process. Kennedy is applicable to the present case. The plaintiff was employed and not disabled during the period in question. He was afforded two evidentiary hearings which determined his lack of requisite' disability. ' He would have been entitled to the disallowed benefits if he was found to be under the requisite disability during the period. On balance it must be concluded that the defendant’s interest is paramount and that a prior evidentiary hearing is not required by due process in this case. Additionally, regardless of the constitutional argument the reinstatement of the disability benefits
1620	the new Rules * * *.” This sole objection is not a moving one. The case still awaits trial. The new Rules were written to be taken advantage of. There is no hurt to the Government in applying them here. This is by no means the first case illustrating that fortuitous matters of chronology may make a difference, sometimes a dramatic and painful difference, for a defendant in a criminal trial. E. g., compare Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), with Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), and To.summarize and record the court’s rulings: The motion for severance is granted to the extent of requiring that Karp be tried separately from Pitkin. The motion for discovery and inspection is also granted. It is so ordered. . It is unnecessary here to insist that the decision was actually put still more narrowly on the ground that the “accredited ritual [of telling the jury not to draw the inference] was not followed * * 262 F.2d at 538. . Neither, by the way, is Gleason. The decision here requires only that Karp be tried separately from Pitkin. Nothing appears now to suggest that there should be three trials. But it is not appropriate to decide at
1256	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. 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 the 2005 discharge gratuity. In addition, his complaint alleged no facts indicating that either Kent or Sobt acted to prevent the 2005 discharge gratuity from being issued or that they had any responsibility for or involvement in the decision not to issue the gratuity. Upon careful review of
404	were selected. As of midnight on September 30, 1998, Nyaga was no longer eligible to receive an immigrant visa. The 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); 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
1212	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 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
4980	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 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) fairly traceable to the defendant’s action; and (3) capable of being redressed by a favorable
1942	Motion. An indictment is facially valid and sufficient if it contains the elements of the offense charged, fairly informs a defendant of the charges against which he must defend, and enables a defendant to plead an acquittal or a conviction in bar of further prosecution for the same offense. See Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). An indictment need only track the language of the statute and, if necessary to apprise the defendant of the nature of the accusation against him, state the time and place of the alleged offense in approximate terms. See Bussell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962); United States v. Bagaric, 706 F.2d 42, 61 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); United States v. Ferrara, 701 F.Supp. 39, 44 (E.D.N.Y.), aff'd, 868 F.2d 1268 (2d Cir.1988). Where the statute, as an element of the criminal offense, requires that a defendant’s conduct violate a regulation promulgated as part of the statute’s regulatory scheme, a district court may consider whether the regulation “on its face” is within the terms of the statute. See Adamo Wrecking Co. v. United States, 434 U.S. 275, 285, 98 S.Ct. 566, 573, 54 L.Ed.2d 538 (1978) (regulation held not to constitute an emission standard under the Clean Air Act — indictment dismissed). If the court determines
4529	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.’’ ' 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 in a personal remedy.” 813 F.2d 1539, 1542 (9th Cir. 1987). For that reason, the Court held the EEOC’s enforcement action was not mooted by a private plaintiffs lawsuit and settlement based on the sáme facts. Id. at 1543 (“[The private
2047	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. 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) 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,
1790	"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 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. 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"
3646	grounds for replacing his counsel, Scott Miller Anderson and substituting new counsel. The court found Rose’s assertion that counsel had lied to him to be incredible, and this court will not revisit that determination. See United States v. Hoskins, 910 F.2d 309, 311 (5th Cir. 1990). The record indicates that Rose’s request was based on his disagreement with counsel’s strategy, which is insufficient to warrant the substitution of new counsel. See United States v. Fields, 483 F.3d 313, 353 (5th Cir. 2007); cf. Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). The record further shows that Rose understood the risks of self-representation and clearly, unequivocally, and repeatedly expressed his desire to proceed pro se. See Rose does not now argue that his invocation was unknowing, involuntary, or equivocal, nor does he contend that the district court’s colloquy was inadequate. Rather, he contends that the court ought not to have allowed him to proceed pro se given his obvious lack of legal knowledge and training. However, because Rose clearly and unequivocally invoked his constitutional right to self-representation after extensive questioning, the district court had no choice but to allow him to proceed pro se as to do otherwise would have violated his Sixth Amendment rights. See McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); Faretta, 422 U.S. at 835-36, 95 S.Ct. 2525; see
1779	support plate”. Id. at 3:54-56. Figure 6 shows the pump assembly attached to the support plate by screw fasteners. Id. at Sheet 4; see also id. at 4:1-3. In contrast, the accused device relies on rivets to attach the pump assembly to its support plate. Declaration of Keith Platt at ¶ 16. Defendant contends this distinction is critical to the infringement analysis. Defendant argues that because its pump assembly is attached to the support plate by rivets, it cannot infringe the '326 patent as a matter of law. Whether defendant is entitled to a summary adjudication of non-infringement thus rests on the court’s construction of the term “removably supported.” Construction of claims is a question of law. There is a “heavy presumption” that words used in patent claims are “ ‘given their ordinary and customary meaning,’ ” that is “the meaning that the term would have to a person of ordinary skill in the art 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
1964	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 Rosin- ski so argue. Moreover, it is well established that the allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for the crime charged is the single offense of conspiracy, however diverse its objects. See United States v. Margiotta, supra; United States v. Murray, supra. Additionally, the court has reviewed Count I of the Indictment and finds it facially sufficient. Title 18 U.S.C. § 371 prohibits a conspiracy to “defraud the United States, or any agency thereof in any manner or for any purpose____” The court finds that paragraph (3) of the conspiracy count tracks the statutory language and adequately alleges a violation thereof. See Hamling, supra; see also United States v. Klein, 247 F.2d 908 (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
2496	case. In each of the cited cases, there were concrete and specific incidents involving reservation boundaries and sovereignty. See id.; Yankton Sioux Tribe v. South Dakota, 796 F.2d 241 (8th Cir.1986) (conversion and declaratory action arising from non-Indian harvesting on a reservation lake). Plaintiffs ask the Court to focus on the Rosebud Sioux Tribe litigation. See Rosebud Sioux Tribe v. Kneip, 375 F.Supp. 1065 (D.S.D.1974), aff'd 521 F.2d 87 (8th Cir.1975), aff'd 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660 (1977). That suit sought a declaration of the original reservation boundaries intact after the defendant county exercised both civil and criminal jurisdiction over tribe members. 430 U.S. at 585, 97 S.Ct. 1361, 51 L.Ed.2d 660. In  plaintiff, a North Dakota municipality, sought declaratory relief in the wake of particularized challenges to municipal authority. Even if plaintiffs have tracked the pleadings filed in those cases, their having done so does not make this dispute ripe. The distinction is pristine: Rosebud Sioux and City of New Town presented ripe factual disputes; this one does not. The cited cases involved explicit efforts by one sovereign to exercise particular powers beyond their lawful jurisdiction; they did not present abstracted concerns over reservation boundaries. Plaintiffs offer a laundry list of problems and fears they feel are related to the possible existence of the 1855 reservation boundaries, and suggest these make this case ripe for adjudication. Their list includes greater regulatory authority under
4239	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); 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
1481	allow the claims of the original patent some other form of survival. The original claims are dead. The statute permits, however, the claims of the reissue patent to reach back to the date the original patent issued, but only if those claims are identical with claims in the original patent. With respect to new or amended claims, an infringer’s liability commences only from the date the reissue patent is issued. At issue in this case is Congress’ meaning of the word “identical.” The district court interpreted “identical” to mean “essentially identical,” noting that other courts have interpreted the word “identical” in section 252 in a way which does not limit claim continuity to literally identical claims. It cited  cert. denied, 435 U.S. 918, 98 S.Ct. 1477, 55 L.Ed.2d 511 (1978) and Akron Brass Co. v. Elkhart Brass Manufacturing Co., 353 F.2d 704, 147 USPQ 301 (7th Cir.1965). Akron Brass and Austin permitted changes in a reissue patent’s claims, however, only if without substance. In Akron Brass, a reissued claim substituted the word “qutlet” for the word “inlet” in the original claim. Since it was already clear what was intended, the court there noted, substitution of “outlet” for “inlet” in no way enlarged or modified the substance of the claim. In Austin, the court found a claim in the reissued patent “identical” to one in the original patent where a modification was made to “make more precise
239	sold the premises referred to as Lot No. 1 to a “Joe Brown” and received a purchase money mortgage from him as part payment. “Lot No. 2” contains a building which was allegedly used by Brown and others to provide water, sewerage and electricity for the still. This building was also owned by the David Realty Co. . See United States v. Two Lots of Ground, etc., 183 F.Supp. 355 (E.D.Pa. 1960). . Abe Markowitz was one of a group of defendants who were tried on a charge of conspiring to violate the Internal Revenue Laws of the United States, in violation of the provisions of 18 U.S.C.A. § 371. A judgment of acquittal was entered as to Markowitz. See David Realty Corporation was not a party to this criminal action. . See United States v. Two Lots of Ground, etc., 194 F.Supp. 312, 313 (E.D. Pa. 1961). . See, e. g., Scott v. Baltimore and O. R. Co., 151 F.2d 61, 64 (3rd Cir. 1945); Jacquard Knitting Mach. Co. v. Ordnance Gauge Co., 95 F.Supp. 902, 905 (E.D. Pa.1951). . See United States v. Markowitz, supra, 176 F.Supp. at pp. 686-687. . The court held in the Burch case that the principles of res judicata and collateral estoppel were not a bar to the forfeiture action because the criminal action involving the defendant was on a charge of conspiracy, not on the substantive acts [see pp. 6 and 7 of
4902	"the Special Master's reports and recommendations (hereinafter ""SM Reports"") in full. Citizens then timely filed a Rule 23(f) petition, which we granted. II. JURISDICTION AND STANDARD OF REVIEW The District Court had original jurisdiction over Plaintiffs' FLSA claims under 28 U.S.C. § 1331, and supplemental jurisdiction over their state-law claims pursuant to 28 U.S.C. § 1367. Because we granted Citizens' Rule 23(f) petition, we have jurisdiction over the District Court's Rule 23 order pursuant to 28 U.S.C. § 1292(e). ""We review the grant of class certification for an abuse of discretion, which occurs if the certification 'rests upon clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.' "" , 552 F.3d 305, 312 (3d Cir. 2008) ). An additional question raised in this appeal is whether we have pendent appellate jurisdiction to review the District Court's FLSA certification order, a question of first impression for our Court. As a general matter, an order certifying a collective action under the FLSA is non-final and therefore not reviewable. See Halle , 842 at 227. However, under certain limited circumstances, the Court may, in its discretion, exercise pendent appellate jurisdiction ""over issues that are not independently appealable[.]"" E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S. , 269 F.3d 187, 202-03 (3d Cir. 2001) (citing In re"
1430	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. Rancho Palos Verdes Corp. v. City of Laguna Beach, 547 F.2d 1092, 1094 (9th Cir. 1976). The second Canton requirement is also met here. As in Santa Fe Land Imp. v. City of Chula Vista, 596 F.2d 838 (9th Cir. 1979) , plaintiff herein seeks a writ of mandamus in his state action pursuant to California Code of Civil Procedure Section 1094.5, to set aside the agency action. Plaintiff has asserted that the commissions’ actions were arbitrary, oppressive, unreasonable and an unreasonable exercise of the police power, an abuse of discretion and an action in excess of its jurisdiction. In support of this claim plaintiff asserts that the commissions’ decisions were not supported by the findings, that the
1187	"ADPP."" The ADPP is the Adult Disciplinary Policy and Procedure. In order to qualify for transfer on the basis of accumulating thirly-six vested months, the last six months must be consecutive without a conviction for either a Class A or B violation. . Defendants’ earlier Motion to Dismiss the appeals for lack of jurisdiction was granted in part, denied in part, and denied in part as moot in our order of January 25, 1995. We determined then that no final merits judgment has been entered in this case as plaintiffs' claims for damages remained unresolved. Accordingly, we do not have appellate jurisdiction under 28 U.S.C. § 1291. . See, e.g., Gottlieb v. Wiles, 11 F.3d 1004 (10th Cir. 1993);  cert. denied, 507 U.S. 908, 113 S.Ct. 1251, 122 L.Ed.2d 650 (1993); Walker v. City cf Mesquite, 858 F.2d 1071 (5th Cir.1988); Guthrie v. Evans, 815 F.2d 626 (11th Cir. 1987). .The agreed entry does not refer to the MCC as either a ‘'supermaximum"" security institution or a ""disciplinary segregation institution.” The agreed entry does provide that once a prisoner has been assigned to the MCC, the prisoner will be assigned a Security Classification Designation of Level 5. The significance of this classification is not clear from the record. Even assuming arguendo that this is a ""supermaximum” classification, objecting members fail to cite any Indiana authority that would render such a classification unlawfiil. . In fact, the agreed entry provides that"
4745	S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 536, 104 S.Ct. 831, 838, 78 L.Ed.2d 645 (1984); Middlesex County Sewage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981); Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639, 101 S.Ct. 2061, 2066, 68 L.Ed.2d 500 (1981); California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981); Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 91, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). Various factors have been considered by the Supreme Court in discerning whether Congress intended a private remedy in a statute that does not expressly provide one. Key factors include the language of the statute itself, the surrounding statutory scheme, and the legislative history and purpose of the statute. Karahalios, 109 S.Ct. at 1286; Thompson, 108 S.Ct. at 516; Northwest Airlines, 451 U.S. at 91, 101 S.Ct. at 1580; Touche Ross & Co., 442 U.S. at 575-76, 99 S.Ct. at 2488-89. An analysis of these factors leads to the conclusion that Congress did not intend a private right
454	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. v. Helvering, 292 U. S. 435. Petitioner quotes It filed its income tax returns for every year; borrowed money; erected a 16-story building and
125	does not establish that the United States owed McCloskey a duty of care. They cite Leidy v. Borough of Glenolden, 277 F.Supp.2d 547, 569-70 (E.D.Pa.2003), in support of the proposition that there is no general duty to protect victims of crimes. For their part, the Plaintiffs assert that, in the context of a motion to dismiss, it is not proper for this court to determine whether a purely “discretionary act” is involved here. They assert that further discovery is needed to determine whether, in disconnecting Sampson’s call and failing to inform his supervisors of the call, Anderson violated any applicable policy, rule, or regulation. Relying on Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988); and Williams v. United States, 450 F.Supp. 1040 (D.S.D.1978), the Plaintiffs also argue that 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
679	to purchase tax exempt securities. Section 265(2) IRC 1954 forbids such deduction. A deficiency arising from the disallowance of these interest deductions was accordingly assessed. The Tax Court sustained the Commissioner’s determinations in the above respects. We reverse the Tax Court’s holding that the assumption of a total of $600,000.00 of the 1953 borrowing by the four corporations organized on June 1, 1957, was taxable in full. We affirm its holding as to the assumption of the $149,-000 mortgage by 620 South Fifth Street, Inc. (the 1957 borrowing); and we affirm the disallowance of the interest paid on $200,000 of the 1957 mortgage of $700,000. 1) 1957 corporate assumptions of 1953 mortgage debt. Until the Supreme Court’s 1938 decision in  taxpayers and the Treasury Department had assumed that no taxable event occurred when a taxpayer transferred encumbered assets to a controlled corporation which assumed the obligations of the encumbrance. Such an assumption was not considered as “other property or money” as those terms were used in Code sections precedent to §§ 351 IRC 1954 and 112(b) (5) IRC 1939, the sections which provided for the familiar “tax free exchanges” identified under the term “Transfer to Corporation Controlled by Transferor.” The simplest form of such a tax free exchange was the changing of a business enterprise from a proprietorship to the corporate form. Even though the assets transferred had acquired a market value in excess of their
4103	he attacks the completeness of the record of trial and the manner in which this court conducts review of those records. In response to appellant’s fourth assignment of error, the Government moved to attach the appellant’s Article 32, UCMJ, investigation. That motion was granted and the issue is now moot. Even without benefit of the Government’s action, however, the assignment of error was without merit. The Article 32, UCMJ, investigation is not a required part of the record of trial. It, however, “shall be attached to the record.” Rule for Courts-Martial 1103(b)(3)(A) (i), Manual for Courts-Martial, United States (1998 ed.). In regard to appellant’s last assignment of error, we note that it totally ignores the holding of this court in  decided prior to submission of appellant’s brief before this court. In Kolly, we summarily dismissed an identical assignment of error. We do so again here. The Court-Martial Order In footnote 1 to his brief, appellant notes that the Order promulgating the results of his trial contains an error. He is correct. Specifically the Order reports that the appellant was found guilty of unlawfully striking Ms. L on the face with his hand. The appellant was in fact acquitted of that specification and he is entitled to have his court-martial order correctly reflect that finding. We will provide appropriate relief in our decretal paragraph. Conclusion Accordingly, we affirm the findings of guilty and the sentence as approved by the convening authority.
3792	conduct, for a dismissal on such grounds may serve as the defendant’s license to return to that conduct. 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). When a plaintiff challenges the constitutionality of an ordinance and that ordinance is subsequently repealed or amended, the repeal or amendment may be viewed as a form of voluntary cessation by the governmental entity of the “offending conduct.” Despite the exception for voluntary cessation, however, the constitutional challenge is usually still rendered moot in the event of a repeal or amendment because the law presumes that governmental entities will not enact unconstitutional laws. Troiano v. Supervisor of Elections, 382 F.3d 1276, 1283 (11th Cir.2004). If there is a substantial likelihood that the law will be reenacted, however, the case will proceed despite the amendment. Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1328-29 (11th Cir.2004); cf. Deja Vu, 274 F.3d at 387. And, if a plaintiffs constitutional challenges to an ordinance remain valid despite an amendment to the ordinance challenged, there is no reason to find the claim moot. “[T]he ‘superseding statute or regulation moots a case only to the extent that it removes challenged features of the prior law. To the extent that those features remain in place, and changes in the law have not so fundamentally altered
4615	"1263 (Ariz.Ct.App.2010) (establishing MCSO as a non-jural entity). , An “identity of issues” exists where: (1) There is substantial overlap between the evidence or argument to be , advanced in the second proceeding and that advanced in the first, (2) The new evidence or argument involves the application of the same rule of law as that involved in the prior proceeding, (3) Pretrial preparatipn and .discovery related to the matter presented in the first action can reasonably be expected to have embraced the matter sought to be presented in the second, (4) The claims involved in the two proceedings are closely related. "" . '‘Qualifying relationships include, but are not limited to, preceding and succeeding owners of property, bailee and bailor, and assignee and assignor.” Id. at 894, 128 S.Ct. 2161, . E.g. Class actions. . I.e. Bankruptcy proceedings. .Sturgell does not make clear whether the three additional factors articulated, as the re- . quirements of ""adequate representation” apply to all of the categories for proper non-party issue preclusion or just the one for “adequate representation.” . The Supreme Court rejected the concept of ""virtual representation,” which it described as a more ""expansive” basis for,,-nonparty preclusion. ""Virtual representation” had var-ions definitions in the fewer courts. The D.C. Circuit’s version held a nonparty was virtually represented for purposes of preclusion where the nonparty:"
684	Such conduct, would be unwise and certainly not good practice. For many years Drybrough was engaged in the business of buying and holding downtown Louisville real estate, and operating those holdings in various enterprises such as parking lots. The conversion of these businesses into corporate form was clearly to serve a bona fide business purpose. What was done here was substantially the “garden variety” of tax free exchange — the shift of a proprietorship to a wholly owned corporation which assumed the debts of the proprietorship. We are aware that we are not at liberty to set aside findings of fact made by the Tax Court unless we can say that such findings of fact are clearly erroneous. Commissioner of Internal If we are, or would be, required to view as findings of fact the critical finding that Drybrough had failed to meet his burden of proving that his principal purpose in having his four corporations assume the existing 1953 indebtedness was not “to avoid Federal income tax on the exchange,” and that Drybrough also failed to show that what he did was for a bona fide business purpose, we would, and do, hold such findings clearly erroneous. We are of the view, however, that the Tax Court’s use of impermissible tests in assessing Drybrough’s purposes amounted to an error of law subject to our review, and we reverse its determination that the assumption in question is
2310	or combination thereof that significantly limits the claim ant’s physical or mental ability to do basic work activities. Id. § 404.1520(c). The determination of whether the claimant suffers from a severe impairment acts as a filter. Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir.1987). Thus, while a claim is denied if the claimant does not suffer from a severe impairment, the finding of any severe impairment, regardless of whether it qualifies as a disability or results from a single impairment or combination thereof, is sufficient to satisfy the second step of the SSA’s sequential analysis. Id. Nonetheless, beyond the second step, the ALJ must consider the entirety of the claimant’s limitations, regardless of whether they are individually disabling. See id.; The ALJ found that Mr. Griffin suffered from the severe impairment of degenerative disc disease, which was all that the second step of the SSA’s disability analysis required. See Jamison, 814 F.2d at 588. The record also demonstrates that the ALJ considered Mr. Griffin’s tinnitus at subsequent steps. The ALJ considered Mr. Griffin’s tinnitus at the third step by finding that Mr. Griffin did not have an impairment, or combination thereof, that met or medically equaled one of the listed impairments. See Jones v. Dep’t of Health & Human Servs., 941 F.2d 1529, 1533 (11th Cir.1991) (noting a simple expression of the ALJ’s consideration of the combination of impairments constitutes a sufficient statement of such findings). Likewise, in determining Mr.
4042	see 8 C.F.R. § 1003.23(b)(4)(iii)(D), the BIA was not foreclosed from denying the motion as a matter of discretion due to Jassi’s lack of due diligence. The agency’s ultimate decision regarding whether to rescind an in absentia exclusion order under 8 C.F.R. § 1003.23 is discretionary. See Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005); see also Luna v. Holder, 637 F.3d 85, 95-96 (2d Cir.2011) (noting the different treatment this Court has accorded to statutory motions to reopen versus regulatory motions to reopen, the latter of which are discretionary). Here, the BIA did not abuse its discretion, as it provided a rational explanation for denying the motion — the 12-year delay in filing. See see also, e.g., Zhao Quan Chen v. Gonzales, 492 F.3d 153, 155 (2d Cir.2007) (three-year delay suggested lack of diligence); Cekic v. INS, 435 F.3d 167, 171-72 (2d Cir.2006) (two-year delay suggested lack of diligence); Ali v. Gonzales, 448 F.3d 515, 516-17 & n. 2 (2d Cir.2006) (eleven-year delay suggested lack of diligence). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and
3211	"and Washington. See Notice of Hearing, 52 Fed.Reg. 4963. On March 30, the Administrator issued his Decision and Final Order Modifying Final Suspension of Pesticide Products Which Contain Dinoseb, and permitted application of dinoseb to those crops in Washington and Idaho with certain restrictions. On April 3, he granted the subpart D hearing request as to those same crops in Oregon. See Notice of Hearing Concerning Application to Modify the Final Suspension Order for Pesticide Products Containing Dinoseb, 52 Fed.Reg. 11333, 11335 (EPA April 8, 1987). . The restrictions are all designed to protect dinoseb applicators against potential hazards. There is no apparent risk to consumers. See 1 RT at 162. . We review de novo the question of judicial review. We reject appellant's suggestion that we defer to the EPA’s construction of the judicial review provisions of FIFRA. While we ordinarily give great weight to the interpretation of the agency charged with enforcement of the statute we are construing, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 2781, 81 L.Ed.2d 694 (1984), that deference does not extend to the question of judicial review, a matter within the peculiar expertise of the courts. . In this case, the Administrator had ""assumed that a suspension hearing would require approximately four months.” Emergency Order, 51 Fed.Reg. at 36636. . Under subsection (c)(3), only registrants and the agency may participate in the hearing process, although ""any"
981	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.” 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.
3559	furthering that secular purpose.”). Here, not only was the City neutral toward the BRM in its lease terms when compared to CHI’s lease, the BRM actually got the worse deal. Where the BRM would have been required to pay market rent after five years, CHI was guaranteed that — • throughout the entire fifty-year term of its lease — its rent would never exceed $1 per year. If charging below-market rent to a nonprofit religious organization on the same or worse terms than those received by a previous secular non-profit tenant would constitute government indoctrination, that was not clearly established in 2005. In  as amended, 792 F.2d 124 (9th Cir.1986), we held that leasing public property to a religious organization does not violate the Establishment Clause, as least where the lease was on the same terms as leases offered to commercial tenants. That case did not address whether it would violate the Establishment Clause if such a lease were offered on the same terms as those received by other non-profit tenants. When pressed during oral argument for their best case on this issue, plaintiffs’ counsel cited this case. It does not help them. At least one court has decided such a case. In Fairfax Covenant Church v. Fairfax County Sch. Bd., 17 F.3d 703 (4th Cir.), cert. denied, 511 U.S. 1143, 114 S.Ct. 2166, 128 L.Ed.2d 888 (1994), the Fourth Circuit
2214	1673d (b) is published. Interest is payable at 8 percent per annum or the rate in effect under 16 U.S.C. S 6621, whichever is higher. October 10, 1980, P.L. 96-417, Title III, Sec. 301, 94 Stat 1728 (effective November 1,1980, as provided by section 701(a) of such Act, 28 U.S.C. § 251 note). 28 U.S.C. § 1585 states: The Court of International Trade shall possess all the powers in law and equity of, or as conferred by statute upon, a district court of the United States. Allowance of interest in a federal civil suit is not a matter of discretion, but is mandatory. Interest is payable on a judgment whether or not the judgment order expressly calls for postjudgment interest. See,  aff'd 501 F. 2d 1379. L 1981, c 258 § 1, passed June 15,1981, effective June 25, 1981.
3076	presentation of evidence of general employment demographics and/or of recognized occupational classifications that indicate the approximate number of jobs (e.g., ‘few,’ ‘many,’ ‘most’) from which an individual would be excluded because of an impairment.”) The Court will now explain why Plaintiffs evidence fails to meet her burden under the ADA in “working” cases. First, the Court holds that a lifting restriction alone is not sufficient to establish a substantial impairment to the major life activity of working. See Thompson v. Holy Family Hosp., 121 F.3d 537, 541 (9th Cir.1997); Williams v. Channel Master Satellite Sys., 101 F.3d 346, 349 (4th Cir.1996) (Holding as a matter of law that a 25-pound lifting limitation does not constitute a disability); Other courts have held that even lesser amounts were not substantial limitations. See Marinelli v. City of Erie, Pa., 216 F.3d 354, 364 (3rd Cir.2000) (10 pounds); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 644 (2nd Cir.1998) (10-20 pounds); Helfter v. United Parcel Service, Inc., 115 F.3d 613, 617-18 (8th Cir.1997) (10-20 pounds); McKay v. Toyota Motor Mfg., US.A., Inc., 110 F.3d 369, 373 (6th Cir.1997) (20 pounds); Wooten v. Farmland Foods, 58 F.3d 382, 384-86 (8th Cir.1995) (10-20 pounds); Piascyk v. City of New Haven, 64 F.Supp.2d 19, 29-31 (D.Conn.1999) (15 pounds), aff'd 216 F.3d 1072 (2nd Cir.2000) (Table case); Gerdes v. Swift-Eckrich, 949 F.Supp. 1386, 1400 n. 5 (N.D.Jowa 1996) (10 pounds) aff'd 125 F.3d 634
1468	to the federal courts to seek relief from his imprisonment or from the conditions thereof. That right has been established since the decision of the Supreme Court in Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Neither does the case involve the right of an inmate to have the assistance of another inmate in gaining access to the courts for the redress of grievances where those who have the former inmate in charge have not otherwise provided him with legal assistance or made more conventional legal assistance available to' him.. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Finney v. Arkansas Bd. of Correction, 505 F.2d 194, 213 (8th Cir. 1974);  aff’d, 548 F.2d 740 (8th Cir. 1977), aff’d, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). Finally, the case presents no question as to constitutional deprivations, if any, that the plaintiff, Dee, may have sustained while confined in ISMF or thereafter. All that we are concerned with here is whether the individual plaintiff, Watts, suffered a personal deprivation of federally protected rights which entitles him to an award of monetary damages against any of the defendants. In resisting the claim of Watts the defendants advance the basic contention that while an inmate of a prison who has no other access to legal assistance has a constitutional right to the services of an inmate writ writer, Johnson v. Avery, supra,
4848	— 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. 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. § 1325(b)(1)(B). Chapter 13 utilizes a multi-part equation, containing both an income component and' an expense component, to calculate disposable income. On the income side of the equation, a debtor must first calculate her total current monthly income, of which child support payments are considered a part. See 11 U.S.C. § 101(10A)(B) (explaining that CMI includes any amount paid by third parties “on a regular basis for the household expenses of the debtor or the debtor’s dependents”); see also In re Wise, No. 10-32441, 2011 WL
3945	by reference state usury laws. Thus, the federal rates are keyed to the state rates and must change as the respective states see fit, even retroactively. Federal law has long recognized that the retroactive lifting of usury limits is permissible since usury laws are generally remedial, rather than substantive. Ewell v. Daggs, 108 U.S. 143 [2 S.Ct. 408, 27 L.Ed. 682] (1883). The fact that 12 U.S.C. § 86 provides a penalty for the violation of a usury limit does not in any way unhinge it from state usury laws. To rule otherwise would place national banks on an unequal footing with state banks, contrary to the intent of the drafters of the National Bank Act. See,  862] (1874). Walters, supra, at 5-8. Thus, defendants’ primary position is that the Cappaert ruling of the retroactivity of § 75-17-1, et seq., must be applied to defendant national bank so as to place it on an equal basis with all other lenders of credit in Mississippi in the spirit of the “most favored lender doctrine” espoused under 12 U.S.C. § 85 of the National Bank Act. Plaintiffs do not dispute that Capp-aert expressly upholds the retroactive application of § 75-17-1, et seq., Miss.Code Ann. (Supp.1975), but argues that such retroactive application is contra to the dictates of the federal savings statute, 1 U.S.C. § 109. Section 109 of Title 1 of the United States Code provides that the repeal of
2584	from April 1, 1971, through May 31, 1973, and that those clients have a right to recover substantial amounts of money which they lost as a result of this fraud. In a Memorandum of Opinion filed on March 25,1977, and reported at 434 F.Supp. 171, the Court concluded that plaintiffs had an implied cause of action under the Investment Advisers Act of 1940, 15 U.S.C. §§ 80b-l et seq., against an investment adviser who defrauds any client or prospective client and against individuals and businesses (including lawyers and law firms) that are not investment advisers but that aid and abet investment advisers in the commission of frauds which violate § 206 of the Investment Advisers Act, 15 U.S.C. § 80b-6. The Court dismissed the claims against some defendants under the Securities Exchange Act of 1934, 15 U.S.C. §§ 78a et seq., because the sale of investment advisory services does not constitute the sale of a security within the meaning of § 10(b) of the Act, 15 U.S.C. § 78j(b). On June 17, 1977, the remaining defendants stipulated with plaintiffs that because the Court’s analysis of the § 10(b) claims applied equally to all defendants, the Court “may dismiss plaintiffs’ claims under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5,” and plaintiffs reserved the right to try to amend the complaint and to appeal the Court’s decision with respect
61	of fact. Waugh v. Eldridge (In re Waugh), 95 F.3d 706, 710 (8th Cir.1996); Johnson v. Fors (In re Fors), 259 B.R. 131, 135 (8th Cir. BAP 2001). Questions of fact are reviewed under the clearly erroneous standard and are not to be reversed unless after reviewing the record the appellate court is left with the definite and firm conviction that a mistake has been committed. Waugh, 95 F.3d at 711; Barclays Am./Bus. Credit, Inc. v. Long (In re Long), 774 F.2d 875, 877 (8th Cir.1985); Fors, 259 B.R. at 135. Due deference shall be given to the opportunity of the trier of fact to judge the credibility of the witnesses. Fors, 259 B.R. at 136; Where the evidence is susceptible to two permissible views, the trial court’s choice between the two cannot be clearly erroneous. Fors, 259 B.R. at 135-36. If the trial court’s account of the evidence is plausible in light of the entire record, an appellate court cannot substitute its judgment for that of the trier of fact. Id. at 136. DISCUSSION Pursuant to 11 U.S.C. § 523(a)(6), a discharge does not discharge an individual from a debt for willful and malicious injury. In this context, the term willful means deliberate or intentional. Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 977, 140 L.Ed.2d 90 (1998); Hobson Mould Works, Inc. v. Madsen (In re Madsen), 195 F.3d 988, 989
4068	concurrent two-year prison sentences, was placed on five years probation (to commence upon termination of the prison sentences), and was ordered to make restitution to the victims, pursuant to 18 U.S.C: § 3579, in the amount of $125,000 (Lanier is separately and jointly liable with his co-defendants at trial for this money, which is an amount equal to the advance fees paid by the victims). This timely appeal followed. II. DISCUSSION A. Sufficiency of the Evidence When reviewing the District Court’s decision denying appellant’s motion for judgment of acquittal, we must examine the evidence in the light most favorable to the government and give the government the benefit of all reasonable inferences that may be drawn logically from the evidence. We note in that regard that the essential elements of a crime may be proven by circumstantial as well as direct evidence. United States v. Hudson, 717 F.2d 1211, 1213 (8th Cir.1983). Willfulness, intent, and guilty knowledge may also be proven by circumstantial evidence and frequently cannot be proven in any other way. Id. 1. Mail Fraud To establish a violation of 18 U.S. C. § 1341, the government must produce sufficient evidence for a jury to find that the defendant devised a scheme to defraud, that the defendant had specific intent, and that the mails were used for the purpose of executing the scheme. United States v. Sedovic, 679 F.2d 1233, 1237-38 (8th Cir.1982). Lanier argues that the evidence
3615	which the government regarded as a violation of its request for reciprocal discovery under Federal Rule of Criminal Procedure 16. The court sustained the objection, reiterating that the defense could use the video as impeachment through questioning, but could not play it in front of the jury. On appeal, Eason argues that the district court erred in excluding the dash camera video at two separate times: when the district court prevented the defense from showing the video to the jury (1) during the initial re-cross examination of Kuykendall, and (2) when the defense attempted to re-call Kuykendall as a witness to impeach him with the video. We analyze each instance in turn, reviewing evidentia-ry rulings for abuse of discretion. See As to the initial re-cross examination, the government argues that Eason did not offer the video, and thus the district court could not have erred in excluding it. We will assume for the sake of analysis that Eason made a request to show the video, but question whether the district court in fact denied the request. Instead of an outright denial, the court’s ruling appears to have been a suggestion to 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
4113	"5, 6, and 9. In November 2014, the district court issued an Order addressing Motions to Dismiss by Fluor and CH2M, Motions for Summary Judgment by Fluor and Shaw, and a Motion to Strike and Amend the Complaint by the relators. The motions for summary judgment were granted in part and denied in part, while the remaining motions were denied. The court granted the relators leave to file a Second Amended Complaint “setting forth specific facts showing that the defendants failed to obligate their subcontractors to comply with state LP gas statutes and regulations."" The Second Amended Complaint is the operative complaint in this case. In the district court’s September 2015 Order, it acknowledged that the relators went outside the scope of the leave given to them by the court, alleging not simply a theory of nullity, but also that “defendants misrepresented to FEMA that their subcontractors and staff had the proper training and licensing needed to perform LP gas installations or were in the process of receiving these qualifications.” McLain, 2015 WL 5321692 at *2. Furthermore, in its Order, the district court granted summary judgment to each Contractor as to the “nullity” claims. The district court issued an additional Order on October 8, 2015, clarifying that CH2M’s cross motion for summary judgment"
1654	MEMORANDUM Darrell Garrett, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 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 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.
2640	“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. 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
1863	of a single count of possession with intent to distribute phenmetrazine. II. CONTENTIONS ON APPEAL Eaton contends that (1) the court’s instruction on constructive possession misstated the law and substantially prejudiced Eaton; (2) the prosecution’s cross-examination of Eaton on his arrest record exceeded the permissible scope of examination; and (3) the prosecution should not have been permitted to cross-examine Eaton on his prior drug use. III. STANDARD OF REVIEW All of the issues raised by Eaton relate to the conduct of the trial. These matters are committed to the sound discretion of the trial court. United States v. Soulard, 730 F.2d 1292, 1303 (9th Cir.1984) (choice of language for and formulation of instruc tions is within the trial court’s discretion); We use the abuse of discretion standard in reviewing the trial court’s rulings on these issues. IV. CONSTRUCTIVE POSSESSION INSTRUCTION Eaton argues that the court’s illustrations given in conjunction with its constructive possession instruction confused the jury on the requirement that one must have both the power and the intention to exercise dominion and control over an object to have constructive possession. The instruction given reads as follows: The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession. [holding up a pencil] I’m in actual possession of this
3811	§ 3-129(9). While the First Amendment protects the expressive element contained in erotic dancing, the Court has been unable to find any case law affording that protection to intentional touching between workers and patrons, even if that touching may occur during part of an expressive performance. Indeed, section 3-129(9) is less restrictive than the “no touch” provision upheld in Hang On, 65 F.3d at 1253 (prohibiting all physical contact between dancers and customers); Fantasy Ranch, Inc. v. City of Arlington, 459 F.3d 546, 556-62 (5th Cir.2006); and Krontz v. City of San Diego, 136 Cal.App.4th 1126, 39 Cal.Rptr.3d 535, 544 (2006). It is also less restrictive than physical buffer and stage height requirements that have been routinely upheld. Fantasy Ranch, 459 F.3d at 555-56; Deja Vu, 274 F.3d at 396-98; Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1061 (9th Cir.1986). In Hang On, the Fifth Circuit Court of Appeals held that the Arlington “no touch” provision did not restrict any First Amendment interests of either the dancer or the customer. 65 F.3d at 1253-54. “[I]ntentional contact between a nude [or clothed] dancer and a bar patron is conduct beyond the expressive scope of the dancing itself. The conduct at that point has overwhelmed any expressive strains it may contain. That the physical contact occurs while in the course of protected activity does not bring it within the scope of the First Amendment.” Id. at 1253. Thus, even
3185	to quash the indictment (issued on a finding of probable cause) does not undermine confidence in the outcome of the trial (where a legally chosen petit jury found proof of guilt beyond a reasonable doubt). The evidence of guilt in this case was overwhelming. Prejudice, therefore, is not present on this Strickland claim. See Pickney (rejecting similar Strickland claim for lack of prejudice). The Remedy A federal habeas judge who determines that relief is warranted ordinarily does not order the immediate release of a prisoner. Instead, he grants a conditional release order which provides for release of the petitioner after a reasonable time unless the State either retries the petitioner or otherwise corrects the constitutional violation. The practice was described in the court chooses, howev er, to delay the writ to allow the state to correct the problem as best it can. Although the federal court, in doing so, may certainly suggest a corrective procedure in broad terms, the real thrust of the order is to alert the state court to the constitutional problem and notify it that the infirmity must be remedied. A new indictment and trial are the only apparent means of remedying this violation. That was recognized in Guice II, which directed the district court to
1107	this indictment—“all treasury notes issued under any act of congress,” to apply them to this.case. Id. It must be, therefore, that these words are sufficient in the indictment to indicate the existence of, and the form and substance of, the genuine notes, without any more especial description than is furnished by their use. In other words, the language of the statute itself sufficiently describes the offense, without more; and the averments here that the obligation counterfeited was “a United States compound-interest treasury note,” etc., accompanied with the most minute description in hsec verba of the alleged forgery itself, were ample to answer the constitutional requirement that the defendant should have notice of that which he is called upon to defend. Ct. Rep. 512; U. S. v. Carll, 105 U. S. 611; U. S. v. Jolly, ante, 108. The state decisions referred to concerning acts of the legislature authorizing private corporations to issue bank-notes, and deciding that the authority to issue the notes and the fact of issuing them should be averred in an indictment for counterfeiting them, are not in point, in my judgment. Those are in the nature of private notes circulated as currency by law, and those facts are perhaps essential, under the statutes or the common law punishing their forgery or use as counterfeits, to be averred; but the United States’ statutes proceed upon a broader ground to punish by general law, designed especially for that
1201	Unpublished opinions are not binding precedent in this circuit. PER CURIAM: John Lewis Wray, Jr., seeks to appeal the district court’s order dismissing as successive his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. see Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85, 120 S.Ct. 1595. We have independently reviewed the record and conclude that Wray has not made the requisite showing. Accordingly, we deny a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument
702	"from the phrase, “material impairment of structural integrity,” which appeared in a 1997 report prepared by an engineering consultant, fails. The diminished structural integrity is indistinguishable from the diminished capacity of the foundation which results directly and only from deficient design or construction or a combination of both. Because the policy’s exclusions clearly preclude indemnity by Allendale for such design and construction damage to the foundation, it owes Ochsner no indemnity. AFFIRMED. . Wheeler v. United States, 116 F.3d 749, 754 (5th Cir.1997) (reviewing district court's disposition of cross-motions for summary judgment decided on stipulated facts). . U.S. Indus., Inc. v. Aetna Cas. & Sur. Co., 690 F.2d 459, 461 (5th Cir.1982) (construing Louisiana law and citing . U.S. Indus., 690 F.2d at 461. . Neither party argues, nor did the district court rely on, the “Other Insurance” clause of the policy, but we note its relevance to the issue of Ochsner’s apparent failure to seek coverage of its loss from other sources: ""The Company shall not be liable for loss under this Policy if at the time of loss there is any other insurance which would attach is this insurance had not been effected, except that this insurance shall apply only as excess and in no event as contributory insurance, and then only after all other insurance has been exhausted.” . 690 F.2d 459 (5th Cir.1982). . Id. (citing Equitable Fire & Marine"
2533	defendant was found to have committed. The Court does not say that all assault and battery cases involve “willful and malicious injury” under Section 523, although there is support for that proposition in Tennessee and elsewhere. But in this particular case, involving an intentional, unjustified shooting, the element of maliciousness is unavoidably found in the jury’s verdict. Appellant contends that the 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); 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
2791	remains that during its entire operation, only one minor worker injury due to agent processing was reported. Although three releases of live agent were reported, these did not result in any injury. Plaintiffs may be correct that the risks associated with operating TOCDF have been underestimated to some unspecified degree. However, there is no evidence that human injury is inevitable or even likely pending the court’s final resolution of this case. Accordingly, the court finds that operational risks cited are too speculative to support a finding of irreparable injury to plaintiffs. NEPA Harm, 5. The purpose of NEPA is to ensure that the agency and the public are aware of the environmental consequences of a project before beginning the project. Courts have noted that the harm from proceeding with a project without completing the necessary NEPA evaluation is irreparable in that once a decision has been made and implemented, NEPA’s purpose of making certain that decision makers have all relevant information prior to making final decisions would be thwarted. Id.; Sierra Club v. Marsh, 872 F.2d 497, 503-04 (1st Cir.1989). This is not an injury arising out of the substance of the decision that has been made or its effects; it is a procedural interest in protecting the processes established by NEPA and providing the decision maker with all the relevant information. In this ease, the alleged NEPA harm does not arise out of the decision to construct TOCDF, a
1390	offered by defendant were not the true reasons for discharge, but only a pretext for discrimination. Id. at 804, 93 S.Ct. at 1825. A review of the entire record in this case indicates that Mr. Ashagre failed to establish a prima facie case of discrimination on the basis of race and/or national origin. Even assuming that he did make such a showing, Southland articulated legitimate, nondiscriminatory reasons for discharging Mr. Ashagre, and Mr. Ashagre failed to prove, by a preponderance of the evidence, that Southland’s reasons were merely pretextual. It is also clear that, with respect to the claim under section 1981, Mr. Ashagre failed to make any showing of purposeful discrimination. See In McDonnell Doughs Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) the Supreme Court set out the requirements for a prima facie case of discrimination based on failure to hire. The Fifth Circuit first applied these requirements to a case involving a discharge from employment in Marks v. Prattco, Inc., 607 F.2d 1153 (5th Cir. 1979). The court in Marks found that, to establish a prima facie case of employment discrimination in a discharge, the plaintiff must show that 1) he is a member of a protected class; 2) he was qualified for the job from which he was discharged; 3) he was discharged; and, 4) after he was discharged, his employer filled his
1029	Court has no doubt that debtor would have agreed to a higher rate given that its own experts acknowledge that 6% is too low; the real problem is that there is still a gap between what the bank thinks is minimally necessary and the debtor’s maximum ability to pay such a rate. Moreover, from day one it has been obvious that the cramdown rate of interest would be the primary issue in this case, so the bank cannot argue that it has been mislead or that, in the end, the Court would have to make hard decisions. Further, debtor cites cases where just such an approach has been embraced by bankruptcy courts as a practical solution to this dilemma. See, e.g., In re Coram Healthcare Corp., 315 B.R. 321, 351 (Bankr.D.Del.2004). Since there is no statutory obstacle, and the bank cites no cases either, the Court is persuaded that there is nothing fundamentally wrong with a plan that provides such an elastic provision concerning a proposed cramdown interest rate. 3. Does § 1129(b)(2)(A)(i) apply? Similarly, the bank argues that § 1129(b)(2)(A)© cannot apply because, as originally written, debtor proposed in the plan that future sales of the undeveloped pads on the property be free of liens, with portions of the proceeds remitted to the bank a function of a release price formula somewhat vaguely described at page 5 of the plan. The bank correctly argues that such a provision would be, absent
201	"the person to be served is not within Puerto Rico the general court of justice of Puerto Rico shall have personal jurisdiction over said non-resident as if he were a resident of the Commonwealth of Puerto Rico, if the action or claim arises as a result of the following: (1) such person or his agent carries out business transactions within Puerto Rico; or (2) executes by himself or through his agents, tortious acts within Puerto Rico; or (3) ... (4) ... (5) ..."" . Furthermore, the place where the performance of the contract is to take place is pivotal in reaching this determination. The performance of the contract was known to the defendants to be in Puerto Rico. See . Because M.K.M. exercised the privilege of conducting activities within Puerto Rico, thus availing itself of the privileges, protection, and benefits, M.K.M. cannot refuse to escape the consequences: ""The exercise of that privilege may give rise to obligations, and so far as these obligations arise out or are connected with the activities within the State, a procedure to enforce them can, in most instances, hardly be said to be undue. Eddie Dassin, Inc. v. Darlene Knitwear, Inc., 441 F.Supp. 324, 326 (D.P.R.1977), applying International Harvester Co. of America v. Com. of Kentucky, 234 U.S. 579 [34 S.Ct. 944, 58 L.Ed. 1479] (1914) and International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310 [66 S.Ct."
728	"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. Thomas, 684 F.Supp. 1056 (W.D.Okla.1988) (criminally touching and molesting children at day care center in lewd and lascivious manner);  affd sub nom. State Farm Fire &. Casualty Co. v. Bomke, 849 F.2d 1218 (9th Cir.1988); CNA Ins. Co. v. McGinnis, 282 Ark. 90, 666 S.W.2d 689 (1984) (sexual abuse of minor stepdaughter by stepfather on daily basis over ten-year period from age six to age sixteen); Fire Ins. Exch. v. Abbott, 204 Cal.App.3d 1012, 251 Cal.Rptr. 620 (1988) (two cases: fondling thigh of six year-old female and causing her to touch insured's penis; and, teacher’s homosexual relationship with fourteen-year-old boy); Allstate Ins. Co. v. Kim W., 160 Cal.App.3d 326, 206 Cal.Rptr. 609 (1984) (""lewd or lascivious acts” inflicted upon minor), hearing denied, (Cal. Dec. 19, 1984); Troelstrup v. Dist. Court, 712 P.2d 1010 (Colo.1986) (en bapc) (homosexual acts"
2725	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 to remand a series of cases in which the Shou Yung Guo documents might be relevant. See But the government has not consented to a remand here, and, accordingly, we must determine for ourselves whether to grant Chen’s petition for review. I In his untimely motion to reopen, Chen submitted copies of the 2003 decisions. But he did not also submit a copy of the Q & A Handbook. Nonetheless, we conclude that Chen’s case is controlled by our holding in Shou Yung Guo. While the 2003 decisions do not appear to announce that the penalty in Change City is in fact sterilization—as only the Q & A Handbook does—those 2003 decisions do “reflect! ] the adoption of a new policy in Changle City,” namely, that “foreign- born children would be counted in deter- mining violations of
4899	at p. 1282. Defendant cites, in addition to the Farmers and Wenatchee cases, the case of Golding v. Associacion Aguicarera Cooperation Lafayette, 42 Labor Cases ¶ 31,119, which holds that mechanics employed to repair tractors used by their employer in agricultural services for individual farmers were not exempt from the Act since the work was not performed on a farm. Defendant contends that the Wenatchee and Lafayette cases cannot be distinguished from the present case and were erroneously decided. Two additional cases cited by Amicus Curiae concern employees in the floral business employed in various operations in maintaining their employers’ greenhouses. The exemption was applied to them, primarily because they were employed by the farmer himself in his own horticultural practices. Damutz v. William Pinchbeck, Inc., 158 F. 2d 882, 170 A.L.R. 1246, C.C.A.2d, 1946. Maneja v. Waialua Agricultural Co., 1955, 349 U.S. 254, 75 S.Ct. 719, 99 L.Ed. 1040, involved a large, completely mech anized farming operation in Hawaii. The court discusses application of the agricultural exemption to various types of employees, holding those involved in farming operations exempt from the Act, and others not so involved covered. This case is a good example of the fine distinctions which must be made in applying the exemption, and is further authority for the proposition that all employees of a single concern do not stand in the same position. This Court holds, therefore, that Defendant is an independent contractor performing agricultural services
165	this ease were paid in installments, the last installment being paid June 15, 1921. It is well to note, not only that suit was not commenced to recover these taxes until after the passage of the Revenue Act of 1924, but that no claim for refund was made for the taxes collected for the year 1919 until March, 1925, and that no claim for refund for the taxes collected for the first half of the year 1920 was made until March, 1926. The stipulated facts also indicate that payments were made without protest or duress, as do the tax returns in evidence. The principle that taxes voluntarily paid cannot be recovered is firmly decided in the case of L. R. 973, in which this subject was exhaustively treated and the law clearly settled for this circuit. But counsel claim that the plaintiff in this ease did not pay with a full knowledge of her rights, and therefore that she paid her taxes involuntarily. I am unable to follow the claim of plaintiff’s counsel in this particular. It seems to me that the case of Fox v. Edwards, supra, clearly indicates the law for this circuit, and which I am bound to follow in this particular. Nor do the cases cited by the plaintiff prove helpful to the theory they advocate; on the contrary, they indicate that, where the plaintiff pays with full knowledge of the facts or with full
3498	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. The Supreme Court in Boyle found that without this protection, government contractors facing possible liability from the performance of government contracts would either decline to manufacture equipment according to government specifications or raise their price. Id. at 507, 108 S.Ct. at 2515-16. Either way, the Court held, the United States’ interest in the procurement of equipment would be directly af fected, providing a sufficient condition for the displacement of state law. Id., 487 U.S. at 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
1259	motion asking for leave of court to add witnesses in order to aid the court in its decision regarding the extant isshes. Defendant objects to Plaintiffs additional witnesses. First, Defendant argues that the addition of any witnesses after trial violates the pretrial disclosure provisions of Fed. R.Civ.P. 26(a)(3)(A). Second, if the witnesses are expert witnesses, Defendant argues that disclosure at this time violates Fed.R.Civ.P. 26(a)(2)(C), which requires that such witnesses be identified at least ninety (90) days before trial, and Fed.R.Civ.P. 26(a)(2)(B), which requires certain reports, information, and background information on experts that will be called to testify. II. Analysis A. Front Pay as an Equitable Remedy 42 U.S.C. § 1983 allows a victim to seek legal or equitable relief. Front pay and reinstatement are both equitable remedies. Id. Reinstatement is generally the preferred remedy for a discriminatory discharge, but front pay may be awarded if reinstatement is not feasible. Deloach, 897 F.2d at 822; Johnson v. Chapel Hill I.S.D., 853 F.2d 375, 382 (5th Cir.1988). Reinstatement is considered to be not feasible if the plaintiff can no longer be a satisfactory employee for the defendant, if the plaintiffs •reinstatement would disrupt the employment of others, or if antagonism between.the victim and the discriminatory employer exists such that would make reinstatement unfeasible. Deloach, 897 F.2d at 822; see also Woodhouse v. Magnolia Hospital, 92 F.3d 248, 258 (5th Cir.1996) (reinstatement of the employee was not an abuse of discretion
2738	is whether a genuine issue of material fact exists as to the equal protection claim. III. DISCUSSION In order to state a claim under Section 1983, the plaintiff must establish that a state actor has deprived him of rights secured by federal constitutional or statutory law. See Izquierdo Prieto v. Mercado Rosa, 894 F.2d 467, 470 (1st Cir.1990). In this case, Plaintiff asserts that his Fourteenth Amendment right to equal protection has been violated. Under the Fourteenth Amendment, no State may “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV. The First Circuit has recently reiterated that courts evaluating equal protection claims must first determine whether there exists evidence of discriminatory intent. See  cert. denied, — U.S. —, 118 S.Ct. 2370, 141 L.Ed.2d 738 (1998). Only once discriminatory intent has been established may the Court turn to the standard under which the action in question is to be reviewed (i.e., rational basis review, intermediate scrutiny, or strict scrutiny). See Hayden, 134 F.3d at 452-53. The burden to prove intentional discrimination is not a slight one: “ ‘Discriminatory purpose’ ... implies that the decisionmaker ... selected or reaffirmed a course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Id. (quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)). In light of this intent
22	"trial of the action until such arbitration has been had.” Both provide that the district court ""shall make an order directing the parties to proceed to arbitration” when the site for arbitration is within the district. But § 206 of the enabling legislation for the Convention also authorizes district courts to order parties to proceed with a Convention arbitration even outside the United States. Sedeo, 767 F.2d at 1146 (footnotes omitted). . Monda Marine apparently concedes this point: it fails to address this issue in its opposition memorandum. Instead, it focuses on other issues in the event that the Court finds a valid arbitration clause. . For a sampling of cases outside this Circuit, see indeed, they may complement arbitration clauses by establishing a judicial forum in which a party may enforce arbitration.''); Montauk Oil Transp. Corp. v. Steamship Mut. Underwriting Ass'n (Bermuda), 79 F.3d 295, 298 (2d Cir.1996) (noting that the principal effect a service of suit clause is to resolve the issue of personal jurisdiction over a foreign association because an arbitration award cannot be enforced without access to the courts); Sec. Life Ins. Co. v. Hannover Life Reassurance Co., 167 F.Supp.2d 1086, 1088 (D.Minn.2001) (""It is well-established that such service of suit clauses do not abridge an agreement to arbitrate all disputes arising out of a relationship.”). . Again, the Court points out"
490	to entertain an appeal from the state court proceedings. However, the court denied the city’s motion for sanctions under Fed.R.CivJP. 11. The Prewitts appealed from the summary judgment, but ultimately dismissed the appeal voluntarily. On cross-appeal from the denial of its sanctions motion, the city argues that remand is required because the district court faded to set forth any findings in support of its denial of the motion. This court reviews a decision on a motion for Rule 11 sanctions for an abuse of discretion. Vild v. Visconsi, 956 F.2d 560, 570 (6th Cir.1992). Where the district court has failed to set forth any findings supporting its denial of a motion for Rule 11 sanctions, remand is necessary. Remand is appropriate because, where no reason for denying the motion for Rule 11 sanctions is given, this court cannot determine whether an abuse of discretion has occurred. Vild, 956 F.2d at 571. Because the city’s argument has merit, the portion of the district court judgment denying Rule 11 sanctions is vacated and this matter is remanded for a statement of findings in support of the denial of the motion.
1792	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. In the main, the parties do not dispute the meaning of the term “remov-ably supported.” Both parties agree that the court should construe “removably supported” to mean “supported by and being removable from”. Compare Defendant’s Motion at 6 with Plaintiffs Response and Brief in Opposition to Defendant’s Motion for Summary Judgment at 12 [hereinafter cited as “Plaintiffs Response”]. Where the parties diverge is defendant’s contention that “removably supported” necessarily excludes all permanent means of attachment, including the use of rivets. Plaintiff counters that the claims of the '326 patent do not specify the type of fasteners to be used and, in any event, rivets are not permanent fasteners because they can be removed. In support of its contention that rivets
2019	PTSD appearing in the three medical reports in this case, the Board failed to discuss each medical report and give an adequate statement of reasons or bases under 38 U.S.C. § 7104(d)(1) for accepting or rejecting each one. However, the BVA decision contains another defect, discussed below, that supersedes the reason-or-bases error with respect to the PTSD diagnoses. Because it is clear that the Board doubted the adequacy of the PTSD diagnoses in this case, specifically, the sufficiency of the claimed stressors, the Board was required to comply with the retum-for-clarification requirement in applicable VA regulatory provisions discussed in part II.B.1.a., above. The Board is not free to disregard VA regulations. See Sutton v. Brown, 9 Vet.App. 553, 568-69 (1996) (citing  Vitarelli v. Seaton, 359 U.S. 535, 538, 539-40, 79 S.Ct. 968, 971-72, 972-73, 3 L.Ed.2d 1012 (1959), and Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957)). In any event, because the sufficiency of the stressors to support a PTSD diagnosis and the adequacy of the veteran’s symptomatology are medical questions, the Board was not free to reject uncontradicted, unequivocal medical diagnoses of record — by Dr. Singh, Dr. Robinson, or Mr. Young — that are presumed to have found the veteran’s stressors and symptoms to be sufficient to support the PTSD diagnosis and in this case did specifically find the veteran’s war-experience stressors sufficient to warrant a PTSD diagnosis,
2424	"Champagne Police Department is a state entity and the Clerk of Court and the Federal Defender Office are within the Judiciary. Therefore, Mr. Terry cannot bring a cognizable FOIA action against them. . The Government’s contention that Mr. Terry’s motion is an attempted successive habeas petition is without merit. Although Mr. Terry discussed the merits of his underlying criminal conviction at some length in his motion to the district court, it is clear that the essence of his claim is a FOIA request. The Supreme Court has held that ""[hjabeas is the exclusive remedy ... for the prisoner who seeks ""immediate or speedier release” from confinement.” Skinner v. Switzer, - U.S. -, 131 S.Ct. 1289, 1293, 179 L.Ed.2d 233 (2011) (quoting ""Where the prisoner's claim would not necessarily spell speedier release, however, suit may be brought.” Id. (internal quotation marks omitted). A FOIA action seeking access to documents does not implicate the plaintiff's conviction and is not a request for ""present or future release” which is the "" 'core' [of] habeas corpus relief.” Dotson, 544 U.S. at 81, 125 S.Ct. 1242. See also Razzoli v. Fed. Bureau of Prisons, 230 F.3d 371, 376 (D.C.Cir.2000) (holding that the plaintiff’s FOIA claim was not barred as a tacit habeas petition because, although the plaintiff sought the production of an exculpatory report to support his good time and parole eligibility claims, ""a judicial finding that some agency must deliver"
4854	Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (holding that if a treating physician’s opinion is contradicted by other evidence, the ALJ must provide specific and legitimate reasons supported by substantial evidence in the record for rejecting the opinion); Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (stating that if the ALJ determines that the subjective complaints of the claimant are not credible, this is a sufficient reason for discounting a physician’s opinion upon which the complaints are based). As to Dr. Chung’s opinion, the ALJ reasonably determined that Withrow’s statements describing his activities of daily living indicated that Withrow was able to stand and walk to a greater extent than Dr. Chung generally outlined. See The ALJ’s hypothetical to the vocational expert presented all the limitations that were supported by the record. The hypothetical included the existence of moderate mental impairments that could be controlled by appropriate medication. Given the sparse medical record, the ALJ did not err by not including the existence of uncontrolled impairments in his hypothetical to the vocational expert. See Osenbrock v. 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
4616	"McALLISTER, Circuit Judge. This controversy grows out of a libel filed by a seaman of the Towboat Kongo and an assignee of other seamen to recover unpaid wages. Other claimants intervened asserting that they had delivered necessary supplies and made necessary repairs for the Kongo at the request of its captain. Claims of a number of interven-ors were heretofore heard and disallowed by the district court, and its decision was affirmed by this court. of Louisiana v. “Kongo”, 329 U.S. 735, 67 S.Ct. 99, 91 L.Bd. 635. Appellants are subsequent intervenors who filed amended intervening libels January 14, 1947. Their claims were disallowed by the district court. Mrs. Barnes had, on March 13, 1943, loaned $1,500 for a thirty-day period, to be used for the payment of wages, materials, and expenses in connection with the conversion of the Kongo. Appellant Fisher had loaned money for the purpose of enabling the Kongo to make a voyage. In making the ■loan by appellant Barnes, the agreement with her was that it"" would be repaid from the monies and reimbursements due ■and to become due the United States Barge Line, lessee of the Kongo, for"
4420	Amended Complaint also states that' by 2010 “investors were increasingly suing banks,” including BoA, for their involvement in the MBS market. (SAC ¶ 4.) For that proposition, the plaintiffs rely on a report published by an independent federal commission and released to the public before the Class Period. (SAC ¶ 4 n. 2.) The plaintiffs have thus pleaded that BoA’s potential exposure to MBS claims was prominently in the public domain without explaining why the amount of any one claim was of consequence to investors. Because alleged omissions must be evaluated by considering representations and omissions “together and in context,” the overwhelming disclosure concerning BoA’s broad exposure to MBS litigation renders the alleged omissions immaterial to a reasonable investor. That the market did not react to The New York Times ’ disclosure of AIG’s potential $10 billion suit against BoA underscores that no reasonable investor would have considered such information material when purchasing stock in BoA. In light of the considerable disclosures regarding BoA’s liability for MBS claims generally, and the particular public information about the potential imminence and amount of the AIG suit, the demanded disclosures could not have altered the total mix of public information and are immaterial as a matter of law. Basic, 485 U.S. at 231-32, 108 S.Ct. 978. C. The plaintiffs argue that BoA’s risk disclosures, including some of its particular statements, were materially misleading because they failed to disclose the imminence and amount
2626	Western Minnesota’s headquarters are almost 400 miles from the project site and Western had only “a business development interest” in the proposed project. Permit Order ¶ 19. Although the Commission’s premise that Section 7(a) must be read in light of its broader statutory context may be unobjectionable, see, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000), its analysis has veered off course. Section 4(f) is a notice provision, not a substantive restriction on the municipal preference in Section 7(a). The Commission is not faced with two statutory provisions having differing mandates, creating a “fundamental ambiguity” that would warrant application of the Commission’s expertise. See Nor is there an inconsistency from the plain text of these provisions that a municipality eligible for the Section 7(a) preference may not be entitled to receive Section 4(f) notice. On rehearing, the Commission suggested that the clause limiting notice to those “State[s] or municipalit[ies] likely to be interested in or affected by such application,” 16 U.S.C. § 797(f) (emphasis added), would be “superfluous” if Congress intended “to extend municipal preference to all municipalities without exception,” Rehearing Order ¶21. This argument fails on several grounds. First, by its plain terms, the clause informs the Commission which group of municipalities must be notified of an application, not which municipalities the Commission must prefer under Section 7(a).
4160	"in Paige’s left hip, and (3) soft tissue swelling around his right ankle that could be due to arthritis. . All further citations to Act provisions will take the form “Section — ,"" referring to the Title 42 numbering rather than to the Act’s internal numbering. Regulations drawn from 20 C.F.R. will be cited ""Reg. § —."" . Paige twice previously applied for benefits under the Act. Both his 1975 and 1982 applications were denied (see R. 184-204), and Paige does not now (as indeed he cannot) challenge those decisions that he failed to appeal. . Johnson was later vacated (107 S.Ct. 3202 (1987)) when the Supreme Court upheld the validity of step 2 in Council (perhaps unaware that step 2 had just been upheld) did not take that into consideration in its decision. That omission, however, has had no impact on this case, for Council acknowledges that Paige has impairments that, though not ultimately rising to the level of a disability, suffice for a step 2 ""severity"" finding (Yuckert, 107 S.Ct. at 2297 teaches step 2 is merely designed to ""identify! ] at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found disabled even if their age, education, and"
2858	if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.” Id. Under that rule as applied to those facts the warrant was upheld. Search warrants with faulty descriptions of the place to be searched have been upheld in a number of cases. See, e.g., Hanger v. United States, 398 F.2d 91 (8th Cir.1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969); United States v. Goodman, 312 F.Supp. 556 (N.D.Ind.1970); United States v. Pisano, 191 F.Supp. 861 (S.D. N.Y.1961); United States v. Joseph, 174 F.Supp. 539 (E.D.Pa.1959), aff’d 278 F.2d 504 (3d Cir.), cert. denied, 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960); In United States v. Sklaroff, 323 F.Supp. 296 (S.D.Fla. 1971), the court reviewed these prior decisions and concluded, at page 321: The foregoing decisions illustrate the principle that the determining factor [in deciding] whether a search warrant describes the premises to be searched with sufficient particularity is not whether the description given is technically accurate in every detail but rather whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premises might be mistakenly searched which is not the one intended to be searched under the search warrant. The search warrant being challenged in Sklaroff erroneously described the place to be searched, apartment 301,
1431	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. Sederquist v. City of Tiburon, 590 F.2d 278, 281 (9th Cir. 1978) ; The second Canton requirement is also met here. As in Santa Fe Land Imp. v. City of Chula Vista, 596 F.2d 838 (9th Cir. 1979) , plaintiff herein seeks a writ of mandamus in his state action pursuant to California Code of Civil Procedure Section 1094.5, to set aside the agency action. Plaintiff has asserted that the commissions’ actions were arbitrary, oppressive, unreasonable and an unreasonable exercise of the police power, an abuse of discretion and an action in excess of its jurisdiction. In support of this claim plaintiff asserts that the commissions’ decisions were not supported by the findings, that the commissions did not proceed as required by state law, and that the defendants adopted and construed regulations
3752	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 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 a similar raid that resulted in the arrests of dancers. (Id. at 3-4.) As
1498	of personal property, particularly described in said petition, in the counties of Warren and Sussex, and belonging to said corporation. The petitioner claims that he has the first lien upon the property levied on; that the mortgage, not having been filed in accordance with the requirements of the statutes of the state respecting chattel mortgages, is void as against the creditors of the mortgagor, and prays that this'court may so declare, and may direct that the execution shall be satisfied out of the proceeds of the sale, if made by the receiver, or that the master may be authorized to advertise and sell the said chattels, and appropriate the proceeds to the payment of the petitioner’s demand. The supreme court, in The petitioner here claims a superior lien under his decree and ex-eoution, upon the ground that the mortgage was not filed and recorded in the counties of the
853	"only a small illustration of Liquid Glass products in the lower right-hand comer. See Verif. Countercl. at Exh. B. Analysis of consumer confusion may be based upon initial confusion, not necessarily whether, after closer examination, the consumer would - likely figure out that Liquid Glass is a separate company. See Ferrari S.p.A. Esercizio Fabriche Automobili E Corse v. Roberts, 944 F.2d 1235, 1245 (6th Cir.1991)(Lanham Act intended to do more than protect consumers at the point of sale), cert. denied, 505 U.S. 1219, 112 S.Ct. 3028, 120 L.Ed.2d 899 (1992); Mobil Oil Corp. v. Pegasus Petroleum Corp., 818 F.2d 254, 260 (2d Cir.1987) (likelihood that ""potential purchasers would be misled into an initial interest” justifies finding of infringement); Therefore, based on the prominence of the Porsche car in the advertisements, a consumer, casually flipping through magazines which carry them, may well be initially confused as to whether Porsche, or its subsidiaries, produces Liquid Glass polishes. Even if consumers would not be confused as to source, confusion as to sponsorship or endorsement is likely and, therefore, Porsche will likely prevail on its claims for infringement and false designation. See Dr. Ing. h.c.F. Porsche AG v. Universal Brass, Inc., 34 U.S.P.Q.2d 1593, 1595-96 (W.D.Wash.1995)(finding that even if no confusion as to source, party entitled to summary judgment"
3914	would suggest her FHA claim should be equitably tolled. See Garcia v. Brockway, 526 F.3d 456, 465-66 & n. 9 (9th Cir.2008). Thus, the district court did not abuse its discretion in denying a preliminary injunction based on Silvas’s FHA 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 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
3006	In his brief submitted to us petitioner attempts to revive this part of his claim by reframing it. He argues, for the first time, that the upland parcel is distinct from the wetlands portions, so he should be permitted to assert a deprivation limited to the latter. This contention asks us to examine the difficult, persisting question of what is the proper denominator in the takings fraction. See Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation Law,” 80 Harv. L. Rev. 1165, 1192 (1967). Some of our cases indicate that the extent of deprivation effected by a regulatory action is measured against the value of the parcel as a whole, see, e. g., but we have at times expressed discomfort with the logic of this rule, see Lucas, supra, at 1016-1017, n. 7, a sentiment echoed by some commentators, see, e. g., Epstein, Takings: Descent and Resurrection, 1987 S. Ct. Rev. 1, 16-17 (1987); Fee, Unearthing the Denominator in Regulatory Takings Claims, 61 U. Chi. L. Rev. 1535 (1994). Whatever the merits of these criticisms, we will not explore the point here. Petitioner did not press the argument in the state courts, and the issue was not presented in the petition for certiorari. The ease comes to us on the premise that petitioner’s entire parcel serves as the basis for his takings claim, and, so framed, the total deprivation argument fails. * *
589	judgment, after adequate time for discovery and upon motion, 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. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is ‘entitled to judgment as a matter of law5 because 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. 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)).
875	ex rel. Dukes v. Wallack, 414 F.2d 246 (2d Cir. 1969). . Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972) ; see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). . Cf. United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973) ; United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972) ; United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969) ; United States ex rel. . 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). . 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). . Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), subsequently codified in 18 U.S.C. § 3500. . But cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), holding that a statement that would support impeachment for bias and interest “relates” to the witness’ testimony under 18 U.S.C. § 3500. See also Rosenberg v. United States, 360 U.S. 367, 370, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959). . See United States v. Crisona, 416
2282	raised by Mr. White on remand, that his attorney-client privilege was violated, that the government was complicit in this violation, and that the government engaged in outrageous misconduct. These are serious issues, and care and caution are always called for in inquiries or disclosures of this sort. This court has adopted the general principles of the attorney-client privilege as outlined by Wigmore: (1) Where legal advice of any kind is sought (2) 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. 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
1718	"R at 2, 8). . 28 U.S.C. § 636(b)(1). . For a full recitation of plaintiffs' fact allegations in this MDL see In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 175 F.Supp.2d 593 (S.D.N.Y.2001) (""MTBE I”) (concerning preemptive effect of Clean Air Act); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 209 F.R.D. 323 (S.D.N.Y.2002) (""MTBE II”) (denying class certification); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 342 F.Supp.2d 147 (S.D.N.Y.2004) (""MTBE III"") (federal agent jurisdiction); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 341 F.Supp.2d 351 (S.D.N.Y.2004) (""MTBE IV"") (declining to abstain); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 341 F.Supp.2d 386 (S.D.N.Y.2004) (""MTBE V”) (bankruptcy jurisdiction); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 364 F.Supp.2d 329 (S.D.N.Y.2004) (""MTBE VII”) (preemption constitutes a colorable federal defense for purposes of the federal officer removal statute). . See 12/12/01 Complaint at Law, Quick, et al. v. Shell Oil Co., et al, No. O1-L-147 (Ill. Cir. Kankakee County) (""Compl.”) ¶¶ 3, 41 (listing ""MTBE, BETX compounds, including benzene, toluene, and xylem,” as contaminants of the potable water supply). The facts recited herein are mere allegations, and do not constitute findings of the Court. . See 2/21/02 First Amended Complaint, Quick, et al. v. Shell Oil Co., et al., No. 01-L-147 (Ill. Cir. Kankakee County) (""Complaint I”); 5/28/02 Second Amended Complaint, Quick, et al. v. Shell Oil"
4634	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 ( 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 that sometimes forces the denial of both motions, 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
3002	the Penn Central claim, 746 A. 2d, at 717. While the first holding was couched in terms of background principles of state property law, see Lucas, 505 U. S., at 1015, and the second in terms of petitioner’s reasonable investment-backed expectations, see Penn Central, 438 U. S., at 124, the two holdings together amount to a single, sweeping, rule: A purchaser qr a successive title holder like petitioner is deemed to have notice of an earlier-enacted restriction and is barred from claiming that it effects a taking. The theory underlying the argument that postenactment purchasers cannot challenge a regulation under the Takings Clause seems to run on these lines: Property rights are created by the State. See, e. g., So, the argument goes, by prospective legislation the State can shape and define property rights and reasonable investment-backed expectations, and subsequent owners cannot claim any injury from lost value. After all, they purchased or took title with notice of the limitation. The State may not put so potent a Hobbesian stick into the Lockean bundle. The right to improve property, of course, is subject to the reasonable exercise of state authority, including the enforcement of valid zoning and land-use restrictions. See Pennsylvania Coal Co., 260 U. S., at 413 (“Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law”). The Takings Clause, however,
3014	has no standing to complain that preacquisition events may have reduced the value of the property that he acquired. If the regulations are invalid, either because improper procedures were followed when they were adopted, or because they have somehow gone “too far,” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922), petitioner may seek to enjoin their enforcement, but he has no right to recover compensation for the value of property taken from someone else. A new owner may maintain an ejectment action against a trespasser who has lodged himself in the owner’s orchard but surely could not recover damages for fruit a trespasser spirited from the orchard before he acquired the property. The Court’s holding in  is fully consistent with this analysis. In that case the taking occurred when the state agency compelled the petitioners to provide an easement of public access to the beach as a condition for a development permit. That event — a compelled transfer of an interest in property — occurred after the petitioners had become the owner of the property and unquestionably diminished the value of petitioners’ property. Even though they had notice when they bought the property that such a taking might occur, they never contended that any action taken by the State before their purchase gave rise to any right to compensation. The matter of standing to assert a claim for just compensation is determined by the impact of the
3480	is a reasonable possibility that the new evidence, when viewed in context of all the evidence, both new and old, would change the outcome. Colvin, 1 Vet.App. at 174. In finding no “reasonable possibility” that the new evidence would change the outcome in this case, the Board determined the new evidence not to be material and refused to reopen the case. The Court agrees. The evidence of Mr. Ezell is not material. This statement by a lay witness as to the medical condition of the feet of a fellow soldier some 45 years before is simply not of sufficient weight to establish a reasonable possibility that the outcome of the case would change, given the negative physical examinations noted above. See cf. Tirpak v. Derwinski, 2 Vet.App. 609 (1992); cf. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). This is not to imply that Mr. Ezell is not being truthful. However, even after according full credibility to Mr. Ezell’s statement, it is nonetheless not of sufficient weight or significance to qualify as “material” evidence. The Board’s January 10, 1992, decision is AFFIRMED.
623	of the SWAP Agreement are part of the overall deficiency claimed by the Bank in its Amended Proof of Claim. As the Court determined, whether the Bank’s claim to such deficiency will be allowed against the Debtors’ estate, is a matter of California anti-deficiency and waiver law. In that regard, whether a deficiency claim exists and is therefore allowable against the Debtors’ estate, New York law is completely irrelevant. New York is not the state where the parties are domiciled, nor the state where the real property is situated, nor the state where the contract was negotiated or executed, nor the state which the parties agreed should govern the Term Loan Agreement, Promissory Note, Loan Modification, or Guaranty. . . Westinghouse, 789 F.Supp. at 1045 (citing Simon v. Superior Court, 4 Cal.App.4th 63, 68, 5 Cal.Rptr.2d 428 (Cal.Ct.App.1992)). . Trust One Mortgage Corp. v. Invest America Mortgage Corp., 134 Cal.App.4th 1302, 1309, 37 Cal.Rptr.3d 83 (2005) (quoting Brown v. Jensen, 41 Cal.2d 193, 259 P.2d 425 (Cal.1951)). . Torrey Pines Bank v. Hoffman, 231 Cal.App.3d 308, 318, 282 Cal.Rptr. 354 (Cal.Ct.App.1991) (citations omitted). . California Code of Civil Procedure § 580d. . DeBerard Props., Ltd. v. Lim, 20 Cal.4th 659, 85 Cal.Rptr.2d 292, 976 P.2d 843, 850 (Cal.1999). . Stipulated Facts, at ¶ 16. . Westinghouse, 789 F.Supp. at 1045. . Cadle Co. II v. Harvey, 83 Cal.App.4th 927, 932, 100 Cal.Rptr.2d 150 (Cal.Ct.App.2000). . Torrey Pines,
4759	that “even in the face of an offer to stipulate, the government may choose to present evidence on the one felony necessary to prove the crime charged,” id. at 28. Although we stand by and reaffirm the proposition central in Collamore, that a defendant may not use a stipulation or any other procedural device, including bifurcation, to remove from his felon-in-possession prosecution the fact of his prior conviction, we now realize upon reconsideration that our dictum rested on a shaky foundation. In Collamore, we relied on three cases, two from the Sixth Circuit, United States v. Blackburn, 592 F.2d 300, 301 (6th Cir.1979); and United States v. Burkhart, 545 F.2d 14, 15 (6th Cir.1976); and one from the Eighth Circuit,  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
2234	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 extra “bona fide purchaser” rights for trustees under § 544(a)(3). A trustee must still check the public records and be aware of encumbrances as would any purchaser. See, In re Marino, 813 F.2d 1562, 1565 (9th Cir.1987). Section 549(d) states that an action to recover property may not be commenced after the case has been closed. 11 U.S.C. § 549(d)(2). See, In re Wilson, 4 B.R. 605 (Bankr.E.D.Wash.1980). Wiley Brooks’ bankruptcy closed almost two years ago. Therefore, even if this court were to find the re-recordation invalid under the facts of this case, the time to avoid it has expired. The validity of the bank’s lien went uncontested by Wiley Brooks’ trustee thus the statute of limitations has run on the trustee’s avoidance powers. Other parties affected by the stay are afforded no substantive or procedural rights under these provisions of the Bankruptcy Code. In re Stivers, 31 B.R. 735 (Bankr.N.D.Cal.1988). Consequently, if the debtor or the trustee chooses not to invoke the protections of § 362, no other party may attack any acts in violation of the automatic stay.
2750	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 of severe pain. The record does not depict a plaintiff who was a malingerer. He worked consistently from the date of his graduation from high school, sometimes at two jobs. His descriptions of his subjective symptoms should not have been passed over so lightly. See The court concludes that the ALJ’s decision is not supported by substantial evidence because plaintiff did not receive a fair and objective assessment of his case. The court need not now consider plaintiff’s claims regarding the need for expert vocational testimony or misapplication of the Appendix 2 Grids. IV The court will remand the case for further proceedings. When the Council after the first hearing vacated the ALJ’s decision and pointed out its patent inadequacies, the Council remanded for a further hearing before “an” ALJ. This court now directs that the further proceedings be held before a different ALJ. In so directing the court need not accept the characterizations by plaintiffs counsel of the propensities of ALJ Jacobs. It is
915	"Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006). . Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). . Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). . Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). . Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). . Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991). . Calia v. Werholtz, 426 F.Supp.2d 1210, 1214 (D.Kan.2006) (citing Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir.1992)). . 29 U.S.C. § 1132(a)(1)(B). . Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). . . Doc. 86 at 8. . 29 U.S.C. § 1132(a)(1). . 29 U.S.C. § 1002(8). . Doc. 54-1 at 4-5. . See Restatement (Second) of Conflict of Laws § 283 (1971); see also Grabois v. Jones, 77 F.3d 574, 576 (2d Cir.1996) (explaining that federal courts ordinarily apply state law to determine who is the rightful beneficiary of an ERISA-regulated benefit plan); Doc. 79 at 19. . Doc. 79 at 19. . Texas law acknowledges that an agreement to enter into a marriage relationship is ""essential to a valid ceremony marriage;” thus, if there is no such agreement, it follows that there is also no presumption of validity. Coulter v. Melady, 489 S.W.2d 156, 158 (Tex.Ct.App.1972). . Tex. Fam.Code Ann."
4043	as a matter of discretion due to Jassi’s lack of due diligence. The agency’s ultimate decision regarding whether to rescind an in absentia exclusion order under 8 C.F.R. § 1003.23 is discretionary. See Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005); see also Luna v. Holder, 637 F.3d 85, 95-96 (2d Cir.2011) (noting the different treatment this Court has accorded to statutory motions to reopen versus regulatory motions to reopen, the latter of which are discretionary). Here, the BIA did not abuse its discretion, as it provided a rational explanation for denying the motion — the 12-year delay in filing. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001); see also, e.g., Cekic v. INS, 435 F.3d 167, 171-72 (2d Cir.2006) (two-year delay suggested lack of diligence); Ali v. Gonzales, 448 F.3d 515, 516-17 & n. 2 (2d Cir.2006) (eleven-year delay suggested lack of diligence). For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
3850	(6) customer testimony; (7) the use of the mark in trade journals; (8) the size of the company; (9) the number of sales; (10) the number of customers; and, (11) actual confusion. See id. “With respect to ownership of an unregistered mark, the first party to adopt a mark can assert ownership 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 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).
2077	Fernandez Santana seeks suppression of the $26,000.00 seized from the red Mitsubishi Mirage. Defendant claims that agent Andaluz improperly questioned him regarding the ownership or custody of the money after he was arrested, without advising him of his Miranda rights. Thus, since the agents obtained the money pursuant to an incriminating statement made by Luis Fernandez, the Court should suppress both the money and the statement as “fruits of the poisonous tree.” Defendant correctly argues that the Fifth Amendment protection against self-incrimination precludes the government from using statements elicited from a suspect during a custodial interrogation if those statements were extracted without a prior warning. Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990), quoting For the Fifth Amendment protection to come into play, however, the statements must be the result of a custodial interrogation. A defendant is said to be in custody when he or she is either subjected to a formal arrest or restrained to the degree usually associated with a formal arrest. United States v. Fernandez Ventura, 85 F.3d 708, 709 (1st Cir.1996), quoting Thompson v. Keohane, - U.S. -, -, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995); Stansbury v. California, 511 U.S. 318, 323-24, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994). To determine whether a particular restraint on freedom of movement meets this test, the Court “must examine all the circumstances surrounding the
4346	questions. Third, the Court gave objectors ample opportunity to present their objections to the Consent Decree. As noted above, the Court considered all of the written objections that were filed and provided objectors with an opportunity to present their objections orally at the fairness hearing. While the Court denied a request for an evidentiary hearing made by one group of objectors, see Order of March 11, 1999, the Court is not obligated to hold an evidentiary hearing, especially in view of the fact that it accepted apd considered affidavits in place of testimony. See Jones v. Nuclear Pharmacy, Inc., 741 F.2d 322, 325 (10th Cir.1984); Weinberger v. Kendrick, 698 F.2d 61, 79 (2nd Cir.1982), cert. denied sub nom, cf. United States v. Cannons Engineering Corp., 899 F.2d 79, 93-94 (1st Cir.1990). Finally, because the Court has received a number of objections, it is clear that class members do not unanimously support the settlement. It is significant, however, that there are relatively few objections to the settlement in comparison with the size of the class. See Thomas v. Albright, 139 F.3d at 232. This is a large class. As of March 26, 1999, 16,559 farmers had requested claims packages from the facilitator, and the facilitator already has received 1686 completed claim packages. By contrast, only 85 farmer class members have elected to opt out of the class. See Pis’ Response to Posb-Hearing Submissions of Objections at 6-7. Given
1625	a qualified sanction from this court in 174, 21 L. Ed. 538; U. S. v. Cruikshank, 92 U. S. 542, 558, 23 L. Ed. 588. ‘The fact that the statute in question, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the ease within that intent.’ U. S. v. Carll, 105 U. S. 611, 26 L. Ed. 1135. Even in the cases of misdemeanors the indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court of the exact offense intended to be charged; not only that
2984	ITT Corp. petitions for review of the Benefits Review Board’s order affirming the decision of the administrative law judge (ALJ) to grant Walter West’s claim for disability and medical benefits under the Defense Base Act, 42 U.S.C. § 1651 et seq. The ALJ properly found that West made a prima facie showing that he suffered a work-related injury and was .therefore entitled to the statutory presumption of eligibility. See Haw. Stevedores, Inc. v. Ogawa, 608 F.3d 642, 651 (9th Cir.2010). For purposes of the prima facie analysis, the ALJ made a reasonable determination that West’s August 2008 back injury was the natural progression of his March 2008 leg injury and the lumbar surgery that it required. See ITT makes two attempts to rebut the statutory presumption. First, ITT argues that the light packing activity in which West engaged in August 2008 constituted an intervening cause that severed the causal connection to his work-related injury. However, the ALJ properly determined that, because it was not negligent for West to engage in light packing, any worsening of West’s condition that followed was a “natural or unavoidable” result of the primary injury. See id. Second, ITT argues that it satisfied its rebuttal burden by showing that West’s leg injury was actually the result of a preexisting back condition. The ALJ likely erred in discounting the credibility of Dr. Richmond at the rebuttal stage instead of determining whether a reasonable fact-finder
3609	will cause irreparable injury to the employer; and whether the employer will suffer more from the denial of an injunction than will the union from its issuance. Id. Since the decision in Boys Markets, there have been cases where reverse situations have arisen. In a “reverse Boys Markets ” case, an employer makes changes in areas which are subject to the grievance-arbitration procedure, and the union seeks to enjoin the employer from making the changes until the grievance is resolved through arbitration. Citing Amalgamated Transit  the Union argues that prevailing in the underlying arbitration is irrelevant to the recovery of a bond in a reverse Boys Markets case. In Greyhound I, the employer, Greyhound, attempted to implement changes in the work cycles of bus drivers. The union objected, arguing that Greyhound could not, under the terms of the collective bargaining agreement, unilaterally make such changes. Consequently, the union sought an injunction to prevent Greyhound from implementing the changes pending resolution of the matter through arbitration. In opposition to the request for injunction, Greyhound argued that under the ordinary principles of equity, as required by Boys Markets, the union was required to “establish that there is a ‘reasonable likelihood of success’ in
1710	of contract claim for failure to plead every essential element thereof). IV. Conversion To withstand a motion to dismiss, a conversion claim must allege (1) an actionable wrong other than breach of contract caused plaintiffs injury;, (2) plaintiff had ownership of the funds at the time they were converted; (3) defendant exercised unauthorized dominion over the funds; (4) the funds were specific and identifiable; and (5) the defendant was to have treated the funds in a particular manner but they were not so treated. See Citadel Management Inc. v. Telesis Trust, Inc., 123 F.Supp.2d 133, 148 (S.D.N.Y. 2000). A complaint that offers no factual basis for inferring conversion must be dismissed. The complaint fails to allege facts that support either the third or fifth elements of conversion because, as set forth above, the only communications Rozsa alleges pertaining to the use of the funds are between himself and May Davis, not SG Cowen. Moreover, although the complaint has attached various correspondence and bank documents, no specific account information has been alleged. As a result, the complaint fails to allege that the funds were in a specifically identifiable account, as required to sustain a conversion claim. Neither of the cases Rozsa cites deals with the investor/clearance broker relationship, and both are inapposite. First, although the court in Payne v. White, 101 A.D.2d 975, 477 N.Y.S.2d 456, 458-59 (N.Y.App.Div.1984), noted that “a person entitled
1821	only when police have a reasonable and articulable suspicion that a suspect poses a danger from the presence of a weapon within a suspect's immediate access or control. III. CONCLUSION Given the totality of the circumstances, the officers' suspicions were reasonable that Richmond was illegally carrying a gun. Because Richmond (or someone else) had ready access to the gun, officer Milone acted reasonably to extinguish a patent safety threat when he performed a brief search limited exclusively to the area where both officers saw the object, later confirmed to be a gun, was placed. For these reasons, we AFFIRM. Richmond's girlfriend resided at the duplex, and Richmond had been living there for about one month before his arrest. Richmond cites United States v. Perea-Rey , 680 F.3d 1179, 1188-89 (9th Cir. 2012) (holding a border patrol agent intruded into an area of curtilage where uninvited visitors would not be expected to appear to stop an individual suspected of entering the country illegally); United States v. Struckman , 603 F.3d 731, 743 (9th Cir. 2010) (holding the warrantless entry by two officers into a fully enclosed backyard-one officer kicking open a padlocked gate and the other scaling a fence-was not supported by probable cause, Terry , or exigent circumstances); and United States v. Reeves , 524 F.3d 1161, 1167-69 (10th Cir. 2008) (involving the warrantless seizure of a suspect inside
4336	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 definition of the class, whether there is any evidence of collusion between class counsel and counsel for the government, and whether class members have had adequate notice and opportunity to be heard on the proposed settlement. See Thomas v. Albright, 139 F.3d at 231; Mars Steel v. Continental Ill. Nat. Bank and Trust, 834 F.2d 677, 683 (7th Cir.1987); Girsh v. Jepson, 521 F.2d 153 (3rd Cir.1975); Osher v. SCA Realty I, Inc., 945 F.Supp. at 304. 1. Timing of Settlement and Extent of Discovery Completed Some of the objectors maintain that settlement came too early and that class counsel undertook insufficient discovery in this case before settling it. A review of the history of the case, however, reveals that “[tjhere has been a literal mountain of discovery provided and reviewed.” Transcript of Hearing of March 2, 1999 at 170 (Comments of Mr. J.L. Chestnut). Less than three months after the case was filed, the Court ordered the USDA to open its files to
1682	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; 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.
2848	is void. United States v. Barkouskas, D.C., 38 F.2d 837; United States v. Diange, D. C., 32 F.Supp. 994; United States v. Chin On, D.C., 297 F. 531; United States v. Innelli, D.C., 286 F. 731; United States v. Mitchell, D.C., 274 F. 128. The basic requirement is that the officers who are commanded to search be able from the “particular” description of the search warrant to identify the specific place for which there is probable cause to believe that a crime is being committed. This requirement may be satisfied by giving the address of the building and naming the person whose apartment is to be searched. Kenney v. United States, 81 U.S.App.D.C. 259, 157 F.2d 442; Hinton was recently held to be controlling precedent in United States v. Higgins, 428 F.2d 232 (7th Cir.1970). The Government has argued that the premises at 4637 Newport, while being constructed as a two-family dwelling, were nevertheless being used as a single, two-story unit, and that there was thus no need to identify either unit in the search warrant. The evidence, however, indicates that while there is some question as to who, if anyone, was actually renting the first floor unit in which the defendants were arrested, the second floor was rented to and was occupied by Mr. and Mrs. Maurice Phillips. Even though it was admitted that Mr. Phillips was and is related to the defendant Gladys Harris, it cannot be concluded
264	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. 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 cannot establish a claim for false arrest if probable cause existed at the time of the arrest. Singer, 63 F.3d at 118-19. Probable cause is presumed to exist if a plaintiff is arrested pursuant to an arrest warrant. Martinetti v. Town of New Hartford, 12 Fed.Appx. 29, 32 (2d Cir.2001); Blasini v. City of New York, 2011 WL 6224605, *4 (S.D.N.Y.2011) (pre-arrest indictment demonstrates that probable cause 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
4564	a pattern or practice of conduct by law enforcement officers or by officials ... 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 (emphasis added). The Court is unable to find a case speaking directly to the question of vicarious or imputed liability under § -14141. However, again, the logic of policymaker liability discussed in the preceding section would render Maricopa County directly, not indirectly liable under the, statute. In addition, the United States has sued and settled under the statute with various governments for violations committed by law enforcement departments. See United States v. State of New Jersey, et al., 3:99-cv-05970-MLC-JJH; United States v. Puerto Rico, 922 F.Supp.2d 185 (D.P.R.2013). All of these cases, ended in, settlement and in none did the defendant government challenge liability by arguing vicarious or imputed liability was unavailable under § 14141. Therefore, the case law suggests liability is available to sue governments whose law enforcement violates the statute. Summary judgment will not be granted to Maricopa .County on this issue of imputation of liability under § 14141. C. Liability Under Title VI and 42 ... . U.S.C. § 14141 Maricopa County argues it is entitled to summary judgment regarding its liability under Title VI and § 14141, even if imputation is permitted because “the County cannot control the Sheriffs policies and practices relating to law enforcement
960	dealings between the parties. These classifications find support in the legislative history of § 101(24) [now (31)], which provides that: [a]n insider is one who has a sufficiently close relationship with the debtor that his conduct is made subject to closer scrutiny than those dealing at arms length with the debtor. H.R.Rep. No. 95-595, 95th Cong., 2d Sess. 312 (1977) reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 6269. As indicated above, the determination of insider status is a question of fact. UVAS Farming Corp., 89 B.R. at 892. The case law that has developed also indicates that not every creditor-debtor relationship attended by a degree of personal interaction between the parties rises to the level of an insider relationship. See In re Hartley, 52 B.R. 679 (Bankr.N.D. Ohio1985) (trustee could not avoid as insider preference stock pledge made to bank despite the fact that bank frequently advanced monies to purchase the stocks); and In re Technology For Energy Corp., 56 B.R. 307 (Bankr.E.D.Tenn.1985) (court rejected contention that secured creditor-bank was insider of debtor,
2457	of the National Prohibition Act (chapter 85, Act Oct. 28,1919, 41 Stat. 305, 309 [27 USCA § 13]), specifically exempts finished toilet preparations from its provisions, and that therefore there is no need for a permit to withdraw specially denatured alcohol. Campbell v. Long & Co., 281 U. S. 610, 50 S. Ct. 415, 74 L. Ed. 1070, and Campbell v. Galeno Chemical Co., 281 U. S. 599, 50 S. Ct. 412, 74 L. Ed. 1063, are cited, but do not support this claim. Specially denatured alcohol is not controlled by the provisions of title 2. It does, however, come under section 13, title 3 (27 USCA § 83). Driscoll v. Campbell, 33 F.(2d) 281 (C. C. A. 2); C. A. 2). Decree affirmed.
1162	on supervised release as a result of a sentence for a Class A felony, was 37 to 46 months imprisonment. See id. We consistently have held that the policy statements of Chapter 7 are merely advisory and not binding. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir.2000). In sentencing a defendant, the factors that a district court should consider include: (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the applicable guideline range; (4) the pertinent Sentencing Commission policy statements; and (5) the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1), (2)(B)-(D), (4)-(7). The district court is not required to discuss each of the § 3553(a) factors. Because the imposition of Thompson’s sentence reflected consideration of several of the relevant factors under § 3553(a), the sentence was not unreasonable. Accordingly, we affirm the district court’s order revoking Thompson’s supervised release and Thompson’s sentence. AFFIRMED.
2052	The fourth factor to consider is the order in which the two courts obtained jurisdiction. Colorado River, 424 U.S. at 818, 96 S.Ct. at 1247. Priority in this factor should not be measured solely based on which complaint was filed first. Moses H. Cone, 460 U.S. at 21-22, 103 S.Ct. at 940; Grafico, 48 F.3d at 52; Irizarry Pérez, 758 F.Supp. at 101. Rather, a court should make its decision based on the relative progress of the two eases. Moses H. Cone, 460 U.S. at 21-22, 103 S.Ct. at 940. Abstention may be warranted where a considerable amount of time has elapsed, substantial discovery has already been conducted, or significant proceedings have been held in the state court case. See, e.g., Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d 306, 310 (1st Cir.1986) (The fact that Puerto Rico court had obtained jurisdiction four years before filing of federal action militated against allowing case to proceed in federal court); Telesco v. Telesco Fuel and Masons’ Materials, Inc., 765 F.2d 356, 363 (2d Cir.1985) (There were sufficient grounds to abstain where state court case had been commenced five years earlier, substantial discovery had been conducted, and interlocutory decisions had been issued by the state court); see also Moses H. Cone, 460
1505	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; . 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 F.2d at 389-390. See also Wynn v. United States, supra note 8, 130 U.S.App.D.C. at 62, 397 F.2d at 623; Williams v. United States, 117 U.S.App.D.C. 206, 207, 328 F.2d 178, 179 (1963); 3
839	a defense to a dilution claim only in three settings: namely, comparative advertising, noncommercial uses and news reporting or commentary. 15 U.S.C. § 1125(c)(4). The commercial advertisements in question here do not fall into any of those categories and Liquid Glass’s fair, use defense, again, must fail. This court also rejects Liquid Glass’s argument that Porsche’s counterclaim is barred by the doctrine of laches. Liquid Glass asserts that Porsche was aware that Liquid Glass was using Porsche marks in its advertisements as early as 1991 and failed to bring suit until now. Neither of the elements óf laches has been met. Laches is an equitable defense which is left to the discretion of the district court. To invoke the defense, Liquid Glass must demonstrate inexcusable delay on the part of Porsche and that this delay prejudiced Liquid Glass. Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961); United States v. Koreh, 59 F.3d 431, 445 (3d Cir.1995); Lasseigne v. Nigerian Gulf Oil Co., 397 F.Supp. 465, 473 (D.Del.1975). Any delay by Porsche in filing suit was completely excusable. Porsche diligently enforced its rights to the mark, immediately writing to Liquid Glass when it became aware of the improper advertisements and requesting that Liquid Glass discontinue using the marks. See E-Systems, Inc. v. Monitek, Inc., 720 F.2d 604, 607 (9th Cir.1983)(noting that mark owner’s diligence in enforcing the mark and good faith
924	bases his claim, begins at the time the tax is “paid.” A remittance or amount collected is recognized as a “payment” to the IRS when it discharges a definite obligation. See McFarland v. United States, 490 F.Supp. 238, 242 (N.D.Ga.1980) (levy to satisfy an assessment is a “payment” for purposes of § 6511(a)). Cf. Rosenman v. United States, 323 U.S. 658, 662, 65 S.Ct. 536, 538, 89 L.Ed. 535 (1945) (sums paid to IRS by a taxpayer under protest before any tax assessment was made, and deposited by the IRS into a “suspense account,” do not constitute “payments” of taxes until such time as the tax liability has been determined and the funds are applied to discharge it); the period begins to run only with the filing of the return, through which the final tax liability is ascertainable). The monies remitted to the IRS as a result of the levies on the taxpayer’s wages and bank account were amounts collected to discharge the taxpayer’s finally determined 1983 tax liability. They were 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
1893	the magistrate’s various theories for Pauline Miller’s liability on the judgment, but found the Millers’ entire interest in the CD available to satisfy the judgment based on a presumption in New Jersey law that the entire amount of a joint account belongs to the debtor. Therefore, the final judgment ordered Alvin Miller to turnover enough of the unencumbered balance of the CD to satisfy the judgment. The Millers filed a timely appeal from that judgment. The district court had jurisdiction pursuant to 28 U.S.C. § 1963, and we have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the district court’s interpretation of state law — the only issue in this case — is plenary. II. New Jersey law controls this case, not because New Jersey has a greater interest in the dispute than Pennsylvania, but because both states would enforce the Millers’ agreement to hold the CD “subject to the provisions of the Multiple Party Deposit Account Act N.J.S.A. 17:161 et seq.” The first step in any New Jersey choice of law analysis is to determine whether an actual conflict exists. Veazey v. Doremus, 103 N.J. 244, 510 A.2d 1187, 1189 (1986). Where the application of either state’s law would yield the same result, no conflict exists to be resolved. New Jersey law does not permit married couples to own personal property by the entireties. Fort Lee Sav. & Loan Assoc. v. LiButti,
1859	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,  cert. denied, 324 U.S. 850, 65 S.Ct. 684, 89 L.Ed. 1410 (1945). . During post trial oral argument, however, counsel for Triad stated that a claim for the offset value of those materials is pending before the CO. . The court recognizes that dealing with manufacturing materials as a separate claim creates the possibility of the nominal appearance of an affirmative contractor claim. The substance of the inquiry, however, would remain the same, namely, how much of an offset against overpay-ments is the contractor entitled to? . The suspension in companion docket number 90-3958C is hereby lifted. The grounds for re lief, and the relief sought, are disposed of in this opinion. Accordingly, these actions are consolidated.
870	F.2d 690 (3d Cir. 1972) ; United States ex rel. Ross v. La Vallee, 448 F.2d 552 (2d Cir. 1971) ; Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971) ; United States ex rel. Joseph v. LaVallee, 415 F.2d 150 (2d Cir. 1969), cert. denied, 397 U.S. 951, 90 S.Ct. 976, 25 L.Ed.2d 133 (1970) ; United States ex rel. Dukes v. Wallack, 414 F.2d 246 (2d Cir. 1969). . Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972) ; see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). . Cf. United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973) ;  cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972) ; United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969) ; United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied, 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970). . 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). . 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (1961). . Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), subsequently codified in 18 U.S.C. § 3500. . But cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir.
1047	14, the Till court notes that in Chapter 11, in contrast to Chapter 13, there might exist a true market by reference to various lenders specializing in DIP loans. But the kinds of loans referenced are usually ones bankable early in the case using some traditional criteria concerning collateral value and demonstrated payment ability, not so much on the kind of issues confronting us in this cramdown. In the context at bench, we are asked to make sense of present value and interest rate concepts at the extreme, well beyond what any sensible lender would do on a consensual basis. . See e.g. Till, 541 U.S. at 479, 124 S.Ct. 1951; In re Fowler, 903 F.2d 694, 697 (9th Cir.1990); . How the resulting blended rates may differ depending on the assumptions used is demonstrated by comparing footnotes 5 and 6 in Boulders, 164 B.R. at 106 where the only assumption differing was the value of the collateral. .The Court was interested by, but not persuaded by, the very able testimony of Mr. J. Michael Issa. While a few workout arrangements from a variety of troubled loans of only passing similarity to this one might have some bearing on the interest rate calculation, the resulting average stated in his declaration is based on too small a sampling and is influenced by far too many extraneous, ad hoc and hard-to-quantify influences beyond that of just lending rates. .In contrast, Mr. Manley
4181	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 Colorado v. Bannister, 449 U.S. 1, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980) (stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment); Berkemer v. McCarthy, 468 U.S. 420, 436-37, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). The Plaintiffs persuasively argue that no reasonable person would believe that they are free to leave when they are pulled over by a police officer for a traffic stop and ordered by an
2824	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); 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 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
1715	"Bernthal’s Report & Recommendation, Quick, et al. v. Shell Oil Co., et al., No. 05-2072 (C.D.Ill. Aug. 3, 2005) (""R & R”), Ex. 1 to Plaintiffs’ Objections to Magistrate Judge's Report and Recommendation re Plaintiffs’ Motion to Remand and Memorandum of Law in Support Thereof (""Objections”). . Objections ¶¶ 1-3 (quoting R & R at 2, 8). . 28 U.S.C. § 636(b)(1). . For a full recitation of plaintiffs' fact allegations in this MDL see In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 175 F.Supp.2d 593 (S.D.N.Y.2001) (""MTBE I”) (concerning preemptive effect of Clean Air Act); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 209 F.R.D. 323 (S.D.N.Y.2002) (""MTBE II”) (denying class certification); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 341 F.Supp.2d 351 (S.D.N.Y.2004) (""MTBE IV"") (declining to abstain); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 341 F.Supp.2d 386 (S.D.N.Y.2004) (""MTBE V”) (bankruptcy jurisdiction); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 361 F.Supp.2d 137 (S.D.N.Y.2004) (""MTBE VI”) (sovereign immunity); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 364 F.Supp.2d 329 (S.D.N.Y.2004) (""MTBE VII”) (preemption constitutes a colorable federal defense for purposes of the federal officer removal statute). . See 12/12/01 Complaint at Law, Quick, et al. v. Shell Oil Co., et al, No. O1-L-147 (Ill. Cir. Kankakee County) (""Compl.”) ¶¶ 3, 41 (listing ""MTBE, BETX compounds, including benzene, toluene, and xylem,” as contaminants"
3266	supplemental answers, correcting yet another deficiency, were filed one week later. U.S. Truck realized that the answers were incorrect some tíme after they had been provided, but took no steps to rectify this matter before Wrot-slavsky testified at the hearing. The Court finds that U.S. Truck’s answers to these interrogatories were more than misleading; they were unequivocally and unambiguously false. When a party has made an incorrect response in its answers to interrogatories, and has failed to supplement its response, the trial court has an inherent power to impose sanctions in order to protect the integrity of its processes. See 8 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2050 at 325-26 (1970). Cf.  cert. denied sub nom., Union Oil Co. of Cal. v. Evanson, 449 U.S. 832, 101 S.Ct. 102, 66 L.Ed.2d 38 (1980). This case is distinguishable from one in which a party is embarrassed by its answer to an interrogatory, but then at trial is not precluded from taking a different position or from explaining the discrepancy. See C. Wright & A. Miller, § 2181 at 579. Cf. Freed v. Erie Lackawanna Railway Company, 445 F.2d 619 (6th Cir.1971), cert. denied, 404 U.S. 1017, 92 S.Ct. 678, 30 L.Ed.2d 665 (1972). The difference is in the degree of prejudice to the opposing party in constructing its case around the false answers, and the injury to the fact-finding process from the resulting inability to
1936	for Richard I. Johnson, Jr. joined in all the motions of his codefendants. On August 17, 1993, the Government filed its Response to the Omnibus Motions of the Johnsons and Rosinski. The Government opposed the motions to dismiss, to strike surplusage, and to suppress. The Government provided some further particularization, but opposed most requests. The Government agreed to the defense request for a hearing regarding the alleged unauthorized inspection of legal files by the United States Attorney's Office, agreed to a severance of the “bankruptcy” counts (Counts XVI — XXI) from the “hazardous waste” counts (Counts I — XV) of the Indictment, reiterated its previous position that it did not intend to introduce Rule 404(b) evidence, and acknowledged its responsibilities under On November 15, 1993, Richard I. Johnson, Sr. submitted a Reply Memorandum and a Reply Affirmation of his attorney. In it, he argued that Counts II and III and parts of Count I are facially insufficient, in reliance on the Report and Recommendation of Magistrate Judge Robert P. Murrian in United, States v. Recticel Foam, Corporation, et al., 858 F.Supp. 726 (E.D.Tenn.1993). Oral argument was heard before the undersigned on November 18, 1993, at which time the court scheduled the filing of any additional papers. On November 30, 1993, the Government filed a Statement as to Allegation of Hazardous Waste in the Indictment. In it, the Government outlined the anticipated proof as
4628	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 cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . In conducting our analysis, we are bound by state-court interpretation of the criminal law at issue. See 
203	"is pivotal in reaching this determination. The performance of the contract was known to the defendants to be in Puerto Rico. See Coletti v. Ovaltine Food Products, 274 F.Supp. 719, 722 (D.P.R.1967). . Because M.K.M. exercised the privilege of conducting activities within Puerto Rico, thus availing itself of the privileges, protection, and benefits, M.K.M. cannot refuse to escape the consequences: ""The exercise of that privilege may give rise to obligations, and so far as these obligations arise out or are connected with the activities within the State, a procedure to enforce them can, in most instances, hardly be said to be undue. Eddie Dassin, Inc. v. Darlene Knitwear, Inc., 441 F.Supp. 324, 326 (D.P.R.1977), applying v. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310 [66 S.Ct. 154, 90 L.Ed. 95] (1945).” . The first Circuit, applying Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902 (1st Cir.1980), understood that the District Court lacked personal jurisdiction over the officers of the defendant corporation, because plaintiff failed to even allege that defendant individual officers actively participated or cooperated in the alleged action of the corporation. . See Donatelli v. National Hockey League, 893 F.2d 459, 462-465 (1st Cir.1990); United Elec. Workers v. 163 Pleasant Street Corp., 960 F.2d 1080, 1087-1089 (1st Cir.1992). . As the defendant in this action is a New Jersey corporation with"
1245	"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 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 does not specify the precise damages. . In In re Rezulin Products Liability Litigation, 133 F.Supp.2d 272 (S.D.N.Y.2001), Judge Kaplan suggested that the Second Circuit's standard that the defendant show ""no possibility” of recovery ""cannot be taken literally” because “[e]ven if a plaintiff's claim against a non-diverse defendant were squarely precluded by a recent decision of a state's highest court ..., there always would be a"
4517	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-(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 the future stopped, detained, questioned or searched by [the defendants’] agents while driving or sitting in a vehicle on a public roadway or parking area in. Maricopa .County, Arizona,’.’ Melendres v. Arpaio, 695 F.3d 990, 995 (9th Cir.2012). See also Ortega-Melendres v. Arpaio, 836 F.Supp.2d 959, 994 (D.Ariz. 2011). In May 2009, Maricopa County requested a stay pending the outcome of the United States’ investigation of Arpaio’s practices, which had begun one month earlier. The United States opposed 'the motion, as did Arpaio, and the court denied the stay due to the timing and uncertainty regarding the
3330	With regard to Count 4, it is also not necessary that the United States prove that a grand jury proceeding was pending at all times when defendants conspired to obstruct justice. It is sufficient if the United States proves defendants entered into such a conspiracy expecting that judicial proceedings would be instituted in the future and committed an overt act in furtherance of the conspiracy after grand jury proceedings began. To the extent this instruction requires that an overt act occur after the grand jury proceedings began, it may have been unduly favorable to the defense. However, it correctly reflects the law of this Circuit that one can conspire to obstruct an anticipated but as yet uneommenced grand jury proceeding.  cert. denied, — U.S. -, 108 S.Ct. 1291, 99 L.Ed.2d 501 (1988); United States v. Perlstein, 126 F.2d 789, 795-96 (3d Cir.), cert. denied, 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752 (1942). Given the court’s instructions, the jury’s conclusion of guilt necessarily reflects findings that Nelson or Shamy willfully agreed to obstruct the grand jury investigation referred to in count 4 and that, for the purpose of obstructing that proceeding, one of them committed at least one of the alleged overt acts. No more is required to support their conviction for conspiracy. We further note that count 4 does not charge defendants with conspiring to obstruct a “pending” grand jury investigation. While it does describe the grand jury
1809	"The Search We next address whether Milone exceeded the permissible scope of Terry when he partially opened the screen door to search for a gun. Richmond depicts his exchange with the officers as a ""consensual encounter,"" not an investigatory stop. In so doing, he acknowledges the officers were permitted to enter onto the porch area to ask him questions to dispel their suspicions, but contends a warrant or his consent was required to open the screen door. From this he argues there is no specific exception for a ""search incident to a Terry stop."" Even so, the Supreme Court upheld the search in Terry (a protective frisk) without determining whether an investigatory stop took place before the search. See We follow Terry 's approach. For purposes of our review, it matters not whether a Terry stop preceded Milone's search. Now we turn to Richmond's contention that Milone's search behind the screen door infringed upon established Fourth Amendment principles. 1. Terry and later case law permit limited area searches for weapons . The Fourth Amendment guarantees the right of the people to be secure in their houses against ""unreasonable"" police searches. U.S. CONST.amend IV. Curtilage-the ""area immediately surrounding and associated with the home""-is entitled to the same Fourth Amendment protection as the home itself. Florida v. Jardines , 569 U.S. 1, 7, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (describing the front porch"
3052	may submit a Bill of Costs pursuant to 28 U.S.C. § 1920 within the time allowed by law. It is SO ORDERED. , Any portions of this opinion expressed as factual findings that should be considered conclusions of law are so designated. Likewise, any legal conclusions that should be considered factual findings are so designated. . As is common in these cases, the quality of evidence, particularly direct evidence, has diminished by the passage of time and there is a lack of business records reflecting the day-today operations of the site. Consequently the Court’s findings in this case are based largely on circumstantial evidence and inferences that can reasonably be drawn from the available evidence. See . Going forward, references to TDY are intended to include its predecessor Ryan, unless otherwise specified. . Hexavalent chromium was also a Component in paint primers used to coat metal aircraft parts and as a water treatment chemical used as an algaecide and for corrosion control in the recirculating water cooling towers. Any chromium contamination at the Site that . could be attributed specifically to these uses, however, was below clean up goals and did not require remediation. . Built'during WWII, Building 120 was one of the oldest and largest buildings (approximately 180,000 square feet, with a 20 foot ceiling) on the Site and served as the main manufacturing building for the entire period of operations. Located in the center
1396	Counsel for defendant shall, within fifteen (15) days of the date of this Memorandum and Order, submit for entry by this court an appropriate judgment. . At the close of the plaintiff’s case, defendant made a motion for directed verdict, pursuant to rule 50(a) of the Federal Rules of Civil Procedure, Fed.R.Civ.P. 50(a), on plaintiff’s claim under section 1981, and a motion for involuntary dismissal, pursuant to rule 41(b) of the Federal Rules of Civil Procedure, Fed.R.Civ.P. 41(b), of plaintiffs claim under Title VII. While this court recognizes that defendant in a Title VII case may rely on evidence appearing in the plaintiffs case to establish a nondiscriminatory reason for his action and need not come forward with evidence, see  Sime v. Trustees of California State University and Colleges, 526 F.2d 1112 (9th Cir. 1975), the court deferred ruling on defendant’s motions at the close of plaintiffs case. The motions were re-urged at the close of all of the evidence, and this court directed a verdict on both plaintiff’s section 1981 and Title VII claim. Although a motion under rule 50(a) and 41(b) are similar in effect, rule 50 applies only to cases tried to a jury, while rule 41(b) applies only to nonjury cases. The difference between the two motions is important because different standards are applied: On a motion for involuntary dismissal at the close of the plaintiffs evidence in a nonjury case the court is free
206	in most instances, hardly be said to be undue. Eddie Dassin, Inc. v. Darlene Knitwear, Inc., 441 F.Supp. 324, 326 (D.P.R.1977), applying International Harvester Co. of America v. Com. of Kentucky, 234 U.S. 579 [34 S.Ct. 944, 58 L.Ed. 1479] (1914) and International Shoe Co. v. State of Wash., Office of Unemployment Compensation and Placement, 326 U.S. 310 [66 S.Ct. 154, 90 L.Ed. 95] (1945).” . The first Circuit, applying Escude Cruz v. Ortho Pharmaceutical Corp., 619 F.2d 902 (1st Cir.1980), understood that the District Court lacked personal jurisdiction over the officers of the defendant corporation, because plaintiff failed to even allege that defendant individual officers actively participated or cooperated in the alleged action of the corporation. . See United Elec. Workers v. 163 Pleasant Street Corp., 960 F.2d 1080, 1087-1089 (1st Cir.1992). . As the defendant in this action is a New Jersey corporation with its principal place of business in New Jersey, and the individual defendants Andrew and Barbara Kallen are also residents of New Jersey, there is no doubt that venue in this action may also lie in the District Court of New Jersey. . Pursuant to 28 U.S.C. § 1404, the court shall addresses whether transfer to the District Court of New Jersey is appropriate based upon convenience to the parties and the interests of justice. . Act of Dec. 1, 1990, Pub.L. 101-650, 104 Stat. 5089. . Defendant does not dispute that it is
1083	this decision.” (Tr. 155:20-156:7 (Cain).) . Notably, the Supreme Court relied heavily on ACOG's policy statement in concluding that there existed “responsible differences of medical opinion” as to the safety advantages of D & X. See Stenberg, 530 U.S. at 937, 120 S.Ct. 2597. . The Government represented at trial in this matter that the trial in Stenberg lasted only one day. (Tr. at 2895 (Government’s closing argument).) . Although no opinion in Casey garnered five votes, the joint opinion of Justices O’Connor, Kennedy, and Souter is accepted to be binding precedent. See, e.g., Stenberg, 530 U.S. at 952, 120 S.Ct. 2597 (Rehnquist, C.J., dissenting) (noting that Casey's joint opinion was the holding for the Court under the rule of .See infra section III.A for an explanation as to why the Court does not reach Plaintiffs' undue burden challenge. . Justice O'Connor also cited state partial-birth abortion bans that, in her view, did not impose an undue burden on a woman’s right to choose a previability abortion. See 530 U.S. at 950, 120 S.Ct. 2597 (O'Connor, J., concurring). She suggested that a partial-birth abortion ban that included a health exception and was modeled on these states’ laws would be constitutional. See id. . Rule 30(b)(6) provides that a party may name in a subpoena a corporation, association, or other organization as deponent, and that organization has the obligation to designate a knowledgeable individual to testify
4456	Boat & Barge Corp. v. Jacksonville Shipyards, Inc., 617 F.2d 396 (5th Cir.1980); Austracan, (U.S.A.) Inc. v. M/V LEMONCORE, 500 F.2d 237 (5th Cir.1974); The Maria, supra. Cases in which the appellate courts have held jurisdiction proper for the appeal although the facts differed from those of the original justification for the appeal include All Alaskan Seafoods, Inc. v. M/V Sea Producer, 882 F.2d 425 (9th Cir.1989); Dunham v. M/V Marine Chemist, 812 F.2d 212, 214 n. 2 (5th Cir.1987); Nichols v. Barwick, 792 F.2d 1520 (11th Cir.1986); O'Donnell v. Latham, 525 F.2d 650 (5th Cir.1976); Doyle v. Bethlehem Steel Corp., 504 F.2d 911 (5th Cir.1974); Bergeron v. Elliot, 466 F.2d 514, 516 n. 3 (5th Cir.1972); As the careful eye will note, some circuits appear in both lists (neither of which is exhaustive), and these circuits have addressed this matter and developed fairly detailed rules to explain the dis tinctions between the various procedural postures presented and the applicability of § 1292(a)(3) to each. . Since we recognize that both parties believed jurisdiction to lie for this appeal, and we understand that the circuits have not provided helpful guidance in this area over time, we think it appropriate that each side bear its own costs.
4376	Taxes Now, a company that Olson had serviced while employed with Plaintiff, and Synergy Healthcare, one of Plaintiffs potential clients. (Id. at ¶¶ 49-50). Standard of Review Federal Rule of Civil Procedure 65 permits a court to grant a temporary restraining order when a Plaintiff has demonstrated through specific facts in an affidavit or a verified complaint that they will suffer “immediate and irreparable injury, loss, or damage.” Fed. R. Civ. P. 65(b)(1)(A). A party seeking to obtain a temporary restraining order must demonstrate (1) that its case has some likelihood of success on the merits; (2) that no adequate remedy at law exists; and (3) that it will suffer irreparable harm if the injunction is not granted. If Plaintiff meets those first three requirements, the Court balances the relative harms of the parties and the public. Ty, Inc. v. Jones Group, 237 F.3d 891, 895 (7th Cir.2001). The court weighs all factors using a sliding-scale approach. Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir.1992). Discussion Plaintiff seeks a temporary restraining order that would grant four separate types of injunctive relief. First, it seeks to enjoin Defendant Olson from working, either directly or indirectly, in media sales for Defendant Alpha or any other direct competitor of Plaintiff, within a 60 mile area, for a period of 6 months following the entry of a TRO. Second, it seeks to enjoin Defendant Olson from soliciting, either
4883	counsel, out of the jury’s presence, for attempting to reargue the admissibility of the photographs. The record is unclear as to the purpose for which plaintiffs hoped “to have the photographs.” If, as the district court concluded, plaintiffs were seeking merely to reargue the admissibility of the photographs, the court — having already addressed the merits of the issue — was well within its rights to deny the request. If, on the other hand, as plaintiffs argue in their reply brief, they sought to use the photographs for the limited purpose of refreshing Murphy’s memory as to the location of the bullet wounds on Mr. Fernandez’s torso, the district court’s ruling may have been in error. See National Labor Relations Bd. v. Federal Dairy Co., 297 F.2d 487, 488 (1st Cir.1962) (same); 3 J. Wigmore, Evidence § 758 (1970 & Supp.1991) (same). Once prompted by the sight of the photographs, plaintiffs contend, Murphy might have been able to recall the location of Mr. Fernandez’s entry wounds, as he saw them at the morgue within hours of the shooting. By precluding the use of the photographs during Murphy’s cross-examination, the district court thus may have deprived the jury of critical evidence that Mr. Fernandez had been shot in the back. Whatever the merits of this argument, plaintiffs have not (nor could they have on this
1049	life exception; (2) defines the term “partial-birth abortion” so broadly as to also ban D & E and induction termination — other methods of second trimester abortion involving vaginal delivery of the fetus — and thus imposes an undue burden on a woman’s right to reproductive choice; (3) is impermissibly vague in defining the banned conduct; (4) fails to serve a legitimate state interest; and (5) violates women’s right to equal protection guaranteed by the Fifth Amendment. (Id. ¶¶ 53-60.) If Plaintiffs are correct on any one of these grounds, the Act is unconstitutional and must be permanently enjoined. See, e.g., Stenberg v. Carhart, 530 U.S. 914, 930, 937, 946, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000); On November 5, 2003, hours after the Act was signed into law, the Court held a hearing on Plaintiffs’ application for a temporary restraining order. The following day, the Court granted Plaintiffs’ application and temporarily restrained enforcement of the Act through November 21, 2003. See National Abortion Federation v. Ashcroft, 287 F.Supp.2d 525, 526 (S.D.N.Y.2003). On November 10, 2003, the Government requested that the Court consolidate the proceedings on the preliminary and permanent injunctions, and set a hearing date within 120 days to permit a period of expedited discovery. Plaintiffs consented to this proposal, provided that they were permitted to move for summary judgment on their claim that the Act was unconstitutional for lack of a health exception. On November
650	RADER, Circuit Judge. Landowners in Louisiana sued the United States Government for blocking a local land reclamation project. The United States Court of Federal Claims held that the statute of limitations bars their takings claims. Because the statute of limitations bars the temporary but not the permanent taking claim, this court affirms in part and reverses in part. BACKGROUND The claimants own swamp and marshland in Jefferson Parish, Louisiana. This land floods during the wet season. To control these floods, the Army Corps of Engineers (Corps) approved the Harvey Canal-Barata-ria Levee Project (Project) in 1964. The Corps designed the Project to close two navigable bayous and to build new levees and a pumping station. The Corps’ budget was $1 million. In 1967 Jefferson Parish issued $3.6 million in bonds to guarantee the remaining costs of the Project. The Project had two phases. Phase I, completed on November 24, 1973, dredged the bayous and used the mud to
463	that the imposition provided for is called a “tax.” It is plain, however, that it is not such, but is in fact and in law a penalty; that is to say, an imposition or an exaction laid for the purpose of punishing an infraction of a penal statute. It has been 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. * * * 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
72	165-66 (2d Cir.2008). Substantial evidence supports the IJ’s adverse credibility determination, which was based, in part, on inconsistencies between Uddin’s hearing testimony and his asylum application. See Xiu Xia Lin, 534 F.3d at 165-66; cf. Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.2006). No reasonable adjudicator would be compelled to credit 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 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.
1674	U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640; Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225; French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692. Contra Sanford v. Robbins, 5 Cir., 115 F.2d 435. See, e. g. Ex parte Bigdow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005. Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436; Ex parte Hans Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. Cf. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; and Amrine v. Tines, 10 Cir., 131 F.2d 827. Title 30 U.S.C.A. § 1511. “As to number (article 40). No person shall, without his consent, be tried a second time for the same offense; but no proceeding in which an accused has been found guilty by a court-martial upon any charge or specification shall be held to be a trial in the sense of this article until the reviewing and, if there be one, the confirming authority shall have taken final action upon the case. “No authority shall return a record of trial to any court-martial for reconsideration of—
1472	however, that where such correspondence is involved, the institutional authorities have a peculiar and compelling interest in the regulation of such communications and in prohibiting smuggled or surreptitious correspondence between inmates of different institutions. As far as this case is concerned, it does not appear that while he was confined in ISP Watts was denied his right to communicate on his own behalf with the courts or with counsel, or that he was forbidden to give legal assistance to other inmates of ISP. And all that happened to Watts as a result of his efforts to communicate with Dee while the latter was confined in ISMF was that the former was reprimanded and warned. Watts simply has sustained no damage. Cf. Affirmed. . Both Fort Madison and Oakdale are located in the southeastern part of the state. However, Oakdale is a substantial distance from Fort Madison. . To inmates and to lawyers and judges who are familiar with prisoner litigation terms like “writ,” “writ writer,” and “to throw a writ” have become terms of common speech. To the uninitiated it may be helpful to state that a “writ” as herein used is simply a petition to a court for judicial relief of one kind or another, to “throw a writ” is simply to file the petition or tender it to the court for filing, and the “writ writer” is the inmate who prepares the petition usually to be subscribed, sworn
1294	jury trial. However, the court notes discovery requests were not served until December, 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 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
2064	arrest without providing adequate Miranda warnings. The district court determined that the officer’s question and minimal contact did not constitute a de facto arrest and denied the motion. Upon appeal, the First Circuit upheld the denial of the motion to suppress. The First Circuit explained: “Interaction between law enforcement officials and citizens generally falls within three tiers of Fourth Amendment analysis, depending on the level of police intrusion into a person’s privacy. The first or lowest tier encompasses interaction of such minimally intrusive nature that it does not trigger the protections of the Fourth Amendment. The Supreme Court has repeatedly emphasized that not all personal intercourse between the police and citizens rises to the level of a stop or seizure. See Police may approach citizens in public spaces and ask them questions without triggering the protections of the Fourth Amendment, (citations omitted).” Id. at 5-6. The Court in Young continued: “The remaining two tiers of Fourth Amendment analysis comprise de facto arrests requiring probable cause, and lesser 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
1867	of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint. Mere presence in the vicinity of a piece of property or mere knowledge of its physical location does 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); 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
7	was a fiduciary to the ESOP plan under § 1002(21)(A) because it exercised control over plan assets and rendered investment advice with respect to the property of the plan. Each argument will be addressed in turn. Initially, the Court rejects the contention that Houlihan exercised discretionary control or authority with respect to the plan assets within the meaning of § 1002(21)(A)(i). In this circuit, “a fiduciary is a person who exercises any power of control, management or disposition with respect to monies or other property of an employee benefit fund, or has the authority or responsibility to do so.” Farm King Supply v. Edward D. Jones & Co., 884 F.2d 288, 292 (7th Cir.1989), citing Under this definition, a showing of authority or control requires “actual decision-making power” rather than the type of influence that a professional advisor may have with respect to decisions to be made by the trustees or fiduciaries that it advises. Id.; Pappas v. Buck Consultants, Inc., 923 F.2d 531, 535 (7th Cir.1991). Professionals who do no more than provide advice to plan trustees are not fiduciaries. Pappas, 923 F.2d at 535; Laborers’ Pension Fund v. Arnold, 2001 WL 197634, at *3-5 (N.D.Ill. Feb.27, 2001). Here, Houlihan was the financial advisor to U.S. Trust, which for purposes of this motion was the ESOP trustee for purposes of the December 1995 stock purchase transaction. Houlihan was not hired by the ESOP plan
2679	court had jurisdiction under 28 U.S.C. § 1334 and 157. We have jurisdiction over this final judgment that determines the amount of damages for Ventura’s violation of the automatic stay. 28 U.S.C. § 158(a) and (b). See Dyer, 322 F.3d at 1186 and n. 10. III.ISSUE Did the bankruptcy court err in awarding damages, based on its conclusion that res judicata reduced the enforceable amount of Ventura’s lien to the amount stated in Debtors’ Plan? IV.STANDARDS OF REVIEW We review de novo the res judi-cata effect of a Chapter 13 plan and interpretation of the Bankruptcy Code and Rules, because these matters are legal issues or mixed questions of law and fact in which legal issues predominate. Wells Fargo Bank v. Yett (In re Yett), 306 B.R. 287, 290 (9th Cir.BAP 2004). Interpretation of the contractual terms of a Chapter 13 plan is generally a factual issue which we review for clear error (Yett, 306 B.R. at 290) but such factual issues can become mixed with legal issues. Whether a contract is ambiguous is a matter of law, which we review de novo. Miller v. United States (In re Miller), 253 B.R. 455, 458 (Bankr.N.D.Cal. 2000) (“Miller I ”) (citing cases), aff'd, 284 B.R. 121 (N.D.Cal.2002) (“Miller II”). In this case we need not decide which standard applies to interpretation of the Plan because we would reach the same result whether we reviewed the bankruptcy court’s
3927	289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)), and summary judgment is appropriate. The court further notes that if the mov-ant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law, then the opposing party assumes the burden to come forward with “specific facts showing that there is a genuine issue for trial.” Cities Service, 391 U.S. at 270, 88 S.Ct. at 1583. Mere allegations or denials in the non-movant’s pleadings will not meet this burden. B. The court must analyze plaintiff’s employment discrimination claims under the standards established by the Supreme Court in Ct. 1089, 67 L.Ed.2d 207 (1989). Harris v. Adams, 873 F.2d 929, 932 (6th Cir.1989). For purposes of handicap discrimination, the Burdine test requires that (1) [t]he plaintiff must establish a prima facie case by showing that he was an otherwise qualified handicapped person apart from his handicap, and he was rejected under circumstances which gave rise to the inference that his rejection was based solely on his handicap; (2) Once plaintiff establishes his prima facie case, defendants have the burden of going forward and proving that plaintiff was not an otherwise qualified handicapped person, that is one who is able to meet all of the program’s requirements in spite o/his handicap, or that his rejection from the program was for reasons
1805	"reasonable suspicion when considered in light of all of the factors at play."" Baskin , 401 F.3d at 793. Richmond's innocent explanations-including a hypothetical concealed-carry license-do not discharge all other relevant facts from consideration. Richmond argues this is new territory, as the Supreme Court has yet to directly address the constitutionality of a Terry stop within a home's curtilage. He cites Ninth, Tenth, and Eleventh Circuit cases to argue Terry does not justify a stop, seizure, or search inside the home. But none of these cases concern a protective search for weapons by officers lawfully within the curtilage of a home. On this topic, this court has allowed a Terry stop in a structure attendant to a house. In  we applied Terry to uphold the stop of a defendant in his condominium garage, supported by reasonable suspicion alone. There, the officer was pursuing the defendant, whom the officer suspected might be a mob assassin on his way to kill another condominium resident. Pace , 898 F.2d at 1229. Upon discovering he was being followed, the defendant took what the officer considered to be evasive action. Id . When the defendant entered the garage, the officer had to decide whether to pursue him to investigate his suspicion or to let him go despite the threat he might have posed to another resident. Id . We balanced the potential for harm against the intrusion on the defendant's privacy and held"
1413	found in or on the truck; it advised the previous owner that the “next service” on the vehicle was to occur at 163,439 miles. (Compl. ¶ 27; Pis. Cross-Mot. for Partial Summ. J Ex. D.) This is more than enough evidence to permit a trier of fact to conclude that Milea intended to defraud plaintiff. The intent to defraud required under the Federal Odometer Act can be inferred when a seller lacks actual knowledge of the true mileage but exhibits gross negligence or a reckless disregard for the truth in preparing odometer disclosure statements. See Tusa v. Omaha Auto. Auction, Inc., 712 F.2d 1248, 1253 (8th Cir.1983); Ralbovsky v. Lamphere, 731 F.Supp. 79, 82 (N.D.N.Y.1990); Therefore, unrebutted evidence that an employee of the seller (Lin) knew that the actual mileage was substantially in excess of the mileage recorded at time of sale — which the record before this court contains, (See Pis. Cross-Mot. for Partial Summ. J Ex. E.), — compels an inference of intent to defraud, and so the denial of defendants’ motion to dismiss the First Cause of Action. In fact, plaintiffs cross-motion for summary judgment on liability under the First Cause of Action must be granted, because the evidence in the record admits but one interpretation: a representative of Milea knowingly and intentionally altered the odometer by more than 100,000 miles. Mi-lea’s knowledge of the actual mileage on the truck is established by
1129	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 . 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 statute, the construction and validity of which was at issue between the parties. Since a declaratory judgment action is analogous to the old bill in equity, quia, timet, it would seem that the stay granted in that case prevented prosecution of a suit at
2896	180 days after he filed his Chapter 13 petition, the money could not be considered property of the estate for valuation purposes. To determine what is estate properly, Chapter 13 adopts the Chapter 5 definition in 11 U.S.C. § 541, but also includes property acquired during the pendency of the Chapter 13 case. See 11 U.S.C. § 1306(a)(1); Thus, in order to decide whether the property would be exempt in a Chapter 7 liquidation, the bankruptcy court must determine whether the beneficial interest in the fund is subject to a restraint on alienation such that it could not be reached by the beneficiary’s creditors under non-bankruptcy law. See McLean, 762 F.2d at 1206-07; 2 A. Scott, The Law of Trusts § 151 (3d ed. 1967) (defining “spendthrift trust”). There is insufficient evidence in the record for the bankruptcy court to have made such a determination regarding Zellner’s retirement fund. Even if we could conclude that Zellner’s interest in the retirement
3986	nonpriority creditor. Without question, the claims bar date in Schlegels’ case was April 30, 2009. The Motion to Value and the avoidance of CitiMortgage’s junior lien came later. The Valuation Order, which stripped CitiMortgage’s lien and rendered its claim unsecured, was entered on October 22, 2009. Until that point, CitiMortgage was operating in this case as a secured creditor. Secured creditors in a chapter 13 case may, but are not required to, file a proof of claim. See Rule 3002(a). Such creditors may choose not to participate in the bankruptcy case and look to their liens for satisfaction of the debt. Brawders v. Cnty. of Ventura (In re Brawders), 503 F.3d 856, 872 (9th Cir.2007). Secured liens pass through bankruptcy unaffected. Dewsnup v. Timm, 502 U.S. 410, 418, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992); In re Brawders, 503 F.3d at 872. However, if the lien is avoided and the formerly secured creditor failed to file a secured claim prior to the claims bar date, the creditor' may file a proof of claim within 30 days after the order avoiding the lien becomes final. See Rule 3002(c)(3); Prestige Ltd. P’ship-Concord v. E. Bay Car Wash Partners (In re Prestige Ltd. P’ship-Concord), 234 F.3d 1108, 1118 (9th Cir.2000); Zebley v. First Horizon Home Loans (In re Ong), 469 B.R. 599, 601 (Bankr.W.D.Pa.2012). The exception under Rule 3002(c)(3) permits a creditor like CitiMortgage, whose unsecured claim arises as
3995	this issue and the court finds no basis upon which to reconsider its ruling. Defendant concedes that the Federal Circuit’s construction of “floatation units” as including “hollow” for purposes of infringement failed to necessarily implicate validity. (See Def. Sur-Reply in Opp’n to Pis.’ Renewed Mot. for Summ. J. at 17.) Because this court does not find that the claim construction has any bearing on the issue of validity, the court will not consider the issues that Defendant has raised regarding invalidity. B. Claim Construction A court’s consideration of a patent infringement claim is a two-step process. The first step is for the court to make the legal determination of how the claim terms at issue are to be construed. The second step is to determine whether the accused product infringes, either literally or by equivalents, by comparing the properly construed claims to the accused product. Id. This court previously construed the term “floatation unit” to mean an airtight, individual structural constituent of a whole which is buoyed on water. (See Summ. J. Order at 7-8.) However, the Federal Circuit found that determination to be in error, and instructed that “one skilled in the art reading the '833 patent claims, in light of the '833 patent’s disclosure, would understand that the ‘floatation units’ in the claimed invention are hollow.” Ocean Innovations, Inc., 145 Fed.Appx. at 371. Defendant argues that claim construction has already occurred and now the court must compare the
3739	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 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 under Rule 59(b), the plaintiffs could not resort to relief under (b)(1) on the ground
1925	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 that section 1500 requires dismissal when the claim that is brought here involves the same operative facts that are raised in the earlier-filed action pending in another forum and the substantive relief sought here is presumably also available in that other forum. Ireland v. United States, 11 Cl.Ct. 543, 545 (1987); Gary Aircraft Corp. v. United States, 226 Ct.Cl. 568, 571 (1981); Pitt River Home and Agricultural Cooperative Ass’n v. United States, 215 Ct.Cl. 959, 960-61 (1977); Santa Clara, California v. United States, 215 Ct.Cl. 890, 981 (1977); Evaluated in light of these considerations, it is clear that plaintiff cannot maintain an action in this court. The facts set out in the complaint filed here are identical to those recited in the complaint filed in the district court, while the relief sought here—money damages for breach of contract—is, according to plaintiffs view of the applicable law, equally within the authority of the district court to grant. That is, the bank argues in the district court that it may pursue a claim for monetary relief there against HUD for breach of contract under the provisions of the National Housing Act, 12 U.S.C. § 1702 (1980), which authorizes the Secretary of Housing and Urban Development “to sue and be sued in
953	other creditors; 3. Whether the trial court abused its discretion: (a) in allowing appellees’ counsel to use a previously excluded transcript as a cross examination aid; (b) in denying Friedman’s motion to re-open the case; (c) in refusing to allow appellant costs after the trial was continued for three months because of illness to appellees’ former counsel. III. STANDARD OF REVIEW The determination of insider status is a question of fact. Matter of Missionary Baptist Found., 712 F.2d 206, 210 (5th Cir.1983); In re UVAS Farming Corp., 89 B.R. 889, 892 (Bankr.D.N.M.1988); In re Taylor, 29 B.R. 5, 7 (Bankr.W.D.Ky.1983); 2 Collier on Bankruptcy 11101.30, at 101-72 (15th ed. 1990). We review the bankruptcy court’s findings of fact for clear error.  affd 827 F.2d 1299 (9th Cir.1987). Where two permissible views of the evidence exist, the fact finder’s choice between them cannot be clearly erroneous. Anderson v. City of Bessemer, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). Friedman contends that, because the facts herein are “largely undisputed,” we must review the trial court’s finding that appellees were not insiders de novo. In support of this argument, Friedman cites In re Schuman, 81 B.R. 583 (9th Cir. BAP 1987), which observes that in certain circumstances it may be more accurate to consider the determination of insider status as a mixed question of fact and law. In responding to the argument that summary judgment was improper because
80	Rule 1.190. Because the state trial court gave no reasons for denying petitioner’s motion for severance, we can only assume that the denial was justified on the reasoning employed by the Florida Supreme Court —that is, that the trial court denied the motion because it did not meet the demands of Rule 1.190 as later interpreted by the Florida Supreme Court. We think it sufficient to repeat without lengthy citation what is now an axiom of American jurisprudence: The Constitution prohibits a state from retrospectively applying a new or modified law or rule in such a way that a person accused of a criminal offense suffers any significant prejudice in the presentation of his defense. See, e. g., . 347, 84 S.Ct. 1697, 12 L.Ed.2d 894; Kring v. Missouri, 1883, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506. The two severance rules involved here differ markedly, and by applying the newer version retrospectively, the state has cut off petitioner’s right to present the merits of his motion for severance. The new rule requires the movant to state the grounds on which it is based and further requires “a showing” of prejudice. But the statute in effect at the time petitioner stood trial only required “a motion.” We interpret that statute, and the state has cited to us no cases to the contrary, as having allowed movants to elaborate the grounds supporting their motions after filing. Petitioner claims that he relied on that
1434	Burford abstention and is derived from the Supreme Court decision in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). In that decision the Court held that the federal court should have dismissed the complaint in a ease involving proration orders in Texas oil fields, on the ground that the issues involved a specialized aspect of a complicated regulatory system of local law, which should be left to the local administrative bodies and courts. Under this type of abstention, since adequate state court review of an administrative order based upon pre dominantly local factors is available, intervention of a federal court is not necessary for the protection of federal rights. Important federal constitutional rights are adequately protected under this doctrine by review of the state decision in the United States Supreme Court. In determining whether this doctrine is appropriate for the present action, the court must look to the particular facts presented here. The California coastline is a unique and valuable resource of that state. In order to protect that resource, the people of that state enacted extensive legislation providing for a complex system of regulation with state controls ultimately yielding to local control with state supervision through the local adoption and state approval of local coastal plans. The legislation provides for an interim permit procedure until those local plans are adopted and approved. The
3340	trade. Brown Chemical Co. v. Meyer, 139 U.S. 540, 11 S.Ct. 625, 35 L.Ed. 247 (1891); Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U.S. 118, 25 S.Ct. 609, 49 L.Ed. 972 (1905); Meneely v. Meneely, 62 N.Y. 427 (1875). See McCarthy, Trademarks in Unfair Competition, § 13.3 pp. 459-560 (1973 ed.). With the passage of the Federal TradeMark Act of 1905, 33 Stat. 724, and an increasing commercial reliance on marketing techniques to create name recognition and goodwill, the courts adopted a more flexible approach to the conflicting property interests involved in surname trademark infringement cases. By 1908, the Supreme Court was willing to enjoin the use of a surname unless accompanied by a disclaimer. Shortly thereafter, in Thaddeus Davids Co. v. Davids, 233 U.S. 461, 34 S.Ct. 648, 58 L.Ed. 1046 (1914) and L. E. Waterman Co. v. Modern Pen Co., 235 U.S. 88, 35 S.Ct. 91, 59 L.Ed. 142 (1914), the Supreme Court established what has since become a guiding principle in trademark surname cases. Once an individual’s name has acquired a secondary meaning in the marketplace, a later competitor who seeks to use the same or similar name must take “reasonable precautions to prevent the mistake.” L. E. Waterman Co., supra, at 94, 35 S.Ct. at 92. It is, however, difficult to distill general principles as to what are “reasonable precautions” from the Supreme Court’s decisions in
3078	why Plaintiffs evidence fails to meet her burden under the ADA in “working” cases. First, the Court holds that a lifting restriction alone is not sufficient to establish a substantial impairment to the major life activity of working. See Thompson v. Holy Family Hosp., 121 F.3d 537, 541 (9th Cir.1997); Williams v. Channel Master Satellite Sys., 101 F.3d 346, 349 (4th Cir.1996) (Holding as a matter of law that a 25-pound lifting limitation does not constitute a disability); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir.1996). Other courts have held that even lesser amounts were not substantial limitations. See Marinelli v. City of Erie, Pa., 216 F.3d 354, 364 (3rd Cir.2000) (10 pounds); Helfter v. United Parcel Service, Inc., 115 F.3d 613, 617-18 (8th Cir.1997) (10-20 pounds); McKay v. Toyota Motor Mfg., US.A., Inc., 110 F.3d 369, 373 (6th Cir.1997) (20 pounds); Wooten v. Farmland Foods, 58 F.3d 382, 384-86 (8th Cir.1995) (10-20 pounds); Piascyk v. City of New Haven, 64 F.Supp.2d 19, 29-31 (D.Conn.1999) (15 pounds), aff'd 216 F.3d 1072 (2nd Cir.2000) (Table case); Gerdes v. Swift-Eckrich, 949 F.Supp. 1386, 1400 n. 5 (N.D.Jowa 1996) (10 pounds) aff'd 125 F.3d 634 (8th Cir.1997). Recognizing that a lifting restriction alone would not suffice, Plaintiff has offered Figueroa’s declaration, which the Court finds contains only bald assertions and conclusory statements, and fails to meet Plaintiffs specific burden of production in ADA “working”
1399	or even average performance to satisfy this element. He need only show that his performance was of sufficient quality to merit continued employment, thereby raising an inference that some other factor was involved in the decision to discharge him. Id. at 1282-83 (citations omitted). In setting out the four-prong test for a prima facie case, the Fifth Circuit did not expressly include this requirement. Because of this, and because we find that Mr. Ashagre did not meet even the four-prong test required by Marks, we need not address here the issue of whether Mr. Ashagre made this showing, or whether his knowing violations of company policy preclude his ability to make such a showing. See . Mr. Elbaawna passed away prior to this trial.
1851	to vitiate acceptance of delivered contract goods. See Universal Sportswear Inc. v. United States, 180 F.Supp. 391, 145 Ct.Cl. 209, 214 (1959). On this basis, defendant seeks confirmation of the decision to default terminate, as well as return of payments made in excess of the value of completed units accepted. The government also raises as a defense a special plea in fraud pursuant to 28 U.S.C. § 2514 (1988). The effect of this provision is to forfeit claims tainted by fraud. Such fraud consists of knowingly or recklessly making false statements with intent to deceive. Ingalls Shipbuilding, Inc. v. United States, 21 Cl.Ct. 117, 122 (1990). The defense must be established by clear and convincing evidence. The government also seeks damages and penalties under the False Claims Act. 31 U.S.C. §§ 3729-3731 (Supp.IV 1992). For purposes of the act, the government must show that the contractor made false claims with actual knowledge, deliberate ignorance, or reckless disregard of the truth. No specific intent to defraud is necessary. Id. at 3729(b). For the government to recover on its False Claims Act counterclaim it need only show fraud by a preponderance of the evidence. 31 U.S.C. § 3731(c). The asserted false claims consist of the invoices submitted subsequent to December 1987. The government contends that Triad officials knew or had reason to know, or recklessly disregarded the fact, that TVPC units had passed the leak
1963	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. Upon a review of Count I of the Indictment, the court finds that none of these policy concerns is implicated, nor does Rosin- ski so argue. Moreover, it is well established that the allegation in a single count of a conspiracy to commit several crimes is not duplicitous, for the crime charged is the single offense of conspiracy, however diverse its objects. See Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 101, 87 L.Ed. 23 (1942); United States v. Margiotta, supra; United States v. Murray, supra. Additionally, the court has reviewed Count I of the Indictment and finds it facially sufficient. Title 18 U.S.C. § 371 prohibits a conspiracy to “defraud the
3217	55. Between January 1983 and March 1985, the dues which U.S. Truck did not deduct for actively working employees who were members of Local Union 406 totalled $2,650. 56. Between January 1983 and March 1985, the dues which U.S. Truck did not deduct for actively working employees who were member of Local Union 486 totalled $1,205. 57. Between January 1983 and March 1985, the dues which U.S. Truck did not deduct for actively working employees who were members of .Local Union 164 totalled $1,809. 58. The debtor’s reorganization plan was eventually confirmed. In the Matter of U.S. Truck Company, Inc., 47 B.R. 932 (E.D.Mich.1985), aff'd sub nom., This claim comprises Class IX, an impaired class under the plan. Under the terms of the plan, the allowed amount of the claim shall be paid, at the creditor’s election, either 70% on the effective date of the plan, or 100% in installments over the %lh years of the plan. 47 B.R. at 945-46.1 III. Conclusions of Law 1. The Standard for Determining Contract Rejection Damages Is The Standard for Determining Breach of Contract Damages Under 29 U.S.C. § 185. 11 U.S.C. § 502(g) provides: A claim arising from the rejection, under section 365 of this title or under a plan under chapter 9,11, 12, or 13 of this title, of an executory contract or unexpired lease of the debtor that
1646	Gramercy’s receivership, which exceeds the $100,000 uninsured motorist policy limits of her insurance policy. The District Court stated it was unnecessary to determine when Gramercy became insolvent for purposes of the insurance policy because State Farm is entitled to a credit for the settlement proceeds McHone' received regardless of the date of insolven- We review the district court’s grant of summary judgment de novo. Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 518 (8th Cir.2010). Summary judgment is proper if, viewing the record in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact and the moving party is entitled to judgment' as a matter of law. Fed. R.Civ.P. 56(a); At issue is whether McHone is entitled to recover uninsured motorist benefits in the amount of $100,000 from State Farm pursuant to her insurance policy. On appeal, McHone disputes the definition of the policy limits as defined by the district court. McHone argues the State Farm policy’s reference to “the minimum limits required by the law” actually refers to the legal requirement of interstate carriers to have a minimum of $1,000,000 insurance coverage. Therefore, McHone’s position is the $300,000 she received from the receiver falls short of the applicable minimum limits required by law. In defining the policy limits, the district court relied on Green v. Johnson, 249 S.W.3d 313, 320 (Tenn.2008). In doing so,
687	styled ‘Public Garage, M. S. Drybrough, Owner,’ and Dry-brough’s testimony that the funds therein were the property of Marion exclusively, as insufficient to establish that these funds were in reality her separate property. * * * We be lieve that the account was kept in Marion’s name only as a mere formalism, which existed solely to alter tax liabilities.” 42 T.C. at 1051, 1052. In considering the factual issue involved, the Tax Court was not required to accept as true Drybrough’s testimony even though not directly contradicted, and could weigh the inherent incredibility of his total claims against his spoken words. Quock Ting v. United States, 140 U.S. 417, 420, 11 S.Ct. 733, 35 L. Ed. 501 (1891); Wood v. Commissioner of Internal Revenue, 338 F.2d 602, 605 (CA 9, 1964). The courts must scrutinize with special care the dealings between husband and wife, especially where, as here, the husband appeared to have carte blanche to use what he claims was his wife’s money. Fouke v. Commissioner, 2 B.T.A. 219, 220-221 (1925). Drybrough had the burden of overcoming the presumption of validity of the Commissioner’s determination respecting his alleged income tax deficiencies. Bishop v. Commissioner of Internal Revenue, 342 F.2d 757, 759 (CA 6, 1965); Hallabrin v. Commissioner of Internal Revenue, 325 F.2d 298, 305 (CA 6, 1963). We cannot say that the Tax Court was clearly erroneous in concluding that that burden was not carried. This
4016	PER CURIAM: The Federal Public Defender appointed to represent Victor Lynn White has moved for leave to withdraw and has filed a brief in accordance with White has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. 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.
35	: “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. 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, if not obligatory, for the district court to have done so. However, these are not the facts before us. In any event, it is clear that the district court had diversity jurisdiction over the case; although federal courts usually apply state law when exercising diversity jurisdiction, they are not automatically
1135	injunction, the order staying further prosecution of the action was appealable under § 1292(a) (1) as “a denial of the temporary injunction which was sought.” 280 F.2d at 333. Plainly, both these cases have little in common with the instant case. Having concluded that the stay order was neither a final order appealable under § 1291 nor an injunction appealable under § 1292(a) (1), it follows that the appeal must be Dismissed. . See and compare Baltimore Contractors v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233; Morgantown v. Royal Insurance Co., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347; Ettelson v. Metropolitan Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176; 55 S.Ct. 310, 79 L.Ed. 440; Shanferoke Coal & Supply Corporation of Delaware v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583; Lummus Co. v. Commonwealth Oil Refining Co., 2 Cir., 297 F.2d 80; Chronicle Publishing Co. v. National Broadcasting Co., 9 Cir., 294 F.2d 744; Ferguson v. Tabah, 2 Cir., 288 F.2d 665; Glen Oaks Utilities, Inc. v. City of Houston, 5 Cir., 280 F.2d 330; Arny v. Philadelphia Transportation Co., 3 Cir., 266 F.2d 869; Thibodaux v. Louisiana Power & Light Co., 5 Cir., 255 F.2d 774, reversed, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058; United Gas Pipeline Co. v. Tyler Gas Service Co., 5 Cir., 247 F.2d 681; Day v. Pennsylvania Railroad Co., 3
60	of the test but failed to establish malice. Johnson appeals the conclusion that the debt is not for a malicious injury. STANDARD OF REVIEW The determination of whether a party acted maliciously inherently involves inquiry into and finding of intent, which is a question of fact. Waugh v. Eldridge (In re Waugh), 95 F.3d 706, 710 (8th Cir.1996); Johnson v. Fors (In re Fors), 259 B.R. 131, 135 (8th Cir. BAP 2001). Questions of fact are reviewed under the clearly erroneous standard and are not to be reversed unless after reviewing the record the appellate court is left with the definite and firm conviction that a mistake has been committed. Waugh, 95 F.3d at 711; Fors, 259 B.R. at 135. Due deference shall be given to the opportunity of the trier of fact to judge the credibility of the witnesses. Fors, 259 B.R. at 136; TriCounty Credit Union v. Leuang (In re Leuang), 211 B.R. 908, 909 (8th Cir. BAP 1997). Where the evidence is susceptible to two permissible views, the trial court’s choice between the two cannot be clearly erroneous. Fors, 259 B.R. at 135-36. If the trial court’s account of the evidence is plausible in light of the entire record, an appellate court cannot substitute its judgment for that of the trier of fact. Id. at 136. DISCUSSION Pursuant to 11 U.S.C. § 523(a)(6), a discharge does not discharge an individual from a
4696	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 this language [in the statutory grant of jurisdiction] might be construed to show that Congress clearly intended to deprive the courts of jurisdiction where a defendant employer qualifies for an exemption under the FLSA.”). In support of their argument that the motor carrier exemption is jurisdictional, Defendants cite one, pm-Arbaugh, case, 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
885	codified in 18 U.S.C. § 3500. . But cf. United States v. Borelli, 336 F.2d 376, 393 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965), holding that a statement that would support impeachment for bias and interest “relates” to the witness’ testimony under 18 U.S.C. § 3500. See also Rosenberg v. United States, 360 U.S. 367, 370, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959). . See United States v. Crisona, 416 F.2d 107, 112-114 (2d Cir. 1969), cert. denied, 397 U.S. 961, 90 S.Ct. 991, 25 L.Ed.2d 253 (1970); United States v. Sopher, 362 F.2d 523, 525-526 (7th Cir.), cert. denied. 385 U.S. 928, 87 S.Ct. 286, 17 L.Ed.2d 210 (1966) ; cf. . People v. Butler, 33 A.D.2d 675-676, 305 N.Y.S.2d 367, 369 (1969). The New York Court of Appeals affirmed without opinion, 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587 (1971). . Similarly, Jenohs was decided under the Supreme Court’s rule-making powers for the administration of justice in the federal courts rather than as a matter of federal constitutional law. See Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). . Cf. People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 236, 299 N.Y.S.2d 617, 619, 247 N.E.2d 492, 493 (1969). . United States ex rel. Sadowy v. Fay, 284 F.2d 426, 427 (2d Cir. 1960), cert. denied, 365 U.S. 850, 81 S.Ct.
4156	Council’s decision is supported by substantial evidence____ Furthermore, when the Appeals Council rejects an AU’s credibility findings, it should do so expressly and state its reasons for doing so____ This will enable a reviewing court to determine whether the Council’s reasons for rejecting the AU’s credibility findings are based on substantial evidence. AU Doyle’s conclusion that Paige’s complaints of pain were substantiated by the evidence necessarily encompasses a finding that such subjective complaints were credible. AU Doyle saw and heard Paige, while Council did not. Its contrary decision as to Paige’s credibility is not supported by substantial evidence, as defined in Bauzo, because Council has neither expressly rejected the AU’s credibility findings nor stated the reasons underlying any such rejection (accord, It must be concluded that no substantial evidence supports Council’s decision that Paige retains the RFC for light work. 3. Remand or Reversal? What remains to be decided is whether this Court should remand the case to Secretary or reverse outright and order payment of benefits to Paige. Section 405(g) confers judicial authority to affirm, modify or reverse Secretary’s decision “with or without remanding the cause for a rehearing” (see also 4 Social Security Law and Practice § 55:60). Only the distressing length of Paige’s tortuous path through the system would ordinarily counsel reversal here. In other respects it appears remand is the appropriate remedy, for it cannot fairly be viewed as a foregone conclusion (though it seems most
1545	also elected at-large, that holding, if it becomes final, will have a significant impact upon the decision which this court must hand down in this Louisiana case. This case has been tried and decided on the violation issues and the Louisiana Legislature was granted time to present a remedy which the Legislature failed to do. This case has also been tried on the remedy phase and the court was on the verge of presenting its decision on the remaining issues when the decision in the Texas case came down. The Fifth Circuit has now granted rehearing en banc in the Texas case which has the effect of vacating the opinion of the panel. The Fifth Circuit has scheduled oral argument for June 19, 1990. The LULAC opinion is thus suspended and as of this writing, the only appellate guidance available to this court is Chisom v. Edwards. Under ordinary circumstances this court would simply delay its decision pending final appellate court judgment. These are not ordinary circumstances, however. The court has concluded that delaying its decision in this case would disserve the cause of justice. Some of the factors which lead to this conclusion are: Louisiana has judicial elections scheduled generally in 1990. Time is required to gear up for those elections both by the candidates and the state officials charged with conducting the elections. There are vacancies in the state judicial system which
3110	itself alleges that Northwest, indisputedly a party to the CBA, is the administrator of the Plan. Compl. ¶ 3. But here, the claim is that a statute divests this court of jurisdiction. Accordingly, whether the parties asserting this defense were parties to the CBA is irrelevant. Notably, numerous courts, including the Ninth Circuit, have found system boards of adjustment to have exclusive jurisdiction over suits brought against pension benefit plans, even though the plans themselves were not parties to a CBA. See Long v. Flying Tiger Line, Inc. Fixed Pension Plan for Pilots, 994 F.2d 692 (9th Cir.1993) (holding system board had exclusive jurisdiction over ERISA suit brought against pension plan); see also Jenisio v. Ozark Airlines, Inc. Retirement Plan for Agent & Clerical Employees, 187 F.3d 970 (8th Cir.1999) (holding system board had exclusive jurisdiction over ERISA suit brought against pension plan). If pension benefit plans have standing to assert this defense, there is no reason that a disability benefit plan like the Plan here cannot. Second, Pearson repeatedly suggests that the RLA cannot “apply” to ERISA claims at all. This, however, is a matter of settled law in the Ninth Circuit, as well as all other circuits to have considered the question. In Long, the court rejected this an argument, and held that a federal court lacks
3181	the AEDPA, has interpreted and applied the relevant Supreme Court decisions in this area in a fashion that also indicates relief must be granted. Ineffective Assistance of Counsel: No Motion to Quash Although the undersigned’s recommendation on the above issue, if accepted, would render moot Petitioner’s ineffective assistance claim, that claim will be analyzed in the event a reviewing judge or court should decide relief on the foreman claim is not warranted. Petitioner argues that his attorneys rendered ineffective assistance when they failed to file a timely motion to quash the indictment on the grounds of discrimination in the selection of the foreperson. Petitioner bears the burden of proving two components, deficient performance and prejudice, to establish ineffective assistance of counsel. A federal court may not grant habeas relief on a Strickland claim that was denied on the merits by the state court unless the state court’s decision 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,
901	for Summary Judgment (Doc. 99) is DENIED. IT IS SO ORDERED. . Doc. 54-1 at 4-5. .Id. at 5. . Doc. 79 at 20-28. . Id. at 20-21. . Fed.R.Civ.P. 56(a). . City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir.2010). . Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). . Adler, 144 F.3d at 670 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir.2010). . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Spaulding, 279 F.3d at 904. . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). . Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir.2000) (quoting Adler, 144 F.3d at 670-71); see Kannady, 590 F.3d at 1169. . City
2884	discloses that each defendant had either actual or constructive possession of part of the records used in the conduct of a numbers operation, that Woodson was involved in the purchase of equipment for the operation, that Gant exercised some control over the customers, and that Woodson claimed ownership of a large amount of cash (necessary in a numbers operation). This evidence was sufficient to take the case to the jury and to support the verdict as to both defendants. The judgment of the United States District Court is accordingly affirmed. . 'that a numbers operation was being conducted on the premises at 830 Twelfth Avenue South, Nashville, Tennessee, between 5:30 P.M. and 10:30 P.M. by William Woodson and others. . 267, 80 S.Ct. 725, 4 L.Ed.2d 697.
4879	"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 to make a pre-trial finding of fraud, the district court either misunderstood or disavowed its inherent power to do so. See Aoude II, 892 F.2d at 1119 (trial court possesses “inherent power ... ‘to do whatever is reasonably necessary to deter abuse of the judicial process.'"") (quoting While the district court did not explain its decision, the reasonable inference to be drawn is that it simply was not persuaded by plaintiffs’ pre-trial showing of misconduct. Arguably, the most damaging evidence adduced by plaintiffs before trial was Oses’s assertion (in his letter to Ivan Rodriguez) that his recantation was the product of promises and threats by the “dirty ... FBI.” Also before the court, however, was an array of evidence tending to undermine Oses’s credibility and, thus, the reliability of this statement. Most significant, perhaps, was the copy of Oses’s letter to Leonard—apparently written before any other contact had been established between Oses and the federal government — in which he admits to having lied at his 1977"
429	"the case to the district court, and by reference to the bankruptcy court, for further proceedings consistent with this opinion. Costs shall be borne by appellees. . We have previously considered issues arising from Cajun's bankruptcy proceeding on several occasions, and we therefore summarize only those facts necessary for the disposition of this appeal. See Mabey v. Southwestern Elec. Power Co. (In re Cajun Elec. Power Coop., Inc.), 150 F.3d 503 (5th Cir. 1998), cert. denied, - U.S. -, 119 S.Ct. 2019, 143 L.Ed.2d 1031 (1999); Official Comm. of Unsecured Creditors v. Cajun Elec. Power Coop., Inc. (In re Cajun Elec. Power Coop., Inc.), 119 F.3d 349 (5th Cir.1997); Cajun Elec. Power Coop., Inc. v. Central La. Elec. Coop., Inc. (In re Cajun Elec. Power Coop., Inc.), 74 F.3d 599 (5lh Cir. 1996). . Section 105(a) states that a bankruptcy court “may issue any order, process, or judg ment that is necessary or appropriate to carry out the provisions” of the Bankruptcy Code. . Section 502(b)(2) provides that a bankruptcy court shall determine the amount of a creditor's claim as of the date of the filing of the bankruptcy petition, and ""shall allow such claim in such amount, except to the extent that ... such claim is for unmatured interest."" . Under the absolute priority rule, a plan of reorganization is considered “fair and equitable” under 11 U.S.C. §"
1323	Unfortunately, most of the debtors in these cases have actual income that is sufficiently below the code-defined current monthly income, and may not be able to propose a feasible plan. But it doesn’t stop there. The code says that all of the debtor’s projected disposable income that will be received during the applicable commitment period must be applied to make payments to unsecured creditors under the plan. Although “disposable income” and “current monthly income” are defined in the code, “projected disposable income” is not. The Bankruptcy Appellate Panel of the Eighth Circuit has recognized that at least three interpretations of the meaning of “projected disposable income” have developed in the context of § 1325(b) and the means test. First, some courts continue to calculate projected disposable income from the debtor’s schedules I and J. Id. (citing In re Hardacre, 338 B.R. 718 (Bankr.N.D.Tex.2006) as an example of this approach). The Hardacre court believed that the term “projected disposable income” must be based upon “the debtor’s anticipated income during the term of the plan, not merely an average of her prepetition income.” Hardacre, 338 B.R. at 722. Second, some courts calculate projected disposable income from either Form B22C or the debtor’s schedules I and J, whichever more accurately reflects the debtor’s 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
2376	2005 WL 83261, 2005 U.S. Dist. LEXIS 2013, at *5 (E.D.Pa. Jan. 14, 2005). Here, Allstate did not serve Nelson in accordance with the Pennsylvania rules because Allstate did not serve Nelson “by any form of mail requiring a receipt signed by Nelson.” Pa. R. Civ. P. 403. Because Allstate failed to properly serve Nelson with its cross-claim, Allstate’s motion for a default judgment will be denied and its cross-claim denied without prejudice. Defendant Nelson’s motion to set aside entry of default will be granted. See, e.g., Am. Tel. & Tel. Co. v. Merry, 592 F.2d 118, 120 n. 2, 126 (2d Cir.1979) (dismissing without prejudice cross-claim against party in default where cross-claim was not served in accordance with Fed.R.Civ.P. 4); R.Civ.P. 4). IV. CONCLUSION In light of the foregoing discussion, the $4,654.50 judgment in favor of plaintiff and against Allstate will be modified to include an award of interest and costs, but not attorneys’ fees. The Court will not set aside the default judgment as to liability in favor of plaintiff and against Vernell Nelson. Judgment in the amount of $4,654.50 plus interest and costs will be entered in favor of plaintiff and against Vernell Nelson. And Allstate’s motion for default judgment against Vernell Nelson will be denied. An appropriate order follows. ORDER AND NOW, this 3rd day
265	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. A plaintiff cannot establish a claim for false arrest if probable cause existed at the time of the arrest. Singer, 63 F.3d at 118-19. Probable cause is presumed to exist if a plaintiff is arrested pursuant to an arrest warrant. Martinetti v. Town of New Hartford, 12 Fed.Appx. 29, 32 (2d Cir.2001); Blasini v. City of New York, 2011 WL 6224605, *4 (S.D.N.Y.2011) (pre-arrest indictment demonstrates that probable cause 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
2856	use of the building into separate halves.” Id. at 502-503, 45 S.Ct. at 416. The Supreme Court held: “It is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.” Id. Under that rule as applied to those facts the warrant was upheld. Search warrants with faulty descriptions of the place to be searched have been upheld in a number of cases. See, e.g., Hanger v. United States, 398 F.2d 91 (8th Cir.1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969); United States v. Goodman, 312 F.Supp. 556 (N.D.Ind.1970); United States v. Pisano, 191 F.Supp. 861 (S.D. N.Y.1961); United States v. Contee, 170 F.Supp. 26 (D.D.C.1959). In United States v. Sklaroff, 323 F.Supp. 296 (S.D.Fla. 1971), the court reviewed these prior decisions and concluded, at page 321: The foregoing decisions illustrate the principle that the determining factor [in deciding] whether a search warrant describes the premises to be searched with sufficient particularity is not whether the description given is technically accurate in every detail but rather whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premises might be mistakenly searched which is not the one intended to be
1039	the $31 million stabilized value in that period (a rather dubious assumption given the longer span of real estate history), and even assuming a similarly adverse credit market such as prevails today, it would still seem that refinancing of a $21 million balance with a then fully-built power center and a track record of payment performance since 2010 should be very feasible since this would be only a 67% loan to value loan. In sum, this plan is more than just the hopeful “wing and a prayer” that the bank argues in its Post-Trial Brief. “Feasibility” does not mean certainty. The standard has been interpreted in the Ninth Circuit to mean that the plan has a “reasonable probability of success.” The “feasibility” standard has been interpreted as excluding “visionary schemes.” In re Pizza of Hawaii Inc., 761 F.2d 1374, 1382 (9th Cir. 1985). But, possibility of failure is not fatal. Hobson v. Travelstead (In re Travelstead), 227 B.R. 638, 651 (D.Md.1998). The issue is primarily one of fact so long as the debtor presents evidence that it can reasonably accomplish what is promised in the plan. The Code does not require debt- or to prove that success is inevitable or assured, and a relatively low threshold of proof will satisfy § 1129(a)(11) so long as adequate evidence supports a finding of feasibility. Computer Task Group, Inc. v. Brotby (In re Brotby), 303 B.R. 177, 191 (9th Cir. BAP 2003), citing
4798	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 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 States v. Ballard, 418 F.2d 325, 327 (9th Cir. 1969). Defendants were not brought into the courtroom in an effort to assist the eyewitnesses in identifying them as the robbers. Moreover, there is nothing to indicate that if defendants’ counsel had then been present they would have done any more to alleviate the supposed prejudice than they did at the subsequent suppression hearing and trial, as described above. We conclude that this incident did not de prive defendants of the assistance of counsel. On the afternoon
2278	"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 of cleanup costs in connection with remediation of a pre-petition environmental contamination as an administrative expense. . In Re Charlesbank Laundry, 755 F.2d 200, 202 (1st Cir.1985) (court applies Reading to award an administrative claim to parties harmed by debtor in possession's postpetition violation of a civil injunction) (emphasis added); In re Bill’s Coal Co., Inc., 124 B.R. 827, 829 (D.Kan.1991) (""This court agrees that penalties assessed for pre-petition misconduct or the continuing effects of pre-petition misconduct should not be considered an administrative expense.”) (citations omitted)."
940	the defendant(s) be provided sufficient opportunity to object to the accuracy of the transcripts; and (2) that the jury not rely on the transcript as evidence of the recorded conversation, but rather use the transcript as merely an aid. In this case, the defendants have been provided copies of and can raise objections to the transcripts well in advance of trial. The Court shall instruct the jury regarding the purpose and function of the transcripts. Holton, 116 F.3d at 1543. Additionally, during deliberations, the transcripts will only be provided to the jury upon a request to re-listen to the recordings. The jury shall not be permitted to review the transcripts without listening to the relevant recordings. Id. at 1541 (describing During the status hearing on September 7, 2012, the parties shall be prepared to address whether or not the transcripts should be admitted into evidence. See Holton, 116 F.3d at 1541-42 (noting several circuits have approved of courts allowing juries to review transcripts during deliberations where the transcripts were not admitted into evidence). This decision affects all co-Defendants, not just Mr. Williams. 2. Pattern or Habit Evidence The Defendant’s motion in limine also takes issue with the Government’s “plan[ ] to attempt to prove Mr. Williams’ guilt in this case by showing that his interactions are consistent with Mr. Bowman’s ‘pattern’ of dealing with his other illegal drug customers.” Def.’s Mot. at 2. The Defendant argues this evidence should be excluded for
2964	rights were violated when he was denied access to the portion of the presentence report that contained the probation officer’s sentencing recommendation. Headspeth acknowledges that Fed.R. Crim.P. 32(c)(3)(A) does not require the sentencing judge to release this portion of the presentence report. He maintains, however, that the rule is in this aspect constitutionally defective. We disagree. While a convicted defendant retains a due process right not to be sentenced on the basis of materially false or inaccurate information, see United States v. Lee, 540 F.2d 1205, 1210-11 (4th Cir.1976), access to the sentencing recommendation, which is nothing but a subjective judgment made on the basis of facts contained elsewhere in the report, is not necessary to vindicate that interest. See United States v. Knupp, 448 F.2d 412 (4th 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,
3070	Second, the Court must decide whether the life activity which Plaintiff claims is affected-working meets the definition of a major life activity within the ADA. Finally, combining these statutory phrases, the Court asks whether the impairment substantially limits the activity found to be a major life activity. See Lebron-Torres, 251 F.3d at 239-40. Interpreting the facts most favorably to Plaintiff, the evidence establishes the first two elements of the analysis. First, her back condition, para-lumbar muscular spasms with pain upon palpitation, is a “physiological disorder or condition” affecting the “musculoskeletal” system. See 29 C.F.R. § 1630.2(h)(1). Moreover, the activity claimed to be impaired-working-has been recognized as a “major life activity” under the applicable EEOC regulations. See id.; see also Lebron-Torres, 251 F.3d at 240; Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 9 (1st Cir.1999). Where Plaintiff has failed to meet her burden is at the third stage of the Court’s analysis: she has not shown that her back condition and lifting restriction substantially limits her ability to work. In meeting this burden, “[a]n ADA claimant assumes a more fact-specific burden of proof in attempting to demonstrate that her impairment ‘substantially limits’ the major life activity of ‘working.’ ” Quint, 172 F.3d at 11. As such, the issue of whether “the plaintiffs impairment substantially limits the major life activity of working involves a multi-level analysis, starting with the skills of the plaintiff herself and moving to the nature
3474	accountant from books and documents which were furnished Mm by defendant. The books and documents were present in court. They were identified as being books and records belonging to defendants. There was no objection to the summaries as such, but the objection was that the books themselves were neither offered and received in evidence nor was there a sufficient foundation laid for them to be so received. We think the objection should have been sustained. In the absence of statute, the general rule governing the introduction of books of account of a party in Ms own favor is that a foundation must bo laid by proof of their character, authenticity, correctness, and regularity. 22 C. J. § 1035, p. 864; C. A. 8); Pabst Brewing Co. v. E. Clemens Horst Co. (C. C. A.) 229 F. 913. Plaintiff places reliance upon the ease of St. Paul F. & M. Ins. Co. v. American Food Prod. Co. (C. C. A.) 21 F.(2d) 733, in which this court held that in eases where necessity required, books of account and summaries therefrom might be received in evidence without the testimony of the persons who made the original memoranda from which entries in, the books were made, providing there existed circumstantial guaranty of trustworthiness of the books. In that caso the evidence showed that the books from which summaries had been made were regular books of account ; that the entries therein were made in the
221	any physical harm to the person or property of the plaintiffs. Undoubtedly there is confusion in the many decisions which have discussed this subject. The Huset case may now be entirely outmoded and MacPherson v. Buick Motor Co., supra, and the multitude of cases which have followed it may well have pronounced broader and more realistic principles of liability for negligent manufacturers, Carter v. Yardley & Co., Ltd., 1946, 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559; Todd Shipyards Corp. v. United States, D.C.D.Me.1947, 69 F.Supp. 609; Todd Shipyards Corp. v. Harborside Trading & Supply Co., D.C.E.D.N.Y., 1950, 93 F.Supp. 601; E. I. Dupont de Nemours & Co. v. Baridon, 8 Cir., 1934, 73 F.2d 26; d 445; Ellis v. Lindmark, 1929, 177 Minn. 390, 225 N.W. 395; but see A. J. P. Contracting Corporation v. Brooklyn Builders Supply Co., 1939, 171 Misc. 157, 11 N.Y.S.2d 662, and Sperling v. Miller, Sup.App.T., 1944, 47 N.Y.S.2d 191; Blich v. Barnett, 1951, 103 Cal.App.2d Supp. 921, 229 P.2d 492; National Iron & Steel Co. v. Hunt, 1924, 312 Ill. 245, 43 N.E. 833, 34 A.L.R. 63; Buckley v. Gray, 1895, 110 Cal. 339, 42 P. 900, 31 L.R.A. 862; Ultramares Corp. v. Touche, 1931, 255 N.Y. 170, 174 N.E. 441, 74 A.L.R. 1139, but plaintiffs have not found any well-considered decisions that permit recovery against a manufacturer by a third party on the basis of a manufacturer’s negligence in absence of a showing
4939	"23 which permits ""a class representative"" to bring suit for violations of other state and federal law on behalf of those in the same class and who ""possess the same interest and suffer the same injury[.]"" Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 348, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (citations and internal quotation marks omitted). Employees bringing collective actions under the FLSA and those bringing class actions under Rule 23 must be granted certification by the district court in order for their action to proceed as a ""collective action"" or ""class action,"" respectively. See, e.g., Marcus v. BMW of N. Am., LLC , 687 F.3d 583, 590-91 (3d Cir. 2012) ; However, as further discussed in Part C, infra , the certification process and standards for collective actions and class actions differ. For example, unlike class actions under Rule 23, collective actions under the FLSA must first be ""conditionally"" certified by the district court, which ""requires a named plaintiff to make a 'modest factual showing'-something beyond mere speculation-to demonstrate a factual nexus between the manner in which the employer's alleged policy affected him or her and the manner in which it affected the proposed collective action members."" Halle , 842 F.3d at 224 (quoting Zavala , 691 F.3d at 536 n.4 ). Once a district court grants conditional certification, putative class members are provided an opportunity to opt into the"
3382	homes in which residents meet the FHA familial status definition are entitled to the same zoning treatment as single-family residences. The Court has not ruled whether such homes are subject to state licensing regulations. The City also cites FHA cases which uphold limits on the number of persons who may occupy a single-family residence. See Oxford House-C v. City of St. Louis, 77 F.3d 249, 252-53 (8th Cir.1996) (cities have legitimate interest in decreasing congestion, traffic, and noise in residential areas, and ordinances restricting number of unrelated people who may occupy single-family residence are reasonably related to those goals; cities need not assert specific reason for choosing number of unrelated person used to define “family”); But as plaintiff points out, the cases upon which the City relies address ordinances which set out the number of unrelated individuals who can reside in a single family residential zone, and address whether such zoning—as applied—discriminates against handicapped persons. Defendant also argues that even if the City’s ordinances facially discriminate against Keys residents on the basis of family 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.,
1662	trial of cases involving the peace and quiet of a civil community will be held in the immediate vicinity of the alleged offenses. In order to accelerate tho prompt trial of these offenses, it is requested that you assume court-martial jurisdiction in these cases. “3. The accused is at present in confinement in the Third U. S. Army Stockade, but will be delivered upon request to such i>laco as you may designate. “For tho Commanding General:” The views of counsel for the petitioner coincide with those of the three Judge Advocates who constituted the Board of Review while tho views of the respondent appear to be supported by at least an equal number of lawyers in tho Judge Advocate General’s Department. 22 S.Ct. 786, 46 L.Ed. 1049. Cf. Carter v. Roberts, 177 U.S. 496, 20 S.Ct. 713, 44 L.Ed. 861; Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 48 L.Ed. 236; Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann.Cas. 640; Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225; French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692. Contra Sanford v. Robbins, 5 Cir., 115 F.2d 435. See, e. g. Ex parte Bigdow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005. Clawans v. Rives, 70 App.D.C. 107, 104
4936	"'opted into' the class[.]"" Id. (citations omitted). The Supreme Court has also noted differences between Rule 23 class actions and FLSA collective actions, such as the fact that although ""a putative class acquires an independent legal status once it is certified under Rule 23 [,] [u]nder the FLSA ... 'conditional certification' does not produce a class with an independent legal status, or join additional parties to the action."" Symczyk , 569 U.S. at 75, 133 S.Ct. 1523. On balance, we believe that class certification under Rule 23 and collective action certification under the FLSA are not sufficiently similar or otherwise ""inextricably intertwined"" to justify exercise of pendent appellate jurisdiction. This conclusion is supported by our decisions in  and Kershner , along with the Tenth Circuit's analysis in Thiessen . When tasked with elucidating the standard to be applied on final certification under the FLSA in Zavala , we eschewed an approach derived from Rule 23, holding instead that the standard to be applied to determine whether FLSA final certification is appropriate is ""whether the proposed collective plaintiffs are 'similarly situated.' "" Zavala , 691 F.3d at 536 (citation omitted). This approach makes sense because ""Congress clearly chose not to have the Rule 23 standards apply to [statutory] class actions [such as those under the FLSA]"" by adopting not a ""commonality"" or ""predominance"" requirement, but rather a finding that the collective plaintiffs are ""similarly situated."" Thiessen , 267"
338	fraud is, or should be, discovered. Parrent, supra at 128; Vanderboom, supra at 1240. Accord Janigan v. Taylor, 344 F.2d 781 (1st Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). See also Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946) ; Bailey v. Glover, 88 U.S. (21 Wall.) 342, 22 L.Ed. 636 (1875). . See J. I. Case Co. v. Borak, 377 U.S. 426, 431-32, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) ; SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963). . See Azalea Meats, Inc. v. Muscat, 386 F.2d 5, 8 (5th Cir. 1967) ; . See note 7, supra. . See note 1, supra. . See note 7, supra. . However, even if Congress is so disposed, it may wait until it receives The American Law Institute’s proposed Federal Securities Code. Professor Louis Loss, the reporter for the project, currently estimates that the ALI Code will reach Congress in 1976 or 1977. Federal Securities Code, Introductory Memorandum at xv (Ten. Draft No. 2, 1973). Section 1421 of the draft contains proposed federal statutes of limitations for the remedies provided by the Code.
1889	rate increases, was a consideration the Commission could take into account in interpreting Opinion No. 595. See 15 U.S.C.A. § 717d(a) (1976); cf. Montana-Dakota Utilities Co. v. Northwestern Public Service Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (1951) (no retroactive ratemaking allowed). Equity In ordering a refund, the Commission is to explore and give due weight to considerations of equity. Continental OH Co. v. FPC, 378 F.2d 510, 532 (5th Cir. 1967), cert. denied sub nom. Austral Oil Co. v. FPC, 391 U.S. 917, 88 S.Ct. 1801, 20 L.Ed.2d 655 (1968). The statute allows refunds but does not require them. 15 U.S.C.A. § 717c(e). The ultimate balance of equitable consideration is committed to the Commission’s discretion.  affirmed, Mobil Oil Corp. v. FPC, 417 U.S. 283, 94 S.Ct. 2328, 41 L.Ed.2d 72 (1974). Gillring asked the Commission to allow the offset on grounds of equity. To 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
1675	L.Ed. 1084, 11 Ann.Cas. 640; Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225; French v. Weeks, 259 U.S. 326, 42 S.Ct. 505, 66 L.Ed. 965; Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538; Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692. Contra Sanford v. Robbins, 5 Cir., 115 F.2d 435. See, e. g. Ex parte Bigdow, 113 U.S. 328, 5 S.Ct. 542, 28 L.Ed. 1005. Clawans v. Rives, 70 App.D.C. 107, 104 F.2d 240, 122 A.L.R. 1436; Ex parte Hans Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. Cf. Rosborough v. Rossell, 1 Cir., 150 F.2d 809; 58 S.Ct. 1019, 82 L.Ed. 1461; Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455; and Amrine v. Tines, 10 Cir., 131 F.2d 827. Title 30 U.S.C.A. § 1511. “As to number (article 40). No person shall, without his consent, be tried a second time for the same offense; but no proceeding in which an accused has been found guilty by a court-martial upon any charge or specification shall be held to be a trial in the sense of this article until the reviewing and, if there be one, the confirming authority shall have taken final action upon the case. “No authority shall return a record of trial to any court-martial for reconsideration of— “(a) An acquittal; or “(b) A
1155	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.  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
1008	"breach of contract claim. See Netologic, Inc. v. Goldman Sachs Grp., Inc., 110 A.D.3d 433, 433-34, 972 N.Y.S.2d 33, 34-35 (1st Dep’t 2013) (dismissing as duplicative breach of implied covenant of good faith and fair dealing claim because breach of contract claim arose from same facts and sought identical damages). TiVo’s argument to the contrary is merely that the panel’s reasoning did not wholly track the parties’ arguments, and is unaccompanied by citation to any case in which alternative reasoning of this sort was found to exceed the arbitrators’ authority. Rather, TiVo’s supporting citations involve instances where arbitrators went beyond alternative reasoning and instead awarded relief not requested by the parties. See, e.g., PMA Capital Ins. Co. v. Platinum Underwriters Bermuda, Ltd., 659 F.Supp.2d 631, 637-38 (E.D.Pa.2009) (vacating award that, inter alia, eliminated provision of agreement where parties disputed only proper calculation under, and consequences of, that provision). Accordingly, we conclude that the arbitration panel did not exceed its powers. We have considered the remainder of TiVo’s claims and consider them to be without merit. Accordingly, the judgment' of the district court is AFFIRMED. . TiVo contends that the arbitration panel also erred by engaging in ""gap filling” analysis contrary to New York law. Because we do not read the arbitration panel to have applied such analysis,"
324	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); 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 the former. 440 F.2d at 915-16. Now we are again confronted by similar alternatives. Since the occurrence of the facts supporting the claims in Turner, Sackett, and Hecht, supra, the California legislature has enacted a statute of limitations for actions brought pursuant to a state statute similar to section 10(b). The defendants urge this court to reject our previous decisions and to adopt the new statute, Cal.Corp. Code §
527	"service hours); Cruz v. Dudek, 2010 WL 4284955 (S.D.Fla. Oct. 12, 2010) (risk of forcing institutionalization of quadriplegics due to inadequate in-home health services); Brantley v. Maxwell-Jolly, 656 F.Supp.2d 1161 (N.D.Cal. 2009) (funding cuts in adult health day-care program); Mental Disability Law Clinic v. Hogan, 2008 WL 4104460 (E.D.N.Y. Aug. 28, 2008) (requiring hospitalization for receipt of outpatient mental health services). . See Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir.2001), quoting Yeskey v. Pa. Dep’t of Corr., 118 F.3d 168, 171 & n. 5 (3rd Cir. 1997), aff’d, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (""Quite simply, the ADA’s broad language brings within its scope `anything a public entity does.’"");  quoting Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 861 (1st Cir.1998) (""Courts must construe the language of the ADA broadly in order to effectively implement the ADA’s fundamental purpose of `providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’""). . Plaintiffs also allege that OURS administers its federal funds in a manner that favors individuals with less severe disabilities and disfavors those with more severe disabilities and ""does not use available resources to provide vocational assessments and supported employment services to all qualified individuals with intellectual and developmental disabilities.” Complaint, ¶¶ 86, 107. It is unclear whether or to what extent plaintiffs base their claims on the contention that defendants favor"
4537	separate interest when he intervenes so-as to prevent the establishment of harmful legal precedent as well as to ensure uniformity in the enforcement and application of ERISA laws. Id. at 696, See also Herman v. S. Carolina Nat. Bank, 140 F.3d 1413, 1424 (11th Cir.1998) (same) (citing Beck v. Levering, 947 F.2d 639, 642 (2d Cir.1991)); Donovan v. Cunningham, 716 F.2d 1455, 1462-63 (5th Cir.1983). The Supreme Court has addressed' the situation where the government seeks in-junctive relief which is potentially duplica-tive of relief already afforded to a private party. In The district court had held the violations described in the government’s complaint and shown at thfe trial were, “for the most part, old violations .. -.- [and] the [private injunction] assure[d], as completely as any decree can assure, that there will be no new violations.” Id. at 517-518, 74 S.Ct. 703 (internal quotation marks and citation omitted). The Supreme Court reversed, holding that the district court’s reasoning ignored “the prime object of civil decrees secured by the Government — the continuing protection of the public, by means of contempt proceedings, against a recurrence of [] violations.” Id. at 519, 74 S.Ct. 703. The Court continued: Should a private decree be violated, the Government would have
1772	PER CURIAM: Appealing the Judgment in a Criminal Case, Pedro Navarrete-Castillo raises arguments that are foreclosed by  which held that 8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense. The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. 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.
4741	is implicit in a federal statute, the Supreme Court has explained that the ultimate question is whether Congress intended to create a private right of action when enacting the statute. Virginia Bankshares, Inc. v. Sandberg, — U.S. —, 111 S.Ct. 2749, 2763-64, 115 L.Ed.2d 929 (1991); Karahalios v. National Fed’n of Fed. Employees, 489 U.S. 527, 109 S.Ct. 1282, 1286, 103 L.Ed.2d 539 (1989); Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Daily Income Fund, Inc. v. Fox, 464 U.S. 523, 536, 104 S.Ct. 831, 838, 78 L.Ed.2d 645 (1984); Middlesex County Sewage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 13, 101 S.Ct. 2615, 2622, 69 L.Ed.2d 435 (1981); California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981); Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77, 91, 101 S.Ct. 1571, 1580, 67 L.Ed.2d 750 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2488-89, 61 L.Ed.2d 82 (1979); Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). Various factors have been considered by the Supreme Court in discerning whether Congress intended a private remedy in a statute that does not expressly provide one.
4800	brought it to a stop in the 1900 block of East Van Burén, by flashing a red light. The officers stopped the car because they felt the three persons inside were possible suspects in the liquor store robbery. It was the intention of the officers to detain the three suspects temporarily for purposes of “field interrogation.” This meant the obtaining of information involving names, addresses, occupations and the reason for being in Phoenix. Upon stopping the Cadillac, one officer approached on the driver’s side and the other on the passenger side. The three persons in the Cadillac turned out to be Willis, Payne and Jackson, with Willis as driver. The officers identified themselves and requested the information above indicated. No Miranda (Willis and Payne produced identification. Jackson, however, did not have any. The entire sequence of events lasted from twenty to thirty minutes. The information obtained from the documents presented by Payne and Willis and orally from Jackson was recorded by one of the officers on a form field interrogation card, and the three occupants of the Cadillac departed in their car. After the bank robbery occurred on April 28, 1970, the police officers recalled the similarity in description between the report that the three Negro bandits drove a white Cadillac getaway car after the bank robbery, and the description of three Negro males driving a 1959 white
1797	"of the gun and could have armed himself quickly had he so chosen. Last, the district court noted Terry searches are not restricted to the suspect's person, and ruled that Milone's search was justified as narrowly confined to the only place from which the officers had reason to believe Richmond could obtain a weapon. II. DISCUSSION When considering a district court's denial of a motion to suppress, we review its legal conclusions de novo and its findings of fact for clear error. United States v. Howard , 883 F.3d 703, 706-07 (7th Cir. 2018). We give due weight, as we must, to a trial court's assessment of the officers' credibility and the reasonableness of their inferences. Howard , 883 F.3d at 707 (holding the same). ""Because the resolution of a motion to suppress is a fact-specific inquiry, we give deference to credibility determinations of the district court, who had the opportunity to listen to testimony and observe the witnesses at the suppression hearing."" United States v. Groves , 530 F.3d 506, 510 (7th Cir. 2008) (internal quotations omitted). We examine first whether the officers reasonably suspected that Richmond was engaged in criminal activity, and second whether Milone's search behind the screen door eclipsed a constitutional boundary."
4289	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 accordance with the foregoing provisions, another summons shall be issued and served and a new date set for trial.’ Therefore, this Court finds nothing improper regarding the reissuance of the original Summons. . . 1 B.R. at 92. See also, Accordingly, the Defendant’s motion to dismiss is denied. The Clerk of the Bankruptcy Court shall issue a new summons to be served with the original complaints in accordance with Bankruptcy Rule 704(e). . 704(b) Personal Service. Service of the summons, complaint, and notice of trial or pre-trial conference may be made as provided in Rule 4(d) of the Federal Rules of Civil Procedure for the service of process. Personal service may be made by any person not less than 18 years of age who is not a party. (c) Service by Mail. (9) Upon the bankrupt, after a petition has been filed by him or served upon him and until the case is dismissed or closed, by mailing copies
3749	experienced trial judge unquestionably ignored Margolin’s testimony that he- considered himself an employee ; for, as his status constituted an issue for the judge’s decision, Margolin’s opinion was of no moment. The exclusion of the statement concerning Twyeffort’s previous record was not error. While the question of general good faith in compliance with the Act is relevant where the violations have ceased before the Administrator begins an action, it has no bearing on the issuance of an injunction where the violations have continued up to the commencement of the suit, and where the employer still asserts that the Act does not apply. See 65 S.Ct. 11, 89 L.Ed. 29. Affirmed. See Walling v. American Needlecrafts, 6 Cir., 139 F.2d 60, 64. By order of the Industrial Commissioner, pursuant to New York Labor, Law, Consol.Laws, e. 31, Art. 13, §§ 350, 351. Lavery v. Pursell, 1888, 39 Ch.D. 508, 514. N. L. R. B. v. Hearst Publications, 322 U.S. 111, 127, 64 S.Ct. 851, 88 L.Ed. 1170.
2101	F.3d 734, 740-41 (9th Cir.2009) (under the REAL ID Act, applicant must prove a protected ground is at least “one central reason” for persecution). We lack jurisdiction to consider Lopez-Orde-nas’ contentions regarding membership in a particular social group, as he did not exhaust them before the BIA. See Barron, 358 F.3d at 678. Substantial evidence also supports the agency’s denial of Lopez-Ordenas’ CAT claim because he failed to establish it is more likely than not he would be tortured by or with the consent or acquiescence of the government if removed to Guatemala. See Alphonsus, 705 F.3d at 1049-50. We reject Lopez-Ordenas’ contentions that the agency failed to consider all of the evidence or relevant factors in assessing his claims. See All pending motions and requests are denied as moot. PETITION FOR REVIEW DISMISSED in part; DENIED in part. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
29	the district court erred in denying Rule 60(b) relief for two reasons. First, the Superintendent contends that the judgment is void under Rule 60(b)(4) because the district court entered summary judgment after Frontier’s delinquency proceedings had begun. Second, the Superintendent argues that the extraordinary circumstances surrounding the delinquency proceedings and the equities of the case weigh in favor of vacating the judgment under Rule 60(b)(6) so that Frontier may have its day in court. Each of these issues involves a different standard of review and raises distinct legal questions. A We first look at whether the judgment is void under Rule 60(b)(4). This Court reviews a district court’s denial of a Rule 60(b)(4) motion to set aside a judgment de novo. We have recognized two circumstances in which a judgment may be set aside under Rule 60(b)(4): 1) if the initial court lacked subject matter or personal jurisdiction; and 2) if the district court acted in a manner inconsistent with due process of law. Id. at 1006; see also Jackson v. FIE 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
4942	construction of “inode” in the '417 patent (docket no. 109). NetApp objected to the 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 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
911	accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). . Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir.2000) (quoting Adler, 144 F.3d at 670-71); see Kannady, 590 F.3d at 1169. . City of Herriman, 590 F.3d at 1181. . Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006). . Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). . Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). . Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). . Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). . . Calia v. Werholtz, 426 F.Supp.2d 1210, 1214 (D.Kan.2006) (citing Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir.1992)). . 29 U.S.C. § 1132(a)(1)(B). . Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). . Kimber v. Thiokol Corp., 196 F.3d 1092, 1097 (10th Cir.1999). . Doc. 86 at 8. . 29 U.S.C. § 1132(a)(1). . 29 U.S.C. § 1002(8). . Doc. 54-1 at 4-5. . See Restatement (Second) of Conflict of Laws § 283 (1971); see also Grabois v. Jones, 77 F.3d 574, 576 (2d Cir.1996) (explaining that federal courts ordinarily apply state law to determine who is the rightful beneficiary of an ERISA-regulated benefit plan); Doc. 79 at 19.
1085	"Nebraska’s ban); id. at 932-33, 120 S.Ct. 2597 (citing findings of seven other district courts). The district court’s findings did not represent adjudicatory facts, those that relate only to the current parties, but legislative facts, those that apply generally and universally. See United States v. Gould, 536 F.2d 216, 220 (8th Cir.1976) (""Legislative facts are established truths, facts or pronouncements that do not change from case to case but apply universally, while adjudicative facts are those developed in a particular case.”). Whether D & X is ever necessary to protect women’s health is not a fact that will differ from trial to trial, but must be found by courts as a matter of legislative fact. See A Only treating the matter as one of legislative fact produces the nationally uniform approach that Stenberg demands.”); Hope Clinic v. Ryan, 195 F.3d 857, 859 (7th Cir.1999) (Posner, J„ dissenting) (""The health effects of partial birth abortion should indeed be treated as a legislative fact, rather than an adjudicative fact, in order to avoid inconsistent results arising from the reactions of different district judges ... to different records.”), majority opinion vacated, 530 U.S. 1271, 120 S.Ct. 2738, 147 L.Ed.2d 1001 (2000). Applying a clearly erroneous standard to findings of legislative facts would undermine the requirement"
4394	having taken no steps to advise the District Court in Boomer II that the information or statistics presented in the defendant’s report of December 31, 1968, perverted the goal of elimination of racial discrimination or ran counter to the specific intendments of the court’s Order of August 5, 1968, should be estopped from relitigating an identical issue based solely on the identical statistics contained in the aforesaid report. Also, since the NCTA was, in my opinion, chargeable with knowledge of the filing in Boomer II of the report of December 31, 1968, and with the statistical contents of said report, I have concluded that the conduct of said plaintiff constituted an intentional abandonment or relinquishment of its known right or privilege (he Beaufort County school system. Approximately one week subsequent to the District Court’s Order of April 10, 1969, in Boomer II, the NCTA joined two individual plaintiffs in the filing of the instant suit. The sole basis for the NCTA’s claim against the defendant in the present suit is that said defendant has continued to discriminate in its employment and assignment practices against black faculty and school personnel. It bottomed this contention on the identical statistical analysis contained in the report of December 31, 1968, in Boomer II, “approved” by the District Court on April 10, 1969, and, in my opinion, previously
4461	(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 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 Auto Supply Co. v. Savage Arms, Inc. (In re Savage Indus., Inc.), 43 F.3d 714, 719-20 n. 8 (1st Cir.1994). A bankruptcy court’s decision to dismiss or convert a case under § 1307(c) is reviewed for an
2514	provides that where a party has refused to arbitrate under a written arbitration agreement, the other party may petition the court for an order compelling arbitration, and the court shall order the parties to arbitration if it is satisfied that the making of the agreement is not in issue. In resolving a motion to compel, the court must engage in a two-part inquiry: first, it must determine whether the parties agreed to arbitrate the dispute in question, by considering whether there is a valid agreement to arbitrate and whether the dispute in question falls within the scope of that arbitration agreement; and second, it must consider whether legal constraints external to the parties’ agreement foreclose arbitration of those claims.  aff'd, 34 Fed.Appx. 964 (5th Cir. Apr.5, 2002) (citing Webb v. Investacorp, Inc., 89 F.3d 252, 257 (5th Cir.1996)). Did the Parties Agree to Arbitrate the Dispute in Question? 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
1627	the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the ease within that intent.’ 24 L. Ed. 819; U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516; Pettibone v. U. S., 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419; In re Greene (C. C.) 52 Fed. 104.” A scheme to defraud, which in its facts and details would constitute the offense described in the statute, will appear by reference to the charges of the indictment in Stokes v. U. S., already referred to. In Durland v. U. S., 161 U. S. 307, 16 Sup. Ct. 508, 40 L. Ed. 709, the scheme charged was that the defendant sought to obtain from persons large sums of money by representing that the Provident Bond & Investment Company
3957	infliction of emotional distress. Navis-tar seeks summary judgment on all claims. Kariotis seeks summary judgment on the COBRA and the FMLA claims. The Court will address the ADA, the ADEA, and the ERISA claims first and the remaining claims in turn. A. The ADA the ADEA, and the ERISA Kariotis, admittedly, has no direct evidence that unlawful discrimination of any form played a role in Navistar’s decision to terminate her. Accordingly, she proceeds under the indirect method of proof or three-step model enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to establish her claim of discrimination under the ADA, the ADEA, and/or the ERISA at the summary judgment stage. See Sarsha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993) {McDonnell Douglas test used in ADEA case); Grottkau v. Sky Climber, Inc., 79 F.3d 70, 73 (7th Cir.1996) (McDonnell Douglas test used in ERISA 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
1338	circumstances justifying the stop plus the darkness and the possibility that Hawkins was holding a gun inside the car beyond the sight of officer Cowan, the request to get out of the car seems reasonable in light of the circumstances. See Wilson v. Porter, 9 Cir., 361 F.2d 412. The last aspect of the problem of the scope of the seizure of Carpenter is whether the police were reasonable in taking him to the police station after they saw what appeared to them to be burglary tools in the petitioner’s auto. It has always been held that it is reasonable to “seize” a person and take him into custody if there is probable cause to arrest for a public offense. t. 1302, 93 L.Ed. 1879; United States v. Skinner, 8 Cir., 412 F.2d 98; Klingler v. United States, 8 Cir., 409 F.2d 299. The question becomes was there probable cause for arrest. We hold that probable cause did exist for an arrest for possession of burglary tools under § 28-534 R.S. Nebraska. The probable cause was supplied by the hour of the encounter, the absence of explanation of why the tools were in the petitioner’s possession, the location of the tools in the front of the auto under the seat rather than in a tool box in a more conventional place, and the series of burglaries which had taken place in Blair prior to the morning in question. Once it has been
386	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. 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 a per se rule that all constitutional error on federal collateral review shall be analyzed under the lenient Brecht/Kotteakos standard, regardless of whether the state court applied the correct harmless-error standard on direct
3484	entitlement to federal jurisdiction under 28 U.S.C. § 1442(a). In addition, the Estate argues that Armco removed this case without obtaining consent from the other parties. The Estate also requests sanctions for Armco’s improper use of federal-removal procedure. In response, Armco claims that it proffered adequate proof to satisfy the statutory requirements of § 1442(a)(1) and that removal of this action was appropriate even without consent 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.  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
3037	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. 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). 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
4226	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 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
4923	"also contests the District Court's non-final FLSA certification order under the doctrine of pendent appellate jurisdiction. This doctrine "" 'allows [us] in [our] discretion to exercise jurisdiction over issues that are not independently appealable but that are intertwined with issues over which [we] properly and independently exercise[ ] [our] jurisdiction.' "" Further, the doctrine is ""available only to the extent necessary to ensure meaningful review of an unappealable order."" Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. City Sav., F.S.B. , 28 F.3d 376, 382 (3d Cir. 1994)as amended (Aug. 29, 1994) (citation omitted). Following the Supreme Court's decision in Swint v. Chambers County Commission , 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995), we concluded that pendent appellate jurisdiction is restricted to two circumstances: (1) ""inextricably intertwined"" orders or (2) ""review of [a] non-appealable order where it is necessary to ensure meaningful review of [an] appealable order."" CTF Hotel Holdings, Inc. v. Marriott Int'l, Inc. , 381 F.3d 131, 136 (3d Cir. 2004) (citing"
3872	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. 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 prescription medications; (2) Dr. Basse’s failure to treat his infected toenail; (3) the State’s failure to award good time credits; and (4) the denial of his right to humane conditions of confinement are raised for the first time on appeal and are factual in nature; therefore, we do not consider them. See Leverette v. Louisville Ladder Co.,
3504	the Estate’s claims and the actions it took under federal authority exists. “The rule established is that removal by a ‘person acting under’ a federal officer must be predicated upon a showing that the acts that form the basis for the 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; 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);
2867	side door, and it had always been registered with the local authorities as a one-family dwelling. A few years prior to the search the interior of the house was renovated and subdivided by Orlando, but, in contravention of local ordinances, no permission to do so was obtained from the proper authorities. Consequently no notice of this subdivision was ever given to the local officials. In view of these facts we think that the issued warrant described the premises to be searched with that “practical accuracy” we have held to be necessary. United States v. Fitzmaurice, 2 Cir., 1930, 45 F.2d 133. The description in the warrant was in accordance with the outward appearance of the structure, cf. d 821, and in view of the concealment by Orlando of the interior alteration made by him it would be absurd to say that the Government was on notice as to it. The agents were not warned of a possible dual occupancy of the house until after they had shown the copy of the warrant to Orlando and had entered inside. In neither Owens, Ramos, Gomez nor Santore did the court find that the officers who either applied for or executed the respective search warrants could have or should have known that the description of the place to be searched contained in the warrant was not accurate; on the contrary, in each of those cases the court expressly stated that there was no way that
1754	"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 It should not be one which may have a double design.”); Pack v. AC & S, 838 F.Supp. 1099, 1102 (D.Md.1993) (finding that removal pursuant to section 1442(a) was timely when filed within thirty days of date when plaintiffs served defendant with information that specific ""steam turbine generators manufactured at the Baltimore Shipyards were the subject of the litigation” providing defendant ""with sufficient information ... to determine that the turbines were made according to government specifications and that removal was available based on the government contractor defense”). . Soto, 111 F.Supp.2d at 224. Accord Akin, 156 F.3d at 1036; Bosky v. Kroger Tex., LP, 288"
809	that defendant, as a prevailing party, was entitled to an award of attorneys fees under 42 U.S.C. § 1988, held a hearing on this matter. Defendant submitted the number of documented hours of services rendered in this case, totalling 31.5 hours, which is to be multiplied by a reasonable hourly rate. The Court finds that counsel Estrella’s rate of $60.00 per hour is very reasonable, and as a matter of fact, is below the hourly rate charged in this jurisdiction by other attorneys of equal competence and experience. Accordingly, the Court awards defendants attorney’s fees in the sum of $1,890.00. Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Blum v. Stenson, 104 S.Ct. 1541 (1984); WHEREFORE, the motion for disqualification is hereby DENIED, and defendants are awarded the sum of $1,890.00 in attorney’s fees. IT IS SO ORDERED. APPENDIX IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO GUILLERMINA CORTEZ QUIÑONES and ALBERTO ALMODOVAR MEDINA, Plaintiffs v. CHARLES JIMENEZ NETTLESHIP, et al., Defendants CIVIL NO. 82-3063 (HL) OPINION AND ORDER Following my induction to this Court, the above entitled case was transfered to me. After reviewing said case, I hereby disqualify myself for the following reasons: Mr. Harvey B. Nachman, counsel for the plaintiff herein, acted as attorney for the undersigned judge in the recently decided case of In Re Rafael Hernández Colon, et al. Misc. No. 80-0052, U.S. District Court of Puerto
1621	CLARK, District Judge, after making the foregoing statement, delivered the opinion of the court. The contention “on behalf of plaintiff in error is that the first count in the indictment does not state the facts and particulars of a scheme to defraud, such as would constitute an offense under the statute. It is obvious that, unless a very general description of the offense in the language- of the statute is permissible, this objection is well taken, provided the letter itself, which is set out in the indictment, does not disclose the necessary facts and particulars of a scheme to. defraud, against which the statute is directed. In  charged in such indictment Mr. Justice Brown, speaking for the court, said: “We agree with tbe defendant that three matters of fact must be charged in the indictment and established by the evidence: (1) Thai; the persons charged must have devised a scheme or artifice to defraud; (2) that they' must have intended to effect this scheme by opening or intending to open correspondence with some other person through the post-office establishment, or by inciting such other person to open communication with them; (3) and that in carrying
4938	"violations of the FLSA."" Id. Similarly, aggrieved employees may also commence a ""class action"" under Federal Rule 23 which permits ""a class representative"" to bring suit for violations of other state and federal law on behalf of those in the same class and who ""possess the same interest and suffer the same injury[.]"" Wal-Mart Stores, Inc. v. Dukes , 564 U.S. 338, 348, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) (citations and internal quotation marks omitted). Employees bringing collective actions under the FLSA and those bringing class actions under Rule 23 must be granted certification by the district court in order for their action to proceed as a ""collective action"" or ""class action,"" respectively. See, e.g., Halle v. W. Penn Allegheny Health Sys. Inc. , 842 F.3d 215, 224 (3d Cir. 2016). However, as further discussed in Part C, infra , the certification process and standards for collective actions and class actions differ. For example, unlike class actions under Rule 23, collective actions under the FLSA must first be ""conditionally"" certified by the district court, which ""requires a named plaintiff to make a 'modest factual showing'-something beyond mere speculation-to demonstrate a factual nexus between the manner in which the employer's alleged policy affected him or her and the manner in which it affected the proposed collective action members."" Halle , 842 F.3d at 224 (quoting Zavala , 691 F.3d at 536 n.4 ). Once"
1053	physicians performing a partial-birth abortion; the AMA did not address the issue of whether the procedure was medically necessary. (149 Cong. Rec. S3460; July 2002 Hearing at 212.) D. Stenberg v. Carhart As stated above, the Supreme Court passed on the constitutionality of Nebraska’s partial-birth abortion statute in 2000. Because of its importance to the resolution of this case, this Court describes in some detail the facts and majority, concurring, and dissenting opinions in Stenberg. The plaintiff in the case was Dr. Leroy Carhart, an abortion-provider who had challenged a Nebraska statute which banned partial-birth abortion. After a trial, the district court held the statute unconstitutional. See In a 5-4 decision, the Supreme Court applied its earlier ruling in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion), to hold that the statute was unconstitutional for two reasons: (1) it did not provide an exception when the procedure was necessary, in appropriate medical judgment, for the preservation of the health of the mother; and (2) it imposed an undue burden on a woman’s ability to choose an abortion. Stenberg, 530 U.S. at 930, 120 S.Ct. 2597. Because this Court does not reach the undue burden question, it will confine its summary of Sten-berg to the issue of a health exception. 1. The Nebraska Statute The Nebraska statute read
4543	"See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (holding that a successful showing of a Title VI violation rests on the actions of a decisionmaker). The Court’s previous order relied on numerous state court decisions identifying the sheriff as a policymaker for Maricopa County, United States v. Maricopa Cnty., Ariz., 915 F.Supp.2d 1073, 1082-84 (D.Ariz.2012), (Doc. 56), and that determination is the law of this case. See United States v. Jingles, 702 F.3d 494, 499 (9th Cir.2012). Regarding Maricopa County’s argument that its inability to “cure the alleged violations” destroys "" the United States’ standing, the United States is correct that it need only show the potential for partial redress. See The sheriff is independently elected. Ariz. Const, art.. XII, § 3. And his duties are statutorily required. A.R.S. § 11-441. Those duties range from “[p]reserve[ing] the peace” to “[a]rrest[ing] ... persons who attempt to commit or who have committed a public .offense” to “[t]ak[ing] charge of and keeping] the county jail.” A.R.S. § 11-441. However, A.R.S. § 11-251(1) provides: The board, of supervisors, under such limitations and restrictions as are prescribed by law, may: ... Supervise the official conduct of all county officers and officers of all districts and other subdivisions of the county-charged with assessing, collecting, safekeeping, managing or disbursing the public revenues, see that such' officers faithfully perform their duties and direct prosecutions"
2063	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 agents’ behavior towards defendants constituted a defacto arrest, which would trigger the Miranda rights. The First Circuit has spoken repeatedly on the distinction between an investigatory stop and an arrest.  the Circuit faced an analogous situation. On April of 1994, two police officers, while patrolling a section of Boston, received a radio message describing three individuals suspect of armed robbery. Several blocks from the last reported location of the suspects, 'the officers noticed a group of three men standing together. When the group detected the unmarked cruiser, the group dispersed in separate directions. When the police noticed that one of the men’s height and clothing matched the profile of one of the robbery suspects, they drove their car next to the man, Dwayne Young, and asked him -“if he had a minute,” to which Young assented. Once one of the officers detected a gun in Young’s waistband, he lunged towards the
1944	informs a defendant of the charges against which he must defend, and enables a defendant to plead an acquittal or a conviction in bar of further prosecution for the same offense. See Hamling v. United United States v. Ferrara, 701 F.Supp. 39, 44 (E.D.N.Y.), aff'd, 868 F.2d 1268 (2d Cir.1988). Where the statute, as an element of the criminal offense, requires that a defendant’s conduct violate a regulation promulgated as part of the statute’s regulatory scheme, a district court may consider whether the regulation “on its face” is within the terms of the statute. See Adamo Wrecking Co. v. United States, 434 U.S. 275, 285, 98 S.Ct. 566, 573, 54 L.Ed.2d 538 (1978) (regulation held not to constitute an emission standard under the Clean Air Act — indictment dismissed). If the court determines that the regulation is not of a kind contemplated by Congress, the indictment alleging its violation as an
2384	"(internal quotation marks omitted); Interpool Ltd. v. Bernuth Agencies, 129 F.3d 113, 1997 WL 716115 (2d Cir.1997) (not precendential) (""The award of fees and expenses in admiralty actions is discretionary with the district judge upon a showing of bad faith.”). . Plaintiff also emphasizes the public policy in favor encouraging salvor's to undergo salvage attempts. The Court previously acknowledged that its judgment in favor of plaintiff was consistent this policy. See Del. River Tow, LLC, 2005 WL 331706, at *6 n. 8, 2005 U.S. Dist. LEXIS 2071, at *18 n. 8. With respect to attorneys' fees, however, Sosebee requires a showing of bad faith, which plaintiff has failed to satisfy, and public policy does not change this result. See  But the cases applying these exceptions invariably involve wrongfulness or injustice often amounting to bad faith.”) (internal citation omitted). . Moreover, the other cases cited by plaintiff involved bad faith on the part of the non-prevailing party. See Vaughan v. Atkinson, 369 U.S. 527, 530-31, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962) (""In the instant case respondents were callous in their attitude, making no investigation of libellant’s claim and by their silence neither admitting"
4425	investors” in the trusts covered by the settlement. (SAC ¶ 96.) Similarly, BoA distinguished between representation and warranty claims and fraud and securities claims in its public filings, separately disclosing its liability for each type of action. (Compare Annual Report at 9, 52, with Annual Report at 196, 201-02.) The plaintiffs concede that AIG’s claims are not representation and warranty claims. (SAC ¶ 81.) Therefore, statements about representation and warranty claims could not have misled investors about the imminence and amount of the potential AIG fraud and securities suit. Taken together and in context, the defendants’ truthful statements about MBS litigation were not rendered misleading by the failure to include a disclosure about the potential AIG suit. See, e.g., D. The plaintiffs argue that BoA was required to disclose the potential AIG suit under ASC 450. The defendants argue correctly that there was no such requirement. ASC 450 provides guidance regarding the accrual and disclosure of loss contingencies, which are defined as conditions, situations, or circumstances “involving uncertainty as to possible loss ... that will ultimately be resolved when one or more future events occur or fail to occur.” ASC ¶ 450-20-20 Glossary. Under ASC 450, loss contingencies must be accrued when information available before financial statements are issued suggests that a loss contingency is probable and can be reasonably estimated. ASC ¶ 450-20-25. When accrual is not required, a loss contingency must be disclosed if it is reasonably possible;
2556	does not interpose objection to the summary jurisdiction of the court of bankruptcy, by answer or motion filed before the expiration of the time prescribed by law or rule of court or fixed or extended by order of court for the filing of an answer to the petition, motion or other pleading to which he is adverse, he shall be deemed to have consented to such jurisdiction; * * *” The consent of the parties did not create jurisdiction in the bankruptcy court where none had existed before; it merely waived the procedural right of the parties to have their claims to the escrow fund adjudicated in the Virginia court. The parties were at liberty to waive this right. MacDonald v. Plymouth County Trust Co., 286 U.S. 263, 267, 52 S.Ct. 505, 76 L.Ed. 1093 (1932). The waiver was effective to permit the exercise of summary jurisdiction by the court even though the escrow fund had been attached in the state action. See Taubel-Scott-Kitzmiller Co. v. Fox, 264 U.S. 426, 433, 434, 44 S.Ct. 396, 68 L.Ed. 770 (1924); Carney v. Sanders, 381 F.2d 300, 302 n. 3 (5th Cir. 1967); O’Dell v. United States, 326 F.2d 451, 455, 456 (10th Cir. 1964); cf. Schumacher v. Beeler, 293
4864	for his position on this; point contain language condemnatory of ingenious schemes hatched by taxpayers to divert or conceal receipt of income while actually enjoying its benefits. They are inapplicable here. We think that two lines of authority entitle petitioner to prevail. The first of these is that an owner of property is not taxable on appreciation in its value while the property remains in his hands, that is, on unrealized appreciation in value. Lynch v.Turrish, 247 U. S. 221; General Utilities Co. v. Helvering, 296 U. S. 200. It is only when he has sold or disposed of the property that he becomes taxable on its increase in value. Merchants Loan & Trust Co. v. Smietanka, 255 U. S. 509; Petitioner never parted with the stock which was not required for distribution to participating employees. Therefore, to tax it on the appreciation in the market value of the stock which had occurred at the termination date, over the amounts paid out under the plan to employees would clearly be taxing something which is not income. There is a second ground supporting petitioner’s position in the cases which hold that where a corporation contracts to sell its stock on the installment plan, installments forfeited to the corporation for nonpayment of the balance do not constitute income to the seller corporation, even though it never issues the stock. Commissioner v. Inland Finance Co., 63 Fed. (2d) 886; Industrial Loan & Investment Co., 17 B.
2218	as a whole, and each step, from the commencement of negotiations to the consummation of the sale, 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); 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
4783	the name of the United States ex rel. State of Wisconsin, it is in effect a suit by the state of Wisconsin, and not a suit by the United States. Section 1651(a), supra, provides: “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” This provision 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 . 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.
2693	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 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 this is Debtors’ argument it misreads Enewally. Nothing in the excerpts of record suggests that as part of their Plan
272	faith. Nor is his denial alone a sufficient basis for a reasonable jury to conclude that the defendants acted with malice. For these reasons, his claim for malicious prosecution fails. c. Abuse of process To succeed on a claim for abuse of process, plaintiff must establish that defendants: (1) employed regularly issued legal process to compel performance (or forbearance) of some act; (2) with intent to do harm without excuse or justification; (3) in order to obtain a collateral objective that is outside the legitimate ends of the process. Savino, 331 F.3d at 76. As discussed above, there was probable cause for plaintiffs arrest and prosecution. Therefore, defendants were excused and justified in employing regularly issued legal process. In addition, plaintiff has presented no evidence of a collateral objective outside of the legitimate ends of the process. Plaintiff argues that “[a] reasonable jury could certainly believe, under the totality of the circumstances, that defendants had the collateral objective of making this arrest in order to appear more productive and thereby advance their careers, to make Operation Tidal Wave appear more successful in the press, and/or to coerce plaintiff into providing information about his brother Tavares Charlie.” Fatally, however, plaintiff submits no evidence in support of these speculations, and thus no jury could reasonably conclude that any of these goals constituted the defendants’ collateral objective. Thus, plaintiffs claim fails. d. Right to a fair trial An individual’s right to a
2882	interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, non-technical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.”  1302, 1310-1311, 93 L.Ed. 1879. The appellants also complain that the “daytime search warrant” was executed after sunset and was therefore illegal. At the trial it was conceded that on June 6, 1960, the date the warrant was executed, the sun set at 7:01 P.M. in Nashville, Tennessee. The return on the warrant established that it was executed at 7:20 P.M. However, the testimony revealed that it was still light enough to read a copy of the search war rant by daylight, and the Trial Judge applied the test laid down in a number of decided cases including Atlanta Enterprises v. Crawford, 5 Cir., 22 F.2d 834 where it is stated at page 837 in the following language: “Daytime does
1624	Hess was reaffirmed in Evans v. nded to be punished.’ The crime must be charged with precision and certainty, and every ingredient of which it is composed must be accurately and clearly alleged. U. S. v. Cook, 17 Wall. 168, 174, 21 L. Ed. 538; U. S. v. Cruikshank, 92 U. S. 542, 558, 23 L. Ed. 588. ‘The fact that the statute in question, read in the light of the common law, and of other statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging in the indictment all the
4853	the residual functional capacity (RFC) determination. Dr. Piasecki’s heavy lifting limitation, moreover, was included in the ALJ’s hypothetical to the vocational expert. The ALJ provided specific and legitimate reasons for giving little weight to the opinions of physicians Drs. Baird and Chung regarding Withrow’s standing and walking limitations. As to Dr. Baird’s opinion, the ALJ reasonably determined that this opinion was contradicted by the evidence in the record and by Withrow’s own statements. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (holding that if a treating physician’s opinion is contradicted by other evidence, the ALJ must provide specific and legitimate reasons supported by substantial evidence in the record for rejecting the opinion); As to Dr. Chung’s opinion, the ALJ reasonably determined that Withrow’s statements describing his activities of daily living indicated that Withrow was able to stand and walk to a greater extent than Dr. Chung generally outlined. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (stating that an inconsistency between a treating physician’s opinion and a claimant’s daily activities is a specific and legitimate reason to discount the treating physician’s opinion). The ALJ’s hypothetical to the vocational expert presented all the limitations that were supported
1473	be subscribed, sworn to, and mailed out of the prison by the inmate on whose behalf the petition has been prepared. While this use of the word “writ” is not generally acceptable, it is not without ancient historical basis, and in old English books, “ ‘writ’ is used as equivalent to ‘action;’ hence writs are sometimes divided into real, personal and mixed.” Black’s Law Dictionary, 4th ed., “Writ,” p. 1783. Moreover, in Scotland an individual holding a position equivalent to that of attorney at law in England and the United States is referred to as a “Writer to the Signet.” Ibid., “Writer To The Signet,” p. 1787. . The same contention was urged upon us by the State of Missouri in There the district court had enjoined Green, an inveterate writ writer, from filing any further petitions for other inmates of the Missouri prison system and had held Green in contempt. We affirmed. However, the decision of the district court and of this court was not based on a premise that an inmate does not have a constitutional right to give legal assistance to other inmates but on the proposition that Green as an individual had grossly abused the process of the district court, and that that court had as much right to protect itself against an inmate writ writer as it had to protect itself against the conduct of an unscrupulous, unethical or irresponsible lawyer in the civilian world. .
3237	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); 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 agreement — no sufficient offer and acceptance. [Footnotes omitted.] Corbin § 1277 at 117-121. Assent is essential to effect a rescission and substituted contract. See Ra- bouin v. National Labor Relations Board,
3170	expressly” rested its decision on any such independent state law grounds. Accordingly, there is no ground for a procedural bar defense. C.A Prima Facie Case To establish a prima facie case of discrimination in the selection of a grand jury foreman, a petitioner must demonstrate: 1. That the group against whom discrimination is asserted is a distinct class, singled out for different treatment; 2. The degree of under representation, by comparing the proportion of the group in the total population to the proportion called to serve as foremen over a significant period of time; 3. That the selection procedure is susceptible to abuse or is not racially neutral. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); No showing of resulting prejudice is necessary. Guice v. Fortenberry, 661 F.2d 496, 498 n. 2 (5th Cir.1981) (en banc)(“Guice I”). The State concedes in its post-hearing memorandum (Doc. 43, pg.4) that Petitioner has established a prima facie case. The facts underlying the prima facie case are also relevant to the State’s rebuttal burden, so they will be discussed below despite the concession. D. Distinct Class Element one of the Castaneda test, distinct class, is satisfied. Louisiana and federal courts have recognized the black race as a class capable of being singled out for different treatment. State v. Thomas, 609 So.2d 1078, 1081 (La.App. 2d Cir.1992); Johnson, 929 F.2d at 1072. E. Under Representation The second Castaneda element is the
3743	FRANK, Circuit Judge. The principal issue in this appeal is whether the trial court correctly classified the outside tailors as defendant’s employees within the meaning of the Act which contains the following definitions: “(d) ‘Employer’ includes any person acting directly or indirectly in the interest of an employer in relation to an employee * * * “(e) ‘Employee’ includes any individual employed by an employer * * * “(g) ‘Employ’ includes to suffer or permit to work.” Homeworkers have been held to be employees within these definitions. Guiseppi v. indeed defendant admits that the homeworkers it employs come within the protection of the Act. We see no valid distinction between homeworkers and outside tailors; their work and their conditions of employment (except as to location) are identical. Defendant argues that the outside tailors must be excluded because they are free from supervision, are at liberty to work or not as they choose, and may work for other employers if they wish. But all these arguments, applicable equally to homeworkers, have already been considered and rejected. The fact that the outside tailors may, and sometimes do, work for more than one employer creates no problem except as it affects the payment of overtime wages. Only if an employee works more than 40 hours
176	is begun. The whole theory of these actions recognizes that the collector is personally liable for taxes erroneously assessed and collected by him. Sage v. U. S., 250 U. S. 33, 39 S. Ct. 415, 63 L. Ed. 828. If it could be said properly that Rev. Stat. § 989 (28 USCA § 842), with reference to certificates of probable cause, related only to certificates of probable cause given in behalf of a collector in office at the time the suit is commenced, much force would be given to the defendant’s argument. At all events, it seems to me that the point must be deemed settled, in view of the decision of the Supreme Court in the ease of 42 S. Ct. 1, 66 L. Ed. 99. There the taxes were collected by S. M. Fitch, when a collector of internal revenue, but the taxpayer brought its suit for their recovery against Fitch’s successor in office. The Supreme Court again said that the action still is personal; that when the suit is begun it cannot be known with certainty that the judgment will be paid out of the treasury, and thus it becomes a matter for the discretion of the trial court to determine whether or not a certificate of probable cause shall issue. Since a certificate of probable cause did issue in that ease, and the Supreme Court expressly held that the certificate could not issue in behalf of Fitch’s
4685	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 actually a citizen of Ohio, not New York. See Arthur v. JP Morgan Chase Bank, NA, 569 Fed.Appx. 669, 673 (11th Cir. 2014) (Chase's principal office is in Ohio); Excelsior Funds, Inc. v. JP Morgan Chase Bank, N.A., 470 F.Supp.2d 312, 313-14, 314 n.3 (S.D.N.Y.2006) (same). Regardless, this fact would not defeat complete diversity.
4348	that the USDA did not have any incentive to appoint a strong and independent Monitor, and that 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 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
439	"commissions to do equity”) (internal quotation marks omitted); In re Fesco Plastics Corp., 996 F.2d 152, 154 (7th Cir. 1993) (""Under this section, a court may exercise its equitable power only as a means to fulfill some specific Code provision. By the same token, when a specific Code section addresses an issue, a court may not employ its equitable powers to achieve a result not contemplated by the Code.”) (citations omitted). . We emphasize that our determination that the bankruptcy court abused its discretion is necessarily limited to the circumstances presented in this appeal. At least one bankruptcy court has, in effect, intervened in a public utility commission’s action with respect to rates charged by a debtor. See, e.g., Our disposition of this case does not require us to determine when, if ever, such an intervention would be appropriate or what form it would take. . Mabey argues on appeal that 11 U.S.C. § 1129(a)(6) ”limit[s] state review of an electric utility’s rates during the course of a bankruptcy case.” We find no support for such a narrow reading of § 1129(a)(6). Furthermore, as Flaschen and Reilly observe, such an argument ""ignores the reasons which mandate [public utility commission] regulation in the first instance. The [commission] is entrusted to safeguard the compelling public interest"
182	7(a) and (e), 15 U.S. C.A. § 717f(a, e), to compel service, we do not perceive any basis for allowing Michigan Consolidated to intervene. On the remaining ground for intervention — economic injury through industrial competition — we think Michigan Consolidated fares no better. It did not object to the authorization of this increased capacity and Panhandle did not propose to sell any of this gas to industrial customers. To make such sales at some future time, Panhandle must obtain a certificate of public convenience from the Commission. If the grant of such certificate would adversely affect Michigan Consolidated as a competitor, it will have ample opportunity to intervene at that time. So ordered. . See Michigan Consolidated Gas Co. v. Federal Power Comm., No. 14975, 108 U.S.App.D.C. 409, 283 F.2d 204, at pages 216-219, and note 38, decided April 29,1960. . Id., 108 U.S.App.D.C. 421, 283 F.2d at page 216. . Panhandle contends that the order here under review should remain in effect pending final determination of the abandonment. Thus its customers will have use of the gas during the interim period, and if abandonment is ultimately approved, a valid order of distribution will already be in effect. . See Michigan Consolidated Gas Co. v. Federal Power Comm., 108 U.S.App.D.C. 409, 283 F.2d 204, at page 209, note 3, decided April 29, 1960. . Ibid. . Any hardship Panhandle and its utility customers may
2430	"into the PJM capacity auction, that capacity cleared the auction at the MOPR rate, so CPV was thereafter eligible to function as a price taker. In addition to seeking the elimination of the state-supported generation exemption, incumbent generators-respondents here-brought suit in the District of Maryland against members of the Maryland Public Service Commission in their official capacities. The incumbent generators sought a declaratory judgment that Maryland's program violates the Supremacy Clause by setting a wholesale rate for electricity and by interfering with FERC's capacity-auction policies. CPV intervened as a defendant. After a six-day bench trial, the District Court issued a declaratory judgment holding that Maryland's program improperly sets the rate CPV receives for interstate wholesale capacity sales to PJM. ""While Maryland may retain traditional state authority to regulate the development, location, and type of power plants within its borders,"" the District Court explained, ""the scope of Maryland's power is necessarily limited by FERC's exclusive authority to set wholesale energy and capacity prices."" Id., at 829. The Fourth Circuit affirmed. Relying on this Court's decision in Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 370, 108 S.Ct. 2428, 101 L.Ed.2d 322 (1988), the Fourth Circuit observed that state laws are preempted when they ""den[y] full effect to the rates set by FERC, even though [they do] not seek to tamper with the actual terms of an interstate transaction."" PPL EnergyPlus, LLC v. Nazarian, 753 F.3d 467,"
2428	"markets, the organizations that deliver electricity to retail consumers-often called ""load serving entities"" (LSEs)-purchase that electricity at wholesale from independent power generators. To ensure reliable transmission of electricity from independent generators to LSEs, FERC has charged nonprofit entities, called Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs), with managing certain segments of the electricity grid. Interstate wholesale transactions in deregulated markets typically occur through two mechanisms. The first is bilateral contracting: LSEs sign agreements with generators to purchase a certain amount of electricity at a certain rate over a certain period of time. After the parties have agreed to contract terms, FERC may review the rate for reasonableness. See ). Second, RTOs and ISOs administer a number of competitive wholesale auctions: for example, a ""same-day auction"" for immediate delivery of electricity to LSEs facing a sudden spike in demand; a ""next-day auction"" to satisfy LSEs' anticipated near-term demand; and a ""capacity auction"" to ensure the availability of an adequate supply of power at some point far in the future. These cases involve the capacity auction administered by PJM Interconnection (PJM), an RTO that oversees the electricity grid in all or parts of 13 mid-Atlantic and Midwestern States and the District of Columbia."
2787	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.,  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
967	ORDER DISMISSING WITH PREJUDICE PLAINTIFFS’ CLAIMS AGAINST DEFENDANT RAIL LINK, INCORPORATED KENT, District Judge. Plaintiff allegedly suffered partial amputation of his fingers while working as a railroad switchman. Along with his wife and three children, Plaintiff brings this case against the premises owner AMOCO Chemical Company and his employer Rail Link, Inc. Now before the Court is Defendant Rail Link’s Motion for Summary Judgment. For the reasons that follow,' that Motion is GRANTED, and Plaintiffs’ claims against Defendant RAIL LINK, INC. are DISMISSED WITH PREJUDICE. I. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); When a motion for summary judgment is made, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Issues of material fact are “genuine” only if they require resolution by a trier of fact. See id. at 248, 106 S.Ct. at 2510. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. See id. at
1041	balance with a then fully-built power center and a track record of payment performance since 2010 should be very feasible since this would be only a 67% loan to value loan. In sum, this plan is more than just the hopeful “wing and a prayer” that the bank argues in its Post-Trial Brief. “Feasibility” does not mean certainty. The standard has been interpreted in the Ninth Circuit to mean that the plan has a “reasonable probability of success.” In re Acequia, Inc., 787 F.2d 1352, 1364-65 (9th Cir.1986). The “feasibility” standard has been interpreted as excluding “visionary schemes.” In re Pizza of Hawaii Inc., 761 F.2d 1374, 1382 (9th Cir. 1985). But, possibility of failure is not fatal. The issue is primarily one of fact so long as the debtor presents evidence that it can reasonably accomplish what is promised in the plan. The Code does not require debt- or to prove that success is inevitable or assured, and a relatively low threshold of proof will satisfy § 1129(a)(11) so long as adequate evidence supports a finding of feasibility. Computer Task Group, Inc. v. Brotby (In re Brotby), 303 B.R. 177, 191 (9th Cir. BAP 2003), citing In re WCI Cable, Inc., 282 B.R. 457, 486 (Bankr.D.Or. 2002) and In re Sagewood Manor Assocs. Ltd., 223 B.R. 756, 762 (Bankr.D.Nev. 1998); General Elec. Credit Equities, Inc. v. Brice Road Dev. LLC (In re Brice Road Dev. LLC), 392 B.R.
2871	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.” 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 he observed were in possession of heroin and preparing it for sale or distribution. If what he had observed had been a robbery in progress or a murder attempt and he had entered to prevent the execution of the crime or to apprehend the assailant no one would question his right to have done so. At the time the officer made this observation he had not yet closely approached the front door. Applying the objective test, the Court finds that his
3537	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. 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
3741	party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be served by mailing the same by registered mail, postage prepaid, in an envelope addressed to the contractor at any place he maintains an office or conducts his business, or his residence, or in any manner in which the United States marshal of the district in which the public improvement is situated is authorized by law to serve summons.” The courts have generally held that timely written notice to a contractor is sufficient to impose liability, although not sent by registered mail in accordance with this section. See note 110, 40 U.S.O. § 270b, p. 554. Accord, . “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Buie 59(b) ; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective
692	WOOD, Circuit Judge. Until the recent enactment of the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005), which among other things amended the judicial review provisions governing orders of removal in immigration cases, this case would have required a straightforward inquiry. If, as the government argued, Miguel Angel Ramos was being removed because he had been convicted of a controlled substance offense, we would have had jurisdiction only to ensure that he was indeed the correct person, that the offense qualified as one covered by § 242(a)(2)(C) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1252(a)(2)(C), and that Ramos raised no “substantial” constitutional claims. See Yang v. INS, 109 F.3d 1185, 1192 (7th Cir.1997); If those preliminary inquiries demonstrated no flaws in the removal order, we would have lacked jurisdiction to proceed any further with the case. Flores v. Ashcroft, 350 F.3d 666, 668 (7th Cir.2003). The REAL ID Act has changed all of that. It amended INA § 242(a) to permit the courts of appeals on a proper petition for review to consider constitutional claims and questions of law. See REAL ID Act § 106(a)(l)(A)(iii), amending 8 U.S.C. § 1252(a)(2) by adding a new subpart (D). This amendment was effective on the date of the enactment of the statute, May 11, 2005, and applies to all appeals from removal orders “issued before, on, or after the date of enactment.” REAL ID Act §
1940	Counts I, II, and III do not rely on the invalidated “mixture” and “derived-from” rules. While the Government recognizes that the “mixture” and “derived-from” rules were held invalid as not having been properly promulgated, it contends that their invalidity has no impact on the general statutory mandate of RCRA proscribing the unauthorized disposal of listed hazardous wastes. See Government’s Response, filed August 17, 1993, at 19-29. 5. Analysis of Dismissal Motion. An indictment is facially valid and sufficient if it contains the elements of the offense charged, fairly informs a defendant of the charges against which he must defend, and enables a defendant to plead an acquittal or a conviction in bar of further prosecution for the same offense. See An indictment need only track the language of the statute and, if necessary to apprise the defendant of the nature of the accusation against him, state the time and place of the alleged offense in approximate terms. See Bussell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962); United States v. Covino, 837 F.2d 65, 69 (2d Cir.1988); United States v. Bagaric, 706 F.2d 42, 61 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983); United States v. Ferrara, 701 F.Supp. 39, 44 (E.D.N.Y.), aff'd, 868 F.2d 1268 (2d Cir.1988). Where the statute, as an element of the criminal offense, requires that a
3836	Van Cleave’s complaint was frivolous and dismissed it pursuant to 28 U.S.C. § 1915(d). A claim is frivolous within the meaning of § 1915(d) where: 1) the claim has slight realistic chance of ultimate success; 2) the claim has no arguable basis in law or fact; or 3) the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Cay v. Estelle, 789 F.2d 318, 326 (5th Cir.1986). Van Cleave contends generally that he was subjected to cruel and unusual punishment. During the time period Van Cleave complains of he was a pretrial detainee. A pretrial detainee is protected by the due process clause of the Fourteenth Amendment rather than the Eighth Amendment. Due process prohibits the punishment of a person prior to an adjudication of guilty. 441 U.S. at 535, 99 S.Ct. at 1871-72. A pretrial detainee has not been adjudged guilty of a crime and therefore “[d]ue process requires that a pretrial detainee [may] not be punished.” Id. at 536 & n. 16, 99 S.Ct. at 1872. “Not every disability imposed during pretrial detention amounts to ‘punishment’ in the constitutional sense.” Id. at 537, 99 S.Ct. at 1873. The due process clause does not prohibit regulatory restraints that are merely incident to pretrial detention. Whether a detention measure constitutes a permissible regulatory restraint or an impermissible punishment of a pretrial detainee turns on the
2851	addresses, 609 and 611. The situation in Steele is distinguishable on its facts from those presented here in two most significant respects: (1) the entire building was under lease to the defendant; and (2) “there was no real division in fact or in use of the building into separate halves.” Id. at 502-503, 45 S.Ct. at 416. The Supreme Court held: “It is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.” Id. Under that rule as applied to those facts the warrant was upheld. Search warrants with faulty descriptions of the place to be searched have been upheld in a number of cases. See, e.g.,  cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969); United States v. Goodman, 312 F.Supp. 556 (N.D.Ind.1970); United States v. Pisano, 191 F.Supp. 861 (S.D. N.Y.1961); United States v. Joseph, 174 F.Supp. 539 (E.D.Pa.1959), aff’d 278 F.2d 504 (3d Cir.), cert. denied, 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960); United States v. Contee, 170 F.Supp. 26 (D.D.C.1959). In United States v. Sklaroff, 323 F.Supp. 296 (S.D.Fla. 1971), the court reviewed these prior decisions and concluded, at page 321: The foregoing decisions illustrate the principle that the determining factor [in deciding] whether a search warrant describes the premises to be searched with sufficient particularity is not whether the description given is technically accurate in every detail
3463	"(dated Nov. 6, 1998) (filed March 24, 1999) (hereinafter ""Balch Dep. II”). . See Dep. of Officer Chris Butler at 38 (filed March 24, 1999) (hereinafter “Butler Dep.”). . See id. at 41; Dep. of Kelly Balch at 7 (dated Sept. 23, 1994) (filed March 24, 1999) (hereinafter ""Balch Dep. I.”). . See Butler Dep. at 45. . See id. . See Dep. of Office Greg Mize at 5-7 (filed March 24, 1999) (hereinafter ""Mize Dep.”). . See id. at 28. . See Butler Dep. at 89. . See id. at 97-98. . See Balch Dep. I at 20-21, 23-24; Balch Dep. II at 33-35, 111 (""That's him, he is the one.”). . See Balch Dep. I at 25-26. . See . Marx v. Gumbinner, 905 F.2d 1503, 1506 (11th Cir.1990) (citations and brackets omitted). . Rankin, 133 F.3d at 1435 (citations omitted). . See id. at 1434. . Brodnicki v. City of Omaha, 75 F.3d 1261, 1264 (8th Cir.1996). . See Rankin, 133 F.3d at 1435 (citations omitted). . See Marx, 905 F.2d at 1507 (“That a defendant is subsequently acquitted or charges are dropped against the defendant is of no consequence in determining the validity of the arrest itself.’’) (citations omitted). . See id. at 1507 (citation omitted). . In a ""show-up,’’ a witness is asked to identify one suspect. . Plaintiff argues that summary judgment is inappropriate because the relevant facts are in dispute. See Pl.’s Resp. to"
4750	upon service providers and the RTC’s future ability to get the highest possible price for its assets. In any event, there is no dispute by the parties in this case that the RTC has the authority to enforce Section 471. In summary, the surrounding statutory scheme clearly gives the RTC the authority to enforce the provisions of Section 471, but there is no implication in the statutory scheme of a private right of action by an RTC transferee. Where other remedies are clearly available, courts must be especially reluctant to provide additional private remedies unless there is strong evidence of contrary congressional intent. Karahalios v. National Fed’n of Fed. Employees, 489 U.S. 527, 109 S.Ct. 1282, 1286, 103 L.Ed.2d 539 (1989); C. Legislative History After having considered the language of Section 471 and its statutory context, statements by members of Congress dealing with the statute must also be considered to ascertain whether a private cause of action was intended by Congress in passing the statute on November 27, 1991. The entire legislative history of Section 471 is less than 48 hours long. Section 471 was added onto the Federal Deposit Insurance Improvement Act during the House/Senate Conference Committee meeting held on November 25 and into the early morning hours of November 26, 1991. On November 27, 1991, the entire Act, including Section 471, was approved by Congress. Section 471 was sponsored by Utah Senator Jake Garn, the minority leader of the
786	v. City of Phoenix, 442 F.Supp. 27 (D.C.Ariz.1977); Bumpus v. Uniroyal Tire Co., 385 F.Supp. 711 (D.C.Pa.1974); Town of East Haven v. Eastern Air Lines, Inc., 304 F.Supp. 1223 (D.C.Conn.1969); U.S. v. Moore, 405 F.Supp. 771 (D.C.W.Va.1976). A. TIMELINESS. The motion to recuse comes after judgment was entered and post trial motions were denied. The Opinion and Order dismissing the complaint was filed on July 10, 1984, and judgment was entered thereon on July 20, 1984. The motion for recusal was filed on August 28, 1984, subsequent to this Court’s order of August 22, 1984, scheduling a hearing on defendant’s application for attorneys’ fees. In order to disqualify a judge, a timely objection must be made, otherwise the objection is  536 F.2d 313, cert. den., 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285; Andrews, Mosburg, Davis, Elam, Legg & Bixter, Inc. v. General Ins. Co. of America, 418 F.Supp. 304 (D.C.Okl.1976). Accordingly, a motion for disqualification is untimely and becomes moot when filed after judgment. Kent v. Regional Office of Am. Friends Service Committee, 497 F.2d 1325, 1330 (9th Cir. 1974); Weber v. Coney, 642 F.2d 91, 92 (5th Cir.1981); U.S. v. Hall, 424 F.Supp. 508, affmd., 536 F.2d 313; Davis v. Cities Service Oil Co., 420 F.2d 1278 (10th Cir.1970). Plaintiffs motion filed 19 days after entry of Judgment is clearly untimely. B. SUFFICIENCY OF AFFIDAVIT. Plaintiff’s affidavit is a mixture of conclusory allegations, legal arguments, hearsay speculations, non sequiteurs,
3910	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. 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 a one-time act. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (describing a continuing violation as a number of related incidents). Nor does Silvas identify facts that
2254	rural and star route boxes of subscribers. Section 151.1(b) further provides that: Any mailable matter such as circulars . . . sale bills or other similar pieces deposited in such receptacles must bear postage at the applicable rate and a proper address. The court considers these particular regulations relevant and controlling in the instant case. The only question left for the court to consider is whether the actions of defendant Smith were outside the perimeter of his official authority. It is the opinion of this court that said acts were properly within the scope of his authority. The doctrine of official immunity is a well established concept. See Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). Even cases involving the element of malice, an issue not herein presented but considered a more serious variance from official duty than is presented in the instant case, have been protected under this doctrine. The Supreme Court has stated that: The fact that the action here taken was within the outer perimeter of petitioner’s line of duty is enough to render the privilege applicable, despite the allegations of malice in the complaint In the instant case the action of the defendant is not alleged to be malicious, and is, in the opinion of this court, within the implied scope of his authority to apply the regulations set forth by the Congress in the Code of Federal
3453	the district court that 1.84 kilograms of cocaine base is a moderate quantity compared to those higher amounts contemplated by 21 U.S.C. § 841. Yet, in comparison, the 405 month sentence nearly reaches the statutory maximum. Such a term leaves little room for the proportional sentencing that motivated Congress to pass the sentencing guidelines, a motivation recognized and supported by the Supreme Court’s second holding of Booker. Booker, 125 S.Ct. at 767-68 (citing U.S.S.G. § 1A1.1 application note.) Because of the district court’s discretionary ruling and mandatory alternative, there is no question that Judge Shabaz would impose the same sentence had he known the Supreme Court’s full holding in Booker. Therefore, there is no need for a Paladino remand. See While our established review for unreasonableness may have come to an end, Lister’s challenges do not. He contends that Booker and its predecessors charge this court with the responsibility to avoid unwarranted sentencing disparities between co-defendants, and between controlled substances where Congress has specifically legislated differing, advisory, punishments. We note only briefly that the judiciary has no power to maintain charges against an individual where the United States Attorney exercises its executive discretion and chooses to dismiss them, as was the case here. This is not a matter of the “sentencing disparities” as considered by Booker, but instead an example of the separation of powers in our legal system. United States v. Jones, 438 F.2d 461, 467-68 (7th Cir.1971) (citing Goldberg
1477	a patent. We will not disturb that discretionary decision except in the clearest case. This is not such a case. Here, the trial judge reasonably could have believed he needed the testimony of experts to aid him with the sometimes complex patent specifications and prior art references. Industrial bore the burden in trial of persuasion that one of ordinary skill in the art would have found the subject matter claimed, as a whole, obvious at the time the invention was made. Industrial did not meet this burden; the facts do not clearly show it did. The invention comprises some features found in the prior art and some that are new and, in our view, not even suggested by the prior art. The prior art did not suggest the combination of features made here. We affirm the district court’s analysis of and holding on Industrial’s section 103 defense. B. Section 112 — “Indefiniteness” Industrial argues that the use of the term “substantially equal to” in the ’373 patent’s claims makes the claimed subject matter indefinite and the claims invalid under 35 U.S.C. § 112. Industrial contends, it appears, that since its patent counsel was uncertain as to just how equal “substantially equal to” is, the claims must be indefinite. Definiteness problems often arise when words of degree are used in a claim. That some claim language may not be precise, however, does not automatically render a claim invalid. When a
4859	petitioner’s assuming the management of each fund or class and obligating itself to make 50 percent contributions thereunto. It then follows, as his theory goes, that the excess of the value of what petitioner received over the amounts “paid”, i. e., contributions in the year the class opened plus amounts paid to withdrawing employees, is taxable income to petitioner in the year of the maturity of each fund. It is an admitted corollary of respondent’s position that a participating employee took* title to his pro rata amount of stock the instant he joined the class and that at the termination of each class petitioner received something different from what it had before, namely, stock which had appreciated in value. Respondent cites Smith, 308 U. S. 473. We think this position is unsound. Petitioner was not buying a right to receive stock m futuro. It was setting up a plan to reduce the turnover of labor and to encourage its employees to become stockholders, which latter event was expected to yield indirect benefits to petitioner because of the incentive to greater effort that comes to one who has a stake in an enterprise. Secondly, petitioner did not transfer its stock to each participant when the latter joined the class but, on the contrary, retained title, through its agents, to the stock set aside for the class. At the termination of the class petitioner did not receive something different from what it
1037	of commercial leasing which was presented in SM 10k. There is also the issue of the projected refinance at the end of year 7 under the plan. First, the Court notes that plans that provide for such a refinance or sale at the end of their term are not unusual. See, e.g., Boulders, 164 B.R. at 105, citing In re James Wilson Assocs., 965 F.2d 160 (7th Cir.1992); In re SM 104 Ltd., 160 B.R. at 239. If the projections show that there will be a sizeable paydown of the loan or accumulation of substantial cash which will assist the refinancing on favorable terms, this can be sufficient for a finding of feasibility. SM 104 Ltd. at 239, n. 67-69, citing Ptsp., 152 B.R. 406, 410 (Bankr.D.Mass.1993). Here, the projections show that at the end of year seven there should be something like $4 million left in accumulated cash even after new construction and after servicing the bank debt at the 8.5% rate. Even if the property has not appreciated a penny over the $31 million stabilized value in that period (a rather dubious assumption given the longer span of real estate history), and even assuming a similarly adverse credit market such as prevails today, it would still seem that refinancing of a $21 million balance with a then fully-built power center and a track record of payment performance since 2010 should be very feasible since this
4048	highly-deferential standard. See United States v. Cano-Guel, 167 F.3d 900, 906 (5th Cir.1999). Given Currence’s improper, disrespectful and unlawful behavior during the presentence interview with the probation officer, the district court committed no error in denying the adjustment. Currence also argues that the district court violated his Sixth Amendment rights in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by applying an adjustment for physical contact under U.S.S.G. § 2A2.4(b)(l), and for his status as a career offender under U.S.S.G. § 4B1.1. As Currence was sentenced after the decision in Booker was rendered, the district court was free to make all findings relevant to sentencing by a preponderance of the evidence. See Currence concedes that Mares is controlling, but he argues that it was incorrectly decided. We disagree and, in any event, we are bound by our precedent. See United States v. Stone, 306 F.3d 241, 243 (5th Cir.2002). The judgment of the district court is AFFIRMED. 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.
4534	government interests, which justified the Secretary’s separate, second lawsuit: [I]t is. clear that the Secretary does have a unique, distinct, and separate public interest, duty and responsibility in bringing this ERISA action to enforce the trustees’ fiduciary obligations and duties, to ensure public confidence in the private pension system that provides billions of dollars of capital for investments affecting federal tax revenues and interstate commerce, and most importantly, to protect the income of the retired workers and beneficiaries. Further, the Secretary of Labor has a separate interest when he intervenes so-as to prevent the establishment of harmful legal precedent as well as to ensure uniformity in the enforcement and application of ERISA laws. Id. at 696, See also Levering, 947 F.2d 639, 642 (2d Cir.1991)); Donovan v. Cunningham, 716 F.2d 1455, 1462-63 (5th Cir.1983). The Supreme Court has addressed' the situation where the government seeks in-junctive relief which is potentially duplica-tive of relief already afforded to a private party. In United States v. Borden Co., the Supreme Court-held a private plaintiffs injunctive relief did not bar the federal government from bringing suit for. injunc-tive relief under the Clayton' Act, 15 U.S.C. § 25. 347 U.S. 514, 520, 74 S.Ct. 703, 98 L.Ed. 903 (1954). The district court had held the violations described in the government’s complaint and shown at thfe trial were, “for the most part, old violations .. -.- [and] the [private injunction]
3016	to Pa-lazzolo, he acquired no more than the right to a discretionary determination by the Council as to whether to permit him to fill the wetlands. As his two hearings before that body attest, he was given the opportunity to make a presentation and receive such a determination. Thus, the Council properly respected whatever limited rights he may have retained with regard to filling the wetlands. Cf. Lujan v. G & G Fire Sprinklers, Inc., 532 U. S. 189 (2001) (holding, in a different context, that, if a party’s only relevant property interest is a claim of entitlement to bring an action, the provision of a forum for hearing that action is all that is required to vindicate that property interest); Though the majority leaves open the possibility that the scope of today’s holding may prove limited, see ante, at 629-630 (discussing limitations implicit in “background principles” exception); see also ante, at 632-636 (O’Connor, J., concurring) (discussing importance of the timing of regula tions for the evaluation of the merits of a takings claim); post, at 654-655 (Breyer, J., dissenting) (same), the extension of the right to compensation to individuals other than the direct victim of an illegal taking admits of no obvious limiting principle. If the existence of valid land-use regulations does not limit the title that the first postenactment purchaser of the
452	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; New Colonial Ice Co. v. Helvering, 292 U. S. 435. Petitioner quotes Moline Properties, Inc. v. Commissioner, 319 U. S. 436, in which it is said: * * * In general, in matters relating to the revenue, the corporate form may be disregarded where it is a sham or unreal. In such situations the form is a bald and mischievous fiction. Looking to the record, it is to us abundantly clear that the corporation should not be characterized a sham or unreal, nor should it be described as a bald and mischievous fiction. The corporation was formed in 1926 for the purpose of acquiring title to two pieces of property. It received deed to those properties and thereafter, until 1943, held the
2747	"Motion to Strike Plaintiff's Response to Defendants' Reply. Such a submission is not authorized under Local Rule 7. .Plaintiff suggests that by identifying his GPA as the 2.79 GPA reported by LSDAS, as opposed to factoring in his 3.62 GPA in the University College Legal Technology program, the Admissions Committee violated its own written representation that it would consider an applicant's ""overall college and graduate performance."" This bare assertion-in reality Plaintiff's subjective opinion as to what considerations are relevant to an applicant's qualifications for law school-has no bearing on whether Defendants' actions had the result of treating similarly situated persons dissimi-larly. . Age-related classifications are subject to rational basis review, as opposed to intermediate or strict scrutiny. See . Logically incorporated into this position is Plaintiff's argument that Defendants were motivated by discriminatory intent because they knew that LSDAS does not include post-baccalaureate grades in its GPA calculations and still proceeded to adopt the LSDAS GPA anyway."
2422	municipality for the negligent acts of these officers and their subordinates. A municipal corporation, like a private corporation, is liable to any person who has sustained injury in consequence of its neglect to perform a corporate duty; but because the duties of municipal corporations in respect to protecting their citizens from the dangers of fires are governmental, and not corporate, they are not liable to the owner of property injured by fire in consequence of their neglect to provide suitable lire apparatus, or to provide and keep in repair public cisterns, or the failure of their firemen to use proper efforts. Wheeler v. Cincinnati, 19 Ohio St. 19; Patch v. Covington, 17 B. Mon. 722; Brinkmeyer v. Evansville, 29 Ind. 187; Kies v. City of Erie, 135 Pa. St. 144, 19 Atl. 942; Heller v. Sedalia, 53 Mo. 159; Robinson v. Evansville, 87 Ind. 334. So uniform and numerous are the authorities against the proposition that a municipal corporation is liable for the negligent acts of these officers that to discuss it as an original question would seem to be inappropriate. In one of the most recent textbooks on the law of municipal corporations, the rule is thus stated: “Municipal corporations are not liable for the negligence of their firemen, although they may he appointed and removed by the city, and the performance of their duties are wholly subject to its control.” Tied. Mun. Corp. § 333. A reference to the following adjudicated
3740	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  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 under Rule 59(b), the plaintiffs could not resort to relief under (b)(1) on the ground of mistake, inadvertence, surprise or excusable neglect. We do not think Rule 60(b) is so circumscribed as to require a showing, as condition for relief, that the evidence
3324	your verdict as to any other offense or any other defendant charged. In addition, she told the jury that count 4 charged that appellants had conspired and agreed to conceal that Nelson had unlawfully diverted funds from Malouf and the city by altering and fabricating documents and by causing these altered and fabricated documents to be turned over to federal law enforcement officials during the course of a grand jury investigation. In the circumstances we cannot understand why the jury would not have been able to consider count 4 apart from the first three counts. Clearly the judge’s cautionary instructions and explanation of the charges neutralized the threat of prejudice and the appellants were afforded a fundamentally fair trial. See  cert. denied, 440 U.S. 909, 99 S.Ct. 1217, 59 L.Ed.2d 456 (1979). D. Shamy raises an additional challenge to his conviction for conspiracy to obstruct justice. Noting that there is no direct evidence linking him to several of the overt acts allegedly committed by Nelson in furtherance of the conspiracy, including alteration of the closing statement and alteration of city tax records, Shamy complains that he may have been convicted of conspiracy on the basis of acts he neither authorized nor adopted. We, however, are satisfied that the jury could reasonably have found there was a conspiracy between Shamy and Nelson to obstruct justice and there were overt acts committed in furtherance of the conspiracy during its existence. Thus, Shamy
4279	Proctor & Gamble Mfg. Co., 160 N.L.R.B. 334, 340 (1966), our review of the record convinces us that Buffalo’s actions in going directly to the employees were designed to achieve contract changes shortly after agreeing to sign a negotiated contract with the Union and, hence, resulted in an unfair labor act. See NLRB v. Goodyear Aerospace Corp., 497 F.2d 747, 752 (6th Cir. 1974). As this court has stated: The National Labor Relations Act does not countenance negotiating with individual employees when they have bargaining representatives. Medo Photo Supply Corp. v. N.L.R.B., 1944, 321 U.S. 678, 683-685, 64 S.Ct. 830, 88 L.Ed. 1007; N.L.R.B. v. Lightner Pub. Corp., 7 Cir., 1940, 113 d 417, 420. It requires that representatives designated by the majority of employees shall be the exclusive collective bargaining representatives in respect to rates of pay, wages, hours of employment or other conditions of employment. Lion Oil Co. v. NLRB, 245 F.2d 376, 378-79 (8th Cir. 1957). The Board’s findings on this issue are supported by substantial evidence on the record considered as a whole. It follows that the Board properly concluded that Buffalo violated 29 U.S.C. § 158(a)(5) and (1) by bypassing the Union and dealing directly with the employees. The petition for review is denied and the Board’s order will be enforced. . The Board’s decision and order are reported at 227 N.L.R.B. No. 20. . The administrative law judge found that the
3041	the Site would therefore most likely end up in the 60-Inch storm drain. It is a reasonable inference that the general deterioration and lack of maintenance of the property after TDY returned it to the Port District was a likely.new source of PCB contamination, as TOY’S expert opined. D. Equitable Allocation under CERCLA Congress enacted CERCLA in response .to the serious environmental and health risks posed by industrial pollution. United States v. Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). The statute was designed to promote the timely cleanup of hazardous waste,sites and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination. 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.,
1055	Control and Prevention, Abortion Surveillance — United States, 1996, at 41 (July 30, 1999) [hereinafter Abortion Surveillance]). The most used abortion method during the first trimester is vacuum aspiration, performed under local anesthesia on an outpatient basis. Id. (citing Carhart, D. Neb., 11 F.Supp.2d at 1102, and Obstetrics: Normal & Problem, Pregnancies 1253-54 (S. Gabbe, J. Niebyl, & J. Simpson eds.3d ed.1996)). Approximately ten percent of abortions are performed during the second trimester. Id. at 924, 120 S.Ct. 2597 (citing Abortion Surveillance at 41.) While in the past, physicians tended to inject saline into the uterus to induce labor as the primary second-trimester abortion procedure, id. at 924, 120 S.Ct. 2597 (citing Abortion Surveillance at 8, and  D & E has replaced induction as the most common method of abortion during the second trimester. Id. The Court looked to the “American Medical Association, Report of Board of Trustees on Late-Term Abortion” (“AMA Report”), which was part of the district court record, to define the D & E procedure. See id. at 924-25, 120 S.Ct. 2597. The Court also quoted from Dr. Carhart’s trial testimony about the dismemberment method of D & E, and summarized the risks that accompany it: “The use of instruments within the uterus creates a danger of accidental perforation and damage to neighboring organs. Sharp fetal bone fragments create similar dangers. And fetal tissue accidentally left behind can cause
4040	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 as a matter of discretion due to Jassi’s lack of due diligence. The agency’s ultimate decision regarding whether to rescind an in absentia exclusion order under 8 C.F.R. § 1003.23 is discretionary. See see also Luna v. Holder, 637 F.3d 85, 95-96 (2d Cir.2011) (noting the different treatment this Court has accorded to statutory motions to reopen versus regulatory motions to reopen, the latter of which are discretionary). Here, the BIA did not abuse its discretion, as it provided a rational explanation for denying the motion — the 12-year delay in filing. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001); see also, e.g., Zhao Quan Chen v. Gonzales, 492 F.3d 153, 155 (2d Cir.2007) (three-year delay suggested lack of diligence); Cekic v. INS, 435 F.3d 167, 171-72 (2d Cir.2006) (two-year delay suggested lack of diligence); Ali v. Gonzales, 448 F.3d 515, 516-17 & n. 2 (2d
4446	Steam Shipping Co., 317 F.2d at 742. Over time, however, this narrow scenario that justified the initial enactment of the provision has fallen into desuetude, while parties have attempted to use the provision to support interlocutory appeals in many situations that do not supply the same logical justification for an exception to the finality rule. While in many instances courts have read the provision narrowly and declined to find jurisdiction, in many other instances courts have read the statute more broadly and found jurisdiction in situations far different from that giving rise to the provision in the first place. This circuit’s treatment of the applicability of § 1292(a)(3) outside the originally animating procedural posture has been fairly consistent and restrained. In  this court dismissed an interlocutory appeal by a cross-libelant on the grounds that the statute did not provide jurisdiction. While the court did not provide a guiding rule concerning the scope of 28 U.S.C. § 1292(a)(3), it did canvass the decided cases and their views, noting in particular those cases that restrict appeal under that section to “situations in admiralty cases where the liability issue has been finally determined, leaving open only the question of damages.” Id. at 831. More analogous to the present case, in Medomsley Steam Skipping Co. v. Elizabeth River Terminals, Inc., 317 F.2d 741 (4th Cir.1963), Medomsley filed a libel against Elizabeth River Terminals alleging a right of indemnification upon a theory of implied warranty. The district
4706	(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 Here, Plaintiff alleges that when he was first employed, he was paid $20.00 an hour, and that his pay rate was increased to $25.51 an hour in June 2012. (Compl.f 24.) He also alleges that one week in June 2012 he worked a 60-hour work week, and that he frequently worked in excess of 10 hours per day. (Id. ¶¶ 23, 28.) Furthermore, he alleges that he was not paid for the hours he worked in excess of 40 hours a week. (Id. ¶ 25.) However, as per Plaintiffs allegations, he was paid for 40 hours a week at a rate of either $20.00 or $25.51 an hour, for a weekly salary of either $800 or $1,020.40 per week. The most
3308	before the grand jury. The first of the two substantive counts charging obstruction of justice (count 5) alleged that Nelson and Shamy had obstructed justice by producing the fabricated letter in response to a grand jury subpoena. The second (count 6) charged Nelson with obstruction of justice by altering the closing statement. There was a subsequent single trial against all the defendants on the entire indictment. The district judge granted Perrone’s motion for judgment of acquittal on all counts at the close of the government’s case. Though the jury found Nelson, Gassaro and Shamy guilty on all counts, the mail fraud convictions were subsequently dismissed by the judge on the basis of the Supreme Court’s decision in  which held that the mail fraud statute does not reach schemes to defraud citizens of their intangible right to honest and impartial government. The judge also granted post-verdict acquittals to Nelson and Gassaro on the Hobbs Act extortion counts as the evidence was insufficient to support the convictions on them, 672 F.Supp. 812. Therefore, the only convictions left undisturbed were those of appellants for obstruction of justice and conspiracy to obstruct justice based on their attempts to cover-up the events relating to the diversion of funds from the proceeds of the property purchase by the city. II. Obstruction of Justice A. The obstruction of justice statute provides that whoever “corruptly ... influences, obstructs, or impedes, or endeavors to influence,
840	not fall into any of those categories and Liquid Glass’s fair, use defense, again, must fail. This court also rejects Liquid Glass’s argument that Porsche’s counterclaim is barred by the doctrine of laches. Liquid Glass asserts that Porsche was aware that Liquid Glass was using Porsche marks in its advertisements as early as 1991 and failed to bring suit until now. Neither of the elements óf laches has been met. Laches is an equitable defense which is left to the discretion of the district court. A.C. Aukerman Co. v. R.L. Chaides Construction Co., 960 F.2d 1020, 1032 (Fed.Cir.1992). To invoke the defense, Liquid Glass must demonstrate inexcusable delay on the part of Porsche and that this delay prejudiced Liquid Glass. United States v. Koreh, 59 F.3d 431, 445 (3d Cir.1995); Lasseigne v. Nigerian Gulf Oil Co., 397 F.Supp. 465, 473 (D.Del.1975). Any delay by Porsche in filing suit was completely excusable. Porsche diligently enforced its rights to the mark, immediately writing to Liquid Glass when it became aware of the improper advertisements and requesting that Liquid Glass discontinue using the marks. See E-Systems, Inc. v. Monitek, Inc., 720 F.2d 604, 607 (9th Cir.1983)(noting that mark owner’s diligence in enforcing the mark and good faith ignorance by the junior user are two factors which can be considered in evaluating a lach-es defense to a trademark suit). Cease and desist letters were repeatedly sent to Liquid Glass
3119	"plaintiff could amend her complaint to avoid the finding that her claims involve a minor dispute as a matter of law. It is the general factual scenario, not any minor technicality or lack of particularity, that cause this Court not to have jurisdiction. Since the Court finds exclusive jurisdiction over plaintiffs claims lies with the system board of adjustment, defendants’ motion to dismiss is GRANTED. Each party is to bear its own costs and fees. . The complaint does not indicate when her workers’ compensation claim was filed. . Since the Court ""may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action,” the mislabelling of the action is of no import. See also Scholastic Entm't, Inc. v. Fox Entm’t Group, Inc., 336 F.3d 982, 985 (9th Cir.2003). . At the hearing on this motion, plaintiffs counsel also repeatedly raised the issue that, in other ERISA cases, Northwest and its counsel have not raised this defense. A defense on the basis of subject-matter jurisdiction is never waived, however. Ashcroft v. Iqbal, - U.S. --, 129 S.Ct. 1937, 1945, 173 L.Ed.2d 868 (2009), citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Even if defendants had failed to raise the issue earlier in this case, the Court would be obligated to consider the issue. In a related analytical error, plaintiff's counsel repeatedly cites to"
2931	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 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 the probability of the Blacks making their payments can be actuarially
242	United States v. Two Lots of Ground, etc., 183 F.Supp. 355 (E.D.Pa. 1960). . Abe Markowitz was one of a group of defendants who were tried on a charge of conspiring to violate the Internal Revenue Laws of the United States, in violation of the provisions of 18 U.S.C.A. § 371. A judgment of acquittal was entered as to Markowitz. See United States v. Markowitz, 176 F.Supp. 681 (E.D.Pa. 1959). David Realty Corporation was not a party to this criminal action. . See United States v. Two Lots of Ground, etc., 194 F.Supp. 312, 313 (E.D. Pa. 1961). . See, e. g., Scott v. Baltimore and O. R. Co., 151 F.2d 61, 64 (3rd Cir. 1945); . See United States v. Markowitz, supra, 176 F.Supp. at pp. 686-687. . The court held in the Burch case that the principles of res judicata and collateral estoppel were not a bar to the forfeiture action because the criminal action involving the defendant was on a charge of conspiracy, not on the substantive acts [see pp. 6 and 7 of 294 F.2d 1 (5th Cir. 1961)]. It is noted that the criminal indictment against Markowitz was on the conspiracy charge, not on the substantive facts. . See, also, United States v. LaFranca, 282 U.S. 568, 575, 51 S.Ct. 278, 75 L.Ed. 551 (1931). . E. g., Helvering v. Mitchell, 303 U.S. 391, 397-400, 405-406, 58 S.Ct. 630, 82 L.Ed.
2563	Co., 95 F.2d 373 (7th Cir. 1938); MacDonald v. Plymouth County Trust Co., 286 U.S. 263, 267, 52 S.Ct. 505, 76 L.Ed. 1093 (1932). The waiver was effective to permit the exercise of summary jurisdiction by the court even though the escrow fund had been attached in the state action. See Taubel-Scott-Kitzmiller Co. v. Fox, 264 U.S. 426, 433, 434, 44 S.Ct. 396, 68 L.Ed. 770 (1924); Carney v. Sanders, 381 F.2d 300, 302 n. 3 (5th Cir. 1967); O’Dell v. United States, 326 F.2d 451, 455, 456 (10th Cir. 1964); cf. Schumacher v. Beeler, 293 U.S. 367, 55 S.Ct. 230, 79 L.Ed. 433 (1934); 5 Remington on Bankruptcy (5th ed. 1953) § 2200. The appellants rely upon In that case the court sustained an objection to the summary jurisdiction of the bankruptcy court over a fund that had been attached in a state action. The court pointed out, however, that at least one and possibly both of the objecting parties had “steadfastly refused to consent to the bankruptcy court’s summary jurisdiction”. 385 F.2d at 365. The ease is therefore distinguishable from the one before us, in which there was consent. The appellants rely on the statement of the court in the Consolidated Container Carriers case (385 F.2d at 365) that an attachment “acts to dispossess the defendant by placing the property in custodia legis. If such dispossession should occur more than four months prior to bankruptcy, summary
3344	patterns are so varied, we must try to identify the elements that have influenced decisions on the adequacy of the remedy. For example, the fact that an alleged infringer has previously sold his business with its goodwill to the plaintiff makes a sweeping injunction more tolerable. Cf. Hat Corporation of America v. D. L. Davis Corp., supra, note 2; and cf. Guth v. Guth Chocolate Co., 224 F. 932 (4th Cir.), cert. denied, 239 U.S. 640, 36 S.Ct. 161, 60 L.Ed. 481 (1915). So, too, if an individual enters a particular line of trade for no apparent reason other than to use a conveniently confusing surname to his advantage, the injunction is likely to be unlimited. See If, however, the second comer owns the company himself and evinces a genuine interest in establishing an enterprise in which his own skill or knowledge can be made known to the public, that argues in favor of allowing him to use his own name in some restricted fashion. Cf. Stetson v. Stetson, supra, note 2, and cases cited infra at 736. As this court said in Societé Vinicole de Champagne de Mumm, 143 F.2d 240, 241 (2d Cir. 1944), to prohibit an individual from using his true family surname is to “take away his identity: without it he cannot make known who he is to those who may wish to deal with him; and that is so grievous an injury
2314	over the possible financial result of these activities. If any revenue were generated, it would be by the sole efforts of the insurance company’s agents in selling insurance to the association members. The selling of insurance, the servicing of the policy, the collection of premiums and payment of claims, in short, everything connected with the insurance program was wholly in the hands of the insurance company.' The only significant participation of Plaintiff in the insurance program was that it was made available under its name to its members. Otherwise, Plaintiff was only passively involved. Thus, the activities of Plaintiff regarding the group insurance program by the common and generally accepted understanding of the terms cannot be considered a trade or business. 60 S.Ct. 363, 84 L.Ed. 416; Helvering v. Highland, 124 F.2d 556 (Fourth Cir. 1942); Orange County Builders Association, Inc. v. United States of America, 65-2 CCH US Tax Cases, 96, 828 (S.D.Cal.1965). Next, with reference to whether the group insurance program is not substantially related to the exempt purpose of Plaintiff, the arrangement of making group life, health and accident insurance available to the association membership at economic rates is deemed to be sub- stantially related to the purposes of the exempt organization. Plaintiff is an exempt organization by virtue of 26 U.S. C.A. § 501(c) (5). Plaintiff's Constitution states that it was organized to promote educational and scientific programs affecting the cattle industry of Oklahoma, to prevent cattle theft and control
4151	using physical exertion criteria (Regs. §§ 404.1567, 416.967). Alternatively the AU may base the step 5 determination on other evidence, including the assessment of a vocational expert (Regs. §§ 404.1566(e), 416.966(e)). Indeed, when a claimant suffers from nonexertional impairments exclusively or in addition to exertional impairments, the AU may not be able to rely solely on the Grid — resort to a vocational expert may be required (see Reg. Subpart P, Appendix 2, § 200.00(e); Warmoth v. Bowen, 798 F.2d 1109, 1110 (7th Cir.1986) (per curiam)). In all events, Secretary’s decision must be upheld unless (1) the findings are not supported by substantial evidence or (2) Secretary has applied incorrect legal standards (Reynolds v. Bowen, 844 F.2d 451, 455-56 (7th Cir.1988)).  quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938) has defined “substantial evidence” as: more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Facts Paige was born December 25, 1932 (R. 63), making him 53 years old at the time of the Hearing. He has a tenth-grade education. His work history reveals a series of jobs — factory machine operator, lift-truck operator and movie theatre cleaner— characterized by Paige as presenting at least “medium” (and in two instances “heavy”) exertional requirements. Paige’s last gainful employment was from May 1977 to December 1980
4896	"nor otherwise “seriously mistaken.” Accordingly, we sustain the district court’s denial of plaintiffs’ post-judgment challenge to it. The judgment of the district court is affirmed. . 42 U.S.C. § 1983 provides for a cause of action against any person who, under color of state law, deprives another of a constitutional right. Although one defendant, Leonard, was a federal law enforcement officer at the time of the incident giving rise to this action, he is presumed to be a properly named defendant. Plaintiffs alleged in their complaint that Leonard ""conspired with state officials to violate the civil rights of the Fernandezes,"" and Leonard has never meaningfully challenged this theory of § 1983 liability. .This case has been before us once before. See In that opinion we sustained the district court’s denial of Leonard's motion for summary judgment on grounds of absolute and qualified immunity. We also granted summary judgment to Leonard as to various constitutional claims alleged by the Fernandezes in their complaint, but pressed neither before us nor in the district court. . Rodriguez is also referred to as ""Roberto Cantos” in the record. . Two days after the incident, Ivan Rodriguez told a Brookline police officer that his stepfather had, at one point, ""grabbed the gun” from Shepard. A month after the shooting, Rosa Fernandez told an Assistant District Attorney that, at the time of the shooting, she was unable to see whether her husband picked up Shepard’s gun. . Quite"
1086	"(""Legislative facts are established truths, facts or pronouncements that do not change from case to case but apply universally, while adjudicative facts are those developed in a particular case.”). Whether D & X is ever necessary to protect women’s health is not a fact that will differ from trial to trial, but must be found by courts as a matter of legislative fact. See A Woman's Choice-E. Side Women’s Clinic v. Newman, 305 F.3d 684, 688 (7th Cir.2002) (""[Cjonstitu-tionality [of partial-birth abortion statutes] must be assessed at the level of legislative fact, rather than adjudicative fact determined by more than 650 district judges. Only treating the matter as one of legislative fact produces the nationally uniform approach that Stenberg demands.”); . to different records.”), majority opinion vacated, 530 U.S. 1271, 120 S.Ct. 2738, 147 L.Ed.2d 1001 (2000). Applying a clearly erroneous standard to findings of legislative facts would undermine the requirement of uniformity under Stenberg because it would mean that the Supreme Court could uphold one trial court’s determination that an abortion procedure is never medically necessary while upholding another’s that it is necessary to protect women’s health. Cf. Lockhart v. McCree, 476 U.S. 162, 170 n. 3, 106 S.Ct. 1758, 90 L.Ed.2d"
3026	preservation is a factor in this case, but it cannot be said that there was a “complete absence of any union interest in the labor relations of (the) excluded employer,” in this case San Juan. Note, A Rational Approach to Secondary Boycotts and Work Preservation, 57 Va.L.Rev. 1280, 1300-01 (1971). In National Woodwork there was no interest in the labor relations of the manufacturer of the prefitted doors. Even union-constructed prefitted doors were rejected by the carpenters. PIPEFITTERS AND NLRB DISCRETION A strong case thus exists under National Woodwork and the Second Circuit’s above decision for enforcing the Board’s order, especially in light of the statements by Ortiz, Sr. and Ortiz, Jr. and the traditional deference accorded the Board. N.L.R.B. v. Boeing Co., 412 U.S. 67, 75, 93 S.Ct. 1952, 36 L.Ed.2d 752 (1973). However, the Supreme Court has very recently spoken in the subject once more, in N.L.R.B. v. Enterprise Ass’n. of Steam, Hot Water, etc. Pipefitters. This case seems to us to remove any lingering doubts as to the enforceability of the Board’s present order. In Pipefitters, Austin Co., the general contractor for a home for the aged (Norwegian Home) subcontracted the climate control work to Hudik-Ross (Hudik). Hudik employed steamfitters belonging to the union. The collective bargaining agreement between them provided that pipe threading and cutting were to be performed at the jobsite. The steamfitters had traditionally done that work at the
4262	Inn] (1962) 24-25; Alfred Hill, “The Inadequate State Ground”, 65 Col.L.R. (No. 6, June, 1965), 943, 989-90, 993-94, 996-98; and Anthony Lewis, “A Tough Lawyer Goes to the Court”, New York Times Magazine, (August 8, 1965), 11, 67. . Cited in Appellant’s Brief in Roman, pp. 79-87, In this connection, it is interesting to note the resemblance between the language of Chief Justice Warren in Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct. 693, 98 L.Ed. 884 (1954) and that of his fellow-Californian Justice Stephen J. Field in “liberty of contract” cases of an earlier day, such as Butcher’s Union, etc., Co. v. Crescent City Co., 111 U.S. 746, 757, 4 S.Ct. 652, 28 L.Ed. 585 (1884), and Field’s views, expressed as dissent in the Slaughter-House Cases, 16 Wall. 36, 106, 109-111, 21 L. Ed. 394 (1873), received majority acceptance in Allgeyer v. State of Louisiana, 165 U.S. 578, 589-591, 17 S.Ct. 427, 41 L.Ed. 832 (1897). Reaching its apogee in Loehner v. State of New York, 198 U.S. 45, 53, 25 S.Ct. 539, 49 L.Ed. 937 (1905), the dogma of liberty to pursue common callings without regulation was generally believed to have been overthrown in Nebbia v. People of State of New York, 291 U.S. 502, 523, 527, 536, 54 S.Ct. 505, 78 L.Ed. 940 (1934), and West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391, 57 S.Ct. 578, 81 L.Ed.
333	cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). . Douglass, supra, note 5, at 914. See Sackett v. Beaman, 399 F.2d 884, 890 890 (9th Cir. 1968). See also UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 703-05, 86 S.Ct. 1107, 16 L.Ed.2d 192 (1966) ; Holmberg v. Armbrecht, 327 U.S. 392, 395, 66 S.Ct. 582, 90 L.Ed. 743 (1946). . Faced with analogous choices, other circuits have recently chosen the securities statute of limitations rather than that of general fraud. See Parrent v. Midwest Rug Mills, Inc., 455 F.2d 123 (7th Cir. 1972) ; Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir.), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970). But see However, they have also determined that the adopted state statute shall only run in accordance with the federal law which decrees that the statute does not begin to run until the fraud is, or should be, discovered. Parrent, supra at 128; Vanderboom, supra at 1240. Accord Janigan v. Taylor, 344 F.2d 781 (1st Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). See also Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946) ; Bailey v. Glover, 88 U.S. (21 Wall.) 342, 22 L.Ed. 636 (1875). . See J. I. Case Co. v. Borak, 377 U.S. 426, 431-32, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) ; SEC v. Capital Gains Research Bureau,
1922	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 that section 1500 requires dismissal when the claim that is brought here involves the same operative facts that are raised in the earlier-filed action pending in another forum and the substantive relief sought here is presumably also available in that other forum. Ireland v. United States, 11 Cl.Ct. 543, 545 (1987); Pitt River Home and Agricultural Cooperative Ass’n v. United States, 215 Ct.Cl. 959, 960-61 (1977); Santa Clara, California v. United States, 215 Ct.Cl. 890, 981 (1977); Casman v. United States, 135 Ct.Cl. 647, 650 (1956). Evaluated in light of these considerations, it is clear that plaintiff cannot maintain an action in this court. The facts set out in the complaint filed here are identical to those recited in the complaint filed in the district court, while the relief sought here—money damages for breach of contract—is, according to plaintiffs view of the applicable law, equally within the authority of the district court to grant. That is, the bank argues in the district court that it may pursue a claim for monetary relief
1012	FIOR subsequently submitted a bill for attorney’s fees of $18,548.70. The bankruptcy judge allowed only $6,638 of fees plus $262.52 for costs. On May 2, 1997 the district court entered an order adopting the proposed findings and conclusions of the bankruptcy court and ordering the appellant to pay $5,000 as a fine for criminal contempt and the attorney fees and costs determined by the bankruptcy judge. The appellant appeals. ANALYSIS Prosecution By An Interested Prosecutor. It is fundamental that the prosecutor of a criminal charge be disinterested. Where that is not the case, a judgment of conviction is to be reversed without the need of showing prejudice. In this case FIOR had an interest. The prosecutor here — the man who drafted the motion, examined the witnesses, asked for the sanction — was FIOR’s lawyer. He owed FIOR a duty in addition to his duty as prosecutor of the criminal contempt. He was an interested prosecutor. Id. at 803, 107 S.Ct. 2124. The prosecution must be set aside. Id. at 814,107 S.Ct. 2124. It is noteworthy that on this appeal there is no appearance and no opposition by FIOR; nor is there any appearance by the United States. The prosecutor has disappeared. REVERSED.
3721	b) withheld that information with a specific intent to deceive.” Doc. 64 at 16 (citing Delano, 655 F.3d at 1350) (emphasis added). The requirement that an individual be charged with inequitable conduct is based on patent regulations that place the duty to disclose on individuals. 37 C.F.R. § 1.56(a) (“Each individual associated with the filing and prosecution of a patent application has a duty 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.” 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
3265	Electric Service, Inc., 535 F.2d 1 (10th Cir.1976), cert. denied, 429 U.S. 832, 97 S.Ct. 94, 50 L.Ed.2d 96 (1976), or the duration of the layoff, Jones Dairy Farm and United Food and Commercial Workers, International Union, Local P-1236, 83-2 Lab. Arb. Awards 118389 (1983) (CCH); American Standard Inc. and International Association of Machinists and Aerospace Workers, Lodge 681, 82-1 Lab. Arb. Awards ¶ 8125 (1982) (CCH). See also Big Bear Mining Company v. District 17, United Mine Workers of America, above. Fringe benefits should be included in the back pay award, including vacations, to the extent actual economic loss was suffered by the employee. International Paper Company, Pine Bluff Mill and United Paperworkers International Union, Local No. 735, 81-2 Lab. Arb. Awards ¶ 8368 (1981) (CCH). Accordingly, the portions of the Committee’s claim on behalf of the following employees will be allowed in the following amounts: 12. Two Office Employees Whose Layoffs Did Not Violate the Rejected Agreement Are Not Entitled to Damages. The converse of Conclusion of Law 6, above, is that employees whose layoffs did not violate the rejected agreement, and who are therefore not entitled to damages under 29 U.S.C. § 185, are not entitled to contract rejection damages in bankruptcy. There are two such employees, Hazel Long and Helen Suszek. a. Hazel Long Hazel Long was laid off as unqualified for
352	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. An allegation of mere negligence is insufficient to state a claim under the Eighth Amendment. Estelle, 429 U.S. at 106, 97 S.Ct. 285. In its summary judgment motion, CCA assumed that appendicitis and a subsequent perforated appendix were sufficiently serious to meet the objective component of the deliberate indifference test. Aplt.App. at 22. It argued, however, that plaintiffs had failed to show that “anyone who interacted with Mr. Grassi knew of and disregarded any serious medical need.” Id. at 23. The district court agreed, and so do we. We cannot improve on the district court’s thorough analysis of the facts and the law on this point. As for plaintiffs’ arguments, we see no relevance
3946	with this policy is the construction we think should be given to the 30th section of the Act of Congress we have been considering. It gives advantages to national banks over their state competitors .... The result of this is that the defendants in receiving nine percent interest upon the loans made by them have not transgressed the Act of Congress and consequently they are under no liability of the plaintiff. Tiffany, supra, at 412-413. It is defendants’ contention that the Tiffany ruling, 12 U.S.C. § 85 of the National Bank Act, accorded national banks the right to charge the interest rate afforded state competitors, whether such competitors were state banks or non-bank lenders. Northway In 1974, the Mississippi Legislature, pursuant to House Bill No. 819, Chapter 564, amended the state’s usury statute, Miss. Code Ann. § 75-17-1 (Supp.1975). The preamble to the Act recites that it is: AN ACT to simplify and modernize the laws governing the lending of money, usury, extending credit, and the making of credit sales; to protect consumers against unfair practices by suppliers of credit and to provide rate ceilings; to permit and encourage the development of sound consumer credit practices and to insure an adequate supply of credit. Section 75-17-1 was amended to permit rates of interest on all notes, accounts, and contracts of six percent (6%) except that contracts could be made in writing for payment of finance charges
511	Title II of the ADA; (2) even if plaintiffs get past that hurdle, the integration mandate does not apply because the denial of employment services does not place any plaintiff at risk of institutionalization; (3) plaintiffs’ claims improperly seek to require defendants to provide a service that the state does not and cannot provide, namely integrated employment in a community business; and (4) plaintiffs’ claims improperly seek to impose a certain standard of care on the state’s provision of employment services. A. Employment Claims Under Title II In their Reply, defendants seek dismissal of the ADA claim on the basis that plaintiffs are raising an “employment claim” not cognizable under Title II of the ADA. Plaintiffs rely on  cert. denied, 531 U.S. 1189, 121 S.Ct. 1186, 149 L.Ed.2d 103 (2001), which upheld dismissal of a Title II claim premised upon an allegation that the state refused to accommodate his visual impairment and then terminated him. Based on a contextual reading of the structure of the ADA, the Ninth Circuit concluded that Congress had “unambiguously expressed its intent that Title II not apply to employment” and granted “no weight” to the Attorney General’s implementing 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
1284	PER CURIAM. Phillip Stephen Medley pleaded guilty to aiding and abetting the production of child pornography, in violation of 18 U.S.C. § 2 and § 2251(a) (Count I), and to a separately occurring child-pornography-production offense, in violation of 18 U.S.C. § 2251(b) (Count II). The district court sentenced him to concurrent sentences of 25 years on Count I and 20 years on Count II, to be followed by lifetime supervised release. On appeal, counsel has moved to withdraw, and has filed a brief under  arguing that Medley’s sentence is unreasonable. Upon careful review, we conclude that the district court did not abuse its discretion in sentencing Medley, and that the court imposed a substantively reasonable sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (in reviewing sentence for abuse of discretion, appellate court first ensures that district court committed no significant procedural error, and then considers substantive reasonableness of sentence); see also United States v. Wadena, 470 F.3d 735, 737 (8th Cir.2006) (appellate court reviews sentence, including any downward vari-anee, for reasonableness under abuse-of-discretion standard). Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have found no nonfrivolous issues
688	therein were the property of Marion exclusively, as insufficient to establish that these funds were in reality her separate property. * * * We be lieve that the account was kept in Marion’s name only as a mere formalism, which existed solely to alter tax liabilities.” 42 T.C. at 1051, 1052. In considering the factual issue involved, the Tax Court was not required to accept as true Drybrough’s testimony even though not directly contradicted, and could weigh the inherent incredibility of his total claims against his spoken words. Quock Ting v. United States, 140 U.S. 417, 420, 11 S.Ct. 733, 35 L. Ed. 501 (1891); Hasson v. Commissioner of Internal Revenue, 239 F.2d 778, 782 (CA 6, 1956); The courts must scrutinize with special care the dealings between husband and wife, especially where, as here, the husband appeared to have carte blanche to use what he claims was his wife’s money. Fouke v. Commissioner, 2 B.T.A. 219, 220-221 (1925). Drybrough had the burden of overcoming the presumption of validity of the Commissioner’s determination respecting his alleged income tax deficiencies. Bishop v. Commissioner of Internal Revenue, 342 F.2d 757, 759 (CA 6, 1965); Hallabrin v. Commissioner of Internal Revenue, 325 F.2d 298, 305 (CA 6, 1963). We cannot say that the Tax Court was clearly erroneous in concluding that that burden was not carried. This view obviates our discussion of other contentions of Drybrough as to the debtor-creditor
214	citing Matter of A-M- 23 I & N. Dec. 737 (BIA 2005), that there is insufficient evidence of future persecution. The BIA acknowledged “that to some extent Lie [v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) (finding that Petitioner had failed to show a pattern or practice of persecution of Chinese Christians in Indonesia) ] and other similar cases 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 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
357	is so empowered. Accordingly, we must deny Barber’s application for a CPC on these issues. Barber also alleged numerous other constitutional errors, including a charge that the inordinate delay in carrying out his execution violates the eighth amendment; that the retrospective competency hearing violated his due process rights; that he received ineffective assistance of counsel; and prosecutorial misconduct. After reviewing all of same, we find no basis therein for appellate review. Barber’s request for a certificate of probable cause is DENIED. . Barber requests a Certificate of Appealability (COA); however, because his petition was filed prior to the effective date of the AEDPA his application must be construed as a request for a certificate of probable cause (CPC). The standards for issuing a CPC and the AEDPA-required COA are identical. See Lucas v. Johnson, 132 F.3d 1069 (5th Cir.1998); Muniz v. Johnson, 132 F.3d 214 (5th Cir.1998). Blankenship v. Johnson, 106 F.3d 1202 (5th Cir.1997), opinion withdrawn and superseded on rehearing by, 118 F.3d 312 (5th Cir.1997). . 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). . 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Hogue v. Johnson, 131 F.3d 466 (5th Cir.1997). . Dr. Lett otherwise concluded. . Barber v. State, 737 S.W.2d 824 (Tex.Crim.App.1987). . Barber v. State, 757 S.W.2d 359 (Tex.Crim.App.1988), cert. denied, Barber
1411	the truck from the previous owner.) (Compl. ¶ 11.) Plaintiff has also produced an undated reminder sticker from Napa Auto-Care Center that was found in or on the truck; it advised the previous owner that the “next service” on the vehicle was to occur at 163,439 miles. (Compl. ¶ 27; Pis. Cross-Mot. for Partial Summ. J Ex. D.) This is more than enough evidence to permit a trier of fact to conclude that Milea intended to defraud plaintiff. The intent to defraud required under the Federal Odometer Act can be inferred when a seller lacks actual knowledge of the true mileage but exhibits gross negligence or a reckless disregard for the truth in preparing odometer disclosure statements. See Ralbovsky v. Lamphere, 731 F.Supp. 79, 82 (N.D.N.Y.1990); Auto Sport Motors, Inc. v. Bruno Auto Dealers, Inc., 721 F.Supp. 63, 66 (S.D.N.Y.1989). Therefore, unrebutted evidence that an employee of the seller (Lin) knew that the actual mileage was substantially in excess of the mileage recorded at time of sale — which the record before this court contains, (See Pis. Cross-Mot. for Partial Summ. J Ex. E.), — compels an inference of intent to defraud, and so the denial of defendants’ motion to dismiss the First Cause of Action. In fact, plaintiffs cross-motion for summary judgment on liability under the First Cause of Action must be granted, because the evidence in the record admits but one interpretation: a representative of Milea
3897	dealt with assumption or rejection of an executory contract, including an unexpired lease of real property. Finding the oral notification adequate, the court noted “The Act does not provide any formal manner in which the trustee shall make the assumption, and in this instance the notice of assumption was made orally, but well within 30 days after the qualification of the trustee.” 388 F.2d at 84. The instant case, however, is not governed by the Act, but by Bankruptcy Code §§ 365(a) and (d), and Bankruptcy Rules 6006 and 9014. The remaining cases cited by the Debtor do not persuade me that there is any likelihood that Cybernetics would not be followed by the District Court on appeal.  the court held that the debtor’s letter to the lessor sent within 60 days of filing and containing the following language effectively rejected the nonresidential unexpired lease pursuant to § 365(a): You may take this letter as formal notice that the debtor intends to reject the lease it has entered into with you for the store space it has occupied at Fairlane and has vacated the premises. Judge Mahoney reasoned that the letter clearly communicated in an unequivocal manner the debtor’s intent to reject. I find that Debtor made no comparable definitive communication to R & J. In light of Cybernetics and the facts at issue here, it is most unlikely that this District would now do an about-face and adopt the
2423	"executive branch of the federal Government. See 5 U.S.C. § 552(f)(1). The Champagne Police Department is a state entity and the Clerk of Court and the Federal Defender Office are within the Judiciary. Therefore, Mr. Terry cannot bring a cognizable FOIA action against them. . The Government’s contention that Mr. Terry’s motion is an attempted successive habeas petition is without merit. Although Mr. Terry discussed the merits of his underlying criminal conviction at some length in his motion to the district court, it is clear that the essence of his claim is a FOIA request. The Supreme Court has held that ""[hjabeas is the exclusive remedy ... for the prisoner who seeks ""immediate or speedier release” from confinement.” Dotson, 544 U.S. 74, 82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005)). ""Where the prisoner's claim would not necessarily spell speedier release, however, suit may be brought.” Id. (internal quotation marks omitted). A FOIA action seeking access to documents does not implicate the plaintiff's conviction and is not a request for ""present or future release” which is the "" 'core' [of] habeas corpus relief.” Dotson, 544 U.S. at 81, 125 S.Ct. 1242. See also Razzoli v. Fed. Bureau of Prisons, 230 F.3d 371, 376 (D.C.Cir.2000) (holding that the plaintiff’s FOIA claim was not barred as a tacit habeas petition because, although the plaintiff sought the production of an exculpatory report to support his good time"
2925	amount of the mortgage outstanding at the time of the gift. Janos v. Commissioner, 11 T.C.M. (CCH) 1211 (1952). See generally Powe v. Commissioner, 25 T.C.M. (CCH) 218, aff’d, 389 F.2d 46 (5th Cir. 1967), cert. denied, 393 U.S. 826, 89 S.Ct. 88, 21 L.Ed.2d 97 (1968); Jackman v. Commissioner, 44 B.T.A. 704 (1941), acq. 1941-2 C.B. 7. The amount of the mortgage is deducted from the market value of the property even when the donor agrees to make the mortgage payments, because no consideration exists for the donor’s promise to do so, which therefore is not a legally binding obligation. Each mortgage payment is treated as a separate taxable gift when actually made. Rev.Rul. 78-362, 1978-2 C.B. 248. See generally  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
2869	He stated that the draperies covering these windows had not been pulled completely shut, leaving a narrow crack through which, by bending or stooping over, he could look into the front room. He testified 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”. 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
2888	percent of EAC’s allowed claim of $9,176.33. After a hearing before the bankruptcy judge, the amended plan was confirmed. EAC appealed to the district court arguing that: (1) the plan does not pass muster under the “best interests of creditors” test of 11 U.S.C. § 1325(a)(4) (1982), (2) the debt is a long-term debt and is therefore nondischargeable, (3) the plan does not include all of Zellner’s projected disposable income for the plan’s three-year period, and (4) the plan was not proposed in good faith. The district court rejected these arguments and affirmed the decision of the bankruptcy court. On review, we examine the bankruptcy court’s factual findings using a “clearly erroneous” standard, and we examine its legal conclusions de novo. In re Martin, 761 F.2d 472, 474 (8th Cir.1985). We affirm the judgment of the district court. I. Under the “best interests of creditors” test of Chapter 13, a plan should not be confirmed if the property to be distributed under the plan is less than the amount each allowed unsecured creditor would be paid if the debtor’s estate were liquidated under Chapter 7. 11 U.S.C. § 1325(a)(4). EAC argues that because a student loan is not dischargeable under Chapter 7, EAC would have been entitled to payment in full, thus, the loan should not be discharged under Chapter 13. The simple fact that a loan that is nondischargeable under Chapter 7 does not make it nondischargeable under Chapter 13.
4851	MEMORANDUM Glen R. Withrow appeals the district court’s judgment affirming the Commissioner of Social Security’s denial of his application for supplemental security income under Title XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,  and we affirm. Withrow contends that the administrative law judge (ALJ) erred by rejecting Dr. Piasecki’s opinion recommending that Withrow have the option of standing and sitting at will. We reject Withrow’s contention because the ALJ specifically indicated that Dr. Piasecki’s opinion was accorded partial weight and included the standing and sitting at will option in the residual functional capacity (RFC) determination. Dr. Piasecki’s heavy lifting limitation, moreover, was included in the ALJ’s hypothetical to the vocational expert. The ALJ provided specific and legitimate reasons for giving little weight to the opinions of physicians Drs. Baird and Chung regarding Withrow’s standing and walking limitations. As to Dr. Baird’s opinion, the ALJ reasonably determined that this opinion was contradicted by
1939	thus excluded from RCRA regulation, creates an exclusion from RCRA regulation for “[secondary materials that are reclaimed and returned to the original process or processes in which they were generated where they are reused in the production process .... ” 40 C.F.R. § 261.4(a)(8) (emphasis added). (c) The “Mixture” and “Derived-from” Rules. The so-called “mixture” and “derived-from” rules, which are the subject of this motion to dismiss, are, as noted, found in the above-cited regulations. Both rules were invalidated in Shell Oil Co. v. Environmental Protection Agency, 950 F.2d 741, 747-753 (D.C.Cir.1991), which held that the EPA failed to comply with the notice and comment requirements of the Administrative Procedure Act (“APA”). Subsequently, on June 4, 1992, in  cert. denied,—U.S.-, 113 S.Ct. 967, 122 L.Ed.2d 123 (1993), the Eighth Circuit gave the invalidation retroactive effect. 3. The Defendants’ Arguments in Support of Dismissal. Turning to the arguments in support of the dismissal motion, the Defendants seek dismissal of Counts II and III and part of Count I of the Indictment because, they contend, the Government has failed to identify the basis upon which it is claimed that the substances at issue qualify as “hazardous waste” listed or identified by regulation under RCRA. As the Defendants assume that the Grand Jury relied upon the “mixture” and/or “derived-from” rules in alleging in the Indictment that the substances at issue are “hazardous wastes” within the meaning of RCRA, they argue that, positing
2818	non-governmental purposes, might make and publish appropriate regulations governing the conditions, restrictions, and circumstances of such use provided they were nondiscriminatory and provided they did not confine expression of sentiments to those officially approved. Tinker v. Des Moines Independent Community School District, 898 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Such regulations relating to use of City Hall by private groups or organizations, if adopted, must not be of such character that rights of free speech would be effectively denied. Terminello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945); 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 * * *
4106	of their traveling companions, stating that the front desk personnel at the Atlantis misrepresented the purpose of their signature on the registration card. The district court granted Kerzner’s mo tion on the basis of the valid forum selection clause, and 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. 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
2965	officer’s sentencing recommendation. Headspeth acknowledges that Fed.R. Crim.P. 32(c)(3)(A) does not require the sentencing judge to release this portion of the presentence report. He maintains, however, that the rule is in this aspect constitutionally defective. We disagree. While a convicted defendant retains a due process right not to be sentenced on the basis of materially false or inaccurate information, see United States v. Lee, 540 F.2d 1205, 1210-11 (4th Cir.1976), access to the sentencing recommendation, which is nothing but a subjective judgment made on the basis of facts contained elsewhere in the report, is not necessary to vindicate that interest. See United States v. McKinney, 450 F.2d 943, 943 (4th Cir.1971) (due process does not require disclosure of presen-tence report); 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
1435	this Court feels constrained not to interfere with the local administration of local laws. In this manner, the state can be the determining agent of its own affairs and will be able to develop a coherent and cogent procedure in handling the cases arising under the coastal acts of that state. Accordingly, the Court finds that abstention under the Burford doctrine is appropriate in this action in order to avoid interference with state activities. In Burford abstention, dismissal of the action, rather than retention of jurisdiction pending a state determination, is normally appropriate. This is not inconsistent, however, with the court retaining jurisdiction simply against the possibility that something should prevent a prompt state court determination. This Court finds that the present action is one where jurisdiction should be retained in this manner, since prompt state court action is preferable. THEREFORE, IT IS ORDERED that defendants’ Motion to Dismiss be granted on grounds that: 1. As to Defendants State of California, California Coastal Commission, South Coast Regional Commission, Rocelle A. Braly, Rimmon C. Fay, Margot Feuer, Ruth Galanter, James A. Hayes, Diana Keiser, Elerth Erickson, Melvin L. Nutter, Hank Doerfling, Donald E. Wilson, Naomi Schwarts, Anthony Ramos, Judith B. Rosener, Richard A. Wilson, Lois Ewen, Fred Farr, Mildred R. Benioff, Bradford W. Lundborg, Ruth Andersen, Dorrill Wright, and Harriett Allen, the complaint fails to state a claim upon which relief can be
2669	a highway. The testimony at trial was in conflict on this point and the issue was correctly submitted to the jury. See Arthur v. Arthur, 684 F.2d 558, 561 n. 3 (8th Cir.1982); Bern v. Evans, 349 F.2d 282, 291 (8th Cir.1965); McQueen v. Navajo Freight Lines, Inc., 293 F.2d 590, 594 (8th Cir.1961). The standard of review of jury determination of a factual question is narrow. An appellate court may not substitute its view of the facts for that of the trier of fact unless it is in a position to hold that reasonable minds, viewing the evidence in the light most favorable to the prevailing party, could only have found otherwise than the trier of fact. See also Mizell v. United States, 663 F.2d 772, 776 (8th Cir.1981). Since we believe reasonable minds could differ on this evidence, we will not disturb the jury verdict. Mrs. Giesbrecht would have been negligent as a matter of law if the left turn was made between intersections without signaling. Keller v. Wellensiek, 181 N.W.2d at 857; Petersen v. Schneider, 46 N.W.2d at 358. There was a great deal of conflicting testimony on the question of whether Mrs. Giesbrecht’s turn signals were working. The jury was instructed on the defense of contributory negligence. The general verdict in favor of Mrs. Giesbrecht is consistent with a finding that the
3854	the mark had developed significant marketplace recognition prior to 1983, it is difficult to conclude that the mark was particularly strong. In sum, the record is critically deficient of that minimum quantum of evidence from which the District Court could have reasonably found that CIA’s use of the Commerce mark in 1983 resulted in a likelihood of confusion. CBI had an opportunity to undertake discovery and to prepare for a trial. Instead, it chose, along with CIA, to run the risk of relying on the slender record presented with its request for a preliminary injunction. That record supports neither the findings of secondary meaning, ownership, nor likelihood of confusion. As Judge Learned Hand observed in  which involved a suit by Federal Telephone & Radio Corp. to enjoin the defendant as the junior user of the name “Federal:” “we should have no warrant for depriving the defendant of whatever goodwill it has already acquired by its sales under its own name. It started the use in entire good faith, the word is in general use for all sorts of purposes, and the plaintiffs pretension to monopolize it is without any present basis that we can discover.” Id. at 251-151. Accordingly, it was error to conclude that CBI possessed rights to the exclusive use of the Commerce mark in the insurance services industry. V. We now turn to the merits of CIA’s claim against CNIS. The non-existent rights
1058	(Johnson); Ex. 106, Curriculum Vitae of Timothy Robert Bradley Johnson, M.D. [Johnson C.V.].) Dr. Johnson has performed medical and surgical abortions in the first and second trimesters; he has performed induction and D & Es, and has observed the D & X procedure being performed. (Tr. 396:4-400:11 (Johnson).) Dr. Johnson teaches maternal-fetal medicine and reproductive health, and oversees several educational, residency, and subspecialty training programs in obstetrics and gynecology, reproductive endocrinology, maternal-fetal medicine, and urogyneeology. (Tr. 402:3-405:2 (Johnson).) He has authored approximately 100 peer-reviewed publications and several books and book chapters in the areas of obstetrics and gynecology. He previously testified as the court-appointed expert in the case  Dr. Johnson is also a plaintiff in this case. (Tr. 390:10-11 (Johnson).) Cassing Hammond, M.D., a licensed physician and board-certified obstetrician and gynecologist, is an Assistant Professor in Obstetrics and Gynecology at the Northwestern University School of Medicine, the Director of the Northwestern Program in Family Planning, and the Medical Director at Prentice Ambulatory Care. (Tr. 517:12-522:2 (Hammond); Ex. 98, Curriculum Vitae of Cassing Hammond, M.D. [Hammond C.V.].) Dr. Hammond has performed thousands of previa-bility abortions, including D & E and D & X. (Tr. 526:1-530:8, 533:9-20 (Hammond).) He teaches various abortion procedures, including D & E and D & X, to residents and medical students at Northwestern. (Tr. 534:2-535:20 (Hammond).) Dr. Hammond previously testified in two cases that challenged partial-birth
2	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); 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
3650	the Illinois Wage Payment and Collection Act. Defendants now move to dismiss Count VI of Glass’s first amended complaint, alleging violation of the Illinois Wage Payment and Collection Act. II. DISCUSSION A. Standard for motion to dismiss When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Cromley v. Board of Educ. of Lockport, 699 F.Supp. 1283, 1285 (N.D.Ill.1988). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See Fed.R.Civ.P. 12(b)(6); However, the court may dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). B. Analysis of Wage Payment and Collection Act In Count VI of his first amended complaint, Glass seeks recovery of unpaid wages pursuant to the Illinois Wage Payment and Collection Act (‘Wage Act”), 820 ILCS 115/1-115/16. Specifically, Glass seeks in excess of $700,000 for lost salary, lost bonus opportunities, severance pay, and damages associated with the closing costs of his Atlanta home. The Wage Act provides a means for employees to collect
1154	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 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
2751	expert vocational testimony or misapplication of the Appendix 2 Grids. IV The court will remand the case for further proceedings. When the Council after the first hearing vacated the ALJ’s decision and pointed out its patent inadequacies, the Council remanded for a further hearing before “an” ALJ. This court now directs that the further proceedings be held before a different ALJ. In so directing the court need not accept the characterizations by plaintiffs counsel of the propensities of ALJ Jacobs. It is enough that he has been twice reversed, once by the Council and once by this court. The court has the power to require that the hearing be before a different ALJ without any intellectual commitment to a result. See Spears v. Heckler, 625 F.Supp. 208 (S.D.N.Y.1985). The ALJ shall grant plaintiffs request to subpoena Dr. Simon to testify at the hearing. V Case remanded for further proceedings consistent with this opinion. So ordered.
2194	at lawyers’ rates, even if a lawyer performs them.” Lipsett, 975 F.2d at 940 (finding that hours involving merely translation of documents and court filings should be compensated at a rate “less extravagant” than $150 per hour (citing cases)); see also McMillan, 140 F.3d at 307-08 (finding an abuse of discretion where the trial court did not distinguish between tasks that “could have been ade quately performed by a less-experienced lawyer or by a secretary or paralegal”). Accordingly, although recognizing Attorney Hernandez’s status as a sole practitioner operating without the support of a large clerical or legal staff, the Court determined that the time spent for photo processing and computer filing should have been billed at $40 per hour. See Finally, in applying these distinctions, the Court faced the difficulty of a number of mixed entries containing core, non-core, and clerical tasks with a single time figure. Consistent with its past practice, the Court decided to divide the hours in all such mixed entries equally between the component categories. See id. at 102 (considering mixed entries as one-half core, one-half non-core). The one exception was for travel time. When an entry explicitly contained a reference to travel time without indicating how many hours were actually spent traveling, I allocated one hour of the entry for travel. Some entries for attending court hearings or the trial made
4768	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. 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
4234	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. 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); 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
2544	fact under multiple categories.”). Nor did the district court err by concluding that Bridgeport continued to press the theory as part of its overly aggressive litigation tactics and not in any hope or expectation of actually surviving summary judgment. Given the litigation history of Bridgeport in this and the companion cases, it was not an abuse of discretion for the district court to award fees and costs against the company in the hope of motivating it to litigate in a more responsible, realistic manner and to deter it from continuing to engage in questionable litigation tactics. C. The Amount of the Award The district court’s decision to award fees and costs is “bolstered” by its significant reduction of the requested amount. As it did earlier, the district court considered only fees and costs incurred after September 16, 2002. The district court also reduced the rates of counsel and paralegal work, deducted fees for redacted or nonspecific entries, allocated fees between two cases against UPIP, and reduced the lodestar amount by an additional 25% to account for top-heavy billing by partners for work that could have been performed by associates. Rhyme Syndicate, 376 F.3d at 627. Bridgeport argues that the district court abused its discretion in awarding fees and costs for work that did not contribute to UPIP’s success in this matter. The district court’s award encompassed work by UPIP’s legal team on the supplemental summary judgment brief as well as trial
3130	the scrap value of assets resulting from forced liquidation at auction sales.” Id. at 185-186. This doctrine is usually sought under the bankruptcy court’s equitable powers established in 11 U.S.C. § 105. See Hon. Nancy C. Dreher, Hon. Joan N. Feeney and Michael S. Stepan, Esq., Bankruptcy Law Manual, Volume 1 § 2:22 (2012-1), p. 197. Section 105 establishes that “the court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of [the Bankruptcy Code].” 11 U.S.C. § 105(a). The “doctrine of necessity” finds its origin in nineteenth-century railroad receivership cases, along with the doctrine of the “six-month rule”. See In re Boston & Me. Corp., 634 F.2d 1359, 1366 (1st Cir.1980) (also discussing the origins of the doctrine of necessity). The two similar doctrines developed coetaneously. Railroad receiverships in the late 1800’s recognized an equitable rule of priority, known as the “six months rule”, which authorized receivers to pay the unpaid claims of “operating creditors” arising within the six-month period immediately preceding the receivership case. Alan N. Resnick, The Future of the Doctrine of Necessity and ‘Critical-Vendor Payments in Chapter 11 Cases, 47 B.C.L.Rev. at 186; Russell A. Eisenberg & Frances F. Gecker, The Doctrine of Necessity and Its Parameters, 73 Marq.
1885	price during 1959-1960 and 1968-1971. The result would have been a refund obligation of only $390,521.80. The Commission, relying on a prior order in a similar case, Phillips Petroleum Company, 41 F.P.C. 415, 417 (1969), read paragraph (B) to preclude any offset, and rejected Gillring’s reports. After the Courts finally affirmed Opinion No. 595, Gillring sought a declaratory order allowing the reduction. The Commission denied the request. Interpretation of Opinion No. 595 When construction of an administrative regulation is at issue, courts owe great deference to the interpretation adopted by the agency, which will be upheld if it is reasonable and consistent with the regulation. Udall v. Tallman, 380 U.S. 1, 16-18, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); The court need not find that the agency’s construction is the only possible one, or even the one the court might have adopted in the first instance. Gillring’s claim that Opinion No. 595 entitles it to an offset starts and finishes with the plain language of the opinion. While Gillring’s interpretation has some vitality, it does not so forcefully leap from the text of Opinion No. 595 as to foreclose the Commission from rejecting it. Ordering paragraph (B) expressly limits paragraph (E), and (B) states that amounts “in excess of the applicable area rate shall be subject to refund.” Furthermore, the “area rate as defined herein” in paragraph (E) is a ceiling rate. The ceiling rate concept is the
4827	experience, and RFC, is capable of performing other work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A); Brewer, 103 F.3d at 1390. V. THE ALJ’S DECISION WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE The ALJ concluded York was disabled from his date of onset through December 23,1993 and was capable of performing the full range of sedentary work as of that date. The evidence does not support this conclusion. The record does not support the date the ALJ chose to end York’s disability status. A. The ALJ Erred in Ignoring Medical Evidence of York’s Pain and Swelling The ALJ is required to take into consideration all of the evidence in the record and discuss significant evidence contrary to her ruling. The ALJ’s finding that medical improvement related to the Claimant’s ability to work occurred as of December 23, 1993, is not supported by substantial evidence. In the ALJ’s decision, she found as of December 23, 1993, the treating physicians’ opinions were no longer reliable as they were clouded by the Claimant’s continuous complaints of pain which were belied by his actual activities. In reaching this conclusion, the ALJ ignored evidence in the record. York’s actual activities the ALJ made reference to included; taking care of his daughter, walking 20 ft. from his apartment to his car which only includes one step (not a flight of stairs as mischaracter-ized by the ALJ), putting gas into his car, and going to doctors’
2740	in question is to be reviewed (i.e., rational basis review, intermediate scrutiny, or strict scrutiny). See Hayden, 134 F.3d at 452-53. The burden to prove intentional discrimination is not a slight one: “ ‘Discriminatory purpose’ ... implies that the decisionmaker ... selected or reaffirmed a course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Id. (quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)). In light of this intent requirement, an equal protection challenge to a law or policy may proceed under one of several theories. First, a law, policy, or action may be discriminatory on its face. See Second, a law, policy, or action, neutral on its face, may be applied such that it discriminates against a certain group. See Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Finally, a law, policy, or action, neutral on its face and in its application, may have been promulgated with discriminatory intent. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). In this last instance, although evidence of a disparate impact may serve as evidence of discriminatory intent, it rarely will carry the day in the absence of other evidence of discriminatory design. The First Circuit has noted
3366	compromise agreement. Our concern here, of course, is only with that portion of the old trust which remained in existence. Petitioner merely relinquished his testamentary power of appointment and his power to modify over half of the original trust corpus, but only after he had created vested interests in this remaining portion of the trust. We do not think that the decedent, by creating these vested interests through the exercise of his power to modify, can be said to have made transfers of anything, since the beneficiaries named under his power to modify were the very same beneficiaries who would have taken in the event this power were never exercised by decedent. See Rogers’ Estate v. Helvering, 320 U. S. 410; Edith Evelyn Clark, 47 B. T. A. 865. But even if we assume that a transfer were made, it could hardly be argued that a life interest was reserved by the decedent in connection with such transfer. Decedent’s life interest in a remaining half of the trust was unchanged. The agreements of 1940 did not touch this but merely left it intact as it existed under the terms of the trust set up by the original settlor. To say that the decedent made a transfer here by naming these beneficiaries, through the exercise of his donated power to modify, and then reserved a life interest in himself in conjunction with such transfer, is to create a fiction. We think that the parties
1091	"against the restraints of the Fifth Amendment Due Process Clause, while Stenberg invalidated a state statute under the Due Process Clause of the Fourteenth Amendment, the Supreme Court has generally interpreted the clauses to be coextensive. See, e.g., Paul v. Davis, 424 U.S. 693, 702 n. 3, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (applying precedents decided under both due process clauses because ""the Fourteenth Amendment imposes no more stringent requirements upon state officials than does the Fifth upon their federal counterparts”); Screws v. United States, 325 U.S. 91, 123, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (""The Fifth Amendment contains a due process clause as broad in its terms restrict ing national power as the Fourteenth is of state power.”); ). Both clauses protect against deprivations of a person's liberty without due process of law. See U.S. Const, amends. V, XIV. And the Supreme Court has construed both clauses to include substantive protections. See Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (""We have long recognized that the [Fourteenth] Amendment's Due Process Clause, like its Fifth Amendment counterpart, guarantees more than fair process. The Clause also includes a substantive component that provides heightened protection against government interference with"
1134	held that, since the complaint of the plaintiff-appellants prayed for a temporary restraining order and final injunction, the order staying further prosecution of the action was appealable under § 1292(a) (1) as “a denial of the temporary injunction which was sought.” 280 F.2d at 333. Plainly, both these cases have little in common with the instant case. Having concluded that the stay order was neither a final order appealable under § 1291 nor an injunction appealable under § 1292(a) (1), it follows that the appeal must be Dismissed. . See and compare Baltimore Contractors v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233; Morgantown v. Royal Insurance Co., 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347; 63 S.Ct. 163, 87 L.Ed. 176; Enelow v. New York Life Insurance Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440; Shanferoke Coal & Supply Corporation of Delaware v. Westchester Service Corp., 293 U.S. 449, 55 S.Ct. 313, 79 L.Ed. 583; Lummus Co. v. Commonwealth Oil Refining Co., 2 Cir., 297 F.2d 80; Chronicle Publishing Co. v. National Broadcasting Co., 9 Cir., 294 F.2d 744; Ferguson v. Tabah, 2 Cir., 288 F.2d 665; Glen Oaks Utilities, Inc. v. City of Houston, 5 Cir., 280 F.2d 330; Arny v. Philadelphia Transportation Co., 3 Cir., 266 F.2d 869; Thibodaux v. Louisiana Power & Light Co., 5 Cir., 255 F.2d 774, reversed, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058; United Gas Pipeline Co.
2120	(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 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 property (other than stock or securities of a foreign corporation which is a party to the exchange or a party to the reorganization) by a
559	"the United States had exclusive jurisdiction, the 1940 Act was needed ""simply [to] restore[ ] to the Federal Government the jurisdiction it was recognized as having until the Dravo decision was handed down.” H.R. Rep. No 76-1623, at 1; accord S. Rep. No. 76-1708, at 1. . See, e.g., Talbott v. United States ex rel. Toth, 215 F.2d 22, 27-28 (D.C.Cir.1954), rev’d on other grounds sub nom. United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955); In re Varney, 141 F.Supp. 190, 200 (S.D.Cal.1956); United States v. Kinsella, 137 F.Supp. 806, 811 (S.D.W.Va.1956), rev'd on other grounds sub nom. Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957); United States v. Burney, 21 C.M.R. 98, 125 (C.M.A.1956); United States v. Robertson, 19 C.M.R. 102, 110-11 n. 2, 1955 WL 3407 (C.M.A.1955); United States v. Rubenstein, 19 C.M.R. 709, 785-88, 1955 WL 3505 (U.S.A.F. Bd. of Review 1955), aff'd, 22 C.M.R. 313, 1957 WL 4632 (C.M.A.1957); see also Note, Criminal Jurisdiction over American Armed Forces Abroad, 70 Harv. L.Rev. 1043, 1057 (1957) (noting that if the Supreme Court were to rule that civilians accompanying the military overseas could not be tried in courts martial, host countries would have exclusive jurisdiction over crimes committed by any such civilians). . See also Singleton, 361 U.S. at 246, 80 S.Ct. 297 (""[Pjrosecution in the United States for the more serious offenses when authorized"
1072	undue burden, and not strict scrutiny, was the test for evaluating the constitutionality of abortion regulations, it reaffirmed that there was a fundamental liberty right against unwarranted government interference in aborting a nonviable fetus. See 505 U.S. at 875-77, 112 S.Ct. 2791. Such substantial deference to Congress’s factfindings would not comport with the Supreme Court’s treatment of statutes burdening fundamental rights, whether the constitutional test is “the most exacting scrutiny,” see Clark, 486 U.S. at 461, 108 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., 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
2418	Army’s own diagnosis makes it clear that petitioner’s conditions are such as to normally require a finding of unfitness. Because the PEB’s report of July 18, 1973 did not even state a disability description and because it concluded only that “available evidence does not indicate that member’s ailment had any effect on his satisfactory performance of duty since 1968,” we find and conclude that there is a reasonable likelihood that petitioner will prevail on the merits. Irreparable Injury to Petitioner It is clear from the several cases which have dealt with the issue that discharge from the military service does not, standing alone, irreparably injure the discharged serviceman, since lost pay, benefits, and rank may ultimately be restored. See, e. g., On the other hand, some courts have found “special circumstances” in which the failure to grant an interim stay would lead to such a result. See e. g., Covington v. Schwartz, supra. In gauging the effect on the petitioner of a discharge without a medical disability rating, this Court must recognize the substantiality of the head wounds suffered by petitioner while serving in the Republic of Vietnam. The administrative record discloses that petitioner has received and on occasion still receives medical care for his wounds. The availability of skilled medical care to the petitioner would thus seem to be of great importance. Indeed, in a letter to petitioner’s commanding officer on November 2, 1973, Major L. M. Mitchell, Chief of
2478	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’ Times, Inc. v. Busbee, 621 F.2d 135, 138-39 (5th Cir. 1980) (first amendment challenge to a criminal statute). These cases, in contrast to the present case, uniformly involve chilled speech, an area traditionally afforded a high degree of constitutional protection. Plaintiffs point to neither an imminent threat of criminal prosecution nor to a history of past prosecution. The ordinances about which they complain certainly present no threat to their right to free speech, or other fundamental rights. Plaintiffs offer  to support their claim to standing. Their reliance is misplaced. Prairie Island is distinguishable on its facts. In Prairie Island, the Mdewakanton Sioux expressed its present intention to enforce a tribal ordinance regulating the transport of nuclear waste on an established reservation which houses a functioning nuclear electrical generation plant. Id. at 459. On those facts, Northern States Power could easily demonstrate an actual ongoing injury stemming from the ordinance, including delays in the shipping of hazardous nuclear waste and the inability to monitor the safety of a nuclear energy plant. See id. at 463. Prairie Island is not analogous to this case.. The Mille Lacs Band has neither threatened nor demonstrated an intention to enforce its ordinances beyond its
1170	jurisdiction or to reach the merits of the appeals, the settlement would stand. Although jurisdictional issues are normally resolved prior to a determination of the merits, under the circumstances here, we may disregard potentially difficult jurisdictional issues and proceed directly to the merits where there is no practical difference in the outcome. See e.g., Norton v. Mathews, 427 U.S. 524, 532, 96 S.Ct. 2771, 2775, 49 L.Ed.2d 672 (1976); Safeco Life Insurance Company v. Musser, 65 F.3d 647, 650 (7th Cir.1995); Rekhi v. Wildwood Industries, Inc., 61 F.3d 1313, 1316 (7th Cir.1995); Tisza v. Communications Workers of America, 953 F.2d 298, 300 (7th Cir.1992); United States v. Parcel of Land, 928 F.2d 1, 4 (1st Cir.1991); We believe it is prudent to do so here. III. Federal courts naturally favor the settlement of class action litigation. E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884, 888-89 (7th Cir.1985), cert. denied, 478 U.S. 1004, 106 S.Ct. 3293, 92 L.Ed.2d 709 (1986); Metropolitan Housing Development Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1013 (7th Cir.1980); Armstrong v. Board 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
2151	Associates, Inc., to recoup expenses under a provision of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9607(a)(4)(B). A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 151-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Felix v. Young, 536 F.2d 1126, 1134 (6th Cir.1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties’ differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). The evidence must be construed in a light most favorable to the party opposing the motion. Bohn Aluminum & Brass Corp.
2977	referring not only to crimes which, in their generic sense, pose an inherent risk of injury to the person, but also to any particular offense which, under the facts and circumstances of its commission, actually posed such a risk. Under this view, the particular instance of storehouse breaking at issue here might qualify as a violent felony, for it involved the heaving of a brick through the plate glass window of a jewelry store. While the case is indeed a close one, 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. 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
1647	McHone is not entitled to recover under her uninsured motorist policy. The district court found it was unnecessary to determine when Gramercy became insolvent. We agree. Under the facts presented, State Farm is entitled to a credit for the settlement proceeds McHone received regardless of the date of Gramercy’s insolvency. Accordingly, we affirm the district court’s judgment in favor of State Farm. . The Honorable James M. Moody, United States District Judge for the Eastern District of Arkansas. .The material facts are largely undisputed and the issues raised in the summary judgment motions, and now on appeal, are based on the parties differing interpretations of the law. Nonetheless, the Court reviews the facts in a light most favorable to McHone. . McHone’s claims against Defendants Diamond Express Inc., Mauney and Young (special administrator for the estate of Jessie D. Whirley, deceased) were subsequently dismissed with prejudice on December 10, 2014. . It is undisputed that McHone was a Tennessee resident and that Tennessee law applies to the provisions of her insurance policy with State Farm.
4618	due from the Standard Oil Company at the conclusion of the voyage; and a subsequent loan for the purpose of enabling the ship to continue a voyage, which was agreed to be repaid from the proceeds of the freight earned and to become due from the Standard Oil Company. The funds to which appellants had looked for repayment of their loans, as evidenced by -the written understandings, were subsequent to the making of the loans, paid into the United States District Court for the Southern District of New York, and there, in several admiralty and interpleader suits, lawfully distributed by orders of the court to other creditors. Appellants did not share in this distribution. Defense Plant Corp. v. United States Barge Lines, Inc., D.C., 57 F.Supp. 14, affirmed in 2 Cir., 145 F.2d 766. With one exception, appellants did not make the loans in question, or enter into agreements for extension of their payment, on the obligation of the vessel; they relied solely on its earnings. Such reliance on the earnings as security for the loans amounts to a waiver of lien on the vessel. ' Nor can liability be enforced on the claims of appellants on the theory that the written obligations evidencing the debts are Respondentia Bonds. The agreement for repayment of the loans lacks most of the essentials of those archaic instruments, the use of which has passed, with other appurtenances and trappings of
4629	filed his three-count Complaint on June 25, 1991 to recover damages, fees and costs, as well as seeking a mandatory injunction reinstating him to active duty. Count I related to the CPD’s 1989 decision not to reinstate Buttitta and named Holton as defendant. Count II related to the similar decision in 1991 and named Wedgbury as defendant. Finally, Count III charged that both the 1989 and 1991 actions stemmed from City’s “policy or custom” of conducting its own medical review to determine whether an officer deemed no longer disabled by the Board is actually fit for duty. That allegation, if proved, would make City liable for the actions of Holton and Wedgbury (After 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
2226	that, even if their anticipatory repudiation claim accrued prior to the filing of their declaratory judgment action, it should nevertheless remain viable under the “declaratory judgment exception” to the doctrine of claim preclusion. In light of the peculiar features of declaratory judgment actions, the majority of jurisdictions have accorded declaratory judgments less preclusive effect than ordinary claims for specific relief such as a claim for damages or an injunction. Among these jurisdictions, however, some have accorded declaratory judgments less preclusive 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  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.,
2356	the activities required by his former job. Indeed, because these doctors knew that Havas was already retired at the time of their examinations and was no longer driving for prolonged periods, there was no reason to include such a restriction in their reports. The record also contains the reports of two other physicians, Dr. Ralph S. Brown and Dr. Judith Bodnar, neither of whom examined Havas or specializes in orthopedic medicine. They opined that Havas was capable of returning to work. However, the opinions of nonexamining medical personnel cannot in themselves constitute substantial evidence overriding the opinions of examining physicians. See Martin v. Secretary of HEW, 492 F.2d 905, 907-08 (4th Cir.1974); Landess v. Weinberger, 490 F.2d 1187, 1190 (8th Cir.1974); Ehrenreich v. Weinberger, 397 F.Supp. 693, 697 (W.D.N.Y.1975). Furthermore, the AU did not refer to those reports. In sum, there is no substantial evidence in the record creating a “genuine conflict[],” Schisler, 787 F.2d at 81, with Dr. Mulbury’s opinion that Havas can no longer perform his past work. We therefore remand to the Secretary for a determination as to whether Havas “cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A) (1982 & Supp. Ill 1985). This case underlines the need for our recent order in Schisler requiring the Secretary to “state in relevant publications ... that adjudicators at all levels, state
2375	part that “proof of service by mail under Rule 403 shall include a return receipt signed by the defendant....” Id. 405; Borah v. Monumental Life Ins. Co., No. Civ.A. 04-3617, 2005 WL 83261, 2005 U.S. Dist. LEXIS 2013, at *5 (E.D.Pa. Jan. 14, 2005). Here, Allstate did not serve Nelson in accordance with the Pennsylvania rules because Allstate did not serve Nelson “by any form of mail requiring a receipt signed by Nelson.” Pa. R. Civ. P. 403. Because Allstate failed to properly serve Nelson with its cross-claim, Allstate’s motion for a default judgment will be denied and its cross-claim denied without prejudice. Defendant Nelson’s motion to set aside entry of default will be granted. See, e.g., .Civ.P. 4); D’Angelo v. Potter, 221 F.R.D. 289, 294 (D.Mass.2004) (setting aside entry of default against defendant where amended complaint asserted new claims for relief but was not served in accordance with Fed. R.Civ.P. 4). IV. CONCLUSION In light of the foregoing discussion, the $4,654.50 judgment in favor of plaintiff and against Allstate will be modified to include an award of interest and costs, but not attorneys’ fees. The Court will not set aside the default judgment as to liability in favor of plaintiff and against Vernell Nelson. Judgment in the amount of $4,654.50 plus interest and costs will be entered
3808	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, 120 S.Ct. 1382; Barnes, 501 U.S. at 565, 571, 572, 111 S.Ct. 2456, the Eleventh Circuit has suggested that requiring more in the way of clothing may violate the fourth prong of O’Brien. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, 337 F.3d 1251, 1273-74 (11th Cir.2003); see also Daytona Grand, Inc. v. City of Daytona Beach, 410 F.Supp.2d 1173, 1176 (M.D.Fla.2006); R.V.S., 361 F.3d at 413; cf. Section 3-129(6) requires a dancer — before she can permissibly engage in certain explicit dance movements — to fully cover her buttocks and the lower portion of her breasts, which requires 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).”
2501	smaller Keystone could only cause limited harm to the much larger Bell & Howell. The court further determined that the impending erosion of the microfiche market in light of optical disk technologies would naturally eliminate competition between the litigants and minimize long term damage to Bell & Howell. Accordingly, the court denied Bell & Howell’s motion for a preliminary injunction. Bell & 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.  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
3438	4, 2004, restating this count among others. Lister ultimately struck an agreement with the government and pleaded guilty to the original charge on October 15, 2004, before Judge Shabaz. At the plea hearing, Judge Shabaz informed Lister that the plea agreement was merely a recommendation that the court could reject “without permitting you to with-draw your plea of guilty and could then impose a sentence that is more severe than you may be expecting.” Plea Hr’g Tr. 5-7, Oct. 15, 2004. He noted that should the court reject the plea agreement, Lister would be provided with the opportunity to change his plea to not guilty. Id. at 7. Lister firmly acknowledged these possibilities. Additionally, Judge Shabaz addressed the holding in  and its effect on the Federal Sentencing Guidelines, noting that, at that time, the case had been argued before the Supreme Court but that a final opinion had not yet been issued. Most importantly, Judge Shabaz explicitly stated that Lister’s plea carried “penalties of a minimum mandatory term of five years and a maximum of 40 years in prison, a $2 million fine, a four-year period of supervised release and $100 special assessment.” Plea Hr’g Tr. 9, Oct. 15, 2004. When asked if he understood this possible penalty, Lister stated simply “yes.” Id. Following the plea hearing, the U.S. Probation Office prepared a presentence investigation report (PSIR) for use at sentencing. When interviewed for the report in 2004,
2558	an answer to the petition, motion or other pleading to which he is adverse, he shall be deemed to have consented to such jurisdiction; * * *” The consent of the parties did not create jurisdiction in the bankruptcy court where none had existed before; it merely waived the procedural right of the parties to have their claims to the escrow fund adjudicated in the Virginia court. The parties were at liberty to waive this right. Harris v. Avery Brundage Co., 305 U.S. 160, 164, 59 S.Ct. 131, 83 L.Ed. 100, rehear. den., 305 U.S. 674, 59 S.Ct. 247, 83 L.Ed. 437, aff’g. In re Tax Service Association v. Avery Brundage Co., 95 F.2d 373 (7th Cir. 1938); The waiver was effective to permit the exercise of summary jurisdiction by the court even though the escrow fund had been attached in the state action. See Taubel-Scott-Kitzmiller Co. v. Fox, 264 U.S. 426, 433, 434, 44 S.Ct. 396, 68 L.Ed. 770 (1924); Carney v. Sanders, 381 F.2d 300, 302 n. 3 (5th Cir. 1967); O’Dell v. United States, 326 F.2d 451, 455, 456 (10th Cir. 1964); cf. Schumacher v. Beeler, 293 U.S. 367, 55 S.Ct. 230, 79 L.Ed. 433 (1934); 5 Remington on Bankruptcy (5th ed. 1953) § 2200. The appellants rely upon In re Consolidated Container Carriers, Inc., 385 F.2d 362 (3rd Cir. 1967). In that case the court sustained an objection to
2821	"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 under the Fourteenth Amendment a municipality cannot deny the use of a public building to one oganization while permission is freely granted to others applying for the purpose of public assembly and discussion. t. 850, 99 L.Ed. 1231. The Court does not consider on this record that the City of Memphis has, in effect, denied the use of City Hall for public assembly and discussion; it has denied the plaintiff organizations and a similar organization use of City Hall office space. In our judgment, the City should likewise properly have denied that office space to ""Memphians for Patriotism,” because it has no special legislative sanction or authority to do so. An injunction will therefore not be issued as prayed for by plaintiffs. The cause will be retained, however, for appropriate action upon a hearing if the City should pursue in the future conduct which the Court should find to be contrary to the principles herein"
2293	his right to counsel. Based on an adjusted offense level of 16, a criminal history category of IV, and a sentencing range of 33-41 months, the court imposed a sentence of forty-one months in prison. On appeal LaFrombois argues that the prior convictions should have been excluded because he did not knowingly and intelligently waive counsel, he was not advised of the possible penalties, and he was not advised he was giving up his right to a jury trial and his right to remain silent. A sentencing court’s finding under U.S.S.G. § 4A1.2 that a conviction used to enhance a defendant’s sentence was not constitutionally invalid is reviewed for clear error and for application of the proper legal standards. See A criminal defendant may waive his right to counsel as long as the waiver is voluntary, and intelligently and knowingly made. Meyer v. Sargent, 854 F.2d 1110, 1114 (8th Cir.1988). Whether the defendant was made sufficiently aware of his right to have counsel and the possible consequences of foregoing assistance of counsel turns on the particular facts and circumstances of the case, including the defendant’s background, experience and conduct. Bumgarner v. Lockhart, 920 F.2d 510, 512 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991). Here, the district court’s determination that La-Frombois’s waiver was voluntary and knowing was not clearly erroneous: the transcript shows that the state court thoroughly explained the right to have counsel, and
4867	The girl turned out to be an undercover police officer, and Eom, then 32 years old, was arrested. He pleaded guilty to traveling in interstate commerce to engage in sexual conduct with a minor. See 18 U.S.C. § 2423(b). The district court sentenced him to 51 months’ imprisonment, at the bottom of the guidelines range. Eom appeals, but his appointed lawyer has moved to withdraw because he cannot identify a nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Eom has not responded to our invitation to comment on counsel’s submission, see CIR. R. 51(b), and we confine our review to the potential issues identified in counsel’s facially adequate brief. See Counsel begins by telling us that Eom has said he wants only to challenge his prison sentence and does not wish to have his guilty plea set aside. Thus, counsel should have omitted any discussion of possible challenges to the voluntariness of Eom’s plea or the adequacy of the plea colloquy. See United States v. Cano-Rodriguez, 552 F.3d 637, 638 (7th Cir.2009); United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel has evaluated whether Eom could challenge the reasonableness of the 51-month sentence he asked the district court to impose. Counsel notes, however, that the court correctly calculated the imprisonment range and that Eom’s sentence at the bottom of that range is entitled to a presumption of reasonableness.
4905	"2015) (quoting In re Hydrogen Peroxide Antitrust Litig. , 552 F.3d 305, 312 (3d Cir. 2008) ). An additional question raised in this appeal is whether we have pendent appellate jurisdiction to review the District Court's FLSA certification order, a question of first impression for our Court. As a general matter, an order certifying a collective action under the FLSA is non-final and therefore not reviewable. See Halle , 842 at 227. However, under certain limited circumstances, the Court may, in its discretion, exercise pendent appellate jurisdiction ""over issues that are not independently appealable[.]"" E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S. , 269 F.3d 187, 202-03 (3d Cir. 2001) (citing For the reasons stated in Part C, infra , we decline to exercise pendent appellate jurisdiction to review the District Court's Order granting final collective certification under the FLSA. III. DISCUSSION On appeal, Citizens argues that the District Court erred in certifying Plaintiffs' state-law claims under Rule 23. Although we express reservations about the District Court's ultimate findings, we cannot say at this juncture that the District Court abused its discretion in certifying the putative class based upon the record before us. Rather, we find only that the District Court failed to provide a sufficiently rigorous analysis to support its conclusions and will therefore vacate and remand its order granting class certification under Rule 23. ""The class action"
2768	Medical Corp., 135 F.Supp.2d 212, 218-19 (D.Mass.2000). These courts have reasoned that the relevant intent is that of the client, not of the attorney. Thus, reliance on advice of an attorney effects a waiver only regarding information known to the client, which could be relevant in deciding whether the client reasonably relied on the advice of the attorney. On the other side, district courts ordered discovery of opining attorneys’ internal drafts, research notes, and thought processes in Greene, Tweed of Delaware, Inc. v. DuPont Dow Elastomers, L.L.C., 202 F.R.D. 418, 420, 422 (E.D.Pa.2001); Novartis Pharmaceuticals Corp. v. EON Labs Mfg., Inc., 206 F.R.D. 396, 399 (D.Del.2002); Mushroom Associates v. Monterey Mushrooms Inc., 24 U.S.P.Q.2d 1767, 1771 (N.D.Cal.1992); and  among other cases. These courts have asserted that a fair test of the client’s reliance on an attorney’s opinion requires a full opportunity to explore the attorney’s reasoning, including examination of internal drafts, research files, and thoughts and doubts that were never communicated to the client. See, e.g., Novartis Pharmaceuticals, 206 F.R.D. at 399. Eco Mfg. LLC v. Honeywell Intern., Inc., 2003 WL 1888988, *4-5 (S.D.Ind. April 11, 2003). In Eco, Judge Hamilton found that, because the relevant issue is the intent of the alleged infringer and not that of its attorneys, discovery of the attorneys’ work product that had not been communicated to the alleged infringer was inappropriate. Id. at *6-7. The court further noted that allowing such discovery “creates
1760	"(D.Md.1962), aff’d, 314 F.2d 45 (4th Cir.1963) (citations omitted). . Objections (quoting Complaint II ¶¶ 8, 10, 37, 41). . See Compl. ¶¶ 10, 37, 41; Complaint I ¶¶ 10, 37, 41; Complaint II ¶¶ 8, 10, 37, 41. . See Complaint III ¶ 248. . Shell Oil does not claim its right to removal was revived, but that the initial pleading was not removable. In their objection, plaintiffs cite inapposite cases where defendants unsuccessfully sought to prove that their right to removal was revived because the initial complaint was amended so "" 'drastically that the purposes of the 30-day limitation would not be served by enforcing it.’ ” Objections at 7-8 (quoting Wilson, 668 F.2d at 964; Samura v. Kaiser Found. Health Plan, Inc., 715 F.Supp. 970, 972 (N.D.Cal.1989) (where an initial complaint was removable, subsequent events do not make it ""more removable” or ""again removable”) (citations omitted); Jeffrey M. Goldberg & Assoc. v. Collins, Tuttle & Co., 739 F.Supp. 426, 430 (N.D.Ill.1990) (finding that the addition of a ""new tortious interference claim” that did not change the basic legal theory in an initially removable complaint did not restart the removal clock); Potty Pals, Inc. v. Carson Fin. Group, Inc., 887 F.Supp. 208, 209 (E.D.Ark.1995) (finding that the"
1336	a person driving an automobile has such an expectation and is therefore protected by the Fourth Amendment. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L. Ed.2d 142; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. There is no doubt that petitioner was protected by the Fourth Amendment when he drove through the streets of Blair, Nebraska. The Fourth Amendment provides: “[T]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The important Fourth Amendment issues therefore are whether there was a “search” or “seizure” or both in this case and whether they were “reasonable.” The Supreme Court recently in 868, 20 L. Ed.2d 889, defined the Fourth Amendment term seized for the purpose of police-citizen street encounters. The Court said: “It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” 392 U.S. 1, 16, 88 S.Ct. 1868, 1877. It would appear from the record in this case that Carpenter was “seized” when the police officers signaled him to pull to the curb by the use of their flashing red light. The question then becomes whether this “seizure” was “reasonable” under the Fourth Amendment. The Court in Terry indicated that the judicial inquiry into the question of “reasonableness” is a dual one. A reviewing court must objectively
4658	in connection with an unrelated investigation, that he could provide information about the Concord robberies. The next day a Concord Police detective, Todd Flanagan, joined the Berlin officer in a second interview of Ellison, which took place in the jail library. Ellison was brought there in restraints, but these were removed at the request of Flanagan, who stated his understanding that Ellison wished to speak about the robberies. Flanagan told Ellison that he was not under arrest for these crimes, did not have to answer any questions, and was free to end the interview at any time by pushing a button on the table to summon the guards. Neither officer, however, advised Ellison of other rights subject to warnings required by Ellison was calm, showed no surprise, and consented to a recorded interview, during which he disclosed his erstwhile romantic involvement with Theriault at the time of the robberies, identified her as the robber and implicated himself in a supporting role. Ellison was then indicted for his part in the crimes, and, after the district court denied a motion to suppress his statement, he conditionally pleaded guilty to aiding and abetting robbery, 18 U.S.C. §§ 1951 and 2, and aiding and abetting the possession of a firearm in furtherance of a crime of violence, 18 U.S.C. §§ 924(c) and 2. Here, Ellison contends that suppression was required because there were no Miranda warnings, the statement was coerced
2682	interpretation of the Bankruptcy Code and Rules, because these matters are legal issues or mixed questions of law and fact in which legal issues predominate. George v. Morro Bay (In re George), 318 B.R. 729, 732-33 (9th Cir.BAP 2004); Wells Fargo Bank v. Yett (In re Yett), 306 B.R. 287, 290 (9th Cir.BAP 2004). Interpretation of the contractual terms of a Chapter 13 plan is generally a factual issue which we review for clear error (Yett, 306 B.R. at 290) but such factual issues can become mixed with legal issues. Whether a contract is ambiguous is a matter of law, which we review de novo. In this case we need not decide which standard applies to interpretation of the Plan because we would reach the same result whether we reviewed the bankruptcy court’s interpretation for clear error or de novo. Whether adequate notice has been given for purposes of due process in a particular instance is a mixed question of law and fact that we review de novo. Educ. Credit Mgmt. Corp. v. Repp (In re Repp), 307 B.R. 144, 148 (9th Cir.BAP 2004). V.DISCUSSION There is no question that Ventura violated the automatic stay by sending the Tax Lien Notice. The question is what damages are appropriate, if any. The bankruptcy court held Ventura partly responsible for Debtors’ legal fees and the costs associated
4453	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., 617 F.2d 396 (5th Cir.1980); Austracan, (U.S.A.) Inc. v. M/V LEMONCORE, 500 F.2d 237 (5th Cir.1974); The Maria, supra. Cases in which the appellate courts have held jurisdiction proper for the appeal although the facts differed from those of the original justification for the appeal include All Alaskan Seafoods, Inc. v. M/V Sea Producer, 882 F.2d 425 (9th Cir.1989); Dunham v. M/V Marine Chemist, 812 F.2d 212, 214 n. 2 (5th Cir.1987); Nichols v. Barwick, 792 F.2d 1520 (11th Cir.1986); Doyle v. Bethlehem Steel Corp., 504 F.2d 911 (5th Cir.1974); Bergeron v. Elliot, 466 F.2d 514, 516 n. 3 (5th Cir.1972); Isbrandtsen Tankers, Inc. v. President of India, 446 F.2d 1198 (2d Cir.), cert. denied, 404 U.S. 985, 92 S.Ct. 452, 30 L.Ed.2d 369 (1971). As the careful eye will note, some circuits appear in both lists (neither of which is exhaustive), and these circuits have addressed this matter and developed fairly detailed rules to explain the dis tinctions between the various procedural postures presented and the applicability of § 1292(a)(3) to each. . Since we recognize that both parties believed jurisdiction to lie for this appeal, and we understand that the circuits have not provided helpful guidance in this area
4476	"See, e.g., Leavitt, 171 F.3d at 1224 (bad faith as cause for dismissal of Chapter 13 petition involves application of a totality of the circumstances test); Ho, 274 B.R. at 879 (""[A]ny finding of § 1307(c) 'cause' would require a totality of the circumstances analysis followed by, if 'cause' is found, consideration of whether conversion or dismissal is in the best interests of creditors and the estate.”); Love, 957 F.2d at 1355 (bankruptcy courts must look at the totality of the circumstances on a case-by-case basis when determining good faith); see also Mason v. Young (In re Young), 237 F.3d 1168, 1174 (10th Cir.2001) (determination of good faith is made on a case-by-case basis, looking at the totality of the circumstances); Solomon v. Cosby (In re Solomon), 67 F.3d 1128 (4th Cir.1995) (affirming totality of the circumstances standard); In re Schaitz, 913 F.2d 452 (7th Cir.1990) (good faith analysis under Chapter 13 depends on the totality of the circumstances); Fleury, 294 B.R. at 6; Virden, 279 B.R. at 408."
3074	Pt. 1630, App. § 1630.2© (“The terms ‘numbers and types of jobs’ .and ‘number and types of other jobs,’ as used in the factors discussed above, are not intended to require an onerous evi-dentiary showing. Rather, the terms only require the presentation of evidence of general employment demographics and/or of recognized occupational classifications that indicate the approximate number of jobs (e.g., ‘few,’ ‘many,’ ‘most’) from which an individual would be excluded because of an impairment.”) The Court will now explain why Plaintiffs evidence fails to meet her burden under the ADA in “working” cases. First, the Court holds that a lifting restriction alone is not sufficient to establish a substantial impairment to the major life activity of working. See Williams v. Channel Master Satellite Sys., 101 F.3d 346, 349 (4th Cir.1996) (Holding as a matter of law that a 25-pound lifting limitation does not constitute a disability); Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th Cir.1996). Other courts have held that even lesser amounts were not substantial limitations. See Marinelli v. City of Erie, Pa., 216 F.3d 354, 364 (3rd Cir.2000) (10 pounds); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 644 (2nd Cir.1998) (10-20 pounds); Helfter v. United Parcel Service, Inc., 115 F.3d 613, 617-18 (8th Cir.1997) (10-20 pounds); McKay v. Toyota Motor Mfg., US.A., Inc., 110 F.3d 369, 373 (6th Cir.1997) (20 pounds); Wooten v. Farmland Foods, 58 F.3d 382, 384-86 (8th
2906	indicates that Zellner left Doane College after the 1985 summer session and began teaching at East Central University in the fall of 1985. Based on these facts, the bankruptcy court concluded that he received the money more than 180 days after filing the Chapter 13 petition in February 1985. . See supra p. 1224. . If EAC were to receive a 71% pro rata share of the $6,000 (the same share as it is receiving under the Chapter 13 plan), it would amount to $4,260. The only way to accurately compare this amount with the amount to be received under the Chapter 13 plan is to take the present value of the series of future payments provided for in that plan. EAC would have to receive a 26.7% rate of return on $4,260 to equal the present value of the series of future payments provided for in the plan. EAC provided no evidence to the district court establishing an anticipated rate of return. It would be unreasonable to remand to the bankruptcy court upon nothing more than speculation that EAC might have been able to prove that it could earn such a rate of return on $4,260, particularly when common knowledge indicates that such a return is not possible. Moreover, our calculation leaves out of the equation the fact that some income tax would in all likelihood be due if the IRA were liquidated. This would further reduce the amount available
1999	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 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
4385	which were “accessible to anyone in the building including other employees and even custodians.” Further, he states that this information was readily accessible “on a shared computer network” that “could be reviewed by anyone who had access to the computer system.” (Aff. of Joseph Olson, Doc. 9 at 18). For these reasons, the Court has serious doubts that Plaintiff will be able to succeed on its ITSA claims. II. Inadequacy of Relief at Law Plaintiff has demonstrated that it has inadequate relief at law. Defendants argue that Plaintiffs contract provides it with the option of seeking money damages. (Doc. 9 at 2). However, money damages are not adequate in this context. As the Seventh Circuit explained in  concrete injury such as lost accounts 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
1771	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 subsequent argument about the nature of the threat. See Accordingly, Siegler’s argument that the letter did not contain a “true threat” is irrelevant to his appeal of his sentence. Siegler also argues that because he did not send the letter to Hauger or directly communicate the threat to her, there was no conduct evidencing his intent to carry out the threat. To the contrary, the district court relied on ample evidence in the record to determine that Siegler intended that Hauger be harmed in retaliation for her testimony against him. First, the court pointed to Siegler’s prior conduct: his mailing the discovery materials from his felon-in-possession case to Hester on August 9, 1999.
904	F.3d 869, 875 (10th Cir.2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). . Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998)). . Adler, 144 F.3d at 670 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). . Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.2002) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). . Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000) (citing Adler, 144 F.3d at 671); see also . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Spaulding, 279 F.3d at 904. . Anderson, 477 U.S. at 256, 106 S.Ct. 2505; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir.2001). . Mitchell v. City of Moore, 218 F.3d 1190, 1197 (10th Cir.2000) (quoting Adler, 144 F.3d at 670-71); see Kannady, 590 F.3d at 1169. . City of Herriman, 590 F.3d at 1181. . Fed.R.Civ.P. 56(e); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir.2006). . Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1). . Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). . Matsushita Elec.
2847	building when cause is shown for searching only one apartment is void. United States v. Barkouskas, D.C., 38 F.2d 837; United States v. Diange, D. C., 32 F.Supp. 994; United States v. Chin On, D.C., 297 F. 531; United States v. Innelli, D.C., 286 F. 731; United States v. Mitchell, D.C., 274 F. 128. The basic requirement is that the officers who are commanded to search be able from the “particular” description of the search warrant to identify the specific place for which there is probable cause to believe that a crime is being committed. This requirement may be satisfied by giving the address of the building and naming the person whose apartment is to be searched. Shore v. United States, 60 App.D.C. 137, 49 F.2d 519. Hinton was recently held to be controlling precedent in United States v. Higgins, 428 F.2d 232 (7th Cir.1970). The Government has argued that the premises at 4637 Newport, while being constructed as a two-family dwelling, were nevertheless being used as a single, two-story unit, and that there was thus no need to identify either unit in the search warrant. The evidence, however, indicates that while there is some question as to who, if anyone, was actually renting the first floor unit in which the defendants were arrested, the second floor was rented to and was occupied by Mr. and Mrs. Maurice Phillips. Even though it was admitted that Mr. Phillips was and is
4813	comparison with hair samples found in the stocking remnants seized at the motel and in a stocking mask found in the alley adjacent to the bank. Jackson moved to suppress any evidence concerning the hair samples on the ground that they were taken at a time when Jackson had requested, but did not have, the assistance of counsel, and that they were taken without prior authorization of the court, and in the absence of exigent circumstances. According to Jackson’s testimony, the hair was not taken in a cruel or oppressive manner or under circumstances or by means that would shock the conscience of the court. Removal of hair samples has been held not to violate due process of law. See Nor, although accomplished in the absence of counsel, do we believe it denies an arrested person’s Sixth Amendment right to the assistance of counsel. It is no more a critical stage of the prosecution than is fingerprinting. Defendant Jackson contends that the trial court erred in refusing to give his requested accessory-after-the-fact instruction. Jackson argues that the evidence would have supported a jury finding that Jackson knew the bank robbery had been committed and that he wilfully assisted the offenders in order to hinder their apprehension. But, Jackson urges, the jury, if properly instructed, could have found that he did not engage in the robbery. Jackson was not charged with a violation of 18 U.S.C. § 3, accessory after
4298	The North Carolina action was proceeding with all diligence. Nothing was to be gained by an additional trial in Massachusetts which could have been entirely obviated by the stipulation proposed by Alamance. Nor, as we have already said, was there any public interest furthered by some principle of punishing Alamance for having brought other suits. If, in fact, the court made any attempt to weigh the competing private interest of the parties, it was equally in error. Much of defendant’s brief is devoted to arguing that Alamance could have been ready for trial. The question is not whether it was physically possible, but whether it was necessary. While there is no absolute right to dismiss on terms, d 23, 25, certorari denied 361 U.S. 834, 80 S.Ct. 85, 4 L.Ed.2d 75, the intendment of Rule 41(a) (2) is primarily to prevent voluntary dismissals which unfairly affect the other side, and to permit the imposition of curative conditions. 5 Moore, Federal Practice ¶ 41.05 (2d ed. 1951). Whether, and on what terms, a dismissal without prejudice may be granted, is a matter left initially to the trial court’s discretion. Larsen v. Switzer, 8 Cir., 1950, 183 F.2d 850, 851; see Shaffer v. Evans, 10 Cir., 1958, 263 F.2d 134, 135, certiorari denied 359 U.S. 990, 79 S.Ct. 1119, 3 L.Ed.2d 978; Adney v. Mississippi Lime Co. of Missouri, 7 Cir., 1957, 241 F.2d 43, 45-46; Lyman v. United States, 1 Cir., 1944, 138
2963	a term of 10 years for the violation of § 5861(d). This appeal followed. II Headspeth raises at the outset several challenges to the validity of his convictions, none of which has merit. Headspeth’s first complaint is that his due process rights were violated when he was denied access to the portion of the presentence report that contained the probation officer’s sentencing recommendation. Headspeth acknowledges that Fed.R. Crim.P. 32(c)(3)(A) does not require the sentencing judge to release this portion of the presentence report. He maintains, however, that the rule is in this aspect constitutionally defective. We disagree. While a convicted defendant retains a due process right not to be sentenced on the basis of materially false or inaccurate information, see  access to the sentencing recommendation, which is nothing but a subjective judgment made on the basis of facts contained elsewhere in the report, is not necessary to vindicate that interest. See United States v. McKinney, 450 F.2d 943, 943 (4th Cir.1971) (due process does not require disclosure of presen-tence report); United States v. Knupp, 448 F.2d 412 (4th 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
3248	v. Columbia Tribune Publishing Co., 495 F.2d 1384, 1393 (8th Cir.1974); NLRB v. American Creosoting Co., 139 F.2d 193 (6th Cir.1943); Brown & Root, Inc., 112 N.L.R.B. 295 (1955); Lauren Burt, Inc. of Colorado, 114 N.L.R.B. 295 (1955); Hill Transportation Co., 102 N.L.R.B. 1015 (1953). But for the Court’s rejection of the collective bargaining agreement at issue here, Continental would have gone out of business and pilots represented by ALPA could not have claimed lost future wages as damages, because the agreements did not guarantee future employment. 64 B.R. at 872. The holding in Continental appears to follow the court’s determination that because the agreement was not violated, the employees had no claim under the collective bargaining agreement. See also To the extent that Continental merely holds that a viable claim in bankruptcy depends upon a viable contract claim under 29 U.S.C. § 185, this Court agrees; this is a summary of familiar principles under 11 U.S.C. §§ 365 and 502, which will be applied in this case. However, this Court cannot agree that in order to prove a laid off employee’s damages, the continuation of the employment absent rejection must be proven. As noted, the issue is the extent of an employee’s damages under 29 U.S.C. § 185, not the extent of the employment absent rejection. Moreover, the cases cited in Continental do not support the conclusion that under 29 U.S.C. § 185 the employee is required to prove that
173	be required to pay a charge for so doing.” It seems equally unreasonable that a collector, where the tax had been paid to him without protest and without a warning to him not to pay it into the treasury, should be held liable by giving to this 1924 amendment a retroactive effect, when to do so would make him liable under circumstances where all of his actions were in the best of faith and without the possibility of liability at the time he acted. I feel content to rest oh my view of the law following the eases above cited, and the decision of the Supreme Court in the case of  of Barnitz v. Beverly, 163 U. S. 118, 16 S. Ct. 1042, 41 L. Ed. 93, 94, note. The deprivation of the collector of his defense of voluntary payment (which, as I have held, was clearly available to him and valid in this case) would be fairly analogous to those situations where the running of a statute of limitations had cut off a remedy which the plaintiff might have had for the recovery of property in the possession of another, except for an amending act extending the period of the statute of limitations, thus depriving the defendant debtor of a vested defense. I do not go the length of holding, since
1725	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 . 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. 1, 13/103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). . Grable & Sons Metal Prods., Inc., v. Darue Eng’g & Mfg.,-U.S. -, 125 S.Ct. 2363, 2368, 162 L.Ed.2d 257 (2005). Accord Broder v. Cablevision Sys. Corp., 418 F.3d 187 (2d Cir.2005). . Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6,
930	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 in § 1312. The taxpayer appears to claim that his situation falls within § 1312(4). However, the taxpayer has made no showing of the type of circumstances that § 1312(4) was designed to reheve: He has failed to show that an error was committed regarding his 1983 taxes, or that any of his disallowed deductions should have been allowed for another tax year. Cf. The mitigation provisions are thus inapplicable to the facts of this case, and the district court properly disregarded the taxpayer’s claim for relief pursuant to them. AFFIRMED. . Section 7422 provides in relevant part: (a) No suit prior to filing claim for refund.— No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to
1453	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 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 decisions. E.g., Nichimen Company v. M.V. Farland, supra; Aluminios Pozuelo Ltd. v. S.S. Navigator, supra. Moreover, this Court finds persuasive the dissenting opinion in Gulf Italia of Judge Moore, who subsequently authored the opinion of the Court in Aluminios. Any distinction between packaging preparation which facilitates handling and that which is protective as a ground for deciding if an item is a package within the terms of § 4(5) of COGSA does not commend itself to this Court. Hartford Fire Ins. Co. v. Pacific Far East Line, Inc., 320 F.Supp.
2485	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 custom. The Court has no evidence before it which suggests such an illegal policy is in place in Mille Lacs County. This scenario is scarcely the kind of risk upon which jurisdiction can be based. The Court must, absent evidence to the contrary, assume the County’s law enforcement officers will continue to protect the citizenry and avoid constitutional wrongs. The Court finds the County’s proffered “threat of civil liability is too attenuated and conjectural to constitute a basis for standing.” Caribbean Marine, 844 F.2d at 675. Next, plaintiffs claim statements made by defendants regarding their rights under the 1855 Treaty have caused a loss or degradation of local real estate values. The Bank claims $11,000,000 in real
3167	to quash the indictment as required by Louisiana law. That defense is fatal to most of the foreman-discrimination claims seen by this court. See Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Williams v. Cain, 125 F.3d 269, 274-75 (5th Cir.1997). This Petitioner also failed to file a timely motion to quash, but his claim is not subject to a procedural bar because the last reasoned state-court decision did not rely on the bar. A procedural bar serves as a defense to a federal petition only when the State court clearly and expressly relied upon the bar in its last reasoned ruling. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991); Petitioner’s original post-conviction application did not challenge the indictment directly. Rather, he complained that his counsel were ineffective for failing to pursue the issue. (Tr. 1758, 1779-81) The trial judge summarily denied the application (Tr. 1337), but the State appellate court remanded and ordered the trial court to hold an evidentiary hearing and provide reasons for his decision. The trial court heard evidence on January 30-31 and October 30 of 1995. Tr. Vol. I, pp. 179-300. During the process of the hearing and post-hearing briefing, the ineffective assistance claim was transformed into a direct challenge to the indictment. Defense counsel argued at the first hearing that the Bossier Parish foreman selection system was unconstitutional because of a history of race
1746	"of the removal period [can] only be triggered by formal service of process, regardless of whether the statutory phrase 'or otherwise' hints at some other proper means of receipt of the initial pleading”) (citing Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354-55, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999)). . 28 U.S.C. § 1446(b) (emphasis added). . Moore's ¶ 107.30[3][a][ii]. Accord Lovern v. General Motors Corp., 121 F.3d 160, 162 (4th Cir.1997) (""The statute does not preclude defendants from removing a case where their discovery of the grounds of federal jurisdiction is belated because facts disclosing those grounds were inadequately or mistakenly stated in the complaint.”). . Intercollegiate (Big Ten) Conference Athletic Assoc., 668 F.2d 962, 965 (7th Cir.1982)). . See Powers v. Chesapeake & Ohio Ry. Co., 169 U.S. 92, 100-01, 18 S.Ct. 264, 42 L.Ed. 673 (1898) (interpreting congressional intent in providing for removal and stating, ""[t]he reasonable construction of the act of Congress, and the only one which will prevent the right of removal, to which the statute declares the party to be entitled, from being defeated by circumstances wholly beyond [the defendant’s] control, is to hold that the incidental provision as to the time must, when necessary to carry out the purpose of the statute, yield to the principal enactment as to the right” and that the statute permits and requires"
361	ineffective assistance of counsel; and prosecutorial misconduct. After reviewing all of same, we find no basis therein for appellate review. Barber’s request for a certificate of probable cause is DENIED. . Barber requests a Certificate of Appealability (COA); however, because his petition was filed prior to the effective date of the AEDPA his application must be construed as a request for a certificate of probable cause (CPC). Lindh v. Murphy, — U.S. -, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The standards for issuing a CPC and the AEDPA-required COA are identical. See Lucas v. Johnson, 132 F.3d 1069 (5th Cir.1998); Muniz v. Johnson, 132 F.3d 214 (5th Cir.1998).  opinion withdrawn and superseded on rehearing by, 118 F.3d 312 (5th Cir.1997). . 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). . 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Hogue v. Johnson, 131 F.3d 466 (5th Cir.1997). . Dr. Lett otherwise concluded. . Barber v. State, 737 S.W.2d 824 (Tex.Crim.App.1987). . Barber v. State, 757 S.W.2d 359 (Tex.Crim.App.1988), cert. denied, Barber v. Texas, 489 U.S. 1091, 109 S.Ct. 1559, 103 L.Ed.2d 861 (1989). . Dr. Griffith, permitted to testify about Barber's ■ future dangerousness during the punishment phase, testified that Barber did not suffer from any form of mental illness, but he did have a sociopathic anti-social personality disorder. He testified that
676	Ciliberto failed to establish any of the requisite elements and denied the claim. In an order dated May 20, 2013, the Board affirmed. The ALJ had jurisdiction to adjudicate Mr. Ciliberto’s claim under Section 19(d) of the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. § 919(d). Pursuant to 33 U.S.C. § 921 of the LHWCA, as incorporated into the Coal Act by 30 U.S.C. § 932(a), the Board had jurisdiction over the ALJ’s final decision and we have jurisdiction to review the Board’s determination. We exercise plenary review over the Board’s interpreta tion of law and we also exercise plenary review to satisfy ourselves that the Board adhered to the statutory scope of review. When the Board adopts the factual findings of the ALJ, we independently review the record to determine whether the findings are supported by substantial evidence, are rational, and are in accord with the applicable law. Soubik v. Director, Office of Workers’ Compensation Programs, 366 F.3d 226, 233 (3d Cir.2004). Acknowledging the lack of supporting medical evidence on the record, Ciliberto contends nonetheless that the medical opinion of Dr. Gibbons, Ciliberto’s treating physician for over 32 years, is dispositive in establishing that he has pneumoconiosis and that he is totally disabled as a result. Ciliberto argues that the ALJ erred in failing to find as such, and alleges that the ALJ “substitut[ed] her own medical assessment for that of the treating
1466	are three things that this case does not involve. It does not involve the right of an inmate of a prison or jail to have access to the federal courts to seek relief from his imprisonment or from the conditions thereof. That right has been established since the decision of the Supreme Court in Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Neither does the case involve the right of an inmate to have the assistance of another inmate in gaining access to the courts for the redress of grievances where those who have the former inmate in charge have not otherwise provided him with legal assistance or made more conventional legal assistance available to' him.. Finney v. Arkansas Bd. of Correction, 505 F.2d 194, 213 (8th Cir. 1974); Finney v. Hutto, 410 F.Supp. 251, 262-63 (E.D.Ark.1976), aff’d, 548 F.2d 740 (8th Cir. 1977), aff’d, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). Finally, the case presents no question as to constitutional deprivations, if any, that the plaintiff, Dee, may have sustained while confined in ISMF or thereafter. All that we are concerned with here is whether the individual plaintiff, Watts, suffered a personal deprivation of federally protected rights which entitles him to an award of monetary damages against any of the defendants. In resisting the claim of Watts the defendants advance the basic contention that while an inmate of
685	securities was Marion Drybrough’s money, the 1953 borrowing of $700,000 was, to the extent of $200,000, “indebtedness incurred or continued to purchase or carry obligations * * * the interest on which is wholly exempt from the taxes imposed by this title,” and therefore under § 265(2) IRC 1954, the interest thereon was not deductible. The first position of the Tax Court involved a finding of fact which, under Duberstein, supra, is beyond our review unless clearly erroneous. We do not consider that it was clearly erroneous and, therefore, affirm the Tax Court. The burden was on the taxpayer to establish that the deduction taken for interest on $200,000 of the involved loan did not offend the Revenue Code. To meet this burden, Drybrough testified that at a time in 1951 when he was engaged in Tax Court litigation, he directed an accountant to gather and total numerous borrowings by Drybrough from his wife, made principally through drawing upon his wife’s Public Garage account. The period covered went back to 1942 and the study ended in a determination that as of the end- of 1951 Drybrough owed his wife the quite substantial sum of $282,234.-03. This sum was reached by the accountant in large part from totalling check stubs of the Public Garage account, aided by Drybrough’s identification of the various checks as representing Drybrough’s use of his wife’s money to pay obligations that were legally his, such
4805	the officers acted reasonably in stopping the Cadillac and questioning the occupants concerning their identity and residences. This was intelligent, effective police work. If police officers may not do what was done here, law enforcement would be seriously crippled. The Fourth Amendment was not intended to handcuff the police in their reasonable effort to handcuff criminals. See also, Gilbert v. United States, 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. 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,
1733	Darue Eng’g & Mfg.,-U.S. -, 125 S.Ct. 2363, 2368, 162 L.Ed.2d 257 (2005). Accord Broder v. Cablevision Sys. Corp., 418 F.3d 187 (2d Cir.2005). . Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Two exceptions to the well-pleaded complaint rule permit removal of state law actions: when the claims are completely preempted by federal law and 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 . 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.
4654	a private college, university, or other institution of higher education concerning or prohibiting the presence of firearms on the private employer’s premises or property, including motor vehicles owned by the private employer. Ohio Rev.Code § 2923.126(C)(1). Piona does not dispute that the parking lot in question is owned by UPS’s wholly owned subsidiary BT-OH, or that the lease between UPS and BT-OH affords UPS full control over the parking lot. UPS was thus plainly within its rights, as codified in § 2923.126(C)(1), to prohibit its employees from possessing firearms in the parking area. Because Piona cannot show that UPS violated a clear public policy of the state of Ohio, his wrongful-termination claim fails as a matter of law. See, e.g., We further note that Plona’s contentions on appeal reflect a misconception regarding the role of the courts in this type of termination-of-employment action. Much of his efforts are focused on showing that UPS’s reasons for terminating him were “pretextual.” Piona, for example, argues that he had a reason to violate UPS’s weapons policy because he had to keep his pistol away from his suicidal estranged wife, that the unloaded and disassembled weapon did not satisfy the statutory definition of a “firearm,” that UPS did not properly post
2489	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  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 U.S. 568, 581, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985), those cases involved a clear injury in the absence of judicial action. See id. (wherein
4573	the federal government regarding addressing constitutional violations in law enforcement agencies. The statement evén discussed the possibility of a “global settlement encompassing the ’ United States’ claims,” an option the Melendres litigants, including Arpaio, failed to pursue. (2:07-CV-02513-GMS, Doc. 580). Finally, contrary to the few non-controlling and distinguishable cases Arpaio cites, this is .not a case in which the United States could have easily joined the prior litigation.' Of Charles J. Arndt, Inc. v. City of Birmingham, 748 F.2d 1486, 1494 (11th Cir.1984) (individual plaintiff was aware of and testified in- the earlier suit); In re Air Crash Disaster at Stapleton Int'l Airport, Denver, Colo., on Nov. 15, 1987, 720 F.Supp. 1505, 1523 (D.Colo.1989) nw’d on other grounds by The timing issues discussed above, as well as the differences between the federal government joining litigation'versus an individual plaintiff doing so, indicate the difficulty that would have been involved in consolidating these two cases. Because the United States did not “purposefully] elude[ ] the binding force of an initial resolution of a simple issue” nor improperly interfere in the initial proceeding such that this case would represent its second bite of the; apple, non-mutual, offensive issue preclusion would not be unfair and, therefore,-should be granted in this case. Starker v. United States, 602 F.2d 1341, 1349-1350 (9th Cir.1979). Indeed, employing the doctrine
1628	to bring the ease within that intent.’ U. S. v. Carll, 105 U. S. 611, 26 L. Ed. 1135. Even in the cases of misdemeanors the indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court of the exact offense intended to be charged; not only that the former may know what he is called upon to meet, but that, upon a plea of former acquittal or conviction, the record may show with accuracy the exact offense to which the plea relates. U. S. v. Simmons, 96 U. S. 360, 24 L. Ed. 819; U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516; 13 Sup. Ct. 542, 37 L. Ed. 419; In re Greene (C. C.) 52 Fed. 104.” A scheme to defraud, which in its facts and details would constitute the offense described in the statute, will appear by reference to the charges of the indictment in Stokes v. U. S., already referred to. In Durland v. U. S., 161 U. S. 307, 16 Sup. Ct. 508, 40 L. Ed. 709, the scheme charged was that the defendant sought to obtain from persons large sums of money by representing that the Provident Bond & Investment Company would, upon the payment of a certain sum of money, issue to such persons a bond in the words and manner specifically set out in the indictment; and
2633	appellant’s allegations of systematic exclusion of jurors because of race were unsupported and inaccurate. Appellant contends that he has been deprived of his Fifth Amendment rights of due process and equal protection of the laws by being denied access to the jury questionnaires where he would have secured readily available information on which to determine the race of members of the grand jury and petit jury venires. It is well settled that Negroes may not be systematically and arbitrarily excluded from the jury venires from which the grand jury is selected which has indicted a Negro defendant and that a conviction cannot stand if the petit jury is drawn from a list similarly composed. In the recent case of  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
3188	responses to the District Judge at the time of filing. A party’s failure to file written objections to the proposed findings, conclusions and recommendation set forth above, within 10 days after being served with a copy, shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. U.S.A.A., 79 F.3d 1415 (5th Cir.1996) (en banc). Aug. 6, 2004. . A claim may be procedurally barred if the state court bases its denial of relief on a state procedural default and alternatively reaches the merits of a claim. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, n. 10, 103 L.Ed.2d 308 (1989); . Judge Burchett offered similar testimony at the hearing in the Hicks case. The parties in Hicks also stipulated that the procedure described by Judge Burchett “was the same selection process that was done by the other judges who were contemporaries of Judge Burchett and those who preceded him, also.” 97 CV 2460; Doc. 27, p. 5. . It is unknown how many opportunities were presented during those years to select a black foreman. It may be that some of the venires drawn did not include a black member. The district attorney does not, however, contend that that was ever the case, and Castaneda does not indicate that it would make a difference. . Even though the race of the
4771	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 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); 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
3635	"attempt to introduce the video as the attempted introduction of evidence ""for impeachment purposes ... not excludable under Rule 16(b)(1)(A),” and not as evidence in his case-in-chief. Medearis, 380 F.3d at 1057. . The court also indicated it would have allowed Eason to show Officer Kuykendall the tape outside of the presence of the jury to prepare him for the cross examination. The record shows no indication that Eason took advantage of this opportunity. . Eason also argues that the government's failure to provide a copy of the dash camera video was a violation of Brady. The government commits a Brady violation when it suppresses evidence that is favorable to a defendant and is material as to either guilt or punishment. But Eason made only a passing reference to Brady before the district court, and failed to seek a ruling from the district court on this issue. Regardless of whether Brady applies to the circumstances presented here, Eason does not explain how showing the video was ""material as to guilt.” See Youngblood v. West Virginia, 547 U.S. 867, 870, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006) (per curiam) (Holding evidence is material to guilt if there is a reasonable probability that the result of the 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"
1348	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. 988). 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
2955	of Rule as to Test in Federal Court of Effective Representation by Counsel,” 26 A.L.R. Fed. 218 (1976). A federal habeas corpus petitioner seeking relief on the grounds of court-appointed counsel’s incompetence has the burden of proving a constitutional defect, Day v. Peyton, 303 F.Supp. 221 (W.D.Va.1969), and petitioner in the instant case has substantially failed to convince this court that Simpson and Tisinger were incompetent. Petitioner challenges the adequacy of Simpson’s opening statement, and respondent maintains that the opening statement is a matter of trial tactics. This court agrees with respondent. The matter of trial tactics and the attorney’s judgments are beyond this court’s review. Tompa v. Commonwealth, 331 F.2d 552 (4th Cir. 1964); Petitioner attacks his attorneys’ failure to put on a defense in that no witnesses were called to testify on petitioner’s behalf. However, based on a professional judgment, counsel’s decision not to call witnesses does not deprive a defendant of his constitutional right to effective assistance. Ingram v. Cox, 339 F.Supp. 891 (W.D.Va.1972). Since petitioner’s voluntary confession placing him at the crime scene had been admitted into evidence, Simpson and Tisinger might have feared disastrous results in introducing witnesses who petitioner said would provide him with an alibi, especially where the alibi witnesses might be of questionable character and credibility. Furthermore, the evidence is not clear whether petitioner even wanted these witnesses at his trial. When petitioner made his oral statement
4155	consideration. When Secretary has committed no error of law, this Court’s role is limited to seeing whether Secretary’s decision is supported by “substantial evidence” (Reynolds, 844 F.2d at 455-56). Even when Council makes Secretary’s final decision and in doing so rejects contrary findings by an AU, the reviewing standard does not change. As Parris v. Heckler, 733 F.2d 324, 326 (4th Cir.1984) (citation omitted) explains: The statutorily-mandated deference runs in favor of the Secretary and the Appeals Council, not the AU[,] and the Appeals Council may reach conclusions differing from those of the AU, which we must uphold if supported by substantial evidence. Our own Court of Appeals has focused more sharply on the treatment of conflicting AU and Council findings. But that final phrase — “on the record as a whole” — has substantive rather than merely semantic content. Any AU conclusion that a claimant is disabled becomes part of the record against which Council’s decision must be measured. Bauzo, id. at 922 (citations omitted) therefore went on to say: We, therefore, now consider whether the Secretary’s decision, as reflected in the Appeals Council’s determination, is supported by substantial evidence. In making this determination, we note that although
859	for a writ of habeas corpus is dismissed. . People v. Butler, 33 A.D.2d 675, 305 N.Y.S.2d 367 (1969). A decision on Conroy’s appeal was withheld and the case remitted for an evidentiary hearing. After the hearing, the Appellate Division also affirmed his conviction, and the case is now pending in the Court of Appeals. . People v. Butler, 28 N.Y.2d 499, 318 N.Y.S.2d 943, 267 N.E.2d 587 (1971). . The jury was instructed that this testimony was not to be considered as evidence against Butler, an instruction which was given and underscored whenever' evidence was offered as to declarations by Conroy outside the presence of Butler. . 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), made retroactive in . In each instance when Conroy’s statements were testified to, the court, following Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), which was in effect when this case was tried, instructed the jury that Conroy’s admissions were received only as against him and were to be disregarded in determining Butler’s guilt or innocence. The instruction was repeated in the court’s charge. . See 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) ; United States ex rel. Siegel v. Lennox, 460 F.2d 690 (3d Cir. 1972) ; United States ex rel.
1311	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 his complaint in the district court; thus, he has waived his opportunity to file a new suit on these same grounds now. See III. Conclusion For the reasons set forth above, we affirm the district court’s dismissal of the complaint. So ordered.
3143	in the penitentiary.” It is petitioner’s contention here that this court should order his release because one of the convictions used for enhancement was not available for that purpose, thereby rendering his life sentence void. More specifically, petitioner alleges that he was never formally sentenced under one of the prior convictions that was used for enhancement. Indeed, he states, that only after he began serving his life sentence as a habitual criminal did the convicting court pass sentence and issue its mandate sentencing him to 10 years in the penitentiary and ordering this sentence to run concurrently with the life sentence. At most, this raises a question of State law, not a federal question over which this Court has jurisdiction. Compare See also United States ex rel. Read v. Martin, 263 F.2d 606 (2d Cir. 1959); Elwood v. Smith, 164 F.2d 449 (9th Cir. 1947); United States ex rel. Nersesian v. Fay, 239 F.Supp. 142 (S.D.N.Y.1965). If petitioner’s allegations are true, however, he should be entitled to relief in the State courts as a matter of State law. In White v. State of Texas, 171 Tex.Cr.R. 683, 353 S.W.2d 229 (1962), the defendant was convicted of burglary, with two prior convictions alleged for enhancement, and sentenced to life imprisonment. To prove the two prior convictions, the State introduced certified copies of the judgments for each prior conviction. On appeal, the Court of Criminal Appeals reversed, holding that the judgments were not
355	to disregard that risk. See Sealock, 218 F.3d at 1209. Because ineffective and even negligent treatment does not establish an Eighth Amendment violation, DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 198 n. 5, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), the district court properly granted summary judgment to CCA on the medical treatment claim. In addition to the medical treatment claim, Plaintiffs allege violation of the Eighth Amendment stemming from CCA’s hiring of inexperienced and unqualified medical staff, particularly the hiring of Dr. Sutton. See Aplt.App. at 10-12. In their brief on appeal, however, plaintiffs fail to make any substantive legal argument to support this claim. Plaintiffs have therefore waived any consideration of this issue on appeal. Slate Law Claims. After granting summary judgment on the Eighth Amendment claims, the district court exercised its discretion to retain supplemental jurisdiction over the remaining state-law claims for negligence and loss of consortium. With regard to the negligence claim stemming from the actions of Dr. Sutton, the district court held that CCA was shielded by Colorado’s “corporate practice of medicine doctrine” which holds “that it is impossible for a fictional entity, a corporation, to perform medical actions or be licensed to practice medicine.” Villalpando v. Denver Health & Hosp. Auth., 181 P.3d 357, 364 (Colo.Ct.App.2007), cert. denied, 2008 WL 921297 (Colo. Apr.7, 2008) (internal quotation marks omitted). “The doctrine generally shields corporations from vicarious liability for the negligent acts of
3698	v. Fleming, 161 F.2d 726, 728 (9th Cir.1947). The Jensens’ claim that they were penalized for seeking a hearing in violation of their First Amendment right to petition the government for redress also lacks merit. As the district court noted, there is no evidence in the record — including on the penalty sheet — to support the Jensens’ claim that they were penalized for either seeking or participating in the hearing. The Jensens’ due process claim, which is also based on the penalty sheet, also lacks basis and support in the record. The penalty sheet provides parameters and limitations for the administrative officer to make a penalty calculation, and the Jensens had an opportunity to be heard at the hearing. See Therefore, the district court’s ruling dismissing these claims is also affirmed. The district court’s order granting the County’s motion for summary judgment is AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
3515	PER CURIAM. James Wainwright pleaded guilty to conspiring to commit bank fraud and other offenses, in violation of 18 U.S.C. §§ 371, 1349, and bank fraud, in violation of 18 U.S.C. § 1344. At sentencing, the district court determined that Wainwright’s advisory Guidelines imprisonment range was 41-51 months, noted its consideration of the 18 U.S.C. § 3553(a) factors, and sentenced Wainwright to concurrent 46-month prison terms, to be followed by 5 years of supervised release. Wainwright appeals, and in a brief under  counsel raises issues concerning the reasonableness of Wainwright’s prison sentence. We review a sentence for reasonableness, affording a presumption of reasonableness if the sentence is within a correctly calculated Guidelines range. See Rita v. United States, — U.S. —, 127 S.Ct. 2456, 2462, 168 L.Ed.2d 203 (2007) (approving presumption of reasonableness for sentences within advisory Guidelines range). Upon careful review of the record, we conclude that the district court correctly calculated Wainwright’s advisory Guidelines imprisonment range and reasonably sentenced him within that range. See United States v. Two Shields, 497 F.3d 789, 795-96 (8th Cir.2007) (defendant overcomes presumption of reasonableness if district court failed to consider relevant factor that should have received significant weight, gave significant weight to improper or irrelevant factor,
3873	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 Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993). Bonneville’s claims regarding (1) Dr. Basse’s failure to renew other prescription medications; (2) Dr. Basse’s failure to treat his infected toenail; (3) the State’s failure to award good time credits; and (4) the denial of his right to humane conditions of confinement are raised for the first time on appeal and are factual in nature; therefore, we do not consider them. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.1999) (stating that this court will not allow a party to raise a claim for the first time on appeal). Bonneville’s appeal is without arguable merit and, therefore, frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.1983).
3031	totality of the circumstances. 429 U.S. at 507, 97 S.Ct. 891. APPROPRIATE RELIEF The Local contends that the Board’s order improperly required the posting of notices at the offices of Sea Freight and International. With substantial evidence to support its finding of an unfair labor practice, the Board was also entitled to exercise its discretion in shaping a remedy. May-Department Stores v. N.L.R.B., 326 U.S. 376, 392, 66 S.Ct. 203, 90 L.Ed. 145 (1945). Ortiz, Sr. told MTM that deliveries to San Juan, Sea Freight or International would result in a work stoppage. The order involved no parties which were unaffected by the secondary boycott; it lies within the parameters of the proper 1959). See also Communications Workers of America v. N.L.R.B., 362 U.S. 479, 80 S.Ct. 838, 4 L.Ed.2d 896 (1960) (per curiam); Highway Truck Drivers and Helpers Local 107 v. N.L.R.B., 107 U.S.App. D.C. 1, 273 F.2d 815 (1959). The order is entitled to enforcement. ENFORCEMENT GRANTED. . “(b) It shall be an unfair labor practice for a labor organization or its agents— ■ (4)(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to
660	Here the courts must inquire into the degree of harm created by the claimant’s prohibited activity, its social value and location, and the ease with which any harm stemming from it could be prevented. Id. If state nuisance law does not justify the restraint, the court must proceed to the remaining criteria. The second criterion — the economic impact of the regulation on the claimant — is designed to insure that not every restraint on private property results in a takings claim. This concern evolved into the threshold requirement that a claimant show that the Government denied him “economically viable use” of his land. Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980); This criterion requires this court to determine whether a partial denial of use constitutes a taking. In this context, this court has recognized a dichotomy between noncompensable “mere diminutions” and compensable “partial takings” in borderline cases. Florida Rock Indus., Inc. v. United States, 18 F.3d 1560, 1570 (Fed.Cir.1994). “Mere diminution” occurs when the property owner has received the benefits of a challenged regulation, such that an “average reciprocity of advantage” results from it. Lucas, — U.S. at-, 112 S.Ct. at 2894; Florida Rock, 18 F.3d at 1570. A “partial taking” occurs when a regulation singles out a few property owners to bear burdens, while benefits are spread widely across the community. Florida Rock, 18
3963	her termination; and (4) Navistar, after it terminated Kariotis, ignored her doctor’s opinion that she did not commit disability fraud. In the Court’s opinion, the four reasons offered by Kariotis are insufficient to raise the inference that Navistar’s legitimate, non-diseriminatory reason — disability fraud — for firing her is a lie. It is critical to note that at this stage of the analysis, the Court is not concerned with whether the employer’s decision was wise, logical, prudent, ill-informed, ill-considered, or accurate. Indeed, the Court’s only concern is whether the decision was honest, i.e., whether the employer believed the proffered reason for the decision. See Helland v. South Bend Community Sch. Corp., 93 F.3d 327, 330 (7th Cir.1996);  cert. denied, 505 U.S. 1207, 112 S.Ct. 2998, 120 L.Ed.2d 874 (1992). The four reasons proffered by Kariotis in support of her position that Navistar lied arguably create issues of fact as to whether Navistar’s employment decision was prudent, ill-informed, and accurate, but the Court does not believe that they are enough to call into question the honesty of the decision. The first two reasons — Navistar’s failure to show the videotape to her doctor and failure to have her examined by a company doctor — question whether Navistar acted carelessly or made the most informed decision. But, in Navistar’s opinion, the videotape spoke for itself. Thus, why waste the time of showing the videotape to Kariotis’ doctor and/or have
729	"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. Thomas, 684 F.Supp. 1056 (W.D.Okla.1988) (criminally touching and molesting children at day care center in lewd and lascivious manner); State Farm Fire & Casualty Co. v. Huie, 666 F.Supp. 1402 (N.D.Cal.1987) (rape of minor), affd sub nom. CNA Ins. Co. v. McGinnis, 282 Ark. 90, 666 S.W.2d 689 (1984) (sexual abuse of minor stepdaughter by stepfather on daily basis over ten-year period from age six to age sixteen); Fire Ins. Exch. v. Abbott, 204 Cal.App.3d 1012, 251 Cal.Rptr. 620 (1988) (two cases: fondling thigh of six year-old female and causing her to touch insured's penis; and, teacher’s homosexual relationship with fourteen-year-old boy); Allstate Ins. Co. v. Kim W., 160 Cal.App.3d 326, 206 Cal.Rptr. 609 (1984) (""lewd or lascivious acts” inflicted upon minor), hearing denied, (Cal. Dec. 19, 1984); Troelstrup v. Dist. Court, 712 P.2d 1010 (Colo.1986) (en bapc) (homosexual acts with minor); McCullough v. Cent. Florida YMCA, 523 So.2d 1208 (Fla.Dist.Ct.App. 1988) (fondling of genitals of three young"
2873	done so. At the time the officer made this observation he had not yet closely approached the front door. Applying the objective test, the Court finds that his failure to observe the two-family character of the dwelling demanded by reason of the two doorbells and two mailboxes immediately adjacent to the front door was yet excusable. Moreover, while this Court is inclined to believe that police officers generally have no right to intrude upon the front porch of a private home in the dead of night (see Davis v. United States, 327 F.2d 301, 303 (9th Cir.1964)), the fact that the porch involved here was a common area to a multiple-family dwelling may well serve to avoid that ruling. (See Although unable to find any direct authority for its conclusion the Court is of the opinion that officers observing a crime being committed may act to terminate its commission and that that is what the officer did in the instant case. The Court reaffirms its prior holding that the search warrant was invalid; it finds however that the arrest of the defendants in the instant case and the seizure of narcotics from the immediate presence of the defendants and from the table in the living room was lawful and the evidence so seized will not be suppressed. . See, also, United States v. Goodman, 312 F.Supp. 556 (N.D.Ind.1970), where the court, in upholding a search warrant containing a minor error
675	PER CURIAM: During the pendency of this appeal, our Court sitting en banc decided The procedural circumstances involved in this appeal are very similar to those involved in Marathon Oil and our decision herein is controlled by that en banc decision. Accordingly, we vacate the following orders entered in the court below: a. Memorandum and Recommendation entered under date of July 31, 1996 by the magistrate judge which recommended (i) that defendant Atlas Copco AB’s motion to dismiss for lack of personal jurisdiction (docket entry 22) be granted; (ii) that defendant Atlas Copco Robbins’ motion to dismiss for lack of personal jurisdiction (docket entry 26) be granted; and (iii) that plaintiffs’ motion to remand this case (docket entry 16) be denied as moot. b. The Order of the district court entered on October
4520	MCSO is a non-jural entity, lacking the capacity to sue and be sued. 224 Ariz. 481, 487, 232 P.3d 1263 (Ariz.Ct.App.2010). The remaining parties proceeded with discovery. The United States and Arpaio now each move for partial summary judgment. (Doc. 332, 345). Maricopa County moves for summary judgment on all claims. (Doc. 334). ANALYSIS I. Legal Standard Under Rule 56, summary judgment is appropriate when the moving party demonstrates the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material when, under governing substantive law, it could affect the outcome of the case. United States v. Kapp, 564 F.3d 1103, 1114 (9th Cir.2009). A dispute is genuine if a reasonable jury could return a 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
2547	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 enter into a reasonable settlement agreement where the insurer acts with bad faith in failing to settle a claim within policy limits. (See May 15, 2000 Order on Mots, for Summ. J. at 5.) Infinity’s present motion does not raise any arguments which convince this Court to abandon this position. Infinity first attacks the Court’s reliance upon The Court has cited Nat’l Union in holding that an insured may enter a reasonable settlement agreement upon the insurer’s bad faith failure to settle a case. Infinity erroneously asserts that this case is one of a kind and “has never been cited in any published opinion.” (Def.’s Mem. of Law in Supp. of its Combined Renewed Mot. for J. at 8.) Actually, many courts have reached similar results. See Hyatt Corp. v. Occidental Fire & Cas. Co., 801 S.W.2d 382, 389 (Mo.Ct.App.1990) (citing Nat’l Union Fire Ins., 673 F.Supp. 267) (“Where an insurer breaches its good faith duty to consider offers of settlement, the insured may effect reasonable good faith settlements on its own and enforce such settlements against the insurer.”);
1948	indeed “hazardous” within the meaning of RCRA and applicable regulations, that argument must be directed to the trial court after the close of the Government’s affirmative case, and is therefore premature. See United States v. Self, 2 F.3d 1071, 1082 (10th Cir.1993) (whether substance was hazardous pursuant to RCRA was dependent on factual issues, and not appropriate for disposition on pretrial motion to dismiss). As noted, the Government has represented that these invalidated rules were not referred to in the Grand Jury. On its face, the Indictment properly asserts violations of § 6928(d). Moreover, the court may not look beyond a facially valid indictment to determine if the evidence upon which it was based is sufficient. See Even if it should appear that the “mixture” or “derived-from” rules had in some way been referred to before the Grand Jury, such reference would not have been prejudicial, as the rules have no application to the facts as alleged in the Indictment. As to the distillation process described in Count II, it does not appear that ordinary water is a “solid waste” under the definitions in the RCRA regulations, rendering the “mixture” rule irrelevant to this case. The “mixture” rule defines as a hazardous waste any “mixture of a solid waste and a hazardous waste.” See 40 C.F.R. § 261.3(a)(2)(iv). Additionally, the definition of “solid waste” in the regulations “applies only to wastes
2500	"letter appears consistent with defendants’ sworn statements. See Twait Dec. at 2; Big Bear Aff. at 1-2. . Similarly, 11 M.L.B.S.A. § 9(e), which provides jurisdiction to enforce environmental regulations, is limited to the extent of United States law. As federal law largely proscribes the broad assertion of tribal jurisdiction over non-Indians, Nevada v. Hicks, 533 U.S. at 388-92, 121 S.Ct. 2304, the Court will not construe this provision beyond both actual enforcement and its terms. . The cases cited by the County cannot be read to stand for this proposition. See, e.g., Altvater v. Freeman, 319 U.S. 359, 63 S.Ct. 1115, 87 L.Ed. 1450 (1943) (continued dispute over reissued patents gave rise to controversy); Neither case is premised on a defendant’s actual compliance with a law. . Plaintiffs support this contention by pointing to Justice Souter’s concurrence in Nevada v. Hides, 533 U.S. 353, 383, 121 S.Ct. 2304, 150 L.Ed.2d 398 (1995). That case involved a tribal court’s assertion of jurisdiction over state actors in a § 1983 case. The language plaintiffs quote, however, comes from a portion of Justice Souter’s opinion which urges ending any linkage of tribal jurisdiction from status. He argues that maintaining this connection creates an ""unstable jurisdictional crazy quilt.” Id. At best, the quoted language can be read as a call for bright-line rules governing subject matter"
4666	"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  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,’ ""id. at 5, 88 S.Ct. 1503 (quoting 384 U.S. at 478, 86 S.Ct. 1602), but did not say whether the interview with Mathis fell within Miranda because of his incarceration or because of some other deprivation that was significant in the circumstances. Although it did not address Mathis, the Court’s opinion in Shatzer forecloses Ellison’s reading of"
3424	a statutory error in the mandatory application of the guidelines, to be entitled to relief, Terrell must establish that his sentence would have been different but for the mandatory application of the sentencing guidelines. Shelton, 400 F.3d at 1331. Terrell’s burden to show that his substantial rights were affected is very high, and he fails to meet this burden. Although the district court stated at sentencing that it had no discretion under the guidelines and sentenced Terrell at the low end of the guideline range, the court did not indicate that it would have sentenced Terrell differently had it known the guidelines were advisory. In the absence of a more definitive statement from the court, Terrell cannot meet his burden. United States v. Martinez, 407 F.3d 1170 (11th Cir.2005) (vacating and remanding under plain error test because the court expressed its frustration at the guidelines sentence). D. Consecutive Sentences The district court’s application of § 5G1.3 is a question of law that we review de novo. United States v. Bidwell, 393 F.3d 1206, 1208-09 (11th Cir.2004).
1938	or rubber) that are not otherwise hazardous wastes and that are recycled. 40 C.F.R. § 261.1(b)(1). The regulation cited by the Defendants, in support of their position that substances destined for recycling are not solid wastes and thus excluded from RCRA regulation, creates an exclusion from RCRA regulation for “[secondary materials that are reclaimed and returned to the original process or processes in which they were generated where they are reused in the production process .... ” 40 C.F.R. § 261.4(a)(8) (emphasis added). (c) The “Mixture” and “Derived-from” Rules. The so-called “mixture” and “derived-from” rules, which are the subject of this motion to dismiss, are, as noted, found in the above-cited regulations. Both rules were invalidated in  which held that the EPA failed to comply with the notice and comment requirements of the Administrative Procedure Act (“APA”). Subsequently, on June 4, 1992, in United States v. Goodner Bros. Aircraft, 966 F.2d 380 (8th Cir.1992), cert. denied,—U.S.-, 113 S.Ct. 967, 122 L.Ed.2d 123 (1993), the Eighth Circuit gave the invalidation retroactive effect. 3. The Defendants’ Arguments in Support of Dismissal. Turning to the arguments in support of the dismissal motion, the Defendants seek dismissal of Counts II and III and part of Count I of the Indictment because, they contend, the Government has failed to identify the basis upon which it is claimed that the substances at issue qualify as “hazardous waste” listed or identified by regulation under RCRA.
2312	of the ALJ’s consideration of the combination of impairments constitutes a sufficient statement of such findings). Likewise, in determining Mr. Griffin’s residual functional capacity, the ALJ expressly acknowledged that Mr. Griffin’s statements regarding the limiting effects of his impairments were not credible. The record demonstrates that, even if the ALJ should have found that Mr. Griffin’s tinnitus was a severe impairment, the ALJ fulfilled his responsibility to consider Mr. Griffin’s tinnitus in the remaining steps of his disability analysis. See Jamison, 814 F.2d at 588; Heckler, 748 F.2d at 635; 20 C.F.R. § 404.1520(a)(4). Thus, any error that the ALJ made in failing to find that Mr. Griffin’s tinnitus was a severe impairment was harmless. See Jamison, 814 F.2d at 588; IV. CREDIBILITY Mr. Griffin next argues that the ALJ’s credibility finding was not clearly articulated or supported by substantial evidence. Where a claimant attempts to demonstrate a disability through his own testimony of pain or other subjective symptoms, there must be evidence of an underlying medical condition. Dyer, 395 F.3d at 1210. If that threshold is met, then there must be either objective medical evidence that confirms the severity of the alleged pain or symptoms arising from the underlying medical condition, or evidence that the objectively determined medical condition can reasonably be expected to give rise to the alleged pain. Id. If the ALJ decides not to credit the claimant’s
4377	of Civil Procedure 65 permits a court to grant a temporary restraining order when a Plaintiff has demonstrated through specific facts in an affidavit or a verified complaint that they will suffer “immediate and irreparable injury, loss, or damage.” Fed. R. Civ. P. 65(b)(1)(A). A party seeking to obtain a temporary restraining order must demonstrate (1) that its case has some likelihood of success on the merits; (2) that no adequate remedy at law exists; and (3) that it will suffer irreparable harm if the injunction is not granted. Caterpillar Inc. v. Walt Disney Co., 287 F.Supp.2d 913, 916 (C.D.Ill.2003). If Plaintiff meets those first three requirements, the Court balances the relative harms of the parties and the public. The court weighs all factors using a sliding-scale approach. Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir.1992). Discussion Plaintiff seeks a temporary restraining order that would grant four separate types of injunctive relief. First, it seeks to enjoin Defendant Olson from working, either directly or indirectly, in media sales for Defendant Alpha or any other direct competitor of Plaintiff, within a 60 mile area, for a period of 6 months following the entry of a TRO. Second, it seeks to enjoin Defendant Olson from soliciting, either directly or indirectly, any customers of Plaintiffs he contacted on behalf of Plaintiff during his employment at Plaintiff for a period of 12 months following the entry of a
109	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  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 a suit against the FBI, but the suit against the FBI itself will not be treated as a suit against the United States. Id.
3469	at 1506 (citations omitted). . Pl.'s Compl. at 3. . See Pl.’s Resp. to Defs.' Mot. for Summ. J. at 4. . See, e.g., Perez v. State of Florida, 648 So.2d 715, 719 (Fla. 1995). . 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). . See id. at 199, 93 S.Ct. 375. . See id. at 199-200, 93 S.Ct. 375. . See Butler Dep. at 45. . See Balch Dep. I at 27-28. . Butler-Dep. at 45. . Balch Dep. II at 111. . See Butler Dep. at 92. . See, e.g., Neil, 409 U.S. at 200, 93 S.Ct. 375; Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir. 1987); Jones v. Smith, 772 F.2d 668, 671 (11th Cir.1985); United States v. Michael, 729 F.Supp. 95, 96 (S.D.Fla.1989). . Butler Dep. at 45. . Pl.'s Dep. at 61 (filed March 24, 1999). . Rankin, 133 F.3d at 1436 (citations omitted). . Id. (citation omitted). . See Marx, 905 F.2d at 1507.
1995	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 injury) or a medical diagnosis (such as with respect to a current disability), competent medical evidence is generally required to fulfill the well-grounded-claim requirement of section 5107(a) that the claim be “possible” or “plausible”. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); see Caluza, supra. Where the determinative issue does not require medical expertise, lay testimony may suffice by itself (such as in the recounting of symptoms or, in certain circumstances, attesting to in-service incurrence or aggravation of a disease or injury). See Caluza, supra; A Board determination whether a claim is well grounded is a conclusion of law subject to de novo review by the Court under 38 U.S.C. § 7261(a)(1). See Grivois v. Brown, 6 Vet.App. 136, 139 (1994); Grottveit, supra. Based on the facts of this case, the Court holds that the appellant satisfied his initial burden of submitting a well-grounded PTSD claim because he has submitted medical evidence of a current disability; lay evidence (presumed to be credible for these purposes) of an in-service stressor, which in a PTSD ease is the equivalent of in-service incurrence or aggravation; and medical evidence of a nexus between service and the current PTSD disability. See Caluza, Heuer, and King, all supra. Specifically,
848	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;  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, but would simply have to advertise using a different ear. Liquid Glass even admits, although somewhat disingenuously in this court’s view, that “[t]he use of the Porsche over another personally owned automobile is inconsequential to [Liquid Glass] ....” PI. Op. Br. at 23. Editing the video to cut out the beginning and ending segments portraying a Porsche 911
661	— the economic impact of the regulation on the claimant — is designed to insure that not every restraint on private property results in a takings claim. This concern evolved into the threshold requirement that a claimant show that the Government denied him “economically viable use” of his land. Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980); Nollan v. California Coastal Comm’n, 483 U.S. 825, 834, 107 S.Ct. 3141, 3147, 97 L.Ed.2d 677 (1987). This criterion requires this court to determine whether a partial denial of use constitutes a taking. In this context, this court has recognized a dichotomy between noncompensable “mere diminutions” and compensable “partial takings” in borderline cases. “Mere diminution” occurs when the property owner has received the benefits of a challenged regulation, such that an “average reciprocity of advantage” results from it. Lucas, — U.S. at-, 112 S.Ct. at 2894; Florida Rock, 18 F.3d at 1570. A “partial taking” occurs when a regulation singles out a few property owners to bear burdens, while benefits are spread widely across the community. Florida Rock, 18 F.3d at 1571. This dichotomy does not arise where a regulation removes all economically viable use of the property. Removal of all use indicates a fully compensable “categorical taking” of the property. Lucas, — U.S. at-, 112 S.Ct. at 2893; Florida Rock, 18 F.3d at 1568. The third criterion — the extent to which the
3806	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, 120 S.Ct. 1382; Barnes, 501 U.S. at 565, 571, 572, 111 S.Ct. 2456, the Eleventh Circuit has suggested that requiring more in the way of clothing may violate the fourth prong of O’Brien. see also Daytona Grand, Inc. v. City of Daytona Beach, 410 F.Supp.2d 1173, 1176 (M.D.Fla.2006); R.V.S., 361 F.3d at 413; cf. Fantasyland Video, Inc. v. County of San Diego, 373 F.Supp.2d 1094, 1116-19 (S.D.Cal.2005) (holding that an ordinance requiring pasties and G-strings “plus” did not violate the narrow tailoring requirement of O’Brien where the ordinance required covering over the anal cleft or cleavage and not the buttocks). Section 3-129(6) requires a dancer — before she can permissibly engage in certain explicit dance movements — to fully cover her buttocks and the lower portion of her breasts, which requires her to wear more than pasties and a G-string. As the Seventh Circuit has held, “it is still the case that to
1276	Rizzitiello v. McDonald’s Corp., 868 A.2d 825, 830 (Del.Super.Ct.2005) (stating same requirement under DDA). As noted above, see supra Part I.B, the District Court found, as to each of Nichols’s discrimination claims, that Nichols failed to establish a triable issue at the third step of the McDonnell-Douglas analysis — pretext. At the third McDonnell-Douglas step, to defeat summary judgment when the defendant answers the plaintiffs prima facie case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action. The District Court correctly determined that, given the inadmissibility of Brittingham’s statements, the only evidence in the summary judgment record to support an inference of discriminatory intent by either Allen’s or Bennett was the fact that, in the wake of the December 11, 2003 altercation, “[Joshua] Whiteman was not transferred, while Nichols was.” For the purposes of a summary judgment analysis we, like the District Court, 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
3849	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 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.” Scott Paper Co. at 1228. In general, it is established through extensive advertising which creates in the minds of consumers an association between the mark and the provider of the services advertised under the mark. See id. Under certain circumstances, a mark “can develop secondary meaning as to goods or services to which the mark has not been applied.” Id. The rationale for extending protection of a mark into a
1332	above income debtors. It is incongruous to require the debtor to follow a code mandated formula to determine disposable income in a chapter 13 case, and then not allow the same debtor relief under another chapter when the debtor cannot propose a feasible plan because of that code mandated formula. Restricting the presumption of abuse test to cases filed under chapter 7 still allows the unfortunate chapter 13 debtor who is precluded from confirming a chapter 13 plan access to protection under the code, without diminishing the United States Trustee’s review of the case under § 707(a). The language of the statute is clear, and the function of the Court is to enforce the statute according to its terms. There is nothing in the code that suggests any latitude. For the reasons stated above, the Court sustains the chapter 13 trustee’s objection to confirmation related to the debtors’ misstatement of disposable income in each of the above captioned cases, and sustains the unsecured creditor’s objection to confirmation in the Lindon case. The debtors shall have 20 days from the entry of this order to amend their respective plans. IT IS SO ORDERED. . The trustee included a deduction of $200.00 for each of the debtor's two vehicles, which were described as older vehicles with high mileage. . The higher figure reported by the trustee is the result of the trustee placing the vehicle with
1804	"United States v. Swift , 220 F.3d 502, 506 (7th Cir. 2000). Richmond's presence in a neighborhood beset by drug trafficking and gun violence does not, by itself, support a particularized suspicion that he was committing a crime. But it is among the relevant contextual considerations in a reasonable suspicion analysis. See, e.g. , Wardlow , 528 U.S. at 124-125, 120 S.Ct. 673 (concluding defendant's evasive behavior in a high crime area and unprovoked flight after seeing the police had aroused a reasonable suspicion that he was engaged in criminal activity); United States v. Jackson , 300 F.3d 740, 746 (7th Cir. 2002) (holding same). A suspect's evasive behavior, and the experience of the officers, are also relevant factors. Jackson , 300 F.3d at 746 (officer experience). That Richmond changed his direction to head home does not alter the analysis. The officers did not know he lived at the duplex when they pulled over and approached him on the porch. And both officers testified he was not acting the way someone with a concealed-carry license would act on their own property. ""[B]ehavior which is susceptible to an innocent explanation when isolated from its context may still give rise to reasonable suspicion when considered in light of all of the factors at play."" Baskin , 401 F.3d at 793. Richmond's innocent explanations-including a hypothetical concealed-carry license-do not discharge all other relevant facts from consideration. Richmond argues this"
1475	after extensive experimentation a long-felt but unsolved need for an improved pipe bundle, and that Seattle Box enjoyed commercial success with its claimed bundle. 2. Legal Determinations The district court held that Industrial did not meet its burden of overcoming the '373 patent’s statutory presumption of validity, 35 U.S.C. § 282. Industrial simply reargues to us its position that the facts clearly show the obviousness of the invention, relying on the “pertinence” of its newly discovered prior art. Industrial makes two fundamental errors, however. First, Industrial seems to forget that the district court expressly held that Industrial’s art was not more pertinent than the art which the patent examiner cited. This court does not consider evidence de novo. Second, even if the art were more pertinent, this fact alone does not rebut the statutory presumption of validity. Leinoff v. Louis Milona & Sons, Inc., 726 F.2d 734, 738, 220 USPQ 845, 847-48 (Fed.Cir.1984). In denouncing the district court’s adverse holding, however, Industrial argues that the district court improperly adopted, and thus incorrectly relied on, the testimony of Seattle Box’s expert. This argument has no merit. A trial judge has sole discretion to decide whether or not he needs, or even just desires, an expert’s assistance to understand a patent. We will not disturb that discretionary decision except in the clearest case. This is not such a case. Here, the trial judge reasonably could have believed he needed
594	Gamba brought this action claiming that the City of Sunrise (the “City”) unlawfully terminated and retaliated against him in violation of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2614(a)(1) (the “FMLA”). Gamba was a probationary police officer for the City, but was terminated for failing to complete his probationary period satisfactorily. Gamba contends that his termination was in retaliation for having requested leave under the FMLA. The FMLA does not insulate an employee who has requested medical leave from being terminated for poor performance. So long as the employer would have taken the same action it did regardless of the request for leave, there is no statutory violation. Although Gamba contends his termination was in retaliation for having requested leave under FMLA, the City’s position that he was terminated after numerous documented instances of unsatisfactory job performance is well-supported by the record. Gamba was given, and does not dispute that he received, several written notices of problems in his job performance during his probationary period. The district court noted that Gamba “produced virtually no evidence in response” except to point to the temporal relationship between the leave request and his termination. Where the employer produces significant evidence of the employee’s poor performance, it is not enough that the request for leave and the termination are closely related in time. Wascura v. City of South Miami, 257 F.3d 1238, 1248
4828	severely disabled. (Id). The ALJ only focused her finding on the portion of the report where it alleges the Claimant was walking without crutches, however, she failed to address how this evidence, discovered in 1994, was able to bolster her finding that York was no longer disabled as of December 23, 1993. Even if the Court found the surveillance data appropriate, which it does not, the ALJ still provides no explanation as to how the evidence in the reports is tied into the date she chose to end York’s disability status. Finally, this Court cannot uphold a decision by an ALJ if the reasons given by her do not build an accurate and logical bridge between the evidence and the result. The ALJ did not build a bridge between the medical evidence of record and her finding that medical improvement occurred as of December 23, 1993. She does not explain why she chose that specific date and she does not link any evidence to that date. Thus, the ALJ erred in finding York disabled as of December 23,1993. B. The ALJ Erred in Relying on Liberty Mutual’s Surveillance In making her findings, the ALJ also relied on surveillance conducted by the insurance company defending against York’s worker’s compensation case. The ALJ admitted into the record the insurance company’s records including the investigation reports. In Keller v. Sullivan, 928 F.2d 227, 230 (7th Cir.1991), the court held investigative reports that might otherwise
3977	bankruptcy court dismissed the Schlegels’ case under § 1307(c)(6) for failing to complete their plan payments within five years from the commencement of their case. Although Schlegels had made their $812 monthly plan payments, they had failed to pay their unsecured nonpriority creditors the promised 48% dividend. Schlegels contend that the bankruptcy court erred in dismissing their case because they completed all of their payments under the Plan as required by § 1328(a) even if they failed to pay the required percentage dividend. Neither, the Ninth Circuit nor this Panel has addressed this precise issue. However, persuasive authority supports the bankruptcy court’s decision to dismiss for this 'reason. B. Analysis 1. Authority supporting dismissal of the case In  aff'd, 279 F.3d 91 (1st Cir.2002), a case with nearly identical facts, debtors’ confirmed chapter 13 plan promised to pay monthly payments of $474, to pay filed tax claims and to pay unsecured creditors a 10% dividend. Three years later, the IRS filed a proof of claim for a postpetition trust fund tax. No person filed objections to the IRS’s claim and the trustee began making payments on account of the IRS claim. Six years after confirmation, the trustee moved to dismiss on the basis that debtors’ plan payments failed to pay both the IRS claim and the 10% dividend to unsecured creditors. In response, debtors filed a motion for discharge under § 1328(a) or for a hardship
1719	"allegations in this MDL see In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 175 F.Supp.2d 593 (S.D.N.Y.2001) (""MTBE I”) (concerning preemptive effect of Clean Air Act); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 209 F.R.D. 323 (S.D.N.Y.2002) (""MTBE II”) (denying class certification); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 342 F.Supp.2d 147 (S.D.N.Y.2004) (""MTBE III"") (federal agent jurisdiction); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 341 F.Supp.2d 351 (S.D.N.Y.2004) (""MTBE IV"") (declining to abstain); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 341 F.Supp.2d 386 (S.D.N.Y.2004) (""MTBE V”) (bankruptcy jurisdiction); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 361 F.Supp.2d 137 (S.D.N.Y.2004) (""MTBE VI”) (sovereign immunity); . See 12/12/01 Complaint at Law, Quick, et al. v. Shell Oil Co., et al, No. O1-L-147 (Ill. Cir. Kankakee County) (""Compl.”) ¶¶ 3, 41 (listing ""MTBE, BETX compounds, including benzene, toluene, and xylem,” as contaminants of the potable water supply). The facts recited herein are mere allegations, and do not constitute findings of the Court. . See 2/21/02 First Amended Complaint, Quick, et al. v. Shell Oil Co., et al., No. 01-L-147 (Ill. Cir. Kankakee County) (""Complaint I”); 5/28/02 Second Amended Complaint, Quick, et al. v. Shell Oil Co., et al., No. 01-L-147 (Ill. Cir. Kankakee County) (""Complaint II”), Ex. 2 to Objections. . See"
2144	U.S.C.A. §§ 621-634 (West 1999 & Supp.2001). Holdcraft alleges that the County unlawfully discriminated against him on the basis of his gender and age when he applied for and was not selected as the best qualified applicant for the position of Program Manager, Occupational Health and Safety Center in the County’s Fire and Rescue Department. Our review of the record and the district court’s opinion discloses that this appeal is without merit. We find that, even assuming arguendo that Holderaft established a prima facie case of gender or age discrimination, he failed to rebut the legitimate, nondiscriminatory reasons the County proffered to support its decision to select the other candidate over him for the position at issue. Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 234-35 (4th Cir.1991). Specifically, deposition testimony and supporting documentation established the County relied on rank-ordering of candidates by a review panel, based on objective reviews of documentation and subjective interviews during which all candidates were presented with the same questions and rated individually on their answers. Although both Holderaft and Arndt, the candidate ultimately selected, were qualified for the Program Manager position, the final tally of the scores of the initial interview placed Arndt well above Holderaft, who never made it to the second interview round because his score was not among the top three highest. In addition, while Holderaft complains he possessed superior qualifications, his perception
790	the complaint was filed on July 10, 1984, and judgment was entered thereon on July 20, 1984. The motion for recusal was filed on August 28, 1984, subsequent to this Court’s order of August 22, 1984, scheduling a hearing on defendant’s application for attorneys’ fees. In order to disqualify a judge, a timely objection must be made, otherwise the objection is waived. U.S. v. Hall, 424 F.Supp. 508, affmd., 536 F.2d 313, cert. den., 429 U.S. 919, 97 S.Ct. 313, 50 L.Ed.2d 285; Andrews, Mosburg, Davis, Elam, Legg & Bixter, Inc. v. General Ins. Co. of America, 418 F.Supp. 304 (D.C.Okl.1976). Accordingly, a motion for disqualification is untimely and becomes moot when filed after judgment. Weber v. Coney, 642 F.2d 91, 92 (5th Cir.1981); U.S. v. Hall, 424 F.Supp. 508, affmd., 536 F.2d 313; Davis v. Cities Service Oil Co., 420 F.2d 1278 (10th Cir.1970). Plaintiffs motion filed 19 days after entry of Judgment is clearly untimely. B. SUFFICIENCY OF AFFIDAVIT. Plaintiff’s affidavit is a mixture of conclusory allegations, legal arguments, hearsay speculations, non sequiteurs, and irrelevant matters. Plaintiff asserts that attorney Harvey Nachman, a former law partner of the undersigned judge, is at present counsel for the undersigned judge. Plaintiff further alleges that: “Attorney William Estrella, representing defendants in the above captioned case, and Attorney Harvey Nachman, have been law partners for many years, and they too enjoy an ongoing professional relationship, jointly
1377	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). Heads of government agencies, in particular, “are not normally subject to deposition,” “absent extraordinary circumstances.” 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,
3935	this litigation. Defendants’ ignorance of that incident at the time of discharge, however, does not entitle plaintiff to relief, even if defendants might have fired plaintiff based on a handicap. Plaintiff’s omission of previous employment information disqualified him for the postal position. He cannot seek recovery for discrimination when he was not initially entitled to the job. As the Tenth Circuit has stated, [t]he present case is akin to the hypothetical wherein a company doctor is fired because of his age, race, religion, and sex and the company, in defending a civil rights action, thereafter discovers that the discharged employee was not a ‘doctor.’ In our view, the masquerading doctor would be entitled to no relief. In support of their motion for summary judgment, defendants argue that plaintiff lacked the honesty required of a PTF mail carrier. To refute that allegation, plaintiff submits his affidavit stating he did not intend to mislead USPS and he voluntarily left his employment at the A & P warehouse. That affidavit, however, is in direct conflict with plaintiff’s deposition testimony, which unambiguously stated he received a pink slip from the A & P warehouse and had been fired by Mr. Dean. Plaintiff, therefore, has mislead the court by opposing a motion for summary judgment with two conflicting statements, each made under oath. One of the statements must be false and the court is left with a record replete with inconsistencies
1681	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. 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.
3339	wishes to use his own true family name as a trademark in the same industry has been one of the more interesting issues in the law of trademark infringement. The problem is made more difficult when the second comer has his own background of experience in the particular industry, and is not simply a newcomer. See John T. Lloyd Laboratories, Inc. v. Lloyd Brothers Pharmacists, Inc., 131 F.2d 703 (6th Cir. 1942). In the nineteenth and earlier twentieth centuries, both the state and federal courts tended to be highly solicitous of an individual’s personal right to use his name in trade. Brown Chemical Co. v. Meyer, 139 U.S. 540, 11 S.Ct. 625, 35 L.Ed. 247 (1891); Meneely v. Meneely, 62 N.Y. 427 (1875). See McCarthy, Trademarks in Unfair Competition, § 13.3 pp. 459-560 (1973 ed.). With the passage of the Federal TradeMark Act of 1905, 33 Stat. 724, and an increasing commercial reliance on marketing techniques to create name recognition and goodwill, the courts adopted a more flexible approach to the conflicting property interests involved in surname trademark infringement cases. By 1908, the Supreme Court was willing to enjoin the use of a surname unless accompanied by a disclaimer. Herring-Hall-Marvin Safe Co. v. Hall’s Safe Co., 208 U.S. 554, 559-60, 28 S.Ct. 350, 52 L.Ed. 616 (1908). Shortly thereafter, in Thaddeus Davids Co. v. Davids, 233 U.S. 461, 34 S.Ct. 648, 58
356	argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . Plaintiffs also brought a separate negligence claim against Dr. Sutton, individually. Dr. Sutton has since settled with plaintiffs and has been dismissed from the case. . Plaintiffs do intimate that Dr. Sutton's failure to supervise the nursing staff resulted in deliberate indifference to Grassi's serious medical needs. This argument, however, was not presented to the district court. Except in certain circumstances not present here, we will not entertain an argument made for the first time on appeal. . Because we affirm on this alternate ground relied on by the district court, we need not address whether the district court erred in relying on the nurse's supervision by Dr. Sutton.
273	certainly believe, under the totality of the circumstances, that defendants had the collateral objective of making this arrest in order to appear more productive and thereby advance their careers, to make Operation Tidal Wave appear more successful in the press, and/or to coerce plaintiff into providing information about his brother Tavares Charlie.” Fatally, however, plaintiff submits no evidence in support of these speculations, and thus no jury could reasonably conclude that any of these goals constituted the defendants’ collateral objective. Thus, plaintiffs claim fails. d. Right to a fair trial An individual’s right to a fair trial under the Fifth and Fourteenth Amendments may be violated when an officer supplies false information to a prosecutor about the individual. This is true even if the officer had probable cause to arrest the accused in the first place. Cf. Jocks, 316 F.3d at 138 (malicious prosecution claim). Again, plaintiffs denial of engaging in drug sales is the only evidence he offers in support of his claim that police officers supplied false information to the prosecutor about him. There is no evidence that any of the police officers in this case knew plaintiff independently or bore any ill will against him. Plaintiff has shown no evidence of improper motive for the alleged fabrication. The grand jury properly returned an indictment. After a criminal trial, plaintiff was acquitted on all charges. Plaintiffs argument that the fact of his acquittal and his denial
2652	ground that there was no confusing similarity between “Shine-All” and “Briten-All” when concurrently used on the involved goods. The Examiner-in-Chief on appeal reversed the action of the examiner in both these respects in the cancellation proceeding. It is true that the syllable “All” is identical in both marks, and the marks as a whole have a similar meaning. We are of the opinion, however, that the remaining portions of the marks give them a separate identity in the case at bar by which they are not confusingly similar. Nor are we convinced of the validity of the holding of the Examiner-in-Chief that the words of the competing marks are descriptive of the goods to which they are attached. .P.A., Patents, 978. The decision of the Examiner of Interferences in dismissing the petition for cancellation aptly remarked: “Aside from the question of laches, however, it is the opinion of the Examiner that the cancellation should be dismissed because of 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
4845	provides little help to shareholders to the extent it duplicates the disclosure requirements of the Williams Act. But to the extent the IPA diverges from federal law its protections are speculative. MITE found unconstitutional an Illinois statute similar to the IPA. The MITE Court agreed with the court below that “the disclosures required by the Illinois Act which go beyond those mandated by the Williams Act and the regulations pursuant to it may not substantially enhance the shareholders’ ability to make informed decisions.” Id. 457 U.S. at 645, 102 S.Ct. at 2642. See also Mesa Petroleum Co. v. Cities Service Co., 715 F.2d 1425, 1430 (10th Cir.1983) (citing MITE in finding Oklahoma takeover statute’s protections of “dubious value”). Cf. v. Bendix Corp. in partially upholding Michigan takeover statute because § 14(d) of the Williams Act did not apply to tender offer at issue and “in the absence of the federal disclosure requirements, the state’s interest in protecting resident shareholders is enhanced.”) This Court, like the MITE majority, is unconvinced that the statute at issue “substantially enhances the shareholders’ position.” MITE, 457 U.S. at 644, 102 S.Ct. at 2642. This Court in fact suspects that shareholder protection may not be the primary purpose of the IPA. The IPA, like the other Tennessee Acts at issue, contains clues that its true object is protecting incumbent management. An offer approved by an offeree’s board of directors, for
4150	or her impairments. Secretary’s regulations define types of work using physical exertion criteria (Regs. §§ 404.1567, 416.967). Alternatively the AU may base the step 5 determination on other evidence, including the assessment of a vocational expert (Regs. §§ 404.1566(e), 416.966(e)). Indeed, when a claimant suffers from nonexertional impairments exclusively or in addition to exertional impairments, the AU may not be able to rely solely on the Grid — resort to a vocational expert may be required (see Reg. Subpart P, Appendix 2, § 200.00(e); Warmoth v. Bowen, 798 F.2d 1109, 1110 (7th Cir.1986) (per curiam)). In all events, Secretary’s decision must be upheld unless (1) the findings are not supported by substantial evidence or (2) Secretary has applied incorrect legal standards (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, 216, 83 L.Ed. 126 (1938) has defined “substantial evidence” as: more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Facts Paige was born December 25, 1932 (R. 63), making him 53 years old at the time of the Hearing. He has a tenth-grade education. His work history reveals a series of jobs — factory machine operator, lift-truck operator and movie theatre cleaner— characterized by Paige as presenting at least “medium” (and in two instances “heavy”) exertional requirements. Paige’s last
1161	in prison if the offense that resulted in the term of supervised release is a class A felony[J 18 U.S.C. § 3583(e)(3). Further, Chapter 7 of the Sentencing Guidelines, which governs violations of supervised release, contains policy statements, one of which, § 7B1.4, provides recommended ranges of imprisonment applicable upon revocation. See U.S.S.G. § 7B1.4. The applicable range in Thompson’s case, where he committed a Grade A violation of his supervised release, had a criminal history category of IV, and was on supervised release as a result of a sentence for a Class A felony, was 37 to 46 months imprisonment. See id. We consistently have held that the policy statements of Chapter 7 are merely advisory and not binding. In sentencing a defendant, the factors that a district court should consider include: (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the applicable guideline range; (4) the pertinent Sentencing Commission policy statements; and (5) the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1), (2)(B)-(D), (4)-(7). The district court is not required to discuss each of the § 3553(a) factors. United States v. Talley, 431 F.3d 784, 786 (11th Cir.2005). Because the imposition of Thompson’s sentence reflected consideration of several of the relevant factors under § 3553(a), the sentence was not unreasonable. Accordingly, we affirm the district court’s order revoking Thompson’s supervised release and Thompson’s sentence. AFFIRMED.
2507	demonstrate likelihood of success, Bell & Howell must show that, in light of the presumptions and burdens that will inhere at trial, it will likely prove that Keystone infringes its patents. See New England Braiding Co. v. AW. Chesterton Co., 970 F.2d 878, 882-83, 23 USPQ2d 1622, 1625-26 (Fed.Cir.1992). If Bell & Howell clearly established a likelihood of success, it was entitled to a rebuttable presumption that it would be irreparably harmed if a preliminary injunction were not to issue. Polymer Techs., 103 F.3d at 973, 41 USPQ2d at 1188. Literal infringement involves a two-step determination: the proper construction of the asserted claim and a determination whether the claim as properly construed reads on the accused product or method.  aff'd, 517 U.S. 370, 116 S.Ct. 1384, 134 L.Ed.2d 577, 38 USPQ2d 1461 (1996). The first step, claim construction, is a question of law, which we review de novo. Id. at 979, 34 USPQ2d at 1329. We proceed accordingly. Bell & Howell argues that the district court erred in construing the expression “integrally bonded ... free of adhesive.” Specifically, Bell & Howell argues that this expression means that the ribs adhere to the panels by themselves without the use of a separate layer of adhesive. Bell & Howell asserts that this construction is supported by the intrinsic evidence, viz., the patents’ specifications - and file histories, see Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
1873	Memorandum Opinion and Order WATSON, Judge. In these cross-motions plaintiff seeks partial summary judgment and defendant seeks judgment on the pleadings. Both parties rely on the similarity of the circumstances of this case to those in  the record of which has been incorporated herein. In that case, owing to a lack of proof of costs of inspecting and grading certain Mexican cucumbers plaintiff failed to prove the claimed export value of its imported cucumbers. In other respects plaintiff won a “moral” victory. The court found the appraisement erroneous in that it was based on nonexistent sales between plaintiff and Pickle-Mex, its agent or alter ego in Mexico. Pickle-Mex bought the cucumbers from the farmers, inspected them, graded them and placed them in brine for export. The court also agreed with plaintiff’s argument that although the Tariff Schedules spoke of the importation as a unitary article (vegetables in brine), it would be proper to prove the export
4464	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 Western Auto Supply Co. v. Savage Arms, Inc. (In re Savage Indus., Inc.), 43 F.3d 714, 719-20 n. 8 (1st Cir.1994). A bankruptcy court’s decision to dismiss or convert a case under § 1307(c) is reviewed for an abuse of discretion. See Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1222-23 (9th Cir.1999); see also Ho v. Dowell (In’re Ho), 274 B.R. 867, 870-71 (9th Cir. BAP 2002). A court abuses its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact. Ho, 274 B.R. at 871. A finding of bad faith, as a basis for granting a motion to convert or dismiss under § 1307(e),
1726	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; . Grable & Sons Metal Prods., Inc., v. Darue Eng’g & Mfg.,-U.S. -, 125 S.Ct. 2363, 2368, 162 L.Ed.2d 257 (2005). Accord Broder v. Cablevision Sys. Corp., 418 F.3d 187 (2d Cir.2005). . Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Two exceptions to the well-pleaded complaint rule permit removal of state law actions: when the claims are completely preempted by federal law and 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,
2665	word play, in that Plaintiff contends that the phrase is grammatically comparative, without any standard by which to compare. Id. Plaintiff asserts that its response is not mere word play, and that it is Elk Run’s fault for not crafting a more precise request. (# 41, at 3.) Elk Run replies that a request is not vague if the requesting party reasonably identifies what it wants to know. (# 42, at 4.) As to Plaintiffs objection to request for admission number 7, Elk Run contends that using a response like, “the document speaks for itself,” is inappropriate and unjustified under the Federal Rules, noting that at least one court has referred to such a phrase as “folklore.” See (# 38, at 5-6.) Plaintiff claims that Elk Run’s request serves neither of the purposes of Rule 36 in that it does not address the authenticity of a document, or that it was prepared at a particular time by a particular person. (# 41, at 3.) On that basis, Plaintiff declares the request to be unduly burdensome. Id. at 4. In reply, Elk Run cites to the lack of support for an objection based on “the document speaks for itself,” and notes that it asks Plaintiff to admit that a proposal in early June carried the estimate. (# 42, at 5.) Rule 36(a) provides that an answer to a request for admission shall specifically deny the matter or set forth in
3301	district court and is not cognizable on direct appeal); and his claim that his counsel was ineffective is more properly raised in a motion under 28 U.S.C. § 2255, see United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir.2006). By his guilty plea, Alarcon has waived any non-jurisdictional challenge to his prosecution, see Smith v. United States, 876 F.2d 655, 657 (8th Cir.1989) (per curiam), and he cannot challenge the drug quantity used for sentencing because he stipulated to the amount in his plea agreement, cf. United States v. Nguyen, 46 F.3d 781, 783 (8th Cir.1995) (defendant who explicitly and voluntarily exposes himself to specific sentence may not challenge that punishment on appeal). Having reviewed the record in accordance with  we have found no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw and deny Alarcon’s motions. The judgment of the district court is affirmed. . The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota.
3834	PER CURIAM: Appellant Ronnie Van Cleave moves this Court for leave to appeal in forma pauperis (IFP) from the district court’s dismissal of his civil rights complaint. We grant the motion to appeal IFP and summarily affirm in part and vacate and remand in part. See Van Cleave was arrested by U.S. marshals and placed in the custody of the Webb County jail on July 3, 1986. He was released on bond on July 6, 1986. Van Cleave brought this civil rights action against the U.S. and the Webb County Sheriff alleging that: 1) when he was booked he requested medical attention (for an injury he identifies on appeal as an abrasion to his forehead) but was denied medical attention for twenty-four hours; 2) during his three nights’ confinement, he was denied a toothbrush, toothpaste, a comb, and a towel; 3) his request for newspapers was denied and he was told newspapers were not allowed; and 4) on July 6, 1986 at 6:00 p.m. he was released
59	cattle on December 28, 2001, pursuant to order of the Bankruptcy Court. Johnson filed a complaint seeking a determination that the Debtor’s indebtedness to him as assignee of the Bank constitutes a debt for willful and malicious injury which should be excepted from discharge pursuant to 11 U.S.C. § 523(a)(6). The Bankruptcy Court determined that Johnson satisfied the willful prong of the test but failed to establish malice. Johnson appeals the conclusion that the debt is not for a malicious injury. STANDARD OF REVIEW The determination of whether a party acted maliciously inherently involves inquiry into and finding of intent, which is a question of fact. Waugh v. Eldridge (In re Waugh), 95 F.3d 706, 710 (8th Cir.1996); Questions of fact are reviewed under the clearly erroneous standard and are not to be reversed unless after reviewing the record the appellate court is left with the definite and firm conviction that a mistake has been committed. Waugh, 95 F.3d at 711; Barclays Am./Bus. Credit, Inc. v. Long (In re Long), 774 F.2d 875, 877 (8th Cir.1985); Fors, 259 B.R. at 135. Due deference shall be given to the opportunity of the trier of fact to judge the credibility of the witnesses. Fors, 259 B.R. at 136; TriCounty Credit Union v. Leuang (In re Leuang), 211 B.R. 908, 909 (8th Cir. BAP 1997). Where the evidence is susceptible to two permissible views, the trial court’s choice between
1298	on all issues. Accordingly, the plaintiff’s motion is granted. 2. Defendant’s Motion to Reconsider. As noted at the outset, defendant’s motion to reconsider addresses the orders of this court (1) denying defendant’s motion to dismiss and granting plaintiffs request for a jury trial, (2) reinstating the first case, and (3) consolidating the two cases for all purposes. The decision to grant or deny a motion for reconsideration is within a district court’s discretion. Three grounds are recognized for granting a motion to reconsider: (1) an intervening change in controlling law, (2) availability of new evidence, or (3) the need to correct clear error or prevent manifest injustice. D.Kan.Rule 7.3. See also  cert. dismissed, 503 U.S. 915, 112 S.Ct. 1310, 117 L.Ed.2d 510 (1992). Owen alleges neither an intervening change in controlling law nor newly available evidence. In fact, Owen does not even claim the court committed clear error in any of its orders. Defendant’s motion could be denied on that basis alone, but the court will briefly address the merits. This court has granted Goffs Rule 39 motion for trial of all issues by jury, as set forth in this opinion. Whether the court committed clear error in refusing to strike Goffs Rule 38 demand in the second case is therefore a moot issue. This court has determined Owen suffers no prejudice if Goff is granted a jury trial on all issues,
4347	Consent Decree. As noted above, the Court considered all of the written objections that were filed and provided objectors with an opportunity to present their objections orally at the fairness hearing. While the Court denied a request for an evidentiary hearing made by one group of objectors, see Order of March 11, 1999, the Court is not obligated to hold an evidentiary hearing, especially in view of the fact that it accepted apd considered affidavits in place of testimony. See Jones v. Nuclear Pharmacy, Inc., 741 F.2d 322, 325 (10th Cir.1984); Weinberger v. Kendrick, 698 F.2d 61, 79 (2nd Cir.1982), cert. denied sub nom, Coyne v. Weinberger, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983); cf. Finally, because the Court has received a number of objections, it is clear that class members do not unanimously support the settlement. It is significant, however, that there are relatively few objections to the settlement in comparison with the size of the class. See Thomas v. Albright, 139 F.3d at 232. This is a large class. As of March 26, 1999, 16,559 farmers had requested claims packages from the facilitator, and the facilitator already has received 1686 completed claim packages. By contrast, only 85 farmer class members have elected to opt out of the class. See Pis’ Response to Posb-Hearing Submissions of Objections at 6-7. Given the low rate of opt-outs and the relatively small percentage of class members objecting
2476	& 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 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’ Times, Inc. v. Busbee, 621 F.2d 135, 138-39 (5th Cir. 1980) (first amendment challenge to a criminal statute). These cases, in contrast to the present case, uniformly involve chilled speech, an area traditionally afforded a high degree of constitutional protection. Plaintiffs point to neither an imminent threat of criminal prosecution nor to a history of past prosecution. The ordinances about which they complain certainly present no threat to their right to free speech, or other fundamental rights. Plaintiffs
2342	v. Salt Lake Stamp Co., 8 Cir., 28 F.2d 99, 101, 102, and cases cited; Donner v. Sheer Pharmacal Corp., 8 Cir., 64 F.2d 217, 221, 222 and cases cited; Strong-Scott Mfg. Co. v. Weller, 8 Cir., 112 F.2d 389, 394. The following language from the case of Trane Co. v. Nash Engineering Co., 1 Cir., 25 F.2d 267, 269, is pertinent here: “The Eibel Case [261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523] certainly admonishes this court to give great weight to the practical results from a claimed invention; to look beyond the paper expression to the state of the art, before and after an alleged invention which is tested in actual practice. Minerals Separation v. Hyde, 242 U.S. 261, 270, 37 S.Ct. 82, 61 L.Ed. 286. “An invention is a real thing; a patent is the description of it in words and/or drawings. McClain v. Ortmayer, 141 U.S. 419, 12 S.Ct. 76, 35 L.Ed. 800. The description must be reasonably' adequate, in order to warn the public and competitors of the nature and extent of the monopoly claimed. But the essence of the matter is a new and useful reality, frequently best tested and demonstrated by actual experience.” The issuance of a patent is prima facie evidence of both novelty and utility. When one attacks a patent he must make good his attack with reasonable clearness. The burden of proof is upon him and
3605	in favor of the Agency, the Agency argues that it was wrongfully enjoined, and therefore the district court erred in refusing to execute the bond against the Union under the Nintendo standard. On the other hand, the Union argues that the injunction issued in this case was not a typical interlocutory injunction because in a typical case, the court grants an interlocutory injunction and then, after receiving more evidence on the matter, deliberates on the merits of the dispute further before issuing a final judgment. The Union asserts that the injunction in this case is unique to the collective bargaining context, because the purpose of the injunction is to preserve the status quo pending arbitration. Thus, citing  the Union contends that when a district court issues an injunction ordering an employer to preserve the status quo pending arbitration, the court is merely holding the employer to its promise to preserve the status quo until a final arbitration decision is issued. In Boys Markets, the Retail Clerks Union went on strike during'the term of its collective bargaining agreement to pressure the employer over a work-assignment dispute. The employer sought an order enjoining the strike and ordering the union to submit the dispute to arbitration. In opposition to the injunction, the union cited the anti-injunction provisions of the Norris-LaGuardia Act, 29 U.S.C. §§ 101, et seq. In affirming the injunction against the union, the Supreme
2308	three issues presented to this Court. II. STANDARD OF REVIEW The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). This Court may not reweigh evidence and decide facts anew, and must defer to the ALJ’s decision if it is supported by substantial evidence. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.2005). Substantial evidence must do more than create a suspicion of the existence of a fact; it is evidence that a reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.1995). If the Commissioner’s decision is supported by substantial evidence it should be affirmed, even if this Court would have reached a contrary result. III. SEVERE IMPAIRMENT Mr. Griffin first contends that substantial evidence does not support the ALJ’s failure to find that his tinnitus constituted a severe impairment. In order to determine whether a claimant is disabled, the Social Security Administration (SSA) applies a five-step sequential analysis. 20 C.F.R. § 404.1520(a). This process includes a determination of whether the claimant: (1) is presently engaged in substantial gainful activity; (2) has a severe and medically determinable physical or mental impairment; (3) has such an impairment that meets or equals one of the listed impairments and meets the duration requirements; (4) can perform his past relevant work, in light of his residual capacity; and (5) can make an adjustment to other work, in
4463	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 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 Auto Supply Co. v. Savage Arms, Inc. (In re Savage Indus., Inc.), 43 F.3d 714, 719-20 n. 8 (1st Cir.1994). A bankruptcy court’s decision to dismiss or convert a case under § 1307(c) is reviewed for an abuse of discretion. See Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1222-23 (9th Cir.1999); see also Ho v. Dowell (In’re Ho), 274 B.R. 867, 870-71 (9th Cir. BAP 2002). A court abuses its discretion
3441	merge. The resulting arguments are as follows: first, that the district court erred in denying credit for his acceptance of responsibility, second, that his sentence was unreasonable, and third, that the district judge’s findings on relevant conduct violated his right to due process. II. Discussion A. Acceptance of Responsibility. On appeal Lister primarily argues against the district court’s finding that he failed to accept responsibility for his crimes, see U.S.S.G. § 3E1.1. This denial of credit, he argues, led to an erroneous application of the guidelines. In seeking credit for accepting responsibility for his crimes, the defendant bears the burden of proving this acceptance by a preponderance of the evidence. United States v. Travis, 294 F.3d 837, 840 (7th Cir.2002); We review the district court’s decision on this fact-based finding for clear error. United States v. Hicks, 368 F.3d 801, 808 (7th Cir.2004); United States v. Mayberry, 272 F.3d 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
423	law provide a proper basis for the bankruptcy court to exercise any discretion that it may have under § 105(a) by enjoining the 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.”  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
3468	facts relevant to this action. . Marx, 905 F.2d at 1506 (citations omitted). . Pl.'s Compl. at 3. . See Pl.’s Resp. to Defs.' Mot. for Summ. J. at 4. . See, e.g., Perez v. State of Florida, 648 So.2d 715, 719 (Fla. 1995). . 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). . See id. at 199, 93 S.Ct. 375. . See id. at 199-200, 93 S.Ct. 375. . See Butler Dep. at 45. . See Balch Dep. I at 27-28. . Butler-Dep. at 45. . Balch Dep. II at 111. . See Butler Dep. at 92. . See, e.g., Neil, 409 U.S. at 200, 93 S.Ct. 375; Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir. 1987); Meyer v. Estelle, 621 F.2d 769, 774 (5th Cir.1980); United States v. Michael, 729 F.Supp. 95, 96 (S.D.Fla.1989). . Butler Dep. at 45. . Pl.'s Dep. at 61 (filed March 24, 1999). . Rankin, 133 F.3d at 1436 (citations omitted). . Id. (citation omitted). . See Marx, 905 F.2d at 1507.
4004	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); 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 determined that the term “hollow,” as used in the '833 patent, means having
993	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). 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 Bankruptcy Judge’s orders in this case begins with an examination of the text of the Pollution
4110	"at 1282 (rejecting Krenkels’ contention that the front desk personnel impeded their understanding of the terms of the forum selection clause). In the present case, the Feggestads cannot demonstrate that the inclusion of the forum selection clause was the product of fraud or coercion. In conclusion, we hold that the district court properly found the forum selection clause valid and enforceable under the cir cumstances of this case. AFFIRMED. . Kerzner notes that the Feggestads, for the first time on appeal, attempt to challenge the physical characteristics of the email and web- - site containing the forum selection clause. This court has long held that it will not consider issues raised for the first time on appeal. Furthermore, the Feggestads concede that they never visited the Atlantis website and that they did not read the Terms and Conditions before filing their lawsuit. Moreover, all of their arguments to satisfy this prong of the ""reasonable communicativeness” test are baseless. . The Feggestads also fault the district court for ignoring the fact that they had never visited the Atlantis before. They argue, citing to district court cases, that a plaintiff must have the opportunity to reject a forum selection clause ""with impunity.” While there is some language in the dissenting opinion in Shute to support such a stringent requirement, see Carnival Cruise Lines, Inc., v. Shute, 499 U.S. 585, 597, 111 S.Ct. 1522, 1529, 113 L.Ed.2d 622 (Stevens,"
2215	8 percent per annum or the rate in effect under 16 U.S.C. S 6621, whichever is higher. October 10, 1980, P.L. 96-417, Title III, Sec. 301, 94 Stat 1728 (effective November 1,1980, as provided by section 701(a) of such Act, 28 U.S.C. § 251 note). 28 U.S.C. § 1585 states: The Court of International Trade shall possess all the powers in law and equity of, or as conferred by statute upon, a district court of the United States. Allowance of interest in a federal civil suit is not a matter of discretion, but is mandatory. Interest is payable on a judgment whether or not the judgment order expressly calls for postjudgment interest. See, L 1981, c 258 § 1, passed June 15,1981, effective June 25, 1981.
3773	8-9.) Third-party standing is an exception to the prudential requirement that a party must litigate its own rights and interests and not those of a third party. See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1251-52 (5th Cir.1995). A party may assert a third party’s rights if they share a close relationship, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (school and parents); Craig v. Boren, 429 U.S. 190, 195, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (bartender and customers); if the third party is unlikely or unable to defend his or her rights in court, 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
3478	feet was shown during a reemployment examination in November 1945 ...” Harry B. Kates, BVA 92-_, at 5 (Jan. 10, 1992). Accordingly, the Board found the “new” evidence not “material” and denied “the benefit sought on appeal.” ANALYSIS The Board’s 1989 decision, which denied appellant’s claim for fungal infection of his feet, was final and could be reopened only upon the presentment of “new and material” evidence. If “new and material” evidence is presented or secured, the claim must be reopened and readjudicated. See 38 U.S.C.A. §§ 5108, 7104 (West 1991). Of course, if there is “new and material” evidence, that does not necessarily mean that the claimant “wins”; its presentment only compels the reopening and readjudication of the claim. See Justus v. Principi, 3 Vet.App. 510, 512-13 (1992). “New” evidence is that which is relevant to and probative of the issue at hand which to be material must be of sufficient weight or significance (assuming its credibility) that there is a reasonable possibility that the new evidence, when viewed in context of all the evidence, both new and old, would change the outcome. Colvin, 1 Vet.App. at 174. In finding no “reasonable possibility” that the new evidence would change the outcome in this case, the Board determined the new evidence not to be material and refused to reopen the case. The Court agrees. The evidence of Mr. Ezell is not material. This statement by a lay witness as to the medical
1067	¶ 2 (quoting 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
2557	or fixed or extended by order of court for the filing of an answer to the petition, motion or other pleading to which he is adverse, he shall be deemed to have consented to such jurisdiction; * * *” The consent of the parties did not create jurisdiction in the bankruptcy court where none had existed before; it merely waived the procedural right of the parties to have their claims to the escrow fund adjudicated in the Virginia court. The parties were at liberty to waive this right. MacDonald v. Plymouth County Trust Co., 286 U.S. 263, 267, 52 S.Ct. 505, 76 L.Ed. 1093 (1932). The waiver was effective to permit the exercise of summary jurisdiction by the court even though the escrow fund had been attached in the state action. See Taubel-Scott-Kitzmiller Co. v. Fox, 264 U.S. 426, 433, 434, 44 S.Ct. 396, 68 L.Ed. 770 (1924); Carney v. Sanders, 381 F.2d 300, 302 n. 3 (5th Cir. 1967); O’Dell v. United States, 326 F.2d 451, 455, 456 (10th Cir. 1964); cf. Schumacher v. Beeler, 293 U.S. 367, 55 S.Ct. 230, 79 L.Ed. 433 (1934); 5 Remington on Bankruptcy (5th ed. 1953) § 2200. The appellants rely upon In re Consolidated Container Carriers, Inc., 385 F.2d 362
2133	Court recognizes the expense of litigation in such matters, all of which tends to promote settlements. In a preliminary motion plaintiffs asserted that defendants were estopped to deny the validity of the patent because of pri- or recognition in North Carolina, but District Judge Williams determined this issue adversely to plaintiffs. It is well settled that courts must scrutinize the “claim” as allowed by the Patent Office to determine the nature of the invention, which should be read in light of the specification and drawings, and that courts have no right to enlarge a patent beyond the scope of its claim. Keystone Bridge Co. v. Phoenix Iron Co., 95 U.S. 274, 279, 24 L.Ed. 344; Wire Wheel Corp., etc. v. Budd Wheel Co., 4 Cir., 288 F. 308; Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 37 S.Ct. 416, 67 L.Ed. 871; Victor Cooler Door Co. v. Jamison Cold Storage Door Co., 4 Cir., 44 F.2d 288. The “claim” must also be 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
3194	find the district court’s asserted ground for jurisdiction unpersuasive. While it is true that some of the registrants sought a hearing, they subsequently withdrew their requests. It is quite obvious that the provision barring judicial review where no hearing is requested applies with equal force where a hearing is first requested and the request is then withdrawn. In either case, the registrants — those persons most directly affected by the suspension order — have waived their right to administrative remedies in the form of review by an administrative law judge. There is no less a waiver when the registrant first asks for a hearing and then changes his mind than when he asks for no hearing in the first place. See B. This leaves the question whether judicial review of an emergency suspension is barred when no registrant timely requests a hearing. As is often the case where Congress drafts complex statutes, the various provisions do not fit with surgical precision. While the statute’s meaning may be clear as to most of the situations it covers, cases may arise where two provisions in the same statute, or in different statutes, apparently conflict. It is then up to the courts to make sense of these apparent inconsistencies. This is such a case. On the one hand, Congress provided for immediate judicial review of emergency suspension orders. FIFRA
928	statute of limitations under § 6511. The taxpayer cites no authority — nor have we been able to find any — in support of this argument. The limitations period for administrative refund claims for the taxpayer’s 1983 taxes began to run on the various dates those taxes were paid, the last of which occurred on December 5, 1988. Because the taxpayer filed his administrative claim for refund on December 12,1990, seven days after the two-year limitations period expired as to the last payment he made 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 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
4777	"(3d Cir.1979), also facially supports the government’s position. The stipulation at issue there, however, concerned the fact of the prior conviction, and the decision therefore simply may reflect agreement with our conclusion in Collamore that a defendant may not modify a statute by eliminating one of its elements from the jury's consideration. . Both the eyewitness testimony explicitly identifying Tavares as the radio thief and the testimony about defendant's police station behavior create some risk of injecting unfair prejudice for the defendant without adding significant weight to the prosecution’s case, if the government seeks to re-introduce this evidence in a new trial, we urge the district court to ""remain vigilant"" as to whether it survives the Rule 403 balancing, see SELYA, Circuit Judge, with whom LEVIN H. CAMPBELL, Senior Circuit Judge, joins (concurring). I write separately, not because I harbor reservations about the result reached in this case, but because I fear that the court’s opinion may be read by some to recalibrate the balance that Fed.R.Evid. 403 demands. I have three qualms. First: I think that the court, in endeavoring to distinguish between the fact of a prior conviction and the basic facts necessary to give that conviction content, suggests an uncomfortably cramped — and somewhat artificial — definition of relevance. In my view, the disputed evidence is relevant — albeit perhaps marginally so — but nonetheless inadmissible under a proper application of Rule 403. Second: I question the"
337	with the federal law which decrees that the statute does not begin to run until the fraud is, or should be, discovered. Parrent, supra at 128; Vanderboom, supra at 1240. Accord Janigan v. Taylor, 344 F.2d 781 (1st Cir.), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965). See also Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946) ; Bailey v. Glover, 88 U.S. (21 Wall.) 342, 22 L.Ed. 636 (1875). . See J. I. Case Co. v. Borak, 377 U.S. 426, 431-32, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964) ; SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963). . See Beefy Trail, Inc. v. Beefy King Int’l, Inc., 348 F.Supp. 799, 803 (M.D.Fla.1972). . See note 7, supra. . See note 1, supra. . See note 7, supra. . However, even if Congress is so disposed, it may wait until it receives The American Law Institute’s proposed Federal Securities Code. Professor Louis Loss, the reporter for the project, currently estimates that the ALI Code will reach Congress in 1976 or 1977. Federal Securities Code, Introductory Memorandum at xv (Ten. Draft No. 2, 1973). Section 1421 of the draft contains proposed federal statutes of limitations for the remedies provided by the Code.
3048	for the implementation and enforcement of environmental compliance policies and procedures. “Bestfoods requires that an operator ‘make the relevant decisions’ regarding the disposal of hazardous wastes ‘on a frequent, typically day-to-day, basis’.” Lockheed, 35 F.Supp.3d at 121, citing City of Wichita, Kansas v. Trustees of APCO Oil Corp. Liquidating Trust, 306 F.Supp.2d 1040, 1055 (D.Kan.2003) (collecting cases). Applying the Bestfoods definition of an operator under CERCLA, TDY did not establish that the Government functioned as an operator at the Site. See generally Lockheed, 35 F.Supp.3d at 150 (operations in performance of government contracts or subcontracts and the government’s pervasive influence over the general activities at a. site does not alone make the government an operator under CERCLA), citing  and United States v. Iron Mountain Mines, Inc., 987 F.Supp. 1277, 1287-88 (E.D.Cal.1997) (same). The Government’s liability at this Site was as a’“past owner of facilities.” TDY’s liability was as an “owner of facilities” and “operator.” Viewing each party in the context of those roles the Court considers to what extent the Government and TDY should each be held accountable for the Site ■ contamination.' 3. The Contribution, Involvement and Care of the Parties .. The contaminants at issue in this case entered the environment as a result of manufacturing operations, ■ maintenance and disposal policies and procedures, and storage practices on the Site. The contamination occurred over the span of decades. The hazardous- nature of the contaminants was
1652	MEMORANDUM Darrell Garrett, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 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). 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
4801	form field interrogation card, and the three occupants of the Cadillac departed in their car. After the bank robbery occurred on April 28, 1970, the police officers recalled the similarity in description between the report that the three Negro bandits drove a white Cadillac getaway car after the bank robbery, and the description of three Negro males driving a 1959 white Cadillac on April 24, 1970. On the basis of this recollection, the police officers proceeded to the Hall’s Motel address which was recorded on the field interrogation card and made the search and seizure under discussion. In urging that the stopping and questioning on April 24th under the described circumstances was unlawful under the Fourth Amendment, defendants rely primarily upon They argue that the officers were acting only on a “hunch”; point out that, whereas the liquor store robbery was committed by two Negroes, there were three in the Cadillac on April 24; and note that there were numerous alternative “get-away” routes from the liquor store robbery. Terry involved the stop and frisk of a person on a public sidewalk, not in an effort to apprehend one who had just committed a particular crime, but because of what the officer regarded as generally suspicious conduct. Incriminating evidence was found, consisting of a concealed weapon, and the seizure of that evidence was challenged in the prosecution for carrying the concealed weapon. The Supreme Court affirmed the conviction.
3450	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. 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 of Lister’s sentencing. The district court calculated the appropriate range of 324-405 months based upon his guilty plea, relevant conduct, and criminal history. 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
4351	cannot approve a class action settlement which either initiates or authorizes the continuation of clearly illegal conduct ... [but] we are mindful that ... 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”) (internal citations and quotations omitted). Third, even if plaintiffs had prevailed on their ECOA claims at trial, it is not at all clear that the Court could have or would have granted the broad injunctive relief that the objectors now seek. The injunctive relief that the objectors seek, essentially an injunction requiring the USDA to change the way it processes credit applications, may be authorized where plaintiffs prove a constitutional violation, see  but plaintiffs in their Seventh Amended Complaint do not allege a constitutional violation and they have not undertaken to prove one. Moreover, while ECOA authorizes the Court to “grant such equitable and declaratory relief as is necessary to enforce the requirements imposed under this sub-chapter,” 15 U.S.C. § 1691e(c), in employing its broad equitable powers the Court must exercise “the least possible power adequate to the end proposed.” See LaShawn A. v. Barry, 144 F.3d 847, 854 (D.C.Cir.1998) (quoting Spallone v. United States, 493 U.S. 265, 280, 110 S.Ct. 625, 107 L.Ed.2d 644 (1990)). Those legal responses, however, provide little comfort to those who have experienced discrimination at the hands of the USDA and who
1810	"investigatory stop took place before the search. See United States v. Mendenhall , 446 U.S. 544, 552, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (explaining same). We follow Terry 's approach. For purposes of our review, it matters not whether a Terry stop preceded Milone's search. Now we turn to Richmond's contention that Milone's search behind the screen door infringed upon established Fourth Amendment principles. 1. Terry and later case law permit limited area searches for weapons . The Fourth Amendment guarantees the right of the people to be secure in their houses against ""unreasonable"" police searches. U.S. CONST.amend IV. Curtilage-the ""area immediately surrounding and associated with the home""-is entitled to the same Fourth Amendment protection as the home itself. For protective searches for weapons, the Supreme Court has held that area searches are permissible in limited circumstances: ""[O]fficers who conduct area searches during investigative detentions must do so only when they have the level of suspicion identified in Terry ."" Long , 463 U.S. at 1050 n.14, 103 S.Ct. 3469 (concluding officers did not act unreasonably in taking preventive measures to ensure there were no weapons within defendant's immediate grasp before permitting him to reenter his automobile). Area searches are allowed ""in the Terry context"" because ""the arrestee, who may not himself be armed, may be able to gain access to weapons"
819	fictitious name statement, the owner name is listed as Ace Steel & Recycle. Id. There exists no question that Ace Steel operates Cow Country Equipment, with the parties disagreeing on whether Cow Country Equipment is a d/b/a for Ace Steel or a “separate subsidiary” of Ace Steel. “When a corporation does business under another name, it does not create a distinct entity.” 18 C.J.S. Corps. § 133 (2011); see also 18A Am.Jur.2d Corps. § 236 (“A corporation’s use of a fictitious or assumed business name ... does not create a legal entity separate from the corporation.”) That is, doing business under a fictitious name does not create an entity distinct from the person or entity operating the business.  aff'd 578 F.2d 721 (8th Cir. 1978). Nothing in S.D. Codified Laws (“SDCL”) 37-11, the chapter under which Ace Steel made its fictitious name filings, contemplates that a fictitious name filing creates a new and separate legal entity. Ace Steel’s use of the fictitious name Cow Country Equipment does not create an entity separate from Ace Steel. There are two additional reasons why Cow Country Equipment should not be considered a distinct legal entity from Ace Steel thereby averting application of Title VII. First, if a business could categorize certain employees into an unincorporated “subsidiary” by merely using a fictitious name, businesses thereby could structure themselves in a way to avoid Title VII responsibility. Second, there is no way for Nelson
1252	"States Trading, Inc. v. Zenith Navigation, S.A., 446 F.Supp. 330, 336-37 (S.D.N.Y.1977) (stating that a parent corporation may be liable for its subsidiaries contracts ""[o]r conversely, a subsidiary may, under some circumstances, be held bound to obligations undertaken by its parent,” such as when the subsidiary is an agent or instrumentality of the parent). Notably, in the context of holding nonsignatories to arbitration agreements, the assumption theory, which arises out of ""ordinary principles of contract,” is distinct from the veilpiercing/alter ego theory. See Thomson-CSF, 64 F.3d at 776. As with the alter-ego doctrine, courts applying the assumption theory have held nonsignatories that were not the parent corporation of the signatory to be bound by the arbitration agreement. See In re Petition of Transrol Navegacao, S.A., 782 F.Supp. 848, 851 (S.D.N.Y.1991) (finding nonsignatory guarantor of charter agreement bound by arbitration agreement when the guarantor's intention to arbitrate was “implied from [the] conduct of [the] non-signator”). . Because the Court finds that remand is appropriate based on Plaintiffs properly naming a non-diverse Defendant in the breach of contract claim, the Court need not, and therefore will not, consider Plaintiffs' promissory estoppel and fraud claims alleged in the Proposed Complaint."
3906	Circulation Co., 383 F.Supp. 643 (S.D.N.Y.1974), a three judge statutory court found that New York’s statutory scheme provided for vacation only when defendant could prove that the provisional remedy was unnecessary to the security of the plaintiff (i. e., defendant’s assets were substantial and permanent enough to insure plaintiff of payment in the event of a judgment favorable to him), or else that the plaintiff’s underlying cause of action could not ultimately prevail. The court in Sugar held that these requirements placed a burden so heavy upon the party seeking to dissolve the writ that it rendered the necessary post-seizure hearing meaningless, and thus violated the defendant’s 14th Amendment right to due process. Upon review by the Supreme Court, sub nom. .L.W. 4416), the New York standards for vacating attachments were held to be sufficiently ambiguous to require that the matter be remanded with instructions to the federal court to abstain from further action pending state court clarification: “The precise nature of any inquiry into the merits which will be made by the New York courts under this rubric is unclear, but an inquiry consistent with the constitutional standard is by no means automatically precluded.” 425 U.S. at 78, 96 S.Ct. at 1210. Subsequent decisions of the New York State Courts have illuminated this somewhat. It now appears that under CPLR § 6223, any attachment, whether issued for jurisdictional or security purposes, may be vacated upon
39	"for them, with citations to the authorities and parts of the record on which the appellant relies”). .The relevant Rule 60(b) text provides: On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: ... (4) the judgment is void ... or (6) any other reason justifying relief from the operation of the judgment. Fed.R.Civ.P. 60. . Rule 60(b)(4) motions have no set time limit; in this circuit, they need not even be made within a ""reasonable time.” Carter, 136 F.3d at 1006; New York Life Ins. Co. v. Brown, 84 F.3d 137, 142-43 (5th Cir.1996). . See, e.g., . The McCarran-Ferguson Act, 15 U.S.C. §§ 1011, et seq. (West 2003), reads, in pertinent part: ""No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance ... unless such Act specifically relates to the business of insurance”. 15 U.S.C. § 1012(b). . This problem also arises in situations involving courts of different states. As relates to the present case, state legislatures (including New York and Louisiana) adopted the Uniform Insurers Liquidation Act (""UILA”) and established reciprocal procedures for resolving claims against insolvent insurers. See N.Y. Ins. Law §§ 7408, et seq.; La.Rev.Stat. Ann. §§ 22:757, et seq. Obviously,"
795	by this Court... ” Finally, plaintiff asserts that certain findings in the Court’s Opinion and Order in support of the fee award, constitute grounds for recusal. Plaintiff then concludes: “Plaintiff attribute attitude of District Judge to his pro-se status.” An examination of plaintiff’s affidavit for disqualification shows that it is legally insufficient. It contains conclusory allegations devoid of sufficient facts. It fails to set forth adequate and specific circumstances to support the allegation that the undersigned judge is personally biased or prejudiced, or that the undersigned judge’s impartiality might reasonably and objectively be questioned. In Re United States, 666 F.2d 690 (1st Cir.1981); Brody v. Pres, of Fellows of Harvard College, 664 F.2d 10 (1st Cir.1981); Thus, a party cannot subjectively say that a judge is prejudiced and thereby, ipso facto, disqualify a judge. Instead, facts must be presented that, assuming their truth, would lead a reasonable person to believe that the judge’s impartiality or fairness may be questioned. U.S. v. Cowden, 545 F.2d 257 (1st Cir.1976); cert. den. 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585; Blizard v. Frechette, 601 F.2d 1217, 1220 (1st Cir.1979). “... appellant argues that the Judge’s recitation of record support for all of his less-than-complimentary findings of fact demonstrates a subjective, self-justifying approach to the section 455(a) issue where an objective evaluation of the appearance created by his prior words and acts was called for. We disagree. As a finder
2002	evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in[-]service stressor. 38 C.F.R. § 3.304(f) (1996) (boldface-italic emphasis added). In sum, eligibility for a PTSD service-connection award requires the presence of three elements: (1) A current, clear medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor, discussed below); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See ibid.; Although the current regulation, § 3.304(f), the first of its kind in the C.F.R. for PTSD, was effective May 19,1993 (see 58 Fed.Reg. 29,109, 29,110), and thus was not applicable when the veteran took his appeal to the BVA in 1991, the VA Adjudication Manual provisions then in effect required essentially the same three elements. See VA Adjudication PROCEdüRE Manual, M21-1 [hereinafter Manual M21-1], Subchapter (Subch.) XII, ¶ 50.45 (Jan. 25, 1989) (providing that service connection for PTSD requires diagnosis showing history of stressful events which are thought to have caused condition 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
3943	interest allowed by state law has been accomplished by reference to the state court’s interpretation of the state’s constitution and statutes. First National Bank in Mena v. Nowlin, 509 F.2d 872, 876 (8th Cir.1975), citing Citizens National Bank v. Donnell, 195 U.S. 369, 374, 25 S.Ct. 49, 50, 49 L.Ed. 238 (1904). As such, 12 U.S.C. § 85 does not merely incorporate the numerical rates established by the state, but adopts and encompasses the entire body of case law interpreting the state’s limitation of usury. Nowlin, 509 F.2d at 876. Under § 75-17-1, et seq., Miss.Code Ann. (1972 and its supplement), each provision of the statute establishes a maximum interest rate for various types of loan or credit transactions. Plaintiffs rely on the Mississippi Code of 1942, as amended, Section 36, Laws 1966, Chapter 317, Section 1, effective from and after passage (approved June 15, 1966), which stated that: The legal rate of interest on all notes, accounts and contracts shall be six percent (6%) per annum but contracts may be made, in writing, for a payment of a rate of interest as great as eight percent (8%) per annum. Thus, plaintiffs contend that the 8% maximum contract rate of interest governs the entire 1969 to 1974 period involved in this litigation. To the contrary, defendants rely on Paragraph (6) of § 75-17-1, Miss.Code Ann. (Supp.1975), which establishes the maximum interest rate for extensions of credit that are incidental
1623	devised’ the scheme may be taken as sufficiently direct and positive, tbe absence of all particulars of the alleged scheme renders the count as defective as would be an indictment for larceny without stating the property stolen, or its owner or party from whose possession it was taken.” The doctrine of s court in U. S. v. Carll, 105 U. S. 611, 612, 26 L. Ed. 1135, ‘fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.’ The crime must be charged with precision and certainty, and every ingredient of which it is composed must be accurately and clearly alleged. U. S. v. Cook, 17 Wall. 168, 174, 21 L. Ed. 538; U. S. v. Cruikshank, 92
2056	947 F.2d at 536; Irizarry Pérez, 758 F.Supp. at 102. In Puerto Rico’s local courts, civil plaintiffs are not entitled to jury trials; in the federal courts, plaintiffs do have the right to a jury trial. This right provided by the federal, but not the local, forum makes federal litigation more advantageous to plaintiffs. Villa Marina II, 947 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 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
4108	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. When the parties do not negotiate the forum selection clause, as was the case here, this court determines whether there was fraud or overreaching in its formation by looking to “whether the clause was reasonably communicated to the consumer.” Krenkel, 579 F.3d at 1281. “A useful two-part test of ‘reasonable communicativeness’ takes into account the clause’s physical characteristics and whether the plaintiffs had the ability to become meaningfully informed of the clause and to reject its terms.” Id. The Feggestads did not take issue with the physical characteristics of the registration form they signed, and this court has already found this particular agreement’s physical characteristics adequate under the “reasonable communicativeness” test. See Krenkel, 579 F.3d at 1281 (finding same
2532	nature of the particular act this particular defendant was found to have committed. The Court does not say that all assault and battery cases involve “willful and malicious injury” under Section 523, although there is support for that proposition in Tennessee and elsewhere. But in this particular case, involving an intentional, unjustified shooting, the element of maliciousness is unavoidably found in the jury’s verdict. Appellant contends that the 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 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
4046	PER CURIAM: Jabar Eugene Currenee appeals the sentence imposed following his plea of guilty to one count of assaulting a correctional officer. Finding no error, we affirm. Currenee first complains that the district court erred in denying him an adjustment for acceptance of responsibility. We review the district court’s determination under a highly-deferential standard. See Given Currence’s improper, disrespectful and unlawful behavior during the presentence interview with the probation officer, the district court committed no error in denying the adjustment. Currence also argues that the district court violated his Sixth Amendment rights in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by applying an adjustment for physical contact under U.S.S.G. § 2A2.4(b)(l), and for his status as a career offender under U.S.S.G. § 4B1.1. As Currence was sentenced after the decision in Booker was rendered, the district court was free to make all findings relevant to sentencing by a preponderance of the evidence. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, —
1287	and has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that Medley’s sentence is unreasonable. Upon careful review, we conclude that the district court did not abuse its discretion in sentencing Medley, and that the court imposed a substantively reasonable sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc) (in reviewing sentence for abuse of discretion, appellate court first ensures that district court committed no significant procedural error, and then considers substantive reasonableness of sentence); see also United States v. Wadena, 470 F.3d 735, 737 (8th Cir.2006) (appellate court reviews sentence, including any downward vari-anee, for reasonableness under abuse-of-discretion standard). Having reviewed the record independently under  we have found no nonfrivolous issues for appeal. Accordingly, we grant counsel’s motion to withdraw, and we affirm. . The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas.
2855	division in fact or in use of the building into separate halves.” Id. at 502-503, 45 S.Ct. at 416. The Supreme Court held: “It is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.” Id. Under that rule as applied to those facts the warrant was upheld. Search warrants with faulty descriptions of the place to be searched have been upheld in a number of cases. See, e.g., Hanger v. United States, 398 F.2d 91 (8th Cir.1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969); United States v. Goodman, 312 F.Supp. 556 (N.D.Ind.1970); United States v. Pisano, 191 F.Supp. 861 (S.D. N.Y.1961);  aff’d 278 F.2d 504 (3d Cir.), cert. denied, 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960); United States v. Contee, 170 F.Supp. 26 (D.D.C.1959). In United States v. Sklaroff, 323 F.Supp. 296 (S.D.Fla. 1971), the court reviewed these prior decisions and concluded, at page 321: The foregoing decisions illustrate the principle that the determining factor [in deciding] whether a search warrant describes the premises to be searched with sufficient particularity is not whether the description given is technically accurate in every detail but rather whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premises might be mistakenly searched which is not
224	phase of plaintiffs’ claim is concerned, it appears that the alleged negligence occurred in the manufacture and construction of the generator equipment months before plaintiffs entered into any contractual relation with the Government for the assembly of such units. There are a multitude of cases which sustain the principle that, as an indispensable condition precedent to liability for interference with the performance of one’s contract, there not only must be knowledge of the contract, but there must be an intentional interference therewith. Robins Dry Dock & Repair Co. v. Flint, 1927, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290; Baruch v. Beech Aircraft Corp., 10 Cir., 1949, 175 F.2d 1; d 649; The Federal No. 2, 2 Cir., 1927, 21 F.2d 313; Kelly v. Central Hanover Bank & Trust Co., D.C.S.D.N.Y., 1935, 11 F.Supp. 497, 513, reversed oh other grounds, 2 Cir., 1936, 85 F.2d 61; Tipton v. Burson, 1951, 73 Ariz. 144, 238 P.2d 1098; Dewey v. Kaplan, 1937, 200 Minn. 289, 274 N.W. 161; Brink v. Wabash R. Co., 1901, 160 Mo. 87, 60 S.W. 1058, 53 L.R.A. 811; see Twitchell v. Glenwood-Inglewood Co., 1915, 131 Minn. 375, 155 N.W. 621; see Cat’s Paw Rubber Co. v. Bario Leather & Findings Co., D.C.S.D.N.Y., 1951, 12 F.R.D. 119, 121; Phillips v. Belding Heminway, D.C.S.D.N.Y., 1943, 50 F.Supp. 1015, 1019; see Prosser, Torts 991-996 (1941); 30 Am.Jur. Interference § 22; Note, 26 A.L.R.2d 1227, 1246.
3600	Charter Co.), 862 F.2d 1500, 1503 (11th Cir.1989). Whether or not a contingent response claim is allowable in bankruptcy depends, in part, on a finding that it is not a claim for reimbursement or contribution which is dis-allowable under 11 U.S.C. § 502(e)(1)(B). A contingent CERCLA claim that is not a direct claim between the parties but depends upon the co-liability of the parties, as to a third party or to the Environmental Protection Agency (“EPA”), is a disallowa-ble claim for reimbursement or contribution. Dant & Russell, 951 F.2d at 249; Charter., 862 F.2d at 1503; In re Eagle-Picher Industries, Inc., 144 B.R. 765, 769 (Bankr.S.D.Ohio 1992); In re Hemingway Transport, Inc., 105 B.R. 171, 174 (Bankr.D.Mass.1989). See On the other hand, when reimbursement or contribution is not a factor, a direct contingent claim by the current owner of property for CERCLA past and future response costs is not disallowed by 11 U.S.C. § 502(e)(1)(B). In re Harvard Industries, Inc., 138 B.R. 10 (Bankr.D.Del.1992). In the instant case, the Board does not seek to recover sums owed under CERCLA to a third party, such as the EPA, but instead seeks to recover sums it has expended and will expend in the future to remedy the hazardous waste conditions on the property acquired from the debtor. Therefore, 11 U.S.C. § 502(e)(1)(B) will not bar the Board’s proposed contingent claim
2481	County law constitutes injury. The Court is unable to find any legal precept that can support this theory. The County’s concern over potential liability similarly affords no colorable claim. The County claims its potential liability stemming from law enforcement beyond its jurisdiction constitutes a cognizable injury. It 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 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
582	entitled to an adjustment under that section that would have resulted in a refund of the full amount of her claim. I am adopting as the Court’s findings of fact herein the stipulation of facts, dated August 30, 1945, received as Exhibit 1 on the trial February 28, 1946. As a conclusion of law, I rule that the petitioneriplaintifif is entitled to judgment against the defendant United States of America for the amount sued for, $4,490.23, with interest from December 15, 1937. On the question of interest see Title 26 U.S.C.A. Int.Rev. Code, § 3771; Blair v. United States ex rel. Birlcenstock, 271 U.S. 348, 46 S.Ct. 506, 70 L.Ed. 983; and Title 28 U.S.C.A. § 284(b); l. 173, Id., Ct.Cl., 32 F.Supp. 767.
2094	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 essence of situations like this when it said in  ” Id. In the present case, the agent searched Fernandez Santana’s wallet while the defendant was still in the custody of the law enforcement officers pursuant to a legal arrest. The agent had read Fernandez Santana his Miranda rights, and was in process of conducting a final inventory search of defendant’s belongings, to avoid any claims of stolen money or property. Once he found the note, he was entitled to inform his
805	impartial is only speculative, conclusory, spurious, or vague. Smith v. Pepsico, 434 F.Supp. 524 (S.D.Fla.1977); Mavis v. Commercial Carriers, 408 F.Supp. 55 (C.D.Cal. 1975); Wounded Knee Legal Defense Offense Committee v. F.B.I., 507 F.2d 1281 (1974). In short, when an affidavit of prejudice does not meet the requirements imposed by 28 U.S.C. § 144 or 28 U.S.C. § 455, the Judge has no obligation to disqualify himself. U.S. v. Anderson, 433 F.2d 856 (8th Cir.1970). As a matter of law, the trial judge is equally obligated not to recuse himself when the facts do not give support to a charge of prejudgment. U.S. v. Dioro, 451 F.2d 21 (2nd Cir.1971), cert. den. 405 U.S. 955, 92 S.Ct. 1173, 31 L.Ed.2d Plaintiff, a disgruntled and pertinacious litigant, seeks a review of the Court’s Opinion and Order filed on July 10, 1984. The foregoing is apparent from plaintiff’s affidavit closing remarks, to wit: “... so the District Court erred in his [sic] remarks against plaintiff in 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
3670	of Pennsylvania to challenge his 1994 conviction. The district court dismissed the petition on the ground that Black could only challenge his conviction via a § 2255 motion. Black timely appealed and both sides have filed motions with this Court for summary action. We have jurisdiction 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 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,
2755	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); 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 argument and is thus frivolous. See Howard, 707 F.2d at 219-20. Because the appeal is frivolous, it is dismissed. See 5th Cir. R. 42.2; Baugh, 117 F.3d at 202 & n. 24. Given Morris’s repeated attempts to raise similar challenges to his sentence, this court and the district, court’s repeated rejection of such arguments, and the frivolous nature of the instant motion, Morris is WARNED that any future frivolous pleadings in this court or in any court subject to the jurisdiction of this court will subject him to sanctions. Morris is DIRECTED to
1824	for about one month before his arrest. Richmond cites Moore v. Pederson , 806 F.3d 1036, 1044-46 (11th Cir. 2015) (involving the warrantless seizure of a suspect inside his home); United States v. Perea-Rey , 680 F.3d 1179, 1188-89 (9th Cir. 2012) (holding a border patrol agent intruded into an area of curtilage where uninvited visitors would not be expected to appear to stop an individual suspected of entering the country illegally); United States v. Struckman , 603 F.3d 731, 743 (9th Cir. 2010) (holding the warrantless entry by two officers into a fully enclosed backyard-one officer kicking open a padlocked gate and the other scaling a fence-was not supported by probable cause, Terry , or exigent circumstances); and Perea-Rey and Struckman proscribed police entries without consent into cordoned areas of curtilage. But Richmond acknowledges that Boyack and Milone were permitted to enter onto the porch even without his consent, Brief of Appellant at 7, 15, unlike the closed off areas in Perea-Rey and Struckman . He also acknowledges that he consented to the officers' presence on the porch. Brief of Appellant at 7, 16-17, 19. Reeves and Moore addressed the warrantless seizures of suspects inside their homes without probable cause, exigent circumstances, or consent. Richmond does not contest his seizure on appeal, nor did any police activity
1876	who took timber from government lands for domestic use, and that which declared that no verdict could be returned in favor of the government except for the value of the lumber manufactured. In these there was obvious error. Although there was no direct evidence of the value of the standing trees, yet it did appear that they were manufactured into lumber, and that the lumber had commanded a price of from eight to nine dollars a thousand feet, and when the government proved or defendant admitted that he cut and carried away some of the timber on this tract, the government was entitled to at least a verdict for nominal damages. As to any further right of recovery, see Benson Mining Company v. Alta Mining Company, 145 U. S. 428. Nor were the observations of the court in reference to tb attitude of the government justifiable. Whatever propriety there might be in such a reference, in a case in which it appeared that the defendant had simply cut timber, for his own -use, or the improvement of his own land, or development of his own mine, (and in respect to that matter, as it is not befoi^ ns, we express no opinion,) there certainly was none in suggesting that the attitude of the government upheld or countenanced a party in going into the business of cutting and -carrying off the timber from government land, manufacturing it into lumber, and selling it
2211	29 U.S.C. § 1054(g)(1), provides, with exceptions not relevant here, that the “accrued benefit of a participant under a plan may not be decreased by an amendment of the plan.... ” Under § 1002(23) the definition for “accrued benefit” is “the individual’s accrued benefit determined under the plan ... expressed in the form of an annual benefit commencing at normal retirement age.” In addition, under § 204(g)(2), 29 U.S.C. § 1054(g)(2), eliminating or reducing an “early retirement benefit” or a “retirement-type subsidy” is to be treated as reducing accrued benefits, which as we just said is forbidden under subsection (1). On the other hand, it is also undisputed that disability benefits can be changed by plan amendment. What we need to decide is whether under-ERISA Arndt’s benefits are accrued; are a retirement subsidy; or, on the other hand, whether they are disability benefits. Then we will look to the plan itself to see whether somehow it independently prevents M & I’s actions. The issues are simply stated, but not easily resolved. Tackling the easier of the .issues first, we find that for a number of reasons the benefits beyond December 1997 are not accrued pursuant to § 204(g)(1). Arndt argues that we should take a broad view of accrued benefits that would include a right to have his benefit calculated as if he worked to his normal retirement date. He claims that the right accrued when he became
1445	only if the evidence presented would compel us to find for the petitioner. See Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812. As the recitation of the facts earlier in this opinion shows, the evidence in this case was sufficient for the BIA to uphold the findings of the IJ. G. Denial of Discretionary Relief Westover also claims that the BIA erred in denying her application for adjustment of status. Because she was placed into removal proceedings before April 1,1997, and her final order of removal came after October 30, 1996, Westover’s appeal is governed by § 309(c)(4)(E) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. 104-208,110 Stat. 3009-546, a transitional rule regarding judicial review. See Kalaw v. INS, 133 F.3d 1147, 1149-50 (9th Cir.1997); IIRIRA § 309(c)(4), set out as note under 8 U.S.C. § 1101. Under these transitional rules, we lack jurisdiction to review the BIA’s discretionary denial of Westover’s application for adjustment of status. See Bernal-Vallejo, 195 F.3d at 61-63. Ill We affirm the BIA’s order of removal on the basis of the two original charges lodged by the INS. . When Petitioner was placed into deportation proceedings, her surname was Bindloss. She married Terry Westover on May 21, 1992. Since Petitioner refers to herself in her brief to this court using the surname Westover, we do the same. Additionally, Westover named Doris Meiss-ner, Commissioner of the INS, as a respondent.