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247774 | Since Greene, this court has rejected similar charges of misconduct where the government supplied counterfeit credit cards to detect which merchants would accept them. See Citro, 842 F.2d at 1153. In a case where an FBI agent bribed a state senator, we found no misconduct. See United States v. Carpenter, 961 F.2d 824, 829 (9th Cir.1992). Most recently, we declined to dismiss an indictment where the government established fake bank accounts and wired money to Mexican banks suspected of money laundering. See United States v. Gurolla, 333 F.3d 944, 948-49 (9th Cir.2003). We noted that the outrageous misconduct claim is limited to “extreme cases,” id. at 950, for example those characterized by “dominant fomentation” or “aggressive solicitation” of criminal activity. REDACTED Here, the FBI did not actually create a criminal enterprise. It constructed a fake travel agency Web site, and Agent Hamer lied about the arrangements he had made for the group. Like the agent who bribed the legislator in Carpenter, Agent Hamer engaged in fictional criminal conduct and lied about being able to facilitate access for Mayer. See also United States v. Williams, 791 F.2d 1383, 1386 (9th Cir. 1986) (refusing to dismiss indictment where prison authorities may have encouraged but did not actually aid jailbreak attempt). Moreover, the agent did not pay for Mayer’s trip, coerce him into buying a ticket, or plant the idea of traveling for illicit sexual conduct in Mayer’s mind. While Mayer points out there | [
{
"docid": "22437426",
"title": "",
"text": "clear predisposition, his conviction was reversed: This egregious conduct on the part of government agents generated new crimes by the defendant merely for the sake of pressing criminal charges against him when, as far as the record reveals, he was lawfully a... | [
{
"docid": "383845",
"title": "",
"text": "to check for a wire prior to each transaction. Citro engaged in the activity for profit, and the government’s inducement of two expensive dinners and a $200.00 fee for each introduction was not overwhelming. In United States v. Esquer-Gamez, 550 F.2d 1231, 1234... |
736597 | 1015(b), to provide for the joint administration of the respective debtors’ estates. But joint administration should not be confused with consolidation. Consolidation results in the creation of one estate from two or more; joint administration does not, but is rather done for procedural convenience by avoiding the duplication of effort that would result if cases involving related debtors were to proceed separately. In re Blair, 226 B.R. 502, 505 (Bankr.D.Me.1998). See also Fed. R.Bankr.P.2009(e) (trustee shall keep separate accounts for each jointly administered estate). Therefore, for all the reasons just explained, the Debtor, Mr. Toland, is not entitled to claim an exemption in his wife’s vehicle. This holding is consistent with past decisions of a similar nature decided by this Court: REDACTED where title to vehicle reflected debtor as sole owner, debtor could not claim that son was intended owner; In re Smith, 310 B.R. 320, 323-24 (Bankr.N.D.Ohio 2004), a non-debtor spouse, whose wages did not contribute to a tax overpayments, had no interest in the ensuing refund which could operate to exclude it from the debtor’s bankruptcy estate. In reaching the conclusions found herein, the Court has considered all of the evidence, exhibits and arguments of counsel, regardless of whether or not they are specifically referred to in this Decision. Accordingly, it is ORDERED that the Trustee’s Objection to the claim of exemption of the Debtor, James W. Toland, Sr., in the motor vehicle titled in the name of the Co-debtor, | [
{
"docid": "195263",
"title": "",
"text": "owner. On the Chapter 7 schedules the Debtors listed the promissory note as a debt and the pickup truck as property of the estate. The Debtors also claimed the truck as an exemption from the estate. The Trustee objected to the claim of exemption, an Objection w... | [
{
"docid": "20239220",
"title": "",
"text": "(Bankr.S.D.N.Y.2007). For the reasons stated by the Eighth Circuit Bankruptcy Appellate Panel in In re Carlson, 394 B.R. 491 (8th Cir.BAP 2008), the Court agrees that relying upon the treatment of a tax refund in the event the debtors divorce is not appropria... |
126954 | F.2d 934, 50 CCPA 1153. Appellant’s reply brief in rebuttal argues that since this is solely a question of law, rather than a question of technical facts, the issue may be raised here for the first time. We do not think the solicitor is correct in his contention. The section 102 (e) question may be properly raised here for the first time because we must determine whether the reference is available. The particular question, whether we may consider the Murray reference, must be settled prior to determining the legal effect of the disclosure of that reference. We find no compelling reason to overrule our recent decisions in In re Harry, supra, or In re Kander, 312 F.2d 834, 50 CCPA 928, REDACTED d 316, 44 CCPA 904, or go contrary to the Court of Appeals of the District of Columbia circuit, Hazeltine Research, Inc. v. Ladd, 340 F.2d 786, cert. granted 380 U.S. 960, 85 S.Ct. 1108. Thus Murray being available as prior art for a section 103 rejection, we look next to see whether that section is satisfied. Minion describes production of cortisone hemisuccinate by the same proc ess as appellant uses with hydrocortisone. Cortisone differs from hydrocortisone in having a keto group [0=C<] rather than a hydroxyl group [HO<X] at the 11 position. The hemisuccinate of cortisone is found by Minion to be four times as soluble in water as the | [
{
"docid": "21178393",
"title": "",
"text": "application the art was fully aware of the substitution of Cl and CF3 potentiating groups in phenothiazines analogous to those now claimed by Zenitz. The examiner held, and the board agreed, that the substitution of CF3 for Cl in the phenothiazines disclosed ... | [
{
"docid": "22934601",
"title": "",
"text": "with undeveloped areas is at least partially completed prior to substantial permeation and development of the next inner emulsion layer by said liquid composition. In allowing it, the board pointed out that it is limited to control of diffusibility by layerwi... |
806778 | King, Kamehameha III., to himself and his successors, and not being in the lists of lands specially set apart as Government or Fort lands, must be one of those over which the Land Commission had jurisdiction to award to the claimant.” P.429. Haw. Civil Code, 1859, p. 14 et seq. United States v. Perot, 98 U. S. 428, 430; United States v. Chaves, 159 U. S. 452, 459. De Castro v. Board of Comm’rs, 322 U. S. 451, 459; Christy v. Pridgeon, 4 Wall. 196. Appleby v. City of New York, 271 U. S. 364, 380; compare Clearfield Trust Co. v. United States, 318 U. S. 363, 366; United States v. Allegheny County, 322 U. S. 174, 183; REDACTED Fletcher v. Fuller, 120 U. S. 534, 545, 547; United States v. Chavez, 175 U. S. 509, 520. Ricard v. Williams, 7 Wheat. 59, 109. See Holdsworth, A History of English Law, vol. VII, p. 343, et seq.; 1 Greenleaf, Evidence (12th Ed.), §17. 1 Greenleaf, Evidence (16th Ed.), § 45a: “Thus, also, though lapse of time does not, of itself, furnish a conclusive legal bar to the title of the sovereign, agreeably to the maxim, 'nullum tempus occurrit regi;’ yet, if the adverse claim could have had a legal commencement, juries are instructed or advised to presume such commencement, after many years of uninterrupted adverse possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an | [
{
"docid": "22093035",
"title": "",
"text": "This second judgment was affirmed on appeal. In re S. R. A., Inc., 219 Minn. 493, 18 N. W. 2d 442. Certiorari was sought under § 237 (b) of the Judicial Code.- It was granted because of the importance and uncertainty of the question of the right of a State to... | [
{
"docid": "22554184",
"title": "",
"text": "112 N. Y. 310; 19 N. E. 845; Emperor of Brazil v. Robinson, 5 Dowl. Pr. 522; Otho, King of Greece, v. Wright, 6 Dowl. Pr. 12; The Beatrice, 36 L. J. Rep. Adm. (N. S.) 10; Queen of Holland v. Drukker, (1928) Ch. 877, 884, although the local soverign does not p... |
745199 | amend. . The court has recounted the standards applicable to a motion for summary judgment in more detail in a number of prior decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-31 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997), aff'd in pertinent part, 202 F.3d 1035 (8th Cir.2000), cert. denied, 531 U.S. 820, 121 S.Ct. 61, 148 L.Ed.2d 28 (2000); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997), aff'd, 205 F.3d 1347, 2000 WL 84400 (8th Cir.2000) (Table op.); REDACTED Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). The essentials of these standards are as follows. Rule 56 itself provides, in pertinent part, as follows: Rule 56. Summary Judgment (a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof. (b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, | [
{
"docid": "10234535",
"title": "",
"text": "1238 (8th Cir.1990). On the other hand, the Federal Rules of CM Procedure have authorized for nearly 60 years “motions for summary judgment upon proper showings of the lack of a genuine, triable issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,... | [
{
"docid": "3839730",
"title": "",
"text": "to lift more than ten pounds, to stand for extended periods of time, and that her condition was permanent. On July 30, 1997, both Mr. Bushman and Mr. Howe scheduled a meeting with Wheaton, the substance of which is in dispute. Following the meeting, Wheaton wa... |
14115 | "ERISA preemption, for as we explain, the City does not act as a market participant in offering tax abatements."" (citing Keystone Chapter, Associated Builders & Contractors, Inc. v. Foley , 37 F.3d 945, 955 n.15 (3d Cir. 1994) ). However, other district courts in this circuit, as well as other circuit courts, have applied the exception to insulate a municipality from ERISA's preemptive reach where the municipality acts as a proprietor, rather than a regulator. See Johnson v. Rancho Santiago Cmty. Coll. Dist. , 623 F.3d 1011, 1023 (9th Cir. 2010) (""Because we conclude that the District acted as a market participant, the plaintiffs' ERISA and NLRA preemption claims fail at the threshold.""); REDACTED (citing Associated Gen. Contractors of Am. v. Metro. Water Dist. of S. Cal. , 159 F.3d 1178, 1183 (9th Cir. 1998) ); New Castle Cty. , 144 F.Supp.3d at 639 (""[T]here can be no dispute that the Route 9 Library Project is funded by NCC; therefore, NCC has a proprietary interest in the project.""); Lott Constructors, Inc. v. Camden Cty. Bd. of Chosen Freeholders , No. 93-5636 (JBS), 1994 WL 263851, at *20 (D.N.J. Jan. 31, 1994) (concluding that plaintiffs' ERISA preemption claim failed ""because the challenged state action" | [
{
"docid": "5627904",
"title": "",
"text": "Harbor, the state’s actions in Gould could only be understood as an “attempt to compel conformity with the NLRA” that was “unrelated to the employer’s performance of contractual obligations to the State.” Boston Harbor, 113 S.Ct. at 1197. Following the logic o... | [
{
"docid": "20734848",
"title": "",
"text": "interests of the BCTC and its affiliates, which were politically aligned with City officials’ interests. At a minimum, BIECA argues, the dispute over the City’s motive is an issue of material fact that rendered dismissal inappropriate. This argument misappreh... |
840906 | that counsel misjudged the admissibility of the confession. The second claim upon which petitioner seeks relief is the sufficiency of the evidence presented at the second degree-of-guilt trial to support a finding of murder in the first degree. Petitioner cites several Pennsylvania state court decisions which establish standards for sufficiency of evidence to sustain a conviction. We do not believe that petitioner’s cases are on point, however. Allegations of insufficient evidence in a state court trial are generally not reviewable by writ of habeas corpus. Young v. State of Ala., 443 F.2d 854 [5th Cir. 1971] ; Freeman v. Stone, 444 F.2d 113 [9th Cir. 1971]; United States ex rel Cook v. Cliff, 341 F.Supp. 1038 [E.D.Pa.1972]; REDACTED d 1211 [3rd Cir. 1972]. Only where a conviction has no evidentiary basis or is based on a gross insufficiency of evidence is it subject to collateral attack in the federal courts. Freeman v. Stone, cit. supra, and cases cited therein; United States ex rel Spears v. Rundle, 268 F. Supp. 691, 700 [E.D.Pa.1967], aff’d, 405 F.2d 1037 [3rd Cir. 1969]. We find that some evidence was presented at the second degree-of-guilt trial from which the inference of a robbery-murder might properly be drawn. See Commonwealth v. Marsh, 448 Pa. 292, 296, 293 A.2d 57, 60 [1972] where the sufficiency of the evidence to support the first degree finding is discussed. Petitioner’s final claim is that the failure of | [
{
"docid": "12238541",
"title": "",
"text": "resulted in the inconsistencies. We are not insensitive to the anxiety suffered by relator while awaiting trial in a capital case. However, considering the record as a whole, considering the length of the delay involved, the procedural chronology of the case,... | [
{
"docid": "18001188",
"title": "",
"text": "be considered in a federal habeas corpus proceeding by a state prisoner. Hendricks v. Swenson, 456 F.2d 503 (8th Cir. 1972); Sinclair v. Turner, 447 F.2d 1158 (10th Cir. 1971), cert. denied, 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590 (1972); United States e... |
134081 | not be imposed on a municipality under § 1983. Id. at 691-92, 98 S.Ct. at 2036. The Supreme Court did not address directly whether a private corporate employer may be held liable under § 1983 on a respondeat superior theory. But numerous lower courts, including the Fourth Circuit, have understandably relied on Monell in holding that a corporate employer may not be made vicariously liable under § 1983. See Iskander v. Village of Forest Park, 690 F.2d 126, 130 (7th Cir.1982) (private store not vicariously liable under § 1983 for acts of its employees); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir.1982) (same); Draeger v. Grand Central, Inc., 504 F.2d 142, 145-46 (10th Cir.1974) (same); REDACTED Nor is there any doubt that this sensible principle applies where, as here, the corporate employer is a hospital. See Temple v. Albert, 719 F.Supp. 265, 268 (S.D.N.Y.1989) (private hospital not vicariously liable under § 1983 for acts of its employees); Mitchell, 756 F.Supp. at 249 n. 9 (same). The record at bar shows that no actions by “employees” of the Hospital are alleged to have violated plaintiffs rights. Defendant Mathis is associated by contract with the Haymarket Correctional Facility, not with Prince William Hospital; the physicians who treated Mcllwain at the Hospital were private contractors, not employees of the Hospital. Even putting this aside, however, the factual record shows that the Hospital had no policy requiring the testing of | [
{
"docid": "1274457",
"title": "",
"text": "were “reasonable grounds to believe” that the offense was being committed. The statute relied on is not sufficient to bridge the gap between private and State action. Security employees are not thereby made State officers nor are they granted the authority to ... | [
{
"docid": "23119077",
"title": "",
"text": "The initial barrier to appellant’s relief from Charter is that the actions she questions are actually the actions of Charter’s employees, not the actions of the hospital itself. The complaint alleges Mrs. Harvey was placed on a locked ward and given medicatio... |
647086 | transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of the original delivery. Bankruptcy Rule 5005(b). The Bank relies heavily on In re Sambo’s Restaurants, Inc., 754 F.2d 811, 12 C.B. C.2d 173, 12 B.C.D. 1177 (9 Cir.1985), where a widow’s wrongful death action in a U.S. District Court in Alabama together with her joint motion with the Debtor to transfer the action to U.S. Bankruptcy Court in California were found to constitute an informal proof of claim. The Ninth Circuit construed Rule 5005(b) to find that the misdelivery exception had been met, relying on its earlier decision in REDACTED cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980). Franciscan Vine yards had held that a letter to the trustee enclosing delinquent tax bills was a sufficient informal proof of claim because it was intended to and did set out a claim against the estate, and that an informal proof of claim need not appear on the bankruptcy court’s records or in its files. The Ninth Circuit in Sambo’s stated that even under the stricter interpretation by the Seventh Circuit in Evanston Motor Co., infra, the exception was met because the joint motion to transfer the complaint to the bankruptcy court demonstrated the creditor’s attempt to file her proof of claim with the | [
{
"docid": "22438326",
"title": "",
"text": "21,1975. The last day for filing claims was, therefore, February 21, 1976. Although the County did not file a formal proof of claim with either the referee or the trustee, it did send a letter, dated December 11, 1975, to the trustee, enclosing two tax bills.... | [
{
"docid": "18577319",
"title": "",
"text": "to protect the bank’s interest in the estate of the debtor. Recent case law has evolved the equitable doctrine of an “informal” proof of claim. For a document to constitute an informal proof of claim, a three-prong test must be satisfied; the document must st... |
369085 | this fact. Once the plaintiff conclusively proves an inability to perform past jobs due to an impairment, the Secretary has an obligation to demonstrate the availability of jobs that the plaintiff has the functional and vocational capacity to perform. Chicager v. Califano, 574 F.2d 161 (3rd Cir. 1978). To meet this burden the Secretary has promulgated medical-vocational regulations. These regulations, 20 C.F.R. §§ 404.-1501-404.1539 (1979), and the tables contained in Subpart P, Appendix 2 are a distillation of the Secretary’s vocational expertise, Freeman v. Harris, 509 F.Supp. 96 (D.S.C.1981). Incorporated within these regulations is extensive information from the same sources that a vocational expert would utilize and they were in fact designed to dispense with the need for vocational expert testimony. REDACTED Boyce v. Harris, 492 F.Supp. 751 (D.S.C.1980). This Court determines that the use of the aforementioned regulations satisfies the Secretary’s obligation and that the plaintiff’s third contention is therefore without merit. The last two issues raised by the plaintiff, the substantial evidence question and the full and explicit findings question, are interrelated. The AU must make full and explicit findings to enable the reviewing court to evaluate the basis of his decision. Hargenrader v. Califano, 575 F.2d 434 (3rd Cir. 1978). These findings delineate the evidence relied upon and explain why any evidence inconsistent with the AU’s conclusion was rejected. Id. The plaintiff’s subjective assessment as to the debilitating nature of her condition due to pain and physical dysfunction is evidence inconsistent | [
{
"docid": "5011261",
"title": "",
"text": "the medical-vocational regulations are reasonably related to the purposes of the statute and that defendant has not exceeded the scope of its authority under § 405(a). As indicated more fully below, the Court further finds that the specific contentions asserte... | [
{
"docid": "22864826",
"title": "",
"text": "he must direct interrogatories to each physician to obtain a more substantiated opinion as to O’Leary’s capabilities. See Woodard v. Schweiker, 668 F.2d 370, 374 (8th Cir.1981). The burden is on the Secretary to show that this claimant is able to perform the ... |
704911 | "512(k)(1)(A)]."" 17 U.S.C. § 512(k)(1)(B). ""Service provider” thus is defined more narrowly with respect to the ""conduit” safe harbor provision. . The parties do not dispute that Hurricane, OPG; and Swarthmore had valid section 512(i) policies. See, e.g., Complaint, p. 5:20-23 & Ex. D (email from Ralph E. Jocke), although there is no evidence in the record as to this point with respect to OPG and Swarth-more. The Court will assume without deciding that all parties had valid section 512(i) policies. . Although section 512(g) refers to section 512(c), it does not refer expressly to section 512(d). Courts nonetheless have held that the replacement procedure of section 512(g) applies to takedown pursuant to section 512(d). See, e.g., REDACTED . Plaintiffs appear to have conceded at oral argument that their claims for injunctive and declaratory relief are moot and that a decision on their claims for damages will be a sufficient adjudication of their rights. See Transcript of Law & Motion Hearing, February 9, 2004, pp. 5:21-23, 6:22-24, 7:6-12, 10:4-9. . The Court also notes that in view of Grok-ster, a general declaration that hyperlinking to infringing material does not amount to con-tributary infringement or subject one to vicarious liability would be improper. Although hyperlinking per se does not constitute direct copyright infringement because there is no copying, see, e.g., Ticketmaster Corp. v. Tickets.Com, Inc., 2000 WL 525390 (C.D.Cal, March 27, 2000), in some instances there may be a" | [
{
"docid": "3727252",
"title": "",
"text": "an interest in the content of that data.” Id. at 18 n. 19. The inclusion of section 512(d) which creates a “safe harbor” for copyright infringement resulting from the use of information location tools by service providers, which include directories, indexes, r... | [
{
"docid": "16441843",
"title": "",
"text": "that a large number of the files transferred through Aimster are adult photographs rather than copyrighted music. Oral Arg. at 21. . The court in Fonovisa addressed both con-tributary and vicarious infringement. . Given the DMCA’s relatively recent enactment,... |
522851 | available for inquiry, and the ease (or difficulty) of access to the requisite information. See Brown v. Federation of State Medical Bds., 830 F.2d 1429, 1435 (7th Cir.1987); Century Prods., Inc. v. Sutter, 837 F.2d 247, 250-51 (6th Cir.1988); Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 875 (5th Cir.1988) (en banc); see also Fed.R.Civ.P. 11, Advisory Committee’s Notes, 97 F.R.D. 198, 199 (1983). Litigants, like counsel, are to be held “to standards of due diligence and objective reasonableness — not perfect research or utter prescience.” Maine Audubon, 907 F.2d at 268. Furthermore, for Rule 11 purposes, a party’s pleading must be judged on the basis of what was reasonable when the pleading was filed rather than in hindsight. See REDACTED Davis v. Crush, 862 F.2d 84, 88 (6th Cir.1988). B. In this instance, the district court’s finding that appellant slighted his duty of reasonable inquiry is sufficiently supported by the record. The statements contained in the challenged pleading were demonstrably incorrect. For example, the court below pointed out that those patients who had been involuntarily committed to the GTC— and there were many — were most assuredly not free to depart “at any time they want.” The court also observed that, even as to voluntarily committed patients, there was a severe shortage of rehabilitation facilities, with the result that such patients, once cleared to leave, often remained confined to the GTC for years — a circumstance that, as a practical | [
{
"docid": "22596202",
"title": "",
"text": "requires attorneys to take responsibility for the claims and defenses they represent; attorneys must make reasonable inquiry to assure that the claims, defenses and positions represented by them are well-grounded in both law and fact and are not intended to s... | [
{
"docid": "16684642",
"title": "",
"text": "is reviewed under an abuse of discretion standard because “of the district court’s more intimate knowledge of the facts of these cases.” Century Products, Inc. v. Sutter, 837 F.2d 247, 253 (6th Cir. 1988). Accord Thomas v. Capital Security Services, Inc., 836... |
24981 | Marion, and Wolfson. Defendant Wolfson seeks summary judgment against APU on the ground that he is not hable to APU for any damages under CERCLA or any other theory of liability; Defendants Witben, Sereth, Wolsher, and Universal Marion seek similar relief in their summary judgment motion against APU. The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., provides for the clean up of hazardous substances that threaten the environment and human health. B.F. Goodrich Company v. Murtha, 958 F.2d 1192, 1197 (2d Cir.1992). The statute imposes strict liability for the costs associated with responding to the release or threatened release of the hazardous substance. B.F. Goodrich Co., supra, at 1198; State of REDACTED Liability for response costs may be imposed on various classes of responsible persons, including past and present owners or operators of facilities, transporters of hazardous substances, and those who generate or arrange for the disposal or treatment of hazardous substances. 42 U.S.C. § 9607(a). The statute also allows any individual or entity who has incurred response costs in connection with the clean up of hazardous waste sites to sue a responsible defendant for these costs. 42 U.S.C. § 9607(a)(4)(B). In addition, as CERCLA liability is joint and several, any one party found to be liable for response costs is potentially liable for the entire cost of responding to a hazardous waste site. B.F. Goodrich Co., supra, at 1198. To establish | [
{
"docid": "22799663",
"title": "",
"text": "History, supra, at 777; see also id. at 31,966 (Department of Justice view of Senate compromise discussing strict liability), reprinted in 1 CERCLA Legislative History, supra, at 780-81. Strict liability under CERCLA, however, is not absolute; there are defen... | [
{
"docid": "12419601",
"title": "",
"text": "§ 9606 and civil actions under § 9607 for indemnification. The Court in Cooper explained that no provision in CERCLA exists for maintaining an action for contribution when the cleanup is purely voluntary. Cooper, 125 S.Ct. at 584. Here, the Plaintiffs volunta... |
352651 | The applications are moot. Section 327(a) of the Code permits a trustee to employ professionals, including attorneys. 11 U.S.C. § 327(a). In the case of a committee appointed under section 1102 of the Code, section 1103(a) authorizes the committee to employ professionals, 11 U.S.C. § 1103(a), and section 328(a) authorizes the committee to employ professionals under section 327(a), 11 U.S.C. § 328(a). Under sections 330(a)(1)(A) and (B), the bankruptcy court is authorized to award reasonable compensation and reimbursement of expenses to any professional employed under sections 327 or 1103. 11 U.S.C. §§ 330(a)(1)(A), (B). Committee professionals seeking compensation — professionals like Wolf and Benoit — can apply to the court to have their compensation approved under section 330. See REDACTED In re Recycling Indus., Inc., 243 B.R. 396, 400 (Bankr.D.Colo.2000). But an application under section 330 is necessary and appropriate only “when a professional is seeking an award payable from the [bankruptcy] estate.” In re McDonald Bros. Constr., Inc., 114 B.R. 989, 994 (Bankr.N.D.Ill.1990). That is because “ ‘[t]he funds of a bankruptcy estate are trust funds. The Court has a duty to see that these funds are administered in a manner consistent with the intent of the Bankruptcy Code.’ ” Id. at 994 (quoting In re Ross, 88 B.R. 471, 475 (Bankr.M.D.Ga.1988)). When a professional will be compensated from a source other than the estate, the professional “need not, and should not,” apply to the bankruptcy court to have his | [
{
"docid": "4344972",
"title": "",
"text": "negotiated with the Committee for several weeks over the terms of their compensation for their work as financial advisors. After listening to the testimony presented at the November 19, 2007 hearing, it is clear that these terms were not the result of “bad dra... | [
{
"docid": "1191974",
"title": "",
"text": "reached the opposite conclusion in In re Orthopaedic Technology, Inc., 97 B.R. 596 (Bankr.D.Colo.1989) and Cavazos v. Simmons, 90 B.R. 234 (Bankr.N.D.Tex.1988). In each of these cases, the court concluded that 11 U.S.C. § 326 did not limit the compensation of ... |
58924 | "is the interest which accrues by reason of the use of such money during the pendency of the proceedings.”)); Johnson Electrical, 442 F.2d at 284 (stating that the distinction between post-petition interest where the underlying tax is partially paid and where it is fully paid ""is not sufficiently substantial to warrant a different result. Either the filing of the petition stops the running of interest on federal tax claims against a bankrupt or it does not.”). . Heisson, 217 B.R. at 4. . Regarding the application of the payments, we note in passing that ""[u]nder [a] long-standing IRS policy, taxpayers may designate the application of tax payments that are voluntarily made, but may not designate the application of involuntary payments."" REDACTED ul. 79-284, 1979-2 C.B. 83; Rev.Rul 73-304, 1973-2 C.B. 42; Matter of Ribs-R-Us, 828 F.2d 199, 201 (3d Cir.1987)). ""An involuntary payment traditionally has been defined as 'any payment received by agents of the United States as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.’ "" Id. (citing Amos v. Commissioner, 47 T.C. 65, 69, 1966 WL 1102 (1966) (emphasis in Pep-perman)). ""Most courts ... have concluded that payments made in the bankruptcy context are involuntary."" Id. (citations omitted). The Third Circuit “conclude(d) ... that payments made to the IRS out of a Chapter 7 debtor’s estate are involuntary.” Id." | [
{
"docid": "13617648",
"title": "",
"text": "U.S. at 275, 98 S.Ct. at 1800; In re Ribs-R-Us, 828 F.2d 199, 200-01 (3d Cir.1987). The IRS need not attempt to collect the withholding taxes from the employer before seeking to collect from the responsible person. Ribs-R-Us, 828 F.2d at 201; United States v.... | [
{
"docid": "4027417",
"title": "",
"text": "this undermines the purpose of Section 6672. Federal courts have struggled with the voluntary/involuntary distinction in the bankruptcy context and have come to different conclusions. We conclude that payments made by a debtor in possession after filing a peti... |
85461 | evaluations, continuing without regard to Fannie Mae’s clearly delineated criticism of his work. Fannie Mae’s opinion of plaintiff was legitimate and reasonable given the circumstances. The fact that he was concededly talented in the external aspect of his work does not preclude shortcomings in internal matters, and inadequacy in one area sufficiently justifies his termination. Kerwood, 494 F.Supp. at 1298 (plaintiff was extremely qualified in one respect, but his problems in management and administration warranted his termination). A court should focus on the specific quality the employer found lacking, determining whether the evaluation of that area was legitimate. As long as the employer’s rationale is genuine, there is no reason to examine other elements of plaintiffs work. REDACTED cert. denied, 510 U.S. 826, 114 S.Ct. 88, 126 L.Ed.2d 56 (1995). See also Menard v. First Sec. Servs. Corp., 848 F.2d 281, 286 (1st Cir.1988). Plaintiff cites praise and support from his superiors at different times during his career at Fannie Mae, contending that the changing quality of his reviews “delegitimizes” the recent condemnation of his work, and serves as a guise for underlying discrimination. Mixed reviews of the employee over time do not affect the validity of the ultimate evaluation. The Court must consider reviews from the time of the termination, as earlier positive evaluations do not necessarily reflect the employee’s current abilities or qualifications. Karazanos v. Navistar International Transportation Corp., 948 F.2d 332, 336 (7th Cir.1980); Smith, 645 | [
{
"docid": "22360115",
"title": "",
"text": "to someone first. There is, however, no mention of this incident in any of Ezold's evaluations. .In Lockhart, there was sufficient indirect evidence to support the jury’s verdict that age was the determinative factor in Lockhart’s discharge. This evidence inc... | [
{
"docid": "521023",
"title": "",
"text": "cites negative evaluations from Williams and St. Johns that contrast with the uniformly positive comments received by her higher rated peers. These explanations provide legitimate, nonretaliatory reasons for Carpenter’s downgrade. See Burdine, 450 U.S. at 257-5... |
448165 | to believe he intended, to allow Defendant to keep the money in her cheeking account either as a gift, or as repayment for debts incurred and monies spent by Defendant. That is, Defendant seeks to have the evidence admitted as direct proof of the underlying substance of the disputed issue in this case, not indirect proof that Plaintiff knows he must be liable because he made such an offer. Thus, the letters are admissible. The next issue to be considered is whether Defendant should be granted summary judgment. Summary judgment will be granted to the movant upon demonstration that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. REDACTED In order to prevail, the movant must demonstrate all elements of the cause of action. R.E. Cruise, Inc. v. Bruggeman, 508 F.2d 415, 416 (6th Cir.1975). A Motion for Summary Judgement must be construed in the light most favorable to the party opposing the Motion. In re Weitzel, 72 B.R. 253, 256 (quoting In re Sostarich, 53 B.R. 27 (Bankr.W.D.Ky. (1985)). Defendant comes forward in her Motion for Summary Judgment with copies of checks from the checking account in question, the letters discussed supra, and her own affidavit. In her affidavit she states that she paid Plaintiff the monies requested in his first letter, and that she spent the money in the checking account thinking that | [
{
"docid": "22656949",
"title": "",
"text": "from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtain... | [
{
"docid": "16940186",
"title": "",
"text": "requiring application of the $1.2 million certificate of deposit which SIG claims it owns and by requiring performance of the Guarantees of the Senior Loan by Gurasich, Walden, West and the Topfers (hereinafter referred to collectively as “Guarantors”). Legal... |
778940 | that the remoteness of the search was the principle objection. Our conclusion is further supported by the final sentence in Preston, 376 U.S. at 368, 84 S.Ct. at 884, We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible. On this reading of Preston we cannot say that the search conducted here was illegal and not incident to an arrest. There is much support for our reading of Preston. See, for example, REDACTED and Arwine v. Bannan, 346 F.2d 458 (6th Cir. 1965). In Adams, 336 F.2d at 753, it was stated, But, as far as we are aware, no court has yet held that a car, including its trunk, may not be searched without warrant at the time and place its occupants are placed under lawful arrest. It should be emphasized, however, that the search here is upheld as incident to the arrest for breaking and entering. In Preston the Supreme Court questioned whether there could ever be “articles which can be the ‘fruits’ or ‘implements’ of the crime of vagrancy.” 376 U.S. at 368, 84 S.Ct. at 883. And in United States v. Tate, 209 F.Supp. 762, 763, 765 (D. Del.1962), it was | [
{
"docid": "7815522",
"title": "",
"text": "hence there was no danger that, after being arrested, he “could have used any weapons in the car or could have destroyed any evidence of a crime Preston v. United States, 376 U.S. 364, 368, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). Thus there was no emergency ... | [
{
"docid": "9725667",
"title": "",
"text": "could have used any weapons in the car or could have destroyed any evidence of a crime — assuming that there are articles which can be the ‘fruits’ or ‘implements’ of the crime of vagrancy. Cf. United States v. Jeffers, 342 U.S. 48, 51-52 [72 S.Ct. 93, 95, 96 ... |
418643 | on a motion for summary judgment, the moving party must show that the nonmoving party “fail[ed] 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.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id. The moving party may defeat summary judgment through factual representations made in a sworn affidavit if he “support[s] his allegations ... with facts in' the record,” Greene, 164 F.3d at 675 (quoting Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993)), or provides “direct testimonial evidence,” REDACTED Indeed, for the court to accept anything less “would defeat the central purpose of the summary judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial.” Greene, 164 F.3d at 675. B. Legal Standard for Judicial Review of Agency Actions The Administrative Procedure Act (“APA”) entitles “a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action ... to judicial review thereof.” 5 U.S.C. § 702. Under the APA, a reviewing court must set aside an agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. § 706; Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, | [
{
"docid": "17004973",
"title": "",
"text": "fact. In performing our review of the District Court’s grant of summary judgment, we need only decide the materiality of the alleged fact that the officers handcuffed appellant before the administration of force. We find it unquestionably material. Our inquir... | [
{
"docid": "18867128",
"title": "",
"text": "favor and accept the nonmoving party’s evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. To... |
719576 | executors of the will of Oliver Gould Jennings, paid the defendant, Collector of Internal Revenue for the District of Connecticut, an estate tax in the amount of $2,082,730.40 plus interest on certain deficiencies included therein. The executors had elected, under Section 811 (j) of the Internal Revenue Code, 26 U.S. C.A. Int.Rev.Code, § 811(j), to value the assets of the estate for estate tax purposes as of one year after the decedent’s death. In determining the total estate tax, the Commissioner of Internal Revenue included therein all interests and dividends received by the executors during the period between the death of the decedent and the optional valuation date, which increased that tax by $109,089.19, including interest. Subsequently, the Supreme Court in REDACTED . 631, 85 L.Ed. 940, 132 A.L.R. 1035, held that such income was not includible. In August, 1942, the plaintiffs filed with the defendant a claim for the refund of the amount paid as a result of the inclusion of that income. The claim for refund was rejected and the plaintiffs bring this suit. The ground for the rejection of the claim and the only defense to this suit is that there was not included in the decedent’s gross estate the value of certain property transferred in trust by him which should have been included under Section 302(c) and (d) of the Revenue Act of 1926 as amended, 26 U.S.C.A. Int.Rev.Acts, pages 227-229. The Government is barred by the three-year Statute of | [
{
"docid": "22564545",
"title": "",
"text": "Mr. Justice Roberts delivered the opinion of the Court. In these cases we must decide whether, where an executor avails himself of the option extended by the estate tax law to value a decedent’s gross estate as of one year after the decedent’s death, rents, d... | [
{
"docid": "3654218",
"title": "",
"text": "GODDARD, District Judge. The case came on for hearing on motion of plaintiffs for judgment on the pleadings and the cross motion by the defendant for' judgment in his favor. There is no dispute as to the facts and the sole issue of law presented is the validit... |
407383 | claim that, despite the true facts, defendants misrepresented that participation in the life insurance plan was required in order for employees to receive the tax savings from participation in the AFC cafeteria plan. Whether the life insurance plan meets the third criterion, non-endorsement of the plan by AFC, is a close question. Defendants note that AFC publicized the life insurance program to its employees, collected premiums through payroll deductions, and remitted them to Metropolitan Life. Had AFC limited its involvement in the life insurance program to these functions, it would have been clear that AFC had not have endorsed the program. These functions are specifically allowed under the regulation without being considered as endorsing the program. See REDACTED Cf. Kanne, 867 F.2d at 492 (merely advertising a group insurance plan does not establish an ERISA plan). AFC’s involvement with the life insurance program, however, went beyond these functions. Significantly, in most instances, AFC did not have its own managers explain the cafeteria plan and the Metropolitan Life plan, but rather had Metropolitan Life agents explain the two plans to AFC employees. In addition, Metropolitan Life agents enrolled AFC employees in both the cafeteria plan and the life insurance plan. Although, as stated above, this additional involvement by AFC in the Metropolitan Life plan presents | [
{
"docid": "21552799",
"title": "",
"text": "POSNER, Circuit Judge. This appeal requires us to consider the meaning of the term “employee welfare benefit plan” in ERISA. The statutory definition is “any plan, fund, or program ... established or maintained by an employer or by an employee organization ..... | [
{
"docid": "22627466",
"title": "",
"text": "eligible to receive a benefit of any type from an employee benefit plan which covers employees of such employer or members of such organization, or whose beneficiaries may be eligible to receive any such benefit. ERISA § 3(7), 29 U.S.C. § 1002(7). The term “e... |
854122 | "work environment. Halstead must have been deliberately indifferent to this racially hostile work environment. Southard , 114 F.3d at 551 (citing Doe v. Taylor Indep. Sch. Dist. , 15 F.3d 443, 454 (5th Cir. 1994) (en banc) ). This is a ""stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action."" Id . (quoting Bd. of the Cty. Comm'rs of Bryan Cty., Okla. v. Brown , 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ). Johnson thus must allege that ""repeated complaints of civil rights violations"" were followed by ""no meaningful attempt on the part of the municipality to investigate or to forestall further incidents."" REDACTED He has done so. There is no dispute that Halstead knew about the alleged harassment. Johnson says he met with Halstead soon after he filed the complaint with HR. The subsequent transfer of Johnson and Halstead's later apology corroborate this. So does the Coleman Report, as it found that a ""high ranking officer"" confirmed Johnson's account of his interactions with the Police Chief. The investigators also concluded that there was ""widespread knowledge"" of Johnson's situation, and that the ""Chain of Command"" knew about the ""hostile, intimidating, and bullying"" behavior. Johnson's allegations that Halstead did nothing to try and stop the harassment even though he knew about it-again corroborated by the outside investigation-also satisfy the second requirement for deliberate indifference." | [
{
"docid": "22259485",
"title": "",
"text": "941 F.2d 119, 122-23 (2d Cir.1991). This does not mean that the plaintiff must show that the municipality had an explicitly stated rule or regulation. See, e.g., Villante v. Department of Corrections, 786 F.2d 516, 519 (2d Cir.1986). A § 1983 plain- . tiff in... | [
{
"docid": "3658263",
"title": "",
"text": "failure to prevent it, the Court crafted the “deliberate indifference” standard to distinguish between cases in which the city’s inaction could fairly be said to have caused the injurious action and those in which it could not. See City of Canton v. Harris, 48... |
699414 | peril; nevertheless as Rhodes and Hoptowit correctly direct, “the Eighth Amendment does not reflect what any of us in the judicial branch might believe to be desirable, but rather requires a mere minimum standard of life’s necessities.” Medical Care, Sanitation, Food, Clothing and Safety 7. Inadequate attention to medical care, clothing, facilities for hygiene, sanitation, food service, exercise, safety, access to programs, and visitation may implicate the Eighth Amendment if the State has been deliberately indifferent to inmates’ needs. Hoptowit. However none of the conditions found to exist at CMC alone amounts to an unnecessary and wanton infliction of pain. Id. Nor does the conduct of CMC with respect to any one of these conditions of confinement constitute deliberate indifference. See REDACTED Hoptowit. 8. I have considered the effect of each condition of confinement in the context of the prison environment. Because of the severity of the condition of shelter, each of the other conditions is more closely related than would otherwise be the case. See Wright, 642 F.2d at 1133. Those having to do with recreation, programs, in-cell confinement, and classification are most crucial. I conclude that so long as there is a margin of flexibility with respect to the shelter condition, and so long as there is adequate “extended space” to compensate for the deprivation of in-cell space, neither alone nor in context is there a constitutional violation. Penological Purpose 9. Because it was conceived as | [
{
"docid": "22661193",
"title": "",
"text": "interfering with the treatment once prescribed. Regardess of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983. This conclusion does not mean, however, that every claim by a prisoner that he... | [
{
"docid": "11528794",
"title": "",
"text": "that, considered either alone or in combination, specifically amount to cruel and unusual punishment, there can be no Eighth Amendment violation. Likewise, the mere fact that conditions are interrelated does not justify a remedy that is more intrusive than ne... |
252125 | meaning of A.R.S. § 44-2348 [re-numbered as A.R.S. § 47-2403]). . Stowers v. Mahon (In re Samuels & Co.), 526 F.2d 1238, 1242 (5th Cir.1976). . Los Angeles Paper Bag Co. v. James Talcott, Inc., 604 F.2d 38, 39 (9th Cir.1979)(the interest of unpaid cash seller is subordinate to the interest of a valid perfected security interest); Dixie Bonded Warehouse and Grain Co. v. Allstate Fin. Corp., 755 F.Supp. 1543, 1552 (M.D.Ga.1991)(a good faith purchaser's perfected security interest will be prior to an aggrieved seller’s interest); Lavonia Mfg. Co.v. Emery Corp., 52 B.R. 944, 946 (E.D.Pa.1985)(perfected secured creditors were good faith purchasers whose rights are superior to the rights of a reclaiming seller); REDACTED In re Victory Mkts., Inc., 212 B.R. 738, 741-42 (Bankr.N.D.N.Y.1997); Isaly Klondike Co. v. Sunstate Dairy & Food Prods. Co. (In re Sunstate Dairy & Food Prods. Co.), 145 B.R. 341, 344-45 (Bankr.M.D.Fla.1992)(a lienholder with a pre-existing, perfected floating lien on inventory is a good faith purchaser with rights superior to those of a reclaiming seller). .The issue might have been addressed and resolved in Carbajal because the competing secured creditor in that case also failed to perfect its security interest. But there the reclaiming seller failed to make the | [
{
"docid": "6508378",
"title": "",
"text": "as previously noted, the reclaiming seller must establish the requirements of the relevant U.C.C. section and remains subject to its limitations. Pursuant to U.C.C. § 2-702(3), the seller’s right to reclamation is “subject to” the rights of a good faith purcha... | [
{
"docid": "1086291",
"title": "",
"text": "the letter’s status as a satisfactory U.C.C. § 2-702 reclamation demand. B. Seller’s Reclamation Right When There Is A Perfected Security Interest In the Goods As straightforward as Section 546(c) reads, courts have split over whether the seller’s right of rec... |
397070 | of this subparagraph. Id. § 552(a)(6). II. Mootness Defendants note that they released all responsive documents and that ONDA does not challenge either the adequacy of the search for responsive documents conducted by NOAA Fisheries or its reliance upon FOIA exemptions to withhold some documents. Defendants contend that ONDA’s claims are moot because of the release of the documents. Defendants also argue that ONDA’s assertion that the documents were time sensitive is undercut by its delay in bringing suit and its failure to raise all claims in the administrative appeal. The government relies on cases which hold that a claim for relief under FOIA becomes moot once the agency produces all responsive documents. See REDACTED Carter v. Veterans Administration, 780 F.2d 1479, 1481 (9th Cir.1986) (agency eventually provided copies of all rules and regulations concerning corroborative evidence requirement for benefits). ONDA argues that its issue falls within the voluntary cessation exception to the mootness doctrine because NOAA Fisher ies and the other federal agencies produced the documents only after ONDA filed suit but before this court issued an order requiring production. Without a declaration that the prolonged delays are unlawful, ONDA is concerned that it will face the same situation again. Defendants contend that this narrow exception does not apply | [
{
"docid": "16959505",
"title": "",
"text": "at which plaintiff acknowledged she had received all the requested documents and no substantive controversy as to the documents remained. Plaintiff was concerned, however, that dismissing the case as moot might deprive her of the right to seek attorney’s fees... | [
{
"docid": "15139823",
"title": "",
"text": "and plants, including hundreds of threatened, endangered, and sensitive species. Roadless areas in our national forests also help conserve some of the last unspoiled wilderness in our country. The unspoiled forest provides not only sheltering shade for the vi... |
417371 | misidentification____” While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of “irreparable” it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process, and it is this which was the basis of the exclusion of evidence in Foster. Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. Id. at 198 (citations and footnote omitted). This Court has adopted a procedure described in REDACTED as follows: In assessing the validity of a pretrial identification, this court follows a two-step analysis. The court first considers whether the procedure was unduly suggestive .... The defendant bears the burden of proving this element.... If the court does find that the procedure was unduly suggestive, it next evaluates the totality of the circumstances to determine whether the identification was nevertheless rehable.... Five factors that are considered in assessing the reliability of the identification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention at the time of observation; (8) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by | [
{
"docid": "23705757",
"title": "",
"text": "rise to a very substantial likelihood of irreparable misidentification.” Thigpen v. Cory, 804 F.2d 893, 895 (6th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3196, 96 L.Ed.2d 683 (1987) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 9... | [
{
"docid": "23006876",
"title": "",
"text": "purposes of our analysis we assume that it was in fact suggestive to an unnecessary degree. It is firmly established, however, that due process does not require the suppression of all in-court identifications following unnecessarily suggestive pretrial identi... |
673872 | "filing, whether or not the filing is related to a specified transaction or event, if the statements either have become inaccurate by virtue of subsequent events, or are later discovered to have been false and misleading from the outset, and the issuer knows or should know that persons are continuing to rely on all or any material portion of the statements. This duty will vary according to the facts and circumstances of individual cases. Id. at 82,943. . Recently, the Supreme Court decided that Rule 10b-5 requires the disclosure of at least one particular contingent or speculative event— the possibility of merger — when the negotia tions surrounding that event become ""material” to the reasonable investor. See REDACTED In deciding this, the Court specifically endorsed a test the Second Circuit formulated in 1968: that materiality will "" ‘depend at any given time upon a balancing of both the indicated probability that the event will occur and the anticipated magnitude of the event in light of the totality of the company activity.’ ” Basic, 108 S.Ct. at 987 (quoting SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 849 (2d Cir.1968) (en banc), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969)). The Court was careful to point out, however, that its decision was limited to the context of merger negotiations and that it was not ""addressing] ... any other kinds of contingent or speculative" | [
{
"docid": "22748467",
"title": "",
"text": "of ‘no reason for the stock’s activity,’ and that ‘management is unaware of any present or pending corporate development that would result in the abnormally heavy trading activity,’ information concerning ongoing acquisition discussions becomes material by vi... | [
{
"docid": "12494721",
"title": "",
"text": "material even if there is only a probability that the change will occur or if it is merely contingent upon future events. In Basic Inc., the Supreme Court considered the issue concerning when negotiation of a corporate merger would be considered material. The... |
238583 | said: “The ultimate purpose of the writers of the 1951 Manual was to set a balance between the various Service rules. * * * What they wished to accomplish, and we are in full accord was to allow the presumption of knowledge to apply only to that category of regulations or orders which are issued by commands of the highest dignity. * * * In this category they, of course, placed the Departments of the Army, Navy, and Air Force, and the Headquarters of the Marine Corps and Coast Guard.” 25 CMR at 459. See also U.S. v. Tinker, 10 U.S.C.M.A. 292, 27 C.M.R. 366 (1959); U.S. v. Ochoa, 10 U.S.C.M.A. 602, 28 C.M.R. 168 (1959); Paragraph 171a, MCM, 1969 REDACTED Thus, with the applicable Article of Coast Guard Regulations in evidence before him, the military judge was entitled to find both as a matter of fact and of law that it was a lawful general regulation. During the sentencing phase of the trial the accused made an unsworn statement in which he said that he was sorry for what he had done and that he would not do it again. The prosecution over defense objection was then permitted to elicit testimony from two of the accused’s superior petty officers that the accused had shown no contrition and had not expressed regret for his misconduct. This testimony was offered and received ostensibly as rebuttal to Fireman Friedman’s statement that he was sorry for | [
{
"docid": "10938805",
"title": "",
"text": "Guard member. The article in clear and unambiguous terms prohibits the possession, use, sale, or other transfer of marijuana, narcotic substances, or other controlled substances by persons in the Coast Guard and further implementation by subordinate commander... | [
{
"docid": "18913448",
"title": "",
"text": "our present concern. The Commanding Officer also related that the accused had been counseled on numerous occasions by various representatives of the command without noticeable results. The Commanding Officer expressed his conclusion that Seaman Recruit Clevid... |
701715 | it lacks the retail concept. Even if defendant’s establishment is within the retail concept, he failed to prove that 75% of the annual dollar volume of his sales were recognized as retail in the industry. There was no evidence showing the precise percentage of his annual dollar volume of sales recognized as retail in the industry which was attributable to supplies and to equipment, respectively. 4. The burden was upon the defendant to prove that his employees were exempt from the provisions of §§ 206 and 207, 29 U.S.C.A., by the provisions of §§ 213(a) (1) and 213(a) (2), 29 U.S. C.A. Idaho Sheet Metal Works v. Wirtz, 383 U.S. 190, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966); REDACTED Defendant did not meet his burden of proof. 5. Defendant violated the minimum wage and overtime compensation provisions of the Act by failing to pay his employees, Josephine McLoota and Victor Sidola, wages at rates equal to the minimum rate prescribed by § 206, 29 U.S.C.A., that is, one dollar and fifteen cents ($1.15) per hour from June 3, 1963 to September 3, 1963, and one dollar and twenty-five cents ($1.25) per hour from September 3, 1963 to January 1, 1965, and by failing to compensate these said employees at a rate equal to one and one-half (1%) times their regular rates for hours worked in excess of forty (40) in a workweek as prescribed by § 207, 29 U.S.C.A. | [
{
"docid": "21190195",
"title": "",
"text": "has conceded that there was compliance with the Act only after this suit was instituted. Under these circumstances a nice question is presented as to the propriety of granting injunctive relief. However, it is one which we do not decide for we think that it i... | [
{
"docid": "5363971",
"title": "",
"text": "coverage and narrow exemptions, we find the Ben Franklin Reading Club beyond the pale of either the retail establishment or the outside salesman exemption. The judgment of the district court is Affirmed. . 29 U.S.C.A. § 213(a) (2): The provisions of sections 2... |
94329 | Cherrydale Farms Confections (“Final Scope Ruling: Cherrydale Farms Confections”) demonstrated the inconsistency in Commerce’s use of the Diversified, Products analysis, and, therefore, this case should be remanded for consideration under the (i)(2) factors. As set forth above, to determine whether merchandise is within the “class or kind” of merchandise described in an antidumping order, Commerce begins by examining the descriptions of the merchandise in the petition, the initial investigation, and the determinations of the Secretary and the ITC to determine whether such descriptions are dispositive. 19 C.F.R. § 353.29(i)(l) (1997). If the descriptions are dispositive, the regulation instructs Commerce to issue a final scope determination based upon these descriptions alone. See 19 C.F.R. § 353.29(i)(l) (1997); see also REDACTED If Commerce determines that the descriptions are not dispositive, an analysis under the Diversified Products factors is conducted. These factors are (i) the physical characteristics of the product; (ii) the expectations of the ultimate purchasers; (iii) the ultimate use of the product; and (iv) the channels of trade. 19 C.F.R. § 353.29(i)(2) (1997). Plaintiffs contention that Commerce should have used the factors set forth in United States v. Carborundum Co., 63 C.C.P.A. 98, 536 F.2d 373 (1976), is unpersuasive. The regulations set forth above, not Carborundum, provide the procedures and factors to | [
{
"docid": "23682717",
"title": "",
"text": "scope of a final antidumping duty order, the ITA may not modify the scope of that order. Alsthom Atlantique, 787 F.2d at 571. CONCLUSION For the foregoing reasons, the April 7, 1992 judgment of the CIT is AFFIRMED. . A nylon core flat belt is a continuous, mu... | [
{
"docid": "21428197",
"title": "",
"text": "Diversified Prods, criteria of that regulation. The government and the Korean Producers counter that substantial evidence supports Commerce’s final scope determination. Commerce has the inherent authority to define the scope of an investigation. See Koyo Seik... |
440617 | "the Fair Credit Reporting Act: an FTC Staff Report with Summary of Interpretations , FTC, 2013 WL 10954239, at *51 (July 2011). The FTC staff opinion letters are not formal rulemakings and not entitled to the level of deference given under Chevron U.S.A., Inc. v. Natural Resources Defense Council , 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), for purposes of statutory construction. Christensen v. Harris Cty. , 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (comparing opinion letters and formal adjudication or notice-and-comment rulemaking). They are not binding authority, but are ""entitled to respect"" to the extent they have the ""power to persuade."" Id. (internal citations omitted); REDACTED The Court finds the FTC staff opinion letters persuasive for several reasons. They explicitly address the precise question before the Court, set out sound reasoning for their conclusions, and are consistent. The FTC also administers the FCRA, and possesses some degree of expertise in these matters. Most importantly, the FTC's interpretation of ""adverse information"" is consistent with the plain language of § 1681c(a)(5) and this Court's interpretation. Though they have limited precedential value, the FTC staff opinion letters support the Court's conclusion that college attendance dates and degree-conferral status are not ""adverse information."" For all of these reasons, the Court holds that the term ""adverse information"" as used within § 1681c(a)(5) is" | [
{
"docid": "13747782",
"title": "",
"text": "or universities).” 16 C.F.R. pt. 600, app. D § 603(d)(7)(A) (emphasis added). The Federal Trade Commission also issued a Staff Opinion Letter in response to an inquiry from a public school district conducting reference checks of prospective employees. That le... | [
{
"docid": "6509210",
"title": "",
"text": "Congress did not mean, by repealing the attorney exception, to extend the range of activities proscribed by the FDCPA. The FTC confirmed its position in a letter addressed specifically to Jones, who, concerned about his status under the FDCPA, had directly sol... |
790841 | Opinion for the Court filed by Circuit Judge TATEL. TATEL, Circuit Judge: For the third time, we consider the district court’s determination that one of the defendants in the United States’ RICO action against cigarette companies waived its attorney-client privilege by failing to log a document sought in discovery. As we emphasized the last time around, “waiver of privilege is a serious sanction” that a court should impose only if a party behaves unreasonably or worse. See United States v. Philip Morris Inc., 347 F.3d 951, 954 (2003) (quoting REDACTED Because the record in this case does not reflect the kind of behavior that would satisfy this demanding standard, we reverse and remand with instructions to allow the defendant to log the document. I. In 1999, the United States sued several tobacco companies, including appellant British American Tobacco (Investments) Limited (“BATCo”), alleging in part that these companies had violated civil provisions of the RICO statute, 18 U.S.C. §§ 1961-1968, by conspiring to mislead the public about the addictive nature and health risks of smoking. As part of its comprehensive document production request, made in 2000, the government sought all documents relating to the companies’ record-retention and record-destruction policies from 1954 to the present. In response, BATCo raised | [
{
"docid": "8432440",
"title": "",
"text": "different factors comes down against imposing a waiver of the defendants’ attorney-client privilege and work-product protection. The court, therefore, sets aside the magistrate judge’s orders of March 30, 1995, and June 12, 1995. Be cause of the broad discreti... | [
{
"docid": "7784317",
"title": "",
"text": "England (the “Guildford objection”). The Depository was established in response to a parallel action filed against the same defendants by the State of Minnesota and contains'over one million documents. State of Minnesota v. Philip Morris, Inc., No. C1-94-8565 ... |
145475 | as a defendant charged by the Commonwealth with the offense of raping the prosecutrix. Relator’s counsel was present at these confrontations. A pretrial identification confrontation may be so unnecessarily suggestive and conducive to irreparable mistaken identification that it denies an accused due process of law. Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Not merely a lineup but any pretrial confrontation must be scrutinized for its fairness. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). That a pretrial confrontation is unintentionally unfair or even accidental in its occurrence does not render it immune from constitutional infirmity. Mason v. United States, 134 U.S.App.D.C. 280, 414 F.2d 1176, 1180 (1969); REDACTED The preliminary hearing is particularly fraught with the dangers of suggestibility, intentional or otherwise, for it is in this setting that an accused is frequently presented to the victim or witness as one whom the State suspects as being guilty of an offense and, as here, guilty of the very offense to which the victim has been subjected or which the witness has observed. See Mason v. United States, supra, and United States v. Terry, supra. Where a proposed in-court identification is tainted by a prior constitutionally infirm pretrial confrontation, the proposed in-court identification is inadmissible in evidence. United States v. Wade, supra, 388 U.S. at 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149. And, if the defendant makes a timely challenge to | [
{
"docid": "3845113",
"title": "",
"text": "trial. Another identification problem raised at the suppression hearing involved an accidental confrontation between complainant and the appellant at a preliminary hearing shortly after the appellant’s arrest. This confrontation took place while complainant, a... | [
{
"docid": "7680857",
"title": "",
"text": "in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Stovall it held that a defendant was entitled to show that the confrontation in his case “was so unneces... |
696065 | the plan’s administrators or the recipients of its benefits. Stock option plans have been widely accepted as an effective means of re-invigorating executives whose profit-seeking zeal has been sapped by high personal tax rates. From the employee’s perspective, options have the advantage of allowing income to be deferred, with the gain ultimately realized taxed as capital gains. From the corporation’s standpoint, stock option plans may generate greater returns than simple pay increases by encouraging management to secure a proprietary interest in the corporation, and by tying executive compensation to corporate earnings and stock market performance. Moreover, by conditioning the employee’s right to exercise options on continued service to the corporation, stock option plans may help retain desired key personnel. See generally, REDACTED The exchange of higher for lower cost options violated the plan The creation and administration of stock option plans by corporations chartered in Delaware — as Revlon is — are governed by 8 Del.Code Ann. § 157, which provides: Subject to any provisions in the certificate of incorporation, every corporation may create and issue, whether or not in connection with the issue and sale of any shares of stock or other securities of the corporation, rights or options entitling the holders thereof to purchase from the corporation any shares of its capital stock of any class or classes, such rights or options to be evidenced by or in such instrument or instruments as shall be approved by the board of directors. | [
{
"docid": "668079",
"title": "",
"text": "a year. These annual limitations were eliminated from the 1973 Program. Secondly, the 1973 Incentive Program expressly provided that an option granted under either plan may include a stock appreciation right, issued either at the time of grant of the option, or... | [
{
"docid": "15744890",
"title": "",
"text": "that the options shall not be exercisable by their holders after their employment by defendant has been discontinued, unless otherwise specified by the board of directors. Plaintiff contends that the granting of the options on these terms and conditions const... |
536243 | appeal. I. Abandonment Authorization [1,2] Under 15 U.S.C. § 717f(b), no natural gas company may abandon all or any portion of any source rendered by means of facilities subject to the jurisdiction of the FERC without Commission approval. This provision has been most recently construed by the Supreme Court in California v. Southland Royalty Co., —— U.S. —— , 98 S.Ct. 1955, 56 L.Ed.2d 505, a case which is directly relevant to the issue before us. Southland Royalty restated the established rule that once natural gas is “dedicated” to interstate commerce under a certificate of public convenience and necessity, that gas may not be withdrawn from the interstate market without prior Commission approval. 98 S.Ct. at 1958, citing REDACTED 156, 80 S.Ct. 1392, 4 L.Ed.2d 1623. The Tribe asserts this rules is inapplicable in this case because their royalty gas has never been dedicated to the interstate market. Their argument is premised on the fact that they reserved the option to take their royalty in kind in the lease. El Paso and Northwest, being at all times subject to this provision as lessees, had no legal power to dedicate this gas to interstate commerce. This argument is made despite the fact that all the gas produced from the wells is either sold, or commingled with gas being sold, interstate by El Paso and Northwest under FERC certificate. We believe the Supreme Court’s opinion in Southland Royalty, supra, requires rejection of the Tribe’s | [
{
"docid": "22439544",
"title": "",
"text": "private contracts the only stabilizing factor under the Act. Not only does this reading have nothing to do with the integrity of private contracts which Mobile underwrote, but it makes a severe incursion into the sources of that stability of natural-gas price... | [
{
"docid": "22427169",
"title": "",
"text": "casinghead gas to the El Paso Natural Gas Co., an interstate pipeline. Thereafter, Gulf applied for, and the Federal Power Commission issued, a certificate of public convenience and necessity authorizing its sale of natural gas to El Paso, to be effective as ... |
391607 | Court recognized that no request for injunctive relief was before it: “We concern ourselves here with the propriety of entertaining that portion of plaintiffs’ complaint seeking declaratory relief . . . .” 300 F. Supp., at 1146. That leaves us with the question whether an order granting or denying, only a declaratory judgment may be appealed to this Court under § 1253. In a recent case, Rockefeller v. Catholic Medical Center, 397 U. S. 820, we gave a negative answer to that question, and we adhere to that decision. Section 1253 by its terms grants this Court jurisdiction only of appeals from orders granting or denying injunctions. While there are similarities between injunctions and declaratory judgments, there are also important differences. REDACTED cf. Zwickler v. Koota, 389 U. S. 241, 254. The provisions concerning three-judge courts, including the provisions for direct appeal to this Court, antedate the Declaratory Judgment Act of 1934, but Congress substantially amended the three-judge court provisions in 1937 and 1948 without providing for such direct appeals from orders granting or denying declaratory judgments. We have stressed that the three-judge-court legislation is not “a measure of broad social policy to be construed with great liberality/’ but is rather “an enactment technical in the strict sense of the term and to be applied as such.” Phillips v. United States, 312 U. S. 246, 251. Thus this Court’s jurisdiction under that legislation is to be literally construed. It would hardly be faithful | [
{
"docid": "22609755",
"title": "",
"text": "memorandum opinion, findings of fact and conclusions of law, and judgment. See 192 F. Supp. 1. The relief granted was merely a declaration that the 1944 Amendment “is unconstitutional, both on its face and as applied to the plaintiff herein,” and “ [t]hat the... | [
{
"docid": "22452255",
"title": "",
"text": "13-20, but those arguments should be directed to Congress rather than the courts. Rockefeller v. Catholic Medical Center, supra; Stamler v. Willis, 393 U. S. 407; Moody v. Flowers, 387 U. S. 97; Phillips v. United States, supra. Mr. Justice Douglas, dissentin... |
783482 | fails for two reasons. First, the Debtor cannot embezzle property that she lawfully owns. Contrary to Bombardier’s argument, the original creditor is not the owner of the Motorcycle; it possessed a perfected security interest in Debtor’s property. The original creditor was not and Bombardier is not the owner of the Motorcycle; they possessed only a perfected security interest in Debtor’s property. See Undisputed Facts, supra, at ¶ 8. Moreover, the undisputed facts reveal that the parties intended for the Debtor to have legal title to the Motorcycle. Accordingly, since the cornerstone of embezzlement is the appropriation of property belonging to another person or entity, one cannot “embezzle” one’s own property. This principle is true for purposes of discharge exception. See, e.g., REDACTED In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994); Matter of Storms, 28 B.R. 761, 765 (Bankr.E.D.N.C.1983) (“Where the parties’ conduct indicates a debtor-creditor relation, funds that come into the hands of the debtor belong to him and his subsequent use of them is not embezzlement.”). In other words, Bombardier possesses only a lien, and is not in ownership or possession of the property. In re Contella, 166 B.R. 26, 30 (Bankr.W.D.N.Y.1994). Second, although a creditor whose security interest has unquestionably been injured cannot make a claim under 523(a)(4) for embezzlement because the debtor cannot embezzle property to which she has title, the creditor should instead make its claim for nondischargeability under 523(a)(6). Chrysler First Commercial Corp. v. Nobel, 179 B.R. 313, | [
{
"docid": "10841433",
"title": "",
"text": "refund amount to the plaintiff. They also refused to grant the plaintiff a lien in the vehicle they bought with the refund. The issue is whether these actions constitute embezzlement. In this regard, the plaintiff contends that by purchasing another truck, co... | [
{
"docid": "10841434",
"title": "",
"text": "310, 311-12 (Bankr.N.D.Ga.1990): [E]mbezzlement involves the appropriation or conversion of another’s property where the property was legally in the offending party’s possession. Here, it is undisputed that the [collateral was] owned by defendant subject to p... |
746128 | theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. And as Sporck v. Peil, 759 F.2d 312, 316 (3d Cir.1985) points out, the Doctrine also serves to guard: the adversary system’s interest.. .in ensuring that each side relies on its own wits in preparing their respective cases. Though the issue is not free from doubt, application of those principles to the present circumstances weighs against work product protection for the identities of the interviewees. As Teleflora argues, the identity of witnesses having knowledge of relevant facts is discoverable information. REDACTED It is not enough for AFS to say it has already provided Teleflora with the names of persons having knowledge of how Membership Obligation No. 2 was enforced — names gathered from its examination and analysis of Teleflora’s own prior discovery responses. True enough, what Teleflora now seeks is the fruit of AFS’s further investigation into matters potentially within the knowledge and control of Teleflora. But it is important to stress “potentially,” for in real world terms Teléflora (that is, its litigation team) obviously does not automatically have all the knowledge lodged somewhere in Teleflora the legal entity. Teleflora’s ability to distill the 200-person list, as tendered by AFS,- into the two names of persons with allegedly inculpatory information smacks of | [
{
"docid": "21948389",
"title": "",
"text": "on the fact that the search for witnesses on the subject of commercial success has been carried on under the direction of their counsel and, thus, it is claimed that the entire subject comes under the protection of the work product rule. Rule 33 allows interr... | [
{
"docid": "22322861",
"title": "",
"text": "Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D.Del.1982): In selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case. Indeed, in a case such as this, involving extensive documen... |
547023 | on the Secretary in making his ultimate determination of disability. Further, the treating physician’s opinion that plaintiffs physical problems are severe and disabling is also not supported by the record. A treating physician’s opinion may be rejected if his conclusions are not supported by specific findings. See 20 C.F.R. § 404.-1527(d); Hamilton, 961 F.2d at 1498. The ALJ rejected the treating physician’s opinion here because the treating physician’s own office records did not support his later expressed opinion that plaintiff was totally disabled. The treating physician did not suggest plaintiffs condition had deteriorated since his last examination of plaintiff when he had opined that plaintiff could return to some kind of light or sedentary work. Cf. REDACTED Instead, the physician indicated plaintiffs condition had not changed since he had first begun treating him. Appellant’s App. at 113. The treating physician’s office notes are supported by objective medical evidence (X-rays have identified no abnormality) and plaintiffs testimony. The office notes show the treating physician reported and credited plaintiffs complaints of pain. However, his examinations have shown that despite the pain, plaintiff had good range of motion in his neck and used pain medication sparingly. Plaintiff testified to minimal use of pain medication ranging from needing no pain medication at all | [
{
"docid": "12593357",
"title": "",
"text": "spasms, muscle weakness, diminished reflexes, and pain, all of which support his opinion. Laboratory reports showing spondyloarthrosis, arthritis in the lumbar and lumbosacral facet joints, and some narrowing of the [spinal] canal also support the opinion. Th... | [
{
"docid": "22393613",
"title": "",
"text": "of the claimant’s impairments including the claimant’s symptoms, diagnosis and prognosis, and any physical or mental restrictions. See id. §§ 404.1527(a)(2), 416.-927(a)(2). The Secretary will give controlling weight to that type of opinion if it is well supp... |
831733 | in his direct appeal to this Court, one based on the statute of limitations and the other based on the statutory meaning, under RICO, of “enterprise.” At trial, Brennan raised the latter argument, but not the former. Because Brennan failed to raise these issues earlier, we must first ask whether he is procedurally foreclosed from doing so now in this collateral proceeding. This question requires consideration of longstanding rules governing procedural foreclosures, along with the more recent development of the cause and prejudice test. a. Procedural Foreclosure of Claims in § 2255 Proceedings As a general rule, the failure to raise a nonconstitutional or nonjurisdictional claim on direct review has long precluded assertion of the claim in a collateral proceeding. See REDACTED Davis v. United States, 417 U.S. 333, 345 n. 15, 94 S.Ct. 2298, 2305 n. 15, 41 L.Ed.2d 109 (1974); Kaufman v. United States, 394 U.S. 217, 220 n. 3, 89 S.Ct. 1068, 1070 n. 3, 22 L.Ed.2d 227 (1969); Sunal v. Large, 332 U.S. 174, 178-79, 67 S.Ct. 1588, 1590-91, 91 L.Ed. 1982 (1947); Pacelli v. United States, 588 F.2d 360, 363 (2d Cir.1978), cert. denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979). Nevertheless, in “ ‘exceptional circumstances,’ ” even a nonconstitutional or nonjurisdictional error can result in a “ ‘complete miscarriage of justice’ ” justifying collateral relief. Davis, 417 U.S. at 346-47, 94 S.Ct. at | [
{
"docid": "22608269",
"title": "",
"text": "allowed to do service for an appeal.” Sunal v. Large, 332 U. S. 174, 178 (1947). For this reason, non-constitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings. Id., at 178-179; Davis v. United St... | [
{
"docid": "355808",
"title": "",
"text": "at 1077 n. 10, quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417, 421 (1962) (\"[e]ven those nonconstitutional claims that could not have been asserted on direct appeal can be raised on collateral review only if the alleged erro... |
356172 | by distraint. Section 3224, Rev. St. (26 USCA § 154) “is general and should not be construed as abrogating, by implication, the other equitable principle which permits suit to restrain collection where not only is the exaction illegal but there exist special and extraordinary circumstances sufficient to bring the case within some acknowledged head of equity jurisprudence.” Miller v. Standard Nut Margarine Co., 284 U. S. 498, 52 S. Ct. 260, 76 L. Ed. 422. As to commissioners’ authority or official obligation to collect a tax depending upon an assessment by the commissioners, see title 26 USCA §§ 102 and 104. And see authority for injunction when collector is exceeding his authority. Frazer v. Russell, Fed. Cas. No. 5067; REDACTED Nichol v. Gaston (C. C. A.) 281 F. 67, 73. The court has reached the conclusion that the “special excise tax” of $1,000 provided by section 206, tit. 26 USCA, is a penalty attaching upon proof of violation of state or local law prohibiting the sale of liquor, and cannot be enforced without giving the individual charged an opportunity to be heard under due process. Let a decree be presented in conformity with this opinion. | [
{
"docid": "9482247",
"title": "",
"text": "an additional penalty of $500 on retail dealers and $1,000 on manufacturers. The payment of such tax or penalty shall give no right to engage in the manufacture or sale of such liquor, or relieve anyone from criminal liability, nor shall this Act relieve any p... | [
{
"docid": "13270082",
"title": "",
"text": "and the subject matter, and concluding that the law was with the defendants and against the plaintiff. By note to counsel, the referee called attention to the case of Botta v. Scanlon, 2 Cir., 1961, 288 F.2d 504. Plaintiff has petitioned for review of the ord... |
788112 | look to the mandatory abstention provisions as a guide to whether they should exercise discretionary abstention. If most of the elements of mandatory abstention are present, they are inclined to exercise discretionary abstention. See Counts v. Guaranty Savings & Loan Assoc. (In re Counts), 54 B.R. 730, 736 (Bankr.D.Colo.1985); Braucher v. Continental Illinois Nat. Bank & Trust (In re Illinois-California Express, Inc.), 50 B.R. 232, 240-241 (Bankr.D.Colo.1985). The first element of mandatory abstention requires the filing of a timely motion. Although there is no such timely motion on file in this adversary proceeding, that fact is not an express requirement for discretionary abstention and it has been held that the abstention question can be raised by the court sua sponte. In REDACTED the court states that: For the court to harbor doubts regarding the propriety of continuing this proceeding, pending the parties raising the abstention issue, would be inconsistent with judicial responsibility. Matters involving abstention come within the general context of subject matter jurisdiction. Questions involving subject matter jurisdiction may be asserted by any party at any time or raised by a court sua sponte. The opinion cites several cases standing for the proposition that abstention may be raised by the court sua sponte. Id. at n. 15. The second element of mandatory abstention requires that the proceeding be based upon a state law cause of action. This is clearly the case here. Plaintiffs seek damages arising out of their purchase of | [
{
"docid": "10233320",
"title": "",
"text": "The court always retains jurisdiction to review and interpret its own orders. However, even though jurisdiction continues until the case is closed and is also found through section 1142(b) to resolve post-confirmation matters, that does not necessarily mean t... | [
{
"docid": "9342722",
"title": "",
"text": "Systems, 41 B.R. 749 (Bankr.D.N.D.1984), while recognizing that mandatory abstention did not apply because the instant adversary proceeding had been filed prior to § 1334’s effective date, concluded that [ajbstention is mandatory under [§ 1334(c)(2)] where the... |
321831 | the District Court’s denial of his petition for post-conviction relief under 28 U.S.C. § 2255. In 1998, Mr. Brown was convicted of conspiracy to distribute cocaine base and sentenced to thirty years of imprisonment pursuant to the United States Sentencing Guidelines. On appeal, he argues that this sentence should be reversed because the jury did not decide the quantity of drugs involved in the conspiracy, a fact that produced a longer sentence. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that any fact other than a prior conviction that results in a sentence longer than the statutory maximum, must be proved beyond a reasonable doubt to a jury.) This Court’s decision in REDACTED cert. denied, — U.S. —, 122 S.Ct. 848, 151 L.Ed.2d 725 (2002), forecloses Mr. Brown’s arguments. There, the Court held that a defendant may not raise an Apprendi claim for the first time on collateral review. Id. at 995. In addition, because Mr. Brown did not argue at trial that the jury must find the quantity of drugs involved in the conspiracy, he is procedurally barred from raising that argument in a post-conviction motion. Mr. Brown acknowledges the holding of Moss, but argues that the decision should be overruled. We are not at liberty to do so. See United States v. Prior, 107 F.3d 654, 660 (8th Cir.), cert. denied, 522 U.S. 824, 118 S.Ct. 84, 139 L.Ed.2d 41 (1997). Mr. | [
{
"docid": "22268128",
"title": "",
"text": "HANSEN, Circuit Judge. Darius Moss appeals from the district court’s denial of his initial motion pursuant to 28 U.S.C. § 2255 to set aside his sentence. Moss argues his 360-month sentence for drug law violations was imposed in violation of the rule announced... | [
{
"docid": "21748032",
"title": "",
"text": "during which the district court made findings regarding the quantities of cocaine and cocaine base attributable to each defendant, the court sentenced Roberts to 10 life sentences and two 360 month sentences, all to run concurrently; Covington to 11 life sent... |
84859 | Government as a holder of a federal tax lien, the surety has generally prevailed. It has prevailed either upon the theory of subrogation or equitable lien or the theory that there was “no debt” owing to the defaulting contractor to which the federal tax lien could attach. In the cases next cited the-surety prevailed upon the theory of equitable lien related back. American Surety Co. v. City of Louisville Municipal Housing Commission, D.C.1945, 63 F.Supp. 486, affirmed Glenn v. American Surety Co., 6 Cir., 1947, 160 F.2d 977; New York Casualty Co. v. Zwerner, D.C.1944, 58 F.Supp. 473; American Fidelity Co. v. Delaney, D.C.1953, 114 F.Supp. 702, 710. See also REDACTED upp. 792, affirmed, 4 Cir., 1954, 217 F.2d 275. In the case of Vincent v. P. R. Matthews Co., D.C.1954, 126 F.Supp. 102, the surety prevailed upon the theory of subrogation and equitable lien related back. It is to be noted that in all of those-cases there inhered the theory of relation-back and that none of them were reviewed by the United States Supreme Court. In the case of United States Fidelity & Guaranty Co. v. Triborough Bridge Authority, 1947, 297 N.Y. 31, 74 N.E.2d 226 (see Comment, 32 Minn.L.Rev. 645), the-surety prevailed both on the theory of equitable lien and that no debt was due. In the case of United States Fidelity & Guaranty Co. v. United States, 10 Cir., 1952, 201 F.2d 118, it was held that the surety on | [
{
"docid": "11121271",
"title": "",
"text": "an order dismissing that complaint as to them on the ground that it failed to state a claim upon which relief could be granted. The district judge treated that motion as a motion for summary judgment, under Rule 12(b), Fed. R.Civ.P., 28 U.S.C.A., heard argume... | [
{
"docid": "12449287",
"title": "",
"text": "after demand, the amount (including any in'terest, penalty, additional amount, or addition to such tax, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whethe... |
770382 | 1979) (award to Iowa Civil Liberties Union in Title VII case). See also Beazer v. New York City Transit Authority, 558 F.2d 97, 100 (2d Cir. 1977), rev’d on other grds., 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (award under § 1988 should be calculated without regard to non-profit or public interest nature of the work). Third, we are not convinced by the defendants’ suggestion that setting fees in this case without regard to the salaries paid by the National Prison Project results in an impermissible windfall to the organization. Of course, concern is expressed in the legislative history and in the case law that counsel not be unjustly enriched. E. g., 5. Rep.No. 1011, supra, at 6; REDACTED We do not think, however, that compensating a public interest organization like the National Prison Project on the same basis as a private practitioner results in such a windfall, particularly when fees are expected to be used to finance more civil rights litigation. Indeed, we are concerned that compensation at a lesser rate would result in a windfall to the defendants. See id. at 649. Finally, the panel decision in Copeland v. Marshall, 193 U.S.App.D.C. 219, 594 F.2d 244 (D.C.Cir.1978), does not persuade us to revamp our entire approach to attorney’s fees. In that case, the court advocated a cost plus reasonable profit approach to calculating attorney’s fees in a Title VII case where the federal government was the | [
{
"docid": "23196769",
"title": "",
"text": "Admin.News 1976, p. 5910. The economic factors relevant to the decision as to whether fee shifting in this case would be unjust must be weighed in light of this legislative intent. Should it be determined that counsel is entitled to fees here, the amount of t... | [
{
"docid": "4460050",
"title": "",
"text": "Angeles, 8 Empl.Prac.Dec. 5047 (C.D. Cal.1974), a Title VII case in which the court said: [I]t is not legally relevant that plaintiffs’ counsel ... are employed by the Center for Law In The Public Interest, a privately funded non-profit public interest law fir... |
40809 | 'was made in good faith. In its counterclaim the defendant explicitly alleges that the controversy is “between citizens of different states and the value of the matter in controversy exceeds the sum or value of three thousand dollars ($3,000) exclusive of interest and costs, wherefore the defendant counter-claimant alleges that this Honorable Court has jurisdiction herein,” etc. Central Commercial Co. v. Jones-Dusenbury Co. (C.C.A.) 251 F. 13; American R. Co. of Porto Rico v. South Porto Rico Sugar Co., 293 F. 670 (C.C.A.1); Scott v. Donald, 165 U.S. 58, at page 89, 17 S.Ct. 265, 41 L.Ed. 632; Schunk v. Moline, etc., Co., 147 U.S. 500, 505, 13 S.Ct. 416, 37 L.Ed. 255, show the limitation of the rule. See, too, REDACTED 642, 643, 27 S.Ct. 297, 51 L.Ed. 656. The question whether the suit should be on the equity side of the court or the law side was not one going to the jurisdiction of the court as a federal court. As to it the agreement of the parties assented to by the court that the case should proceed on the equity side is controlling. William son v. Chicago Mill & Lumber Co., 59 F.(2d) 918 (C.C.A.8). The defendant’s next points are that the plaintiff’s breach of the agreement precluded her from recovering on it; and that her refusal to assist in the infringement suit terminated the agreement and relieved it from paying any further royalties. The District Judge ruled that “the threatened action | [
{
"docid": "23267178",
"title": "",
"text": "than $2,000; and (3) That the plaintiff in his petition had fraudulently stated the value of his land, the extent of his damages and the joint character of defendant’s action in entering and taking possession of his land, and had done this for the purpose of ... | [
{
"docid": "12334632",
"title": "",
"text": "That court, one judge dissenting, held that plaintiff was “a government agency engaged in the performance of functions of the Government” and that the assessments were void. Before findings and decree were approved and announced by that court, one of the dist... |
222429 | "applicable Army regulations. We thus conclude the ABCMR did not act arbitrarily and capriciously in refusing to upgrade Green’s discharge from undesirable to honorable. Privacy Act Claim On appeal, the Secretary argues Green’s’ Privacy Act claim is barred by the statute of limitations. We agree. An action to enforce rights under the Privacy Act must be brought “within two years from the date on which the cause of action arises.” 5 U.S.C. § 552a(g)(5). A cause of action arises under the Privacy Act when the individual knows or has reason to know of the alleged error in the individual’s record and the individual is harmed by the alleged error. See Diliberti v. United States, 817 F.2d 1259, 1262 (7th Cir.1987); REDACTED Green knew of the alleged error in his record in 1981 when he first sought to have his discharge upgraded from undesirable to honorable. Green was also harmed by the alleged error in 1981 when he was denied medical treatment from the Department of Veterans Affairs hospital because he did not have an honorable discharge. On this basis,""we conclude Green’s Privacy Act claim arose in 1981. Because Green did not file-suit until December of 2001, his claim is barred by the Privacy Act’s two-year statute of limitations. III. Conclusion For the foregoing reasons, we will affirm the order of the district court." | [
{
"docid": "23556228",
"title": "",
"text": "separately these two appeals, we note that the complaints in each underlying action were filed pro se, and, as did the district court, we find them somewhat difficult to track. No. 83-2426 (Privacy Act) As stated, the district court granted summary judgment i... | [
{
"docid": "17631606",
"title": "",
"text": "1981. Whether Davis is correct is an issue we need not decide, however, since subsection (c) of § 1981 states that “[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State l... |
437081 | between each charterer and Seatrain, Seatrain agreed to guarantee certain payments and covenants by each charterer to the owner. Id., at 142-156. The contractual responsibilities thus were clearly laid out. There is no reason to extricate the parties from their bargain. Similarly, in the fifth count, alleging the reverse installation of the astern guardian valve, the only harm was to the propulsion system itself rather than to. persons or other property. Even assuming that Delaval’s supervision was negligent, as we must on this summary judgment motion, Delaval owed no duty under a products-liability theory based on negligence to avoid causing purely economic loss. Cf. Flintkote Co. v. Dravo Corp., 678 F. 2d 942 (CA11 1982); REDACTED Thus, whether stated in negligence or strict liability, no products-liability claim lies in admiralty when the only injury claimed is economic loss. While we hold that the fourth count should have been dismissed, we affirm the entry of judgment for Delaval. It is so ordered. Compare East River S.S. Corp. v. Delaval Turbine, Inc., 752 F. 2d 903 (CA3 1985) (en bane) (this case), with Ingram River Equipment, Inc. v. Pott Industries, Inc., 756 F. 2d 649 (CA8 1985), cert. pending, No. 85-12; Miller Industries v. Caterpillar Tractor Co., 733 F. 2d 813 (CA11 1984); Emerson G. M. Diesel, Inc. v. Alaskan Enterprise, 732 F. 2d 1468 (CA9 1984). See also Pan-Alaska Fisheries, Inc. v. Marine Constr. & Design Co., | [
{
"docid": "23163938",
"title": "",
"text": "For this reason, although we find encouragement in cases relied upon by Smith, as well as the recent decision in Lincoln Pulp & Paper Co. v. Dravo Corp., 436 F.Supp. 262 (D.Me.1977) (Pennsylvania law), we decline to treat any of them as precisely in point. Su... | [
{
"docid": "2290255",
"title": "",
"text": "as to any material fact and that the moving party is entitled to a judgment as a matter of law.” If there is a factual dispute, the appropriate judicial inquiry under Rule 56 is whether “the evidence presents a sufficient disagreement to require submission to ... |
657000 | complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). III. FCRA Claim Plaintiff argues at length that AT & T reported inaccurate information to the CRAs because he never opened an account with AT & T. (Doc. No. 113-2 at 11-18) Whether true or not, these allegations are not germane. FCRA Section 1681s-2(a) requires furnishers of credit information, like Defendant, to provide accurate information to CRAs in the first instance. A private consumer like Plaintiff, however, may not bring a cause of action for an alleged violation of 1681s-2(a). 15 U.S.C. § 1681s—2(d); REDACTED Plaintiff undoubtedly is aware of this limitation, as demonstrated by the fact that he filed his claim under 1681s-2(b), which does permit private causes of action. Under Section 1681s-2(b), once a CRA (like Equifax, Experian or Trans Union) notifies a credit furnisher (like Defendant) of a dispute, the furnisher must: 1) conduct an investigation with respect to the disputed information; 2) review all relevant information received from the CRA; 3) report the results of the investigation to the CRA; and 4) if the information is found to be inaccurate or incomplete, report the results to all CRAs to which it originally provided the erroneous information. 15 U.S.C. § 1681s-2(b). Defendant AT & T moves for summary judgment arguing that | [
{
"docid": "23230520",
"title": "",
"text": "1681s-2(a) prohibits any person from “furnishing] any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate.” Id. § 1681s-2(a)(1)(A). Congress expressly li... | [
{
"docid": "19596158",
"title": "",
"text": "results to all other consumer reporting agencies to which the person furnished the information and that compile and maintain files on consumers on a nationwide basis; and (E) if an item of information disputed by a consumer is found to be inaccurate or incomp... |
430814 | of his information but cannot meet the stringent prejudice requirements of the Due Process Clause. A. The Sixth Amendment Guarantee of a Speedy Trial. The right to a speedy trial arises only after (1) arrest or (2) official accusation. United States v. MacDonald, 456 U.S. 1, 6, 102 S.Ct. 1497, 1500-01, 71 L.Ed.2d 696 (1982); see also Doggett v. United States, — U.S. -, -, 112 S.Ct. 2686, 2692, 120 L.Ed.2d 520 (1992) (recognizing that the Sixth Amendment has no application before a formal criminal prosecution). The Supreme Court has adopted a narrow definition of official accusation, usually including only indictment and information. See United States v. Lovasco, 431 U.S. 783, 788, 97 S.Ct. 2044, 2047-48, 52 L.Ed.2d 752 (1977); REDACTED see also United States v. Juarez, 561 F.2d 65, 67 (7th Cir.1977). Lower courts have limited the definition to events serving the same function as an indictment. Favors v. Eyman, 466 F.2d 1325 (9th Cir.1972). Although Wisconsin employs unique pretrial procedures, the State nonetheless “officially charged” Pharm when it issued his information. Instead of requiring indictment by a grand jury, Wisconsin felony courts provide preliminary examinations, where a judge, rather than a jury, decides whether the State has probable cause to believe that the defendant has committed a felony. Wis.Stat. § 970.03; but see Wis. Stat. § 968.06 (in some cases, the courts may use both an indictment and an information). After finding probable | [
{
"docid": "22667986",
"title": "",
"text": "view to preventing such wrong to the citizen . . . [and] in aid of the constitutional provisions, National and state, intended to secure to the accused a speedy trial” had passed statutes limiting the time within which such trial must occur after charge or in... | [
{
"docid": "13265732",
"title": "",
"text": "policy underlying the work-product doctrine ... is adequately safeguarded by the Jencks Act,” which was incorporated into Rule 26.2) but Wallace, for whatever reason, simply chose not to use those safeguarding procedures. B. Sixth Amendment Right to a Speedy ... |
696021 | with men and tend arbitrarily to deprive them of emplbyment and a fair chance to find. work. This court, on the authority of the Adkins case and with the acquiescence of all the justices who dissented from the decision, held repugnant to the diie process clause' of the Fourteenth Amendment statutes of Arizona and Arkansas, respectively, fixing minimum wages for women. Murphy v. Sardell, 269 U. S. 530. Donham v. West-Nelson Mfg. Co., 273 U. S. 657. We have adhered to the principle there applied and cited it as a guide in other,cases. Meyer v. Nebraska, 262 U. S. 390, 399. Wolff Packing Co. v. Industrial Court, 262 U. S. 522, 534. Ribnik v. McBride, 277 U. S. 350, 356. See REDACTED States having similar enactments have construed it to prevent the fixing of wages for adult women. Topeka Laundry Co. v. Court of In dustrial Relations, 119 Kan. 12; 237 Pac. 1041. Stevenson v. St Clair, 161 Minn. 444; 201 N. W. 629. See-Folding Furniture Works v. Industrial Commission, 300 Fed. 991. People v. Successors of Laurnaga & Co., 32 P. R. 766. The New York court’s decision conforms to ours in the Adkins case, and the later rulings that we have made on the authority of that case. That decision was deliberately made upon careful consideration of the oral arguments and briefs of the respective parties and also of briefs submitted on behalf of States and others as amici curiae. In | [
{
"docid": "22612258",
"title": "",
"text": "274 U. S. 380, 382; Stromberg v. California, ante, p. 359. In maintaining this guaranty, the authority of the State to enact laws to promote the health, safety, morals and general welfare of its people is necessarily admitted. The limits of this sovereign pow... | [
{
"docid": "23079262",
"title": "",
"text": "of the oral arguments and briefs of the respective parties and also of briefs submitted on behalf of States and others as amici curiae. In the. Arizona case the attorney general sought to distinguish the District of Columbia Act from the legislation then befo... |
35846 | was entered on August 26, 1991. Christia-nia appeals. We affirm in part, reverse in part, and remand this case to the district court. DISCUSSION In this diversity litigation, New York law controls. A reinsurance contract is governed by the rules of construction applicable to contracts generally. See Sun Mutual Ins. Co. v. Ocean Ins. Co., 107 U.S. 485, 506, 1 S.Ct. 582, 596, 27 L.Ed. 337 (1882); London Assurance Corp. v. Thompson, 170 N.Y. 94, 99, 62 N.E. 1066 (1902); 19 G. Couch, Cyclopedia of Insurance Law § 80:48 (Rev.2d ed. 1983) (Couch). Thus, when the terms of the contract (“prompt notice”) are ambiguous, as here, reference to extrinsic evidence provides guidance to the parties’ intent. See REDACTED Such extrinsic evidence may in appropriate cases include industry custom and practice. See London Assurance, 170 N.Y. at 99, 62 N.E. 1066. And, though the construction of a contract is a matter of law, when resort to extrinsic evidence is necessary to shed light on the parties’ intent summary judgment ordinarily is not an appropriate remedy, see Seiden, 959 F.2d at 428, and must be denied unless, viewing the evidence in a light most favorable to the non-movant and resolving all doubts in its favor, no reasonable trier of fact could find against the movant. See id. at 429. I Notice For a reinsurer to be relieved from its indemnification obligations because of the reinsured’s failure to provide timely notice, | [
{
"docid": "22371058",
"title": "",
"text": "fee. Because it found that the language of the contract was unambiguous, the district court refused to consider plaintiff’s proffer of extrinsic evidence of the parties’ intent. Hence, the $1 million discretionary bonus paid by the defendant to Sick in March ... | [
{
"docid": "15923790",
"title": "",
"text": "e.g., Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 430 (2d Cir.1992). Under New York law, the question of ambiguity vel non must be determined from the face of the agreement, without reference to extrinsic evidence. Kass v. Kass, 91 N.Y.2d 554, 5... |
852277 | creditor bank, proposed to respondent that ho might best get hack “on his feet” by appointing them a committee, temporarily, to mange' his affairs. But there was nothing improper in this, or nothing inconsistent with the trust company’s present position. As to the matter of disqualification of the three petitioning- creditors, Bankruptcy Act, § 59b (11 USCA § 95), provides that “three or more creditors who bjavo provable claims against any person * * may file a petition to have him adjudged a bankrupt.” Under some of the decisions, “provable” is held to mean any claim which might be proved, whether preferred or not; while other cases hold that it is the equivalent of “allowable.” See REDACTED But ibe weight of authority is that a creditor, who has received a voidable preference, may still join in the petition, though he may not be counted as one of the required three petitioning creditors, unless he surrender's his preference. Stevens v. Nave-McCord Co. (C. C. A.) 150 F. 71; In re Gillette (D. C.) 104 F. 769; Canute S. S. Co. v. Pittsburg Coal Co., 263 U. S. 244, 44 S. Ct. 67, 68 L. Ed. 287; In re Cooper (D. C.) 12 F.(2d) 485. As was said in the Stevens Case, page 76: “The evil of preferences which the bankrupt law was enacted to remove, the remedy of an equal distribution of the property of the bankrupt which it was | [
{
"docid": "3611260",
"title": "",
"text": "or its value from such person.” Section 60a, of the act (section 9644) defines a preference as follows: “A person, shall be deemed to have given a preference if, being insolvent, he has, within four months before the filing' of the petition, * * made a transfe... | [
{
"docid": "2370104",
"title": "",
"text": "had, must be appropriated to the payment of the partnership debts. Should any surplus of the partnership property remain after paying the partnership debts, such surplus is added to the assets of the individual partners. Section 5f of the bankrupt act. Proof o... |
201624 | . Following our decision in Hassell, several courts articulated formulations to determine when a parent-subsidiary relationship is not a “normal one” in assessing whether the two will be considered as a single employer for Title VII purposes. Among these cases is Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977). In Baker, the Eighth Circuit adopted the test used by the National Labor Relations Board to determine the single employer question for purposes of Section 2(2) of the National Labor Relations Act, 29 U.S.C. § 152(2). The court in Baker noted our decision as being in conflict with courts that have embraced the NLRB formulation. See also EEOC v. Cuzzens of Georgia, Inc., 15 FEP REDACTED EEOC v. Upjohn Corp., 445 F.Supp. 635 (N.D.Ga.1977). Yet district courts of this Circuit have concluded that the NLRB test is not inconsistent with Hassell, a position that amicus curiae takes in this case. See EEOC v. The Wooster Brush Co., 523 F.Supp. 1256 (N.D.Ohio 1981) (Contie, J.) and the district court opinion herein, 498 F.Supp. at 862. See also Mas Marques v. Digital Equipment Corp., 637 F.2d 24 (1st Cir.1980). . The determination that an employer who employed fifteen employees should be subject to the requirements of 42 U.S.C. § 2000e was a compromise between the proponents and opponents of the original bill that was introduced in the House and Senate. As originally proposed, both the House and Senate version of the bill set the minimum number of employees | [
{
"docid": "3325815",
"title": "",
"text": "leading case in propounding the view is Williams v. New Orleans Steamship Association, 341 F.Supp. 613 (E.D.La. 1972) . In Williams, the District of Louisiana embraced an EEOC opinion to the effect that establishments which are part of an integrated enterprise... | [
{
"docid": "22143388",
"title": "",
"text": ". The determination that an employer who employed fifteen employees should be subject to the requirements of 42 U.S.C. § 2000e was a compromise between the proponents and opponents of the original bill that was introduced in the House and Senate. As originall... |
329838 | Township would have in his not applying for them. All of Plaintiffs remaining claims, therefore, pass the second step of the test and must be considered in the third. C. Did Retaliation Cause Defendants’ Actions Against Plaintiff, and Would Defendants Have Done the Same Absent Retaliatory Motives? The Court of Appeals for the Third Circuit has made clear that the final steps of the inquiry, present questions of fact, to be left for a jury. Baldassare v. New Jersey, 250 F.3d 188 (3d Cir.2001) (citing Green v. Philadelphia Housing Auth., 105 F.3d 882, 889 (3d. Cir.1997) (recognizing second and third steps in Pickering/Mt. Healthy analysis are questions for fact finder); Watters v. City of Philadelphia, 55 F.3d 886, 892 n. 3; REDACTED cert. denied, 488 U.S. 899, 109 S.Ct. 245, 102 L.Ed.2d 233 (1988); Johnson v. Lincoln Univ., 776 F.2d 443, 454 (3d Cir.1985) (holding “second and third questions ... should be submitted to the jury”)). Therefore, the Court remains mindful of its duty to interpret the evidence in the light most favorable to the non-moving party, and draw all reasonable inferences in receiving Plaintiffs favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir.2007). In doing so, however, it will not limit itself to the arguments of the parties but will consider | [
{
"docid": "6695170",
"title": "",
"text": "and we therefore do not review the district court’s grant of summary judgment on that issue. . In Murray, plaintiffs speech concerned a furlough lottery instituted to determine which employees were to be laid off. The court held this \"was purely a labor relat... | [
{
"docid": "2435848",
"title": "",
"text": "claim by demonstrating that, absent the protected conduct, it would have taken the same adverse action. Id. (citations omitted). See also Reilly v. City of Atlantic City, 532 F.3d 216 (3d Cir.2008) (quoting Springer v. Henry, 435 F.3d 268, 275 (3d Cir.2006)). ... |
164395 | "our unflagging ""obligation to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression,' "" Bose Corp., 466 U.S. at 499, 104 S.Ct. 1949 (quoting N.Y. Times Co., 376 U.S. at 284-86, 84 S.Ct. 710 ); accord Metro. Opera Ass'n, v. Local 100, Hotel Emps. & Rest. Emps. Int'l Union, 239 F.3d 172, 176 (2d Cir. 2001). The injunction issued in this case, which prohibits the appellants from republishing six particular statements, is a paradigmatic example of a prior restraint: it is a ""judicial order[ ] forbidding certain communications ... issued in advance of the time that such communications are to occur."" REDACTED As such, it is subject to even more exacting requirements under settled First Amendment doctrine. See Tory, 544 U.S. at 738, 125 S.Ct. 2108 (treating post-trial injunction against republication of previously defamatory statements as prior restraint). There is a strong presumption that prior restraints on speech are unconstitutional. See N.Y. Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (per curiam). So drastic a remedial device may only be imposed when it furthers ""the essential needs of the public order."" Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175, 183, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968). A prior restraint cannot" | [
{
"docid": "22080650",
"title": "",
"text": "well beyond the limits established by our cases. To accept petitioner’s argument would virtually obliterate the distinction, solidly grounded in our cases, between prior restraints and subsequent punishments. The term “prior restraint” is used “to describe ad... | [
{
"docid": "1480450",
"title": "",
"text": "lawless action and is likely to incite or produce such action. . The Supreme Court has long adhered to the principle that any system of prior restraint of expression bears a heavy presumption against its constitutional validity. Southeastern Promotions, Ltd. v... |
449042 | (2) a likelihood of success on the merits or a sufficiently serious question going to the merits and a balance of hardships tipping decidedly in the moving party’s favor. See, e.g., American Postal Workers Union, AFL-CIO v. United States Postal Service, 766 F.2d 715, 721 (2d Cir.1985), cert. denied, 475 U.S. 1046, 106 S.Ct. 1262, 89 L.Ed.2d 572 (citing Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979)). Thus, a showing of irreparable harm is a threshold requirement Plaintiffs must establish in order to obtain a preliminary injunction. 1. Irreparable Harm It is well established that, absent extraordinary circumstances, loss of income and/or other purely financial concerns do not constitute irreparable harm. E.g., REDACTED Thus, Plaintiffs must assert more than this to satisfy the irreparable harm standard. Plaintiffs contend that an injunction is warranted here in that “[ujpon information and belief, the threatened acts of retaliation will have a chilling effect on the exercise of First Amendment rights by Plaintiffs and other employees of [SUNY Oswego].” Id. at ¶ 10. Their basis for irreparable harm therefore appears to be that Defendants’ alleged retaliatory actions against Plaintiffs for having made discrimination claims against Defendants have produced, and will continue to produce, a “chilling effect” on their First Amendment rights. In support of this contention, Plaintiffs allege that “[t]he defendants ha[ve] discriminated against and harassed plaintiffs in order to silence them,” Plaintiffs’ Suppl. Memo, | [
{
"docid": "7145375",
"title": "",
"text": "was left unresolved or that the plaintiff had not met her burden of proof. He ultimately concluded, “What is clear, however, is that the plaintiff has failed to make the requisite showing of irreparable harm,” id. at 18 (emphasis added). Since we conclude that... | [
{
"docid": "19835898",
"title": "",
"text": "serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting preliminary relief. See Citibank, N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir.1985) (quoting Bell & Howel... |
533454 | "CNA on August 9, 2002, stating that it had not yet received the “anticipated follow up” to CNA's July 19, 2002 letter. (AR at 38). At that time, the California DOI again requested a copy of CNA’s complete claim file. (Id.). . Defendants do not rebut plaintiff's argument that CNA did not provide these letters to Dr. Truchelut for his review, and the court cannot find any indication in the record indicating that Dr. Truchelut did, in fact, review the letters. . The Ninth Circuit has used interchangeably the phrases “arbitrary and capricious” and ""abuse of discretion;” however, ""[a]ny difference between the two standards ... is in name only.” Hensley, 258 F.3d at 994 n. 4; see also REDACTED . In most cases when the de novo standard of review is applied, however, the court ""should only look at the evidence that was before the plan administrator ... at the time of the determination.” Mongeluzo v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 944 (9th Cir.1995) (internal quotation marks omitted); see also Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090-91 (9th Cir.), cert. denied, 528 U.S. 964, 120 S.Ct. 398, 145 L.Ed.2d 310 (1999) (same). . Under both Plans, ""We” refers to defendant" | [
{
"docid": "22198617",
"title": "",
"text": "considering evidence that was not part of Equitable’s administrative record. Because Equitable did not abuse its discretion in terminating Taft’s disability benefits based solely upon that record, we reverse. REVERSED. . Equicor, a subdivision of Equitable, a... | [
{
"docid": "5797673",
"title": "",
"text": "decision for an abuse of discretion. Under that standard, the district court correctly determined that additional evidence could not be considered. In Taft v. Equitable Life Assurance Soc’y, 9 F.3d 1469 (9th Cir.1994), this court explained that “[p]ermitting a... |
798659 | in such manner as to constitute clear arbitrariness or caprice, no constitutional rights are infringed.” Breeden v. Jackson, 457 F.2d 578, 580-581 (4th Cir.1972). Should a sentenced prisoner desire to allege an infringement of his constitutional rights based upon his treatment while in prison, he should raise the issue via an extraordinary writ. See generally Bell v. Wolfish, supra; Altizer v. Paderick, 569 F.2d 812 (4th Cir.1978); Shelton v. Taylor, 550 F.2d 98 (2d Cir.1977); Sellers v. Ciccone, 530 F.2d 199 (8th Cir.1976); Breeden v. Jackson, supra. It is not an issue properly contested in ordinary appellate proceedings because it relates neither to the validity of his conviction nor his approved sentence. United States v. Williams, 14 M.J. 994 (N.M.C.M.R.1982); REDACTED Furthermore, even had the accused’s case been finalized within a period of time that reflected reasonable diligence on the government’s part, and even if he had gained immediate entry to the USDB, his chances at obtaining clemency would have been no better than they were as a result of the regulatory consequences of the post-trial delay. For had both these contingencies occurred, the accused would have been presented with but a single opportunity to be considered for probation on 6 July 1983, after 6 months confinement, rather than a first opportunity on 10 May 1983, after 4 months confinement, to request his convening authority grant him immediate clemency relief in lieu of a 6 July 1983 probation hearing, a second opportunity on | [
{
"docid": "12143105",
"title": "",
"text": "to his case is correct. His further assertion that the rule was not complied with, however, is without merit. Dunlap’s presumption that “a denial of speedy disposition of the case will arise when the accused is continuously under restraint after trial and the... | [
{
"docid": "16332420",
"title": "",
"text": "at best, a dubious indicator, the Court in Schreck I gave no indication that submitting no comments at all would have constituted incompetency. United States v. Schreck, supra at 228. Assuming arguendo that this counsel did commit error, the accused has suffe... |
287578 | "745 n.21 (5th Cir. 1996). Despite Judge Niemeyer’s concern with creating a Circuit split, the Second Circuit, the Ninth Circuit, and, of course, the Seventh Circuit have all held that subclasses can be used to satisfy predominance concerns since at least 2001, two years before REDACTED dissenting)(arguing that the predominance requirement in Fed. R. Civ. P. 23(b) applies to the action as a whole, not to individual subclasses or claims); Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir. 1996)(""The proper interpretation of the interaction between [Fed. R. Civ. P. 23] subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.""). We did not directly address the propriety of such partial certification in Klav. Borrero v. United Healthcare of N.Y., Inc., 610 F.3d 1296, 1310 n. 5 (11th Cir. 2010)(alterations in" | [
{
"docid": "23323940",
"title": "",
"text": "trials the issues of damages and, in some cases, causation, as web as: 1) all claims under the South Carolina Unfair Trade Practices Act; 2) all claims alleging civil conspiracy; 3) all claims involving violations of RICO; 4) all issues that qualify each plai... | [
{
"docid": "10650225",
"title": "",
"text": "test. See Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1202 (10th Cir.2000) (\"We employ the transactional approach of the Restatement (Second) of Judgments....\"); In re Intelogic Trace, Inc., 200 F.3d 382, 386 (5th Cir.2000) (holding that, in determinin... |
647330 | which heard the insurance contract case was interfered with in any manner by the fraud perpetrated by Gore. The court rejects the plaintiff’s contention that the fraud in this case presents a deliberate scheme to directly subvert the judicial process. The fraud in this case “primarily concerns the two parties involved and does not threaten the public injury that a fraudulently-obtained legal monopoly did in Hazel-Atlas.” Great Coastal Express v. Brotherhood of Teamsters, 675 F.2d 1349, 1356-57 (4th Cir.1982). Perjury is an intrinsic fraud which will not support relief from judgment through an independent action. See United States v. Throckmorton, 8 Otto 61, 98 U.S. 61, 25 L.Ed. 93 (1878); see also Great Coastal Express, 675 F.2d at 1358 (4th Cir.1982); REDACTED Under the Throckmorton doctrine, for fraud to lay a foundation for an independent action, it must be such that it was not in issue in the former action nor could it have been put in issue by the reasonable diligence of the opposing party. See Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 425, 43 S.Ct. 458, 465, 67 L.Ed. 719 (1923). Perjury by a party does not meet this standard because the opposing party is not prevented from fully presenting his case and raising the issue of penury in the original action. Perjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out | [
{
"docid": "22255662",
"title": "",
"text": "almost three years after the judgment was entered. Wood’s motion, therefore, cannot be granted under Rule 60(b)(3) Rule 60(b) also provides that a court may consider an independent action to set aside a judgment for fraud on the court. Although there is no ti... | [
{
"docid": "22955540",
"title": "",
"text": "dishonestly or fraudulently; on the contrary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of a case he perpetrates fraud upon a court. Id. The autho... |
519769 | to the estate, and the no less legitimate expectation of the trustee-attorney to be either compensated for any extraordinary legal services at the rate customary for compensation of attorneys in bankruptcy proceedings or to be under no duty to render them. 3A Collier on Bankruptcy ¶ 62.12, at 1471, 1472 (14th ed. 1975, Supp.1978). If an attorney is appointed trustee and then discovers that the administration of the bankrupt estate requires “extraordinary legal services,” the trustee may obtain a court order permitting him or her or some other attorney to act as attorney. See Bankruptcy Rule 215(e). The Seventh Circuit has upheld a bankruptcy court’s award of fees at differential rates to an attorney who represented himself as trustee. REDACTED In that case, the court noted that the SEC and the Administrative Office of the United States Courts encouraged the practice of appointing, and compensating, the same person as receiver and attorney, for economy reasons. Id. at 1180. The Second Circuit Court of Appeals has expressed disapproval of appointment of counsel for an attorney-trustee, especially “in the case of small or medium sized estates heading for liquidation, since there is little reason why two people should have to familiarize themselves with the relevant facts at the estate’s expense.” In re Mabson Lumber Co., 394 F.2d 23, n. 3 at 24 (2d Cir. 1968). See also, Matter of Kinsbursky, 26 F.2d 91, 92 (W.D.Pa.1928) (referee did not abuse discretion in | [
{
"docid": "10743995",
"title": "",
"text": "receive “any other or further compensation for his services” than that expressly authorized by the Act. 11 U.S.C. § 112. The 1938 amendment, however, changed the provision to permit receipt of compensation for services not required by the Act by adding the wo... | [
{
"docid": "22333865",
"title": "",
"text": "the Trustee. Normally, the responsibility of liquidating the assets of a bankrupt estate rests solely with the Trustee, as does the duty to submit periodic inventories and accounts. 11 U.S.C. § 75. In some circumstances, however, the assistance of counsel may... |
64982 | "establish jurisdiction under subsection (a)(1). See Flora , 362 U.S. at 176-77, 80 S.Ct. 630. But given the procedural posture of this case, we leave a definitive holding on this issue for another day. 28 U.S.C. § 1340 provides: ""The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Court of International Trade."" As Judge Posner has observed, ""the elimination of the minimum amount in controversy from [28 U.S.C. § 1331 ] made [28 U.S.C. § 1340 ] ... [one of] so many beached whales, yet no one thought to repeal those now-redundant statutes."" REDACTED The Government's other two claims of error are that (1) the District Court unduly weighed Bedrosian's subjective motivations when assessing willfulness, and (2) it clearly erred in finding that Bedrosian did not know he owned a second foreign bank account in Switzerland. Given our disposition of the appeal, we need not directly address either of these claims and leave it to the District Court if it needs to do so on remand." | [
{
"docid": "9916775",
"title": "",
"text": "solve them. There may have been an equal number of problems that were not raised and therefore — because Congress is too busy to resolve problems that are entirely hypothetical — not provided for. It is perverse on the one hand to penalize draftsmen for having... | [
{
"docid": "16904103",
"title": "",
"text": "IRS claims for 1987 and 1988 even if there was a jurisdictional hook. Therefore, the remainder of the discussion, which details why it is inappropriate to exercise jurisdiction over the IRS claims, pertains only to the claims for the years 1989 and 1990. ii. ... |
513378 | of characteristics that indicated federal control); St. Michael’s Convalescent Hosp. v. State of Cal., 643 F.2d 1369, 1373-74 (9th Cir.1981) (rejecting argument that use of federal funds pursuant to federal regulations transformed entity into a federal agency); Rocap v. Indiek 539 F.2d 174, 177 (D.C.Cir.1976) (finding Federal Home Loan Mortgage Corp. to be a federal “agency” because it was federally chartered, its board of directors consisted of federally-appointed officers and it was subject to federal audits and daily supervision); DeHarder, 909 F.Supp. at 617 (finding Indiana Housing Finance Authority was not a federal agency because it was not federally-chartered, the state appointed its directors and it was subject to almost no federal supervision over its business transactions); REDACTED Dennie v. Univ. of Pittsburgh Sch. of Med., 589 F.Supp. 348, 352 (D.Vi.1984) (dismissing complaint because plaintiff alleged nothing to show substantial federal control or supervision over university hospital and medical school to characterize them as “federal” for Privacy Act purposes). Accordingly, Counts IV, V and VI of Plaintiffs’ amended complaint against the College are dismissed with prejudice. The Court adds that it has given Plaintiffs an opportunity to amend their complaint once before. And, while Fed. R.CivP. 15(a) states that leave to amend should be granted “when justice so requires,” a court generally will deny a motion to amend in instances of futility, undue | [
{
"docid": "14137940",
"title": "",
"text": "44 L.Ed.2d 450 (1975) (organization’s authority to make final decisions is indicative of government-controlled, FOIA agency status, although “each arrangement must be examined anew and in its own context”). Plaintiffs generally insist that because FOIA’s sect... | [
{
"docid": "10441693",
"title": "",
"text": "Executive Office of the President, the APA conferred agency status on any administrative unit with substantial independent authority in the exercise of specific functions. Id. at 1073. Applying that reasoning, we held that the OST was an agency under FOIA. Id... |
669659 | "marks and citation omitted). . 361 U.S. 212, 219, 80 S.Ct. 270, 274, 4 L.Ed.2d 252 (1960) (invalidating defendant’s Hobbs Act conviction where indictment charged interference with interstate commerce of sand but trial court permitted conviction based on interference with interstate commerce of steel); see also Hoover, 467 F.3d at 502 (reversing conviction for making false statement where indictment charged defendant lied to federal agent by stating only one person told him about a ""double flooring” problem when more than one person had actually done so, but trial judge instructed that defendant could be found guilty merely if he knew his statement was false rather than if more than one person told defendant about the problem). . REDACTED . Id. . 143 F.3d 923, 929 (5th Cir.1998) (addressing comment by witness about the defendant’s failure to testify). . 7 F.3d 1171, 1179 (5th Cir.1993) (internal quotation marks and citation omitted). . See Johnston, 127 F.3d at 398 (subjecting improper comments to harmless error analysis and considering the prejudicial effect of comments, the efficacy of curative instructions, and strength of evidence of guilt). . 118 F.3d 318, 325 (5th Cir.1997) (holding remark ""was an isolated comment, which did not 'strike at the jugular’ of the defense, and which the jury was immediately instructed to disregard""). . 158 F.3d 251, 260 (5th Cir.1998). . 747 F.2d 930, 942-43 (5th Cir.1984) (""That the jury was not inflamed is demonstrated by the" | [
{
"docid": "23113497",
"title": "",
"text": "the prosecutor’s references to the defendants’ failure to testify and their improper questioning of various law enforcement officials constitute serious misconduct, we must now determine whether those tactics east serious doubt upon the correctness of the jur... | [
{
"docid": "9842528",
"title": "",
"text": "the defendant’s right under the Fifth Amendment to a grand jury indictment.”). Stated another way, Hoover argues that while the indictment required the government to prove that he knew his statement was false because “more than one individual told him about th... |
823119 | Richardson, supra, 403 U.S. at 377, 91 S.Ct. at 1854; Takahashi v. Fish and Game Comm’n, supra, 334 U.S. at 419, 68 S.Ct. at 1142; Hines v. Davidowitz, 312 U.S. 52, 66, 61 S.Ct. 399, 403, 85 L.Ed. 581 (1941); see also Harisiades v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317 (1950). The plenary authority to admit or exclude aliens necessarily permits Congress to place certain conditions on an alien’s right of entry or continued residence. Silverman v. Rogers, 1 Cir., 1970, 437 F.2d 102, 107, cert. denied, 402 U.S. 983, 91 S.Ct. 1667, 29 L.Ed.2d 149; see REDACTED d 1179, 1181. While resident aliens are entitled to the full protection of this country’s laws, until they obtain and maintain citizenship by naturalization they are subject to the plenary authority of Congress’ immigration and naturalization powers. Carlson v. Landon, 342 U.S. 524, 534, 72 S.Ct. 525, 531, 96 L.Ed. 547 (1952). Thus, while most state classifications based on alienage are inherently suspect, Graham v. Richardson, In re Griffiths, Sugarman v. Dougall, Takahashi v. Fish and Game Comm’n, supra, the same is not true of all such federal classifications where Congress’ plenary authority in the field of immigration is involved. Although Congress may not single out aliens for discriminatory treatment in matters not related to the furtherance of its naturalization responsibilities, Ramos v. United States | [
{
"docid": "23605047",
"title": "",
"text": "their two-year exile would cause an exceptional hardship on their two children who, because of their birth in this country, are United States citizens. The waiver was denied when the Immigration Service determined that no extraordinary hardship existed. Petit... | [
{
"docid": "7855047",
"title": "",
"text": "77 L.Ed.2d 317 (1983), this plenary authority is subject to the limits of the Constitution. See, e.g., Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Carlson v. Landon, 342 U.S. 524, 533, 72 S.Ct. 525, 96 L.Ed. 547 (1952). Wfhile an ali... |
33369 | "are binding on Debtor or his creditors, nor has the Court found that Debtor has satisfied all elements listed under § 1325(a). To the latter point, Creditor argues that cases addressing motions to dismiss based on a lack of good faith in filing the petition ""rely on whether a plan had already been confirmed, as opposed to the amount of time that had elapsed, in deciding whether to grant the motion to dismiss."" [Reply at 4 (citing In re Newman , 259 B.R. 914 (Bankr. M.D. Fla. 2001) ; Nicholes v. Johnny Appleseed (In re Nicholes) , 184 B.R. 82 (9th Cir. BAP 1995) ; In re Elstien , 238 B.R. 747, 754 (Bankr. N.D. Ill. 1999) ).] Creditor also cites REDACTED in which the bankruptcy court rejected an argument that a motion to dismiss under § 1307(c) was untimely under the local rules because the motion to dismiss was filed prior to plan confirmation. Finally, Creditor argues that a 2008 case stands for the proposition that § 1307(c) and § 1325(a) serve different purposes: The Sixth Circuit has further held that [§] 1307(c) is distinct from [§] 1325(a). ""In other words, consistent with the Love decision, cited with approval in footnote 11 of Marrama and followed by the Sixth Circuit in In re Alt , 305 F.3d at 420, this Court concluded that the debtor's conduct was such that she could survive a motion to dismiss for bad faith. Nevertheless," | [
{
"docid": "19075079",
"title": "",
"text": "file his motion to dismiss until October 22, 1997, after the 45-day plan objection period as outlined in LR 3015-2(D)(1) had passed. On its face, LR 3015-2(D)(1) is not applicable to motions to dismiss; the text speaks only of objections to plan confirmation.... | [
{
"docid": "15230220",
"title": "",
"text": "1325, the Court will address whether denial of confirmation or dismissal is the appropriate remedy under subsection (a)(7). Section 1325(a)(7) is a frequently debated subsection among the plan confirmation requirements set forth in § 1325. See e.g., In re Man... |
7646 | had used the proceeds from their trafficking in “controlled substances.” Ansaldi and Gates argue that the word “narcotics” has a specific meaning, given by 21 U.S.C. § 802(17), which does not include GBL. “Controlled substance,” on the other hand, refers to a larger class of substances, including controlled substance analogues like GBL. Thus, Defendants argue, the District Court’s instruction constructively amended the indictment by improperly broadening the scope of the unlawful activity from sale of narcotics to sale of controlled substances. Constructive amendment of an indictment is a serious error. This Court has held that constructive amendment of an indictment during the course of a trial is a per se violation of the Grand Jury Clause of the Fifth Amendment. REDACTED A trial court constructively amends an indictment when it broadens the basis of conviction beyond that charged in the indictment. Id. at 265. The Fifth Amendment violation entailed by such amendment is not rendered harmless by the mere fact that the defendant was not “surprised” by the change; every defendant has a right to be tried only on the charges returned by a grand jury. United States v. Roshko, 969 F.2d 1, 6 (2d Cir.1992). On the other hand, not every variance between the words of the indictment and the evidence presented at trial or the instructions given to the jury amounts to a constructive amendment. An alteration of the charge is impermissible only if it affects an “essential element” | [
{
"docid": "21551883",
"title": "",
"text": "challenge to his Section 924(c)(1) firearms conviction — that there was insufficient proof that a firearm was actually used during George Medina’s kidnapping — merits scant attention. George Medina gave an eyewitness account of what he saw — “He pushed my arm... | [
{
"docid": "16102022",
"title": "",
"text": "theories as to the interstate commerce element of the case, but one of those theories had never been passed on by the grand jury. Noting that “it has been the rule that after an indictment has been returned its charges may not be broadened through amendment e... |
662287 | 781, 786 (5th Cir.), cert. denied, 490 U.S. 1093, 109 S.Ct. 2438, 104 L.Ed.2d 994 (1989); United States v. Moya-Gomez, 860 F.2d 706, 752-54 (7th Cir.1988), cert. denied, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989); United States v. Possick, 849 F.2d 332, 341 (8th Cir.1988); Aguilar, 849 F.2d at 97-99; United States v. Stallings, 810 F.2d 973, 975-76 (10th Cir.1987); United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 (1987), and cert. denied, 482 U.S. 930, 107 S.Ct. 3215, 96 L.Ed.2d 702 (1987); United States v. Schuster, 769 F.2d 337, 344-45 (6th Cir.1985), cert. denied, 475 U.S. 1021, 106 S.Ct. 1210, 89 L.Ed.2d 322 (1986); REDACTED United States v. Mourad, 729 F.2d 195, 202-03 (2d Cir.), cert. denied, 469 U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984), and cert. denied, 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717 (1985); United States v. Smith, 703 F.2d 627, 628 (D.C.Cir. 1983) (per curiam). Curiously, the government’s opposition brief ignores the decisions of the courts of appeals on this subject. Instead, the government relies on Garrett v. United States, 471 U.S. 773, 785-86, 105 S.Ct. 2407, 2414-15, 85 L.Ed.2d 764 (1985), and United States v. Harris, 959 F.2d 246, 253-54 (D.C. Cir.), cert. denied, — U.S. -, 113 S.Ct. 362, 121 L.Ed.2d 275 (1992), and cert. denied, — U.S. -, 113 S.Ct. 364, 121 L.Ed.2d 277 (1992). | [
{
"docid": "16063378",
"title": "",
"text": "2219-20, 53 L.Ed.2d 168 (1977); United States v. Smith, 690 F.2d 748, 750 (9th Cir.1982), cert. denied, 460 U.S. 1041, 103 S.Ct. 1435, 75 L.Ed.2d 793 (1983), we vacate the § 846 sentences for counts one and six, which run consecutively to the § 848 CCE senten... | [
{
"docid": "7911845",
"title": "",
"text": "such legal legerdemain as “combined” convictions or conditional “alternative” sentences. In cases where district courts have failed to vacate lesser included conspiracy convictions at the time of sentencing, the majority’s practice has simply been to remand wi... |
478447 | distributors who purchase from producers in other states. Thus it has been held that society’s interest in the privacy of personal correspondence is sufficient to preclude the obscenity conviction of an individual engaged in “swapping” pornographic films with acquaintances. United States v. Dellapia, 2 Cir. 1970, 433 F.2d 1252. The added interest in regulating wide-spread, inter-state commercial distribution networks is sufficient, however, to permit these statutes to stand. A few courts have already held that Stanley did not imply that the constitutional right to possess obscene matter privately prevents the Congress from forbidding the transportation of such material for the purpose of public sale. United States v. Melvin, 4 Cir. 1969, 419 F.2d 136; supplemental opinion in REDACTED d 1211; see, also, Gable v. Jenkins, N.D.Ga.1969, 309 F.Supp. 998. Assuming that Stanley precludes regulation of the interstate transportation of noncommercial pornography and that the literal terms of the statute would prohibit this act, the defendants here may not challenge the statute on the ground that it is overbroad. The Supreme Court has often permitted one whose conduct is not, itself, protected to challenge overbroad statutes that inhibit the exercise of First Amendment activities. E. g. Thornhill v. Alabama, 310 U.S. 88, 96-98, 60 S.Ct. 736, 84 L.Ed. 1093; Dombrowski v. Pfister, 380 U.S. 479, 490-492, 85 S.Ct. 1116, 14 L.Ed.2d 22; see generally, Stedler, Standing to Assert Constitutional Jus Tertii in the Supreme Court, 71 Yale L.J. 599 (1962). This permits a more | [
{
"docid": "21889004",
"title": "",
"text": "prior decision that Fragus had no right to a prior judicial determination of obscenity in the ease at bar. II. The Supreme Court has now also affirmed the decision of a three-judge district court in Gable v. Jenkins, 309 F.Supp. 998 (ND. Ga., 1969) [CA 13001,... | [
{
"docid": "8139650",
"title": "",
"text": "and city officials have not yet had the opportunity to enforce House Bill 626. Plaintiffs’ suits thus constitute facial challenges to a statute that has yet to be authoritatively interpreted or enforced. The Supreme Court has consistently entertained facial ch... |
698814 | claim was merely an incident to the reorganization proceeding. Whatever appellants did about the claim was in effect as attorneys for the subsidiary debtor and not as attorneys for creditors. It is the duty of the court in administering the bankruptcy law to avoid double expense to the estate and before there can be an allowance to an attorney acting for the subsidiary debtor, the burden rests on the applicant for fees to show (1) that his services benefited the estate, (2) that the trustee or debtor in possession refused to act and (3) that formal authorization was procured from the court to proceed in the name of the trustee or the debtor in possession. REDACTED In re Progress Lektro Shave Corporation, 2 Cir., 117 F.2d 602; In re New York Investors, Inc., 2 Cir., 130 F.2d 90. Under General Order 44, 11 U.S.C.A. following section 53, an attorney for a receiver, trustee or debtor in possession can be appointed only upon order of the court granted upon a petition stating specified facts and the employment of the attorney must be for a specific purpose, unless the court is satisfied the case is one justifying a retainer. General Orders have the force of law. Weil v. Neary, 278 U.S. 160, 169, 49 S.Ct. 144, 73 L.Ed. 243. This General Order cannot be by-passed by the creditors or their attorneys acting for the debtor without the consent of the court. | [
{
"docid": "23589042",
"title": "",
"text": "SWAN, Circuit Judge. On July 13, 1939, Porto Rican American Tobacco Company filed a petition for reorganization under chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq. Its-attorney was the appellant; he had been retained as its counsel for this proce... | [
{
"docid": "23045865",
"title": "",
"text": "provides: “No attorney for a receiver, trustee or debtor in possession shall be appointed except upon the order of the court, which shall be granted only upon the verified petition of the receiver, trustee or debtor in possession, stating the name of the coun... |
695898 | "States v. Rayner, 2 F.3d 286, 287 (8th Cir.1993) (relying on Unger, rejecting defendant’s contention ""that the court should look to state law to determine whether a prior sentence counts for criminal history purposes”). . The two appellate courts that have set forth generic tests for measuring similarity are the Fifth and the Ninth Circuits. The Ninth Circuit test for determining whether an offense is similar to those § 4A 1.2(c) offenses excluded from a defendant’s criminal history was presented in United States v. Martinez, 905 F.2d 251 (9th Cir.1990). The Fifth Circuit’s approach, discussed in more detail in the text, was set forth by that court in United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991); see also REDACTED . We note that the sentence of one month’s court supervision is a considerably lesser penalty than § 4A1.2(c)'s “triggering period” of at least one year of probation or thirty days of imprisonment. . Cf. United States v. Dillon, 905 F.2d 1034, 1039 (7th Cir.1990) (recognizing that resisting arrest is excludable, but that a conviction for battery and resisting arrest required a criminal history point because none of the exempted offenses was similar to the ""battery aspect"" of the conviction); United States v. Russell, 913 F.2d 1288, 1294 (8th Cir.1990) (finding no error in district court’s consideration of state conviction for assault and criminal damage to property when computing criminal history), cert. denied, 500 U.S." | [
{
"docid": "11035342",
"title": "",
"text": "contention that testimony regarding the statements of others cannot be used to support the enhancement is not correct. We find no error in the district court’s decision to credit the testimony of Agent Wong and accept the factual conclusions of the PSI. We, t... | [
{
"docid": "11486938",
"title": "",
"text": "‘conviction’ for purposes of 18 U.S.C. §§ 922(g) & (h) is a matter of federal law”)); accord United States v. Rayner, 2 F.3d 286, 287 (8th Cir.1993) (relying on Unger, rejecting defendant’s contention \"that the court should look to state law to determine whe... |
248637 | or four police officers (not including the officer who questioned Gaston) standing guard. There was no evidence to suggest that the police had any concern that these persons were armed, would be uncooperative, destroy evidence, or escape. Cf. Bautista, 684 F.2d at 1289-90. Under the circumstances, as “there was nothing to suggest that any of the officers were any longer concerned with their own physical safety,” Gaston was “in police custody.” New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 2631, 81 L.Ed.2d 550 (1984). Unlike in the only case cited by the government in which a statement was taken at the premises from a defendant in handcuffs at the time of the execution of a search warrant, REDACTED Gaston was not informed that he was not under arrest or that the handcuffs were for his and the officers’ safety. Second, the routine booking exception under Muniz applies only to questions that are necessary to assist the police in carrying out administrative functions. Muniz, 496 U.S. at 592-600, 602 n. 14, 110 S.Ct. at 2649-50, 2650 n. 14. In Muniz, the Supreme Court distinguished between routine booking questions “to secure the biographical data necessary to complete booking or pretrial services,” id. at 601, 110 S.Ct. at 2650 (citations omitted), and the type of question that, while related, goes beyond what is necessary for booking purposes. While the exception extends to questions “reasonably related to the police’s administrative concerns,” id. | [
{
"docid": "17144276",
"title": "",
"text": "the questioning of Newton falls within the “public safety” exception to the normal requirements under Miranda carved out by the Supreme Court in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984). In Quarles, a woman told two police offi... | [
{
"docid": "9463115",
"title": "",
"text": "custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” See Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); see also Muniz, 496 U.S. at 600-01, 110 S.Ct. 2638; accord... |
255684 | "review thereof."" 5 U.S.C. § 702. Actions subject to review encompass ""[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court."" Id. § 704. ""[W]here a statute affords an opportunity for de novo district-court review"" of the agency action, though, APA review is precluded since ""Congress did not intend to permit a litigant challenging an administrative denial ... to utilize simultaneously both [the statute's review provision] and the APA."" El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. U.S. Dep't of Health and Human Servs. , 396 F.3d 1265, 1270 (D.C. Cir. 2005) (citation and internal quotation marks omitted); see also REDACTED "" (quoting Bowen v. Massachusetts , 487 U.S. 879, 903, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (citation omitted) ). Agency action is defined ""as 'includ[ing] the whole or part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.' "" Trudeau v. Fed. Trade Comm'n , 456 F.3d 178, 189 (D.C. Cir. 2006) (quoting 5 U.S.C. § 551(13) (alteration in original) ). Under the APA, a ""reviewing court shall decide all relevant questions of law" | [
{
"docid": "11356798",
"title": "",
"text": "despite this gap between the relief sought and the relief FOIA affords. 5 U.S.C. § 704. IV. Section 704 reflects Congress’ judgment that “the general grant of review in the APA” ought not “duplicate existing procedures for review of agency action” or “provide... | [
{
"docid": "19091921",
"title": "",
"text": "this court has held that the alternative remedy need not provide relief identical to relief under the APA, so long as it offers relief of the “same genre.” El Rio Santa Cruz Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1272 ... |
316357 | taxicab service having a capacity of not more than six passengers and not operated on a fixed route or between fixed termini.’ 3. “Each count fails to show FACTS that the operation is not one excluded from the provisions of Title 49 U.S.C.A. and-more especially paragraph b of Section 303 of Title 49 U.S.C.A.” Under the first contention of the defendants they submit that the government has failed to describe them as common carriers within the meaning of the law and urge that the information discloses that the defendants carried on a “private livery” business, and, as such, were not common carriers. The defendants rely on the following comment of the United States Supreme Court in the case of REDACTED It asserts the right to refuse the service and no doubt would do so if the pay was uncertain, but it advertises extensively, and, we must assume, generally accepts any seemingly “solvent customer. Still, the bargains are individual, and however much they may tend towards Uniformity in price, probably have not quite the mechanical fixity of charges that attends the use of taxicabs from the station and hotels. There is no contract With a third person to serve the public generally. The question whether, as to this | [
{
"docid": "22780801",
"title": "",
"text": "it arbitrarily to refuse to carry a guest upon demand. We certainly may assume that in its own interest it does not attempt to do so. The service affects so considerable a fraction of the public that it is public in the same sense in which any other may be ca... | [
{
"docid": "22988698",
"title": "",
"text": "a single municipality or of contiguous municipalities ; (5) To transportation of persons over a route wholly or partly within a national park or state park where such transportation is sold in conjunction with or as part of a rail trip or trip over a regularl... |
401743 | "See Doc. 1 at 2-3. ""[A] federal court sitting in diversity must apply the choice of law provisions of the forum state in which it is sitting."" Ace Prop. & Cas. Ins. Co. v. Superior Boiler Works, Inc. , 504 F.Supp.2d 1154, 1158 (D. Kan. 2007) ; see also Klaxon Co. v. Stentor Elec. Mfg. Co. , 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). This court is in Kansas, of course, so it applies Kansas choice of law provisions. When a contractual dispute contests the ""substance of [a party's contractual] obligation,"" Kansas courts apply the choice of law rule known as lex loci contractus , or ""the law of the state where the contract is made."" REDACTED And, in insurance policy disputes, ""Kansas courts generally find that the contract is made in the state where the policy is delivered."" PetroSantander (USA), Inc. v. HDI Glob. Ins. Co. , 308 F.Supp.3d 1207, 1211 (D. Kan. 2018) (applying Kansas law). Here, Prudential delivered the policy at issue to the Topeka, Kansas, address listed on the Certificate of Insurance. Doc. 1-1 at 1. So, the court applies Kansas contract law. 2. Contract Interpretation a. Kansas law Kansas law classifies contract interpretation and construction as issues of law that the court must decide. Kindergartners Count, Inc. v. DeMoulin , 249 F.Supp.2d 1233, 1242 (D. Kan. 2003) ; see also AMCO Ins. Co. v. Beck , 261 Kan." | [
{
"docid": "10680531",
"title": "",
"text": "also for acting negligently. See Spencer v. Aetna Life & Cas. Ins. Co., 227 Kan. 914, 611 P.2d 149, 155 (1980). In Missouri, however, to hold an insurance company liable for bad faith refusal to settle the plaintiff must provide proof that the insurer acted i... | [
{
"docid": "10589178",
"title": "",
"text": "matter of law. The court does not reach these issues because of its determination that there was insufficient evidence to support the jury’s finding. IV. New Trial Motion The defendants have moved, in the alternative, for a new trial. However, the motion for ... |
599134 | v. United States, 674 F.2d 1155, 1158 (7th Cir.1982). . Brown v. Richardson, 395 F.Supp. 185, 191 (W.D.Pa.1975). . See the general discussion of the doctrine of governmental estoppel in Portmann v. United States, 674 F.2d at 1158-60; K. Davis, Administrative Law Treatise §§ 17.01, 17.03-17.04 (2d Ed. 1 Supp. 1982); Note, Equitable Estoppel of the Government, 99 Colum.L.Rev. 551 (1979). . See, United States v. Fox Lake State Bank, 366 F.2d 962 (7th Cir.1966); Semaan v. Mumford, 335 F.2d 704 (D.C.Cir.1964); Walsonavich v. United States, 335 F.2d 96 (3d Cir.1964); Simmons v. United States, 308 F.2d 938 (5th Cir.1962). . Schweiker v. Hansen, 450 U.S. at 785, 101 S.Ct. 1468. . Id. at 788, 101 S.Ct. at 1471. . See, REDACTED Yang v. INS, 574 F.2d 171, 174-75 (3d Cir.1978); Corniel-Rodriguez v. INS, 532 F.2d 301, 306-07 (2d Cir.1976); Santiago v. INS, 526 F.2d 488, 491-93 (9th Cir.1975). . 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973). This case involved a petition for citizenship brought by a native of the Phillipines who had served in the United States Army during World War II. The Nationality Act of 1940 provided that non-citizens such as Hibi, who had served in the armed services during World War II, could be naturalized without the usual requirements of residency and language proficiency. However, applicants were required to file naturalization petitions by December 31, 1946. Congress authorized the appointment of naturalization officers who travelled to | [
{
"docid": "922894",
"title": "",
"text": "that the judge ordered an investigation, however, and did not rule on petitioner’s application until it was completed, was not in error. Petitioner also asserts that he was eligible for suspension of deportation when he filed his application because his deporta... | [
{
"docid": "745085",
"title": "",
"text": "staff attorney, “did not take any exception to my interpretation and that it is his understanding that prior to September 1, 1976 upper tier oil may be computed on a tract-by-tract basis, provided the unit meets the test of the prior regulations relating to imp... |
592750 | evidence of the sergeant and the other police officer who accompanied him that George was not actually arrested, in the sense of being taken into custody, until the officers told him to accompany them to headquarters. In the first footnote to the Upshaw opinion, the Supreme Court said, “On this issue of physical violence the jury found against the petitioner, and therefore this issue is not involved in this ease.” 835 U.S. 410, at page 411, 69 S.Ct. 170. McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. 335 U.S. at page 413, 69 S.Ct. at page 172. Id., 335 U.S. 413, 69 S.Ct. 171. 18 U.S.C.A. We said in REDACTED .App.D.C. 353, 354, 158 F. 2d 649, 650, * * we recognize that in many instances the circumstances may dictate that some delay ensues between arrest and commitment amounting to one,, two or many hours, * * EDGERTON, Circuit Judge (dissenting). The chief question is whether the court erred in admitting confessions made while appellants were held by the police, after arrest on suspicion without warrants and before commitment. A police sergeant testified, and the government concedes, that George Garner’s arrest took place at his home at 7:35 or 7:40 p. m. I understand this to mean he was taken into custody then. I know of no evidence to the contrary. George was taken to police headquarters between 9 and 9:45 p. m. He made an oral confession about | [
{
"docid": "13837502",
"title": "",
"text": "an open charge. No effort was made by the arresting officers to take the men before a committing magistrate until about 5:00 or 5 :30 o’clock p. m. when an unanswered telephone call was made to the United States Commissioner’s office. From the time appellant ... | [
{
"docid": "7664670",
"title": "",
"text": "robbed it, and to make a similar change with regard to his transportation in connection with the robbery of the bank. He said that the rest of the two statements were true as he had made them the previous day. The statements above discussed were offered and re... |
649500 | plain error in the court’s grant of discretion to the probation officer with respect to the defendant’s possible participation in sex-offender treatment. 2. Reasonableness. This brings us to the defendant’s attack on the reasonableness of the sex-offender treatment condition. Refined to bare essence, the defendant argues that supervised release is intended primarily to serve rehabilitative ends and the sex-offender treatment condition fails to serve those ends; that the district court did not provide a sufficient justification for imposing the condition; and that the condition is an unwarranted deprivation of liberty, unsupported by the record. Since this claim of error was preserved below, our review is for abuse of discretion. See United States v. Smith, 436 F.3d 307, 310 (1st Cir.2006); REDACTED We begin with first principles. A sentencing court is authorized to impose any condition of supervised release that is reasonably related to one or more of the permissible goals of sentencing. See 18 U.S.C. § 3583(d)(1) (cross-referencing 18 U.S.C. § 3553(a)(1) and (a)(2)(B) through (D)); see also United States v. Prochner, 417 F.3d 54, 63 (1st Cir.2005); USSG § 5D1.3(b)(l). These goals include deterrence, rehabilitation, and protection of the public. See 18 U.S.C. § 3583(d)(1). The risk of recidivism among convicted sex offenders is “frightening and high,” McKune v. Lile, 536 U.S. 24, 33, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), and sex-offender treatment has been linked to reduced recidivism, see United States v. Morales-Cruz, 712 F.3d 71, 75 (1st | [
{
"docid": "16447303",
"title": "",
"text": "are, however, several limitations on a district court’s power to fashion special conditions of supervised release. We list a few. First, a special condition must in fact be tailored to the circumstances: it can involve “no greater deprivation of liberty than ... | [
{
"docid": "9515224",
"title": "",
"text": "register under SOR-NA, there was no suggestion that the defendant had chronically failed to comply with sex-offender registration requirements, as here. See United States v. Rogers, 468 Fed.Appx. 359, 362-64 (4th Cir.2012) (per curiam). IV. The judgment of the... |
190856 | dismiss is, therefore, denied. . “The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal Agency having responsibility for the investigation of the offense as to which the application is made . . . .”18 U.S.C. § 2516(1) (1970). . Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). . United REDACTED . Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). . Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). | [
{
"docid": "8028098",
"title": "",
"text": "set bail or to stay the commitment order pending appeal. See 28 U.S.C. § 1826(b). On-the witnesses’ emergency motions, this court found the constitutional questions raised too substantial to justify characterizing the appeals as frivolous and ordered the witne... | [
{
"docid": "20577603",
"title": "",
"text": "OPINION AND ORDER RE WIRE TAP AUTHORIZATION KENNEDY, District Judge. Defendants are charged in a two-count indictment with violating Section 1955 of Title 18, United States Code (part of the statute more commonly known as the Omnibus Crime Control and Safe St... |
745051 | claim for intentional infliction of emotional distress against Gibbons and Puhek, but insufficient as to Rogich, Young, and Campbell. Mazzeo alleges that Gibbons forcefully pinned her against a wall and told her he was going to rape her. Mazzeo also alleges that Puhek made death threats against her and her child that caused her to move out of her home and fear for her and her child’s safety. The Court concludes that these allegations are sufficient to survive Defendants’ Motions to Dismiss. III. Motion to Strike Under Rule 12(f) a “court may strike from a pleading ... any redundant, immaterial, impertinent, or scandalous matter.” Matter is “immaterial” if it has no bearing on the controversy before the court. REDACTED Allegations are “impertinent” if they are not responsive to the issues that arise in the action and that are admissible as evi dence. Id. “Scandalous” matter is that which casts a cruelly derogatory light on a party or other person. Id. A court need not wait for a motion from the parties; it may act on its own to strike matter from a pleading. Fed.R.Civ.P. 12(f)(1). In this rare instance, the Court feels compelled to sua sponte strike certain portions of the Complaint. Mazzeo’s pleading includes inappropriate commentary and dramatic flourishes, deviating from the directive that she need provide only “a short and plain statement of’ her claims. See Fed.R.Civ.P. 8(a)(2). In the Court’s view, a significant portion of the Complaint | [
{
"docid": "1440144",
"title": "",
"text": "26, 1999, Defendants filed their Form 10 which revealed that they needed to raise additional funds. (See Compl. at ¶ 63-64.) At the news of financial difficulties, the company’s stock plunged 37 percent to $7.3125 on heavy trading of 412,000 shares. (See PI. S... | [
{
"docid": "5793560",
"title": "",
"text": "Defendants assert that plaintiff has abused informa pauperis status by filing a frivolous or malicious lawsuit. Pursuant to 28 U.S.C. §§ 1915(a) and (d), the district court may, in its discretion, dismiss an in forma pauperis action if the court determines tha... |
386795 | meaning of those terms in the RICO statute. However, on the sole ground that plaintiffs were required, but failed, to allege “a separate, distinct racketeering enterprise injury”, the district court dismissed the complaint. It did not reach the arbitration question. On appeal, therefore, we are presented with the narrow issue of whether, in order to state a claim under § 1964(c), a plaintiff must allege “a separate, distinct racketeering enterprise injury”. We are not considering whether plaintiffs must allege a connection to organized crime, cf. Moss v. Morgan Stanley, 719 F.2d 5, 21 (2d Cir. 1983), cert, denied, — U.S.-, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984), whether plaintiffs must show some “competitive injury” as a result of defendants’ actions, cf. REDACTED Bennett v. Berg, 685 F.2d 1053, 1059 (8th Cir. 1982), affd in part and rev’d in part on other grounds, 710 F.2d 1361 (en banc), cert, denied, — U.S.-, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983), or whether the statute requires a criminal conviction of the predicate offenses, or of a RICO offense, before a civil RICO claim can be maintained, see Sedima, S.P.R.L. v. Imrex Co., at 497; cf. USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94, 95 n. 1 (6th Cir.1982); Farmers Bank of Delaware v. Bell Mortgage Cory., 452 F.Supp. 1278, 1280 (D.Del.1978). DISCUSSION In 1970 congress enacted the Organized Crime Control Act, Pub.L. | [
{
"docid": "22829692",
"title": "",
"text": "the war against organized crime and that the alteration would entail prosecutions involving acts of racketeering that are also crimes under state law. There is no argument that Congress acted beyond its power in so doing. That being the case, the courts are w... | [
{
"docid": "22375727",
"title": "",
"text": "must be caused by a RICO violation and not simply by the commission of a predicate offense .... RICO’s civil remedy provision permits a recovery to “any person injured in his business or property by reason of a violation of Section 1962,’’ ... that is, where ... |
248261 | see Federal Debt Collection Procedures Act of 1990, Pub. L. No. 101-647, § 3621(1), 104 Stat. 4933, 4964-65, and increased the period of non-dischargeability from five to seven years, see id. § 3621(2), 104 Stat. at 4965. It also applied § 523(a)(8) to Chapter 13 cases. See Student Loan Default Prevention Initiative Act of 1990, Pub. L. No. 101-508, § 3007(b), 104 Stat. 1388, 1388-28. Thus, although concern for the federally guaranteed loan programs provided the original impetus for § 523(a)(8), the exception has consistently expanded to cover other educational debts. With this legislative history in mind, we turn to the merits of this appeal. B. Standard of Review Disposition of cross motions for summary judgment is reviewed de novo. See REDACTED Ozlowski v. Henderson, 237 F.3d 837, 839 (7th Cir.2001) (citing Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir.1998)). All facts and inferences are viewed in the light most favorable to each nonmoving party; summary judgment is appropriate when the record reveals no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. See Hoseman, 322 F.3d at 473 (citing Fed.R.Civ.P. 56(c)). C. Interpretation of § 523(a)(8) The question presented by this appeal is whether an unpaid balance on a student account meets the definition of an educational loan under § 523(a)(8) and is therefore excepted from discharge in bankruptcy proceedings. Exceptions to discharge “are confined to those plainly expressed in | [
{
"docid": "16238795",
"title": "",
"text": "appealed the bankruptcy court decision to the district court, which first held that the question of whether Weinschneider’s claim against Burton was part of the bankruptcy estate raised an issue of fact, precluding summary judgment. The district court went on... | [
{
"docid": "7017110",
"title": "",
"text": "overpayments and funds received as educational benefits, scholarships, or stipends, see Federal Debt Collection Procedures Act of 1990, Pub. L. No. 101-647, § 3621(1), 104 Stat. 4933, 4964-65, and increased the period of non-dischargeability from five to seven... |
373938 | show cause. If he has, then his conviction under Arizona law qualifies as a deportable offense. Finally, we note that IIRIRA § 309(c)(4)(B)’s bar on ordering the taking of additional information under 28 U.S.C. § 2347 is not relevant here. Section 2347 concerns a party’s appeal to our court to adduce additional evidence, for example, where new evidence about a well-founded fear of persecution is discovered. See Ghaly v. INS, 58 F.3d 1425, 1431-32 (9th Cir.1995) (declining to consider N.Y. Times article and evidence that petitioner qualifies for suspension of deportation); Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1213 n. 2 (9th Cir.1983) (declining to consider Amnesty International Report, U.S. State Department Advisory, and periodical articles concerning political turmoil in Guatemala). Cf. REDACTED Here, the additional evidence is necessary to the determination of our subject matter jurisdiction. It does not fall under the prohibition of section 309(c)(4)(B). REVERSED and REMANDED WITH INSTRUCTIONS to the BIA to proceed in a manner consistent with this opinion. . Section 309(c)(4)(G) is part of IIRIRA's transitional rules. It applies here because Cardenas was placed into deportation proceedings prior to April 1, 1997, and a final order of deportation was entered after October 30, 1996. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). . Cardenas also argues that he was initially charged with possession of cocaine and marijuana and that he pled guilty to | [
{
"docid": "7998666",
"title": "",
"text": "ORDER Mohammed Riad Altawil (“Petitioner”) moves this court (1) to reconsider its order, filed December 12, 1997, striking the Petitioner’s Supplemental Excerpt of Record (“Supplemental Excerpt”), or in the alternative (2) for Leave to Adduce Additional Eviden... | [
{
"docid": "22707797",
"title": "",
"text": "is that Felicitas and her family not only could, but did, relocate successfully within the Philip.pines. Petitioners do not challenge the IJ’s alternate ground for denial on review. That alternate ground for denial is supported by substantial evidence. E. Wit... |
619393 | the facts of this case because: (1) Lone Dog’s inconsistent stories were not evidence which existed at the time of trial; (2) the evidence was merely cumulative or impeaching; and (3) the evidence was not such as probably would have affected the outcome of trial. We disagree. We also think a fraud has been practiced on the Tribe and on the court, which impinged the integrity of the trial process, and that the Tribe should have been granted a new trial under Rule 60(b)(2) and (3). We recognize that a Rule 60(b) motion is viewed with disfavor and is addressed to a district court’s discretion which an appellate court will not disturb in the absence of abuse. REDACTED cert. denied, — U.S. —, 103 S.Ct. 2429, 77 L.Ed.2d 1316 (1983); Edgar v. Finley, 312 F.2d 533, 536-37 (8th Cir.1963). Nevertheless, Rule 60(b) motions serve a useful, proper and necessary purpose in maintaining the integrity of the trial process, and a trial court will be reversed where an abuse of discretion occurs. The Rule “provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances,” Clarke v. Burkle, 570 F.2d 824, 830-31 (8th Cir.1978), quoting, Hoffman v. Celebrezze, 405 F.2d 833, 835 (8th Cir.1969); Consolidated Gas & Equip. Co. v. Carver, 257 F.2d 111, 114 (10th Cir.1958); see Assmann v. Fleming, 159 F.2d 332, 336 (8th Cir.1947). Rule 60(b) was intended to preserve “the | [
{
"docid": "13169897",
"title": "",
"text": "a period of more than a week. We do not underestimate the importance of requiring timely compliance with pre-trial orders. On the other hand, a trial court should not adhere blindly to the letter of the order “no matter what the reason” for a party’s non-comp... | [
{
"docid": "23016594",
"title": "",
"text": "denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process. Id. at 864, 108 S.Ct. 2194 (emphasis added). It may be forcefully argued that, when the underlined sentence above is read in t... |
352495 | NIES, Circuit Judge. This appeal is from the final judgment and order of the Court of International Trade in REDACTED vacated in part, No. 86-05-00606 (Ct. Int’l Trade Order Dec. 24, 1987) (Tsoucalas, J.), which required the Department of Commerce, International Trade Administration (ITA), to reinstate an antidumping duty order imposed on Korean carbon steel plate imports. The facts underlying this proceeding are set out in detail in the opinion of the Court of International Trade, familiarity with which is presumed. Briefly, the ITA issued an antidumping order, pursuant to 19 U.S.C. § 1673-1673g (1982 & Supp. IV 1986), covering steel plate from Korea. See 49 Fed.Reg. 33,298 (Aug. 22, 1984). Thereafter, the governments of the United States and Korea entered into a Voluntary Restraint Agreement (VRA) pursuant to the Steel Import Stabilization Act of 1984 (SISA), Pub.L. No. | [
{
"docid": "18898147",
"title": "",
"text": "Opinion TsouCALAS, Judge: This action is before the Court, pursuant to US-CIT R. 56.1, on cross-motions for judgment on an agency record. It raises a question of first impression regarding the Commerce De partment’s authority to revoke an outstanding antidump... | [
{
"docid": "22392906",
"title": "",
"text": "NIES, Chief Judge. These appeals challenge the antidumping duties imposed on color television receivers from Korea imported between October 19, 1983 and April 30, 1984. The decisions from the Court of International Trade to be reviewed are Daewoo Electronics ... |
554656 | supra, seems particularly apposite because there the pleading offered had to do with state ment in a cause of action against both the operator of a street car and the operator of an automobile where, upon death of the automobile driver, a new action was filed against the street car operator alone and in the second action the former pleading was introduced. Here, plaintiff stated a cause against the drivers of two automobiles but on trial virtually abandoned the action against one driver (Smith) and a verdict was directed for that defendant. Stolte has never been overruled or even spoken of in a disapproving fashion in any of this Court’s subsequent opinions. Indeed, its principle was reaffirmed in REDACTED Most of the authorities in other circuits are in accord. In Giannone v. United States Steel Corp., 238 F.2d 544 (3d Cir. 1956), for example, it was said that “[b]y the weight of authority even withdrawn or superseded pleadings are admissible.” Id. at 547 (footnote omitted). To the same effect is Continental Ins. Co. of N.Y. v. Sherman, 439 F.2d 1294, 1298 (5th Cir. 1971) (emphasis supplied): As a general rule the pleading of a party made in another action, as well as pleadings in the same action which have been superseded by amendment, withdrawn or dismissed, are admissible as admissions of the pleading party to the facts alleged therein, assuming of course that the usual tests of relevancy | [
{
"docid": "1836627",
"title": "",
"text": "dismiss that case. The supporting affidavit of defendant’s president stated: “The respondent has abandoned its advertising that the smoke from its ‘Philip Morris’ brand of cigarettes is less irritating to the throat than the smoke from cigarettes of the other ... | [
{
"docid": "887203",
"title": "",
"text": "together with all inferences that can be reasonably drawn therefrom, there can be but one reasonable conclusion as to the proper judgment. O’Neil v. W. R. Grace & Co., 5 Cir., 1969, 410 F.2d 908; Leach v. Millers Life Ins. Co. of Tex., 5 Cir., 1968, 400 F.2d 17... |
828795 | "§ 111, such ruling would be ""substantial.” Engrafting such a statutory award on a Massachusetts common law remedy is, however, a matter for the courts of the Commonwealth, not this court. See Pyle v. South Hadley Sch., 55 F.3d 20, 22(1st Cir.1995). . The Court thus approves an in-court hourly rate of $ 240 for Zurokowsky's counsel. While such a rate is fully justified in this case inasmuch as counsel is one of the foremost practitioners in this field and, indeed, is sought out to teach the bar concerning these issues, see Suing the Government: Section 1983 in 1998 (Massachusetts Bar Institute, Nov. 1998), there is the danger that as one judge sees another approve a particular hourly rate, see, e.g., REDACTED citing Guckenberger v. Boston Univ., 8 F.Supp.2d 91, 105 (D.Mass.1998) (Saris, J.) and McLaughlin v. Boston School Committee, 976 F.Supp. 53, 60 (D.Mass.1997) (Garrity, J.), court-awarded attorney’s fees will climb faster than the actual economics of the legal marketplace. The Court notes that the most recent Massachusetts Bar Association study places the average Massachusetts hourly rate at $135, William T.G. Litant, ""MBA survey reports lawyer incomes stagnant,” 5 MBA Lawyers Journal (April 1998) at 1, and an even more current PricewaterhouseCoopers study of in-house counsel hourly rates fixes the fully loaded national average at $159. Pricewaterhou-seCoopers, 1998 Law Department Spending Survey: Executive Summary at 4. More troubling is the fact even in death penalty litigation — surely the most stark form" | [
{
"docid": "5439669",
"title": "",
"text": "basis of statutory -authority .... is largely discretionary with the judge, who is in the best position to determine how much time was reasonably spent on a case, and the fair value of the attorney’s services.”). The starting point for such an analysis is the ... | [
{
"docid": "7130460",
"title": "",
"text": "was actually paid to the law student. See Martinez v. Hodgson, 265 F.Supp.2d 135 (D.Mass.2003) (awarding $60.00 per hour as an appropriate rate for an unidentified number of law students in a civil rights suit). But cf. McLaughlin by McLaughlin v. Boston Schoo... |
570391 | "counts of money laundering, and was sentenced to 18 months' incarceration. Robbins pleaded guilty to 24 counts of misprision of a felony, 18 U.S.C. § 4, and was sentenced to eight months’ home confinement. . See United States v. Acosta-Colón, 741 F.3d 179, 192-93 (1st Cir.2013) (‘‘[T]he already high bar for plain error becomes even higher when dealing with an unpreserved sufficiency-of-the-evidence claim.”); United States v. Pratt, 568 F.3d 11, 18 (1st Cir.2009) (""[T]he particularly stringent form of plain error review we apply to an unpreserved challenge to the sufficiency of the evidence asks whether the conviction resulted in a 'clear and gross injustice.' ” (citation omitted)). Other circuits, however, simply ""characterize the review as one for plain error only.” REDACTED Morgan, 238 F.3d 1180, 1186 (9th Cir.2001); United States v. Villasenor, 236 F.3d 220, 222 (5th Cir.2000) (per curiam)). . Although Foley's brief focuses on the presence or absence of ""Mr. Foley’s signature” from the HUD-1 form, Foley does not argue that the HUD-ls signed by Sean Robbins as settlement agent were also insufficient because they did not contain Foley's signature. Rather, Foley’s challenge focuses solely 'on the seven HUD-ls in which the signature block was left altogether blank. . Again, however, Foley's challenge would likewise fail under plain error. See infra at 15. . Congress subsequently amended the statute in May 2009 to define ""proceeds” as ""any property derived from or obtained or" | [
{
"docid": "18094911",
"title": "",
"text": "indicated in open court that his client would be willing to plead guilty to and accept responsibility for the drug possession count, but for the government's refusal to drop the gun possession charge (which would, in effect, double Luciano's sentence). . At t... | [
{
"docid": "20512151",
"title": "",
"text": "related mortgage loan in which there is a borrower and a seller.” 24 C.F.R. § 3500.8(a). Among other things, the HUD-1 form is meant to \"conspicuously and clearly itemize all charges imposed upon the borrower and all charges imposed upon the seller in connec... |
850409 | in acts of unfair competition against Artus by manufacturing and selling plain, unmarked color-coded shims that are virtually identical in colors and sizes to those manufactured and sold by Artus. Before reaching plaintiff’s claims of unfair competition and false advertising under the Lanham Act and state law, we will briefly review the well-established federal jurisprudence pertaining to the right to copy goods or products of another. Federal law permits Nordic to manufacture and sell plain, unmarked color-coded shims which are identical in every detail to those manufactured and sold by Artus. Artus’ plain, unmarked color-coded system is neither patented nor copyrighted and thus entirely in the public domain, and Nordic has the right, if it chooses, to copy. REDACTED This principle obtains even if the system became associated with Artus in the public’s mind prior to Nordic’s entry in the field in 1974. As the Supreme Court. stated in Compco Corp. v. Day-Brite Lighting, Inc.: That an article copied from an unpatented article could be made in some other way, that the design is non-functional and not essential to the use of either article, that the configuration of the article copied may have a secondary meaning which identifies the maker to the trade, or that there may be confusion among purchasers as to which article is which or as to who is the maker, may be relevant evidence in applying a State’s law | [
{
"docid": "22641675",
"title": "",
"text": "patent. An unpatentable article, like an article on which the patent has expired, is in the public domain and may be made and sold by whoever chooses to do so. What Sears did was to copy Stiffens design and to sell lamps almost identical to those sold by Stif... | [
{
"docid": "2825151",
"title": "",
"text": "take from the goods ... something of substantial value.” Id. at 933, 140 USPQ at 582. In addition to registration under section 2 of the Lanham Act, color marks have been protected by courts under section 43(a) of the Act and under state laws of unfair competi... |
620101 | Treichler v. Comm’r, Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). Benefits may be awarded where “the record has been fully developed” and “further administrative proceedings would serve no useful purpose.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996); Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001), Specifically, benefits should be awarded where: (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s] evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Smolen, 80 F.3d 1273 at 1292; REDACTED Here, the ALJ failed to provide a legally sufficient reason to discount Comrie’s and Eather’s opinions. See infra, I. Blakesley has already had two hearings before this ALJ regarding the period at issue, including one hearing after Blakesley was awarded benefits on re-application for the period beginning July 9, 2012. See AR 684. Once again, the ALJ has failed to issue a decision that is free of legal error and supported by substantial evidence in the record. Second, there are no outstanding issues. Both Comrie and Eather agreed that Blakesley should be limited to superficial and occasional public contact. See AR 340, 571. The Commissioner identifies no opinion that contradicts those opinions. Third, crediting Comrie’s and Eather’s opinions as | [
{
"docid": "22877659",
"title": "",
"text": "the record. See Chambliss, 269 F.3d at 522 (AU need not give great weight to a VA rating if he \"adequately explain[s] the valid reasons for not doing so\"). III In this case, the VA determined that McCartey was 80% disabled due to his depression and lower ba... | [
{
"docid": "14799285",
"title": "",
"text": "from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.1998); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.2001). “Where the evidence can reasonably support either affirming or reversing the decision, [this Court] may not sub... |
804842 | three claims now before the court on the grounds that federal habeas review is barred by adequate and independent state procedural grounds and that the claims are, at any rate, without merit. Discussion (1) Petitioner was deprived of the opportunity to present a meaningful defense. a. Review of petitioner’s claim is not barred by an adequate and independent state ground. Considerations of finality, federalism, and comity dictate that a federal habeas court may not review a state court decision that rests on an adequate and independent state procedural default unless the habeas petitioner can show “cause” for the default and “prejudice attributable thereto” or demonstrate that the failure to consider the federal claim will result in a “fundamental miscarriage of justice.” REDACTED accord Coleman v. Thompson, 501 U.S. 722, 730-31, 750, 111 S.Ct. 2546, 2554, 2565, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 81, 87-90, 97 S.Ct. 2497, 2503-04, 2506-08, 53 L.Ed.2d 594 (1977). In applying this rule, “the mere fact that a federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent [a federal court] from reaching the federal claim: ‘[T]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the case.’ ” Harris, 489 U.S. at 261-62, 109 S.Ct. at 1042 (quoting Caldwell v. Mississippi, 472 U.S. 320, 328, 105 | [
{
"docid": "22717626",
"title": "",
"text": "federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent this Court from reaching the federal claim: “[T]he state court must actually have relied on the procedural bar as an independent basis for its disposition of the e... | [
{
"docid": "23520240",
"title": "",
"text": "1188 n. 40 (quoting Hathorn v. Lovorn, 457 U.S. 255, 263, 102 S.Ct. 2421, 2426-27, 72 L.Ed.2d 824 (1982)). In the direct review setting, application of the adequate and independent state ground doctrine is jurisdictional: resolution of a federal issue could n... |
524254 | at 2067 & n. 4. For example, 29 U.S.C. § 1106(a)(1) prohibits certain transactions between “parties in interest,” see swpra, note 2, and ERISA plans.... 20 F.3d at 31 (footnote omitted). The court then added: The fact that [section 406] imposes the duty to refrain from prohibited transactions on fiduciaries and not on the parties in interest is irrelevant for our purposes because [section 502(a)(5) ] reaches “acts or practices” that violate ERISA and prohibited transactions violate [section 406]. Although fiduciary breaches also violate ERISA, nonfiduciaries cannot, by definition, engage in the act or practice breaching a fiduciary duty. Nonfiduciaries can, however, engage in the act or practice of transacting with an ERISA plan. Id. at 31, n. 7. Similarly, in REDACTED the court held that a suit seeking appropriate equitable relief could be brought under section 502(a)(3) against a party in interest who had participated in a transaction prohibited under section 406(a). The court explained: It is true that section 406(a) only prohibits certain transactions by fiduciaries, and does not expressly bar parties in interest from engaging in these transactions. However, section 502(a)(3)’s language expressly grants equitable power to redress violations of ERISA; prohibited transactions plainly fall within this category. Courts may find it difficult or impossible to undo such illegal transactions unless they have jurisdiction over all parties who allegedly participated in them. In contrast to section 409(a), section 502(a)(3) is not limited to fiduciaries, and there is no reason to | [
{
"docid": "23043294",
"title": "",
"text": "is a “party in interest” under ERISA § 3(14)(B), 29 U.S.C. § 1002(14)(B). The Act prohibits certain transactions between ERISA plans and their parties in interest. Some of the allegations in the complaint, if true, establish that Frommer participated in such ... | [
{
"docid": "12573183",
"title": "",
"text": "S.Ct. at 2070, and we therefore believe that the analysis of the one provision should apply equally to the other with respect to the question at issue. We therefore hold that section 502(a)(5) does not authorize suits by the Secretary against nonfiduciaries c... |
140224 | place of his imprisonment, but retains the domicile he had prior to incarceration.”); see also Singletary v. Cont’l Ill. Nat’l Bank & Trust Co., 9 F.3d 1236, 1238 (7th Cir.1993) (“It [citizenship] should be the state of which [the prisoner] was a citizen before he was sent to prison unless he plans to live elsewhere when he gets out, in which event it should be that state.”). None of the defendants is a citizen of Alabama. Therefore, the only question is whether the $75,000 amount-in-controversy requirement has been met. As this case was originally filed in state court and removed to federal court by the defendants, the defendants bear the burden of proving that federal subject matter jurisdiction exists. REDACTED As this Court has explained: In the typical diversity case, plaintiff files suit in federal court against a diverse party for damages exceeding [$75,000], Such a ease will not be dismissed unless it appears to a “legal certainty” that plaintiffs claim is actually for less than the jurisdictional amount. St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938). In the typical removal case, a plaintiff files suit in state court seeking over [$75,000]. The defendant can remove to federal court if he can show, by a preponderance of the evidence, facts supporting jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 | [
{
"docid": "22119416",
"title": "",
"text": "the court should look to the notice of removal and may require evidence relevant to the amount in controversy at the time the case was removed. See also McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936) (sta... | [
{
"docid": "22903089",
"title": "",
"text": "matter be remanded to state court because the district court did not have subject matter jurisdiction over his action. Mitchell maintains that the $75,000 jurisdictional amount required to establish diversity of citizenship jurisdiction under 28 U.S.C. § 1332... |
17271 | Dhupelia) and alleged everything included in the complaint at issue here. Shortly after dismissing this case, the district court consolidated the remaining complaints and enlisted counsel to assist Young. Even a lawyer, though, could not forestall the eventual grant of summary judgment for the defendants, and when Young appealed we ultimately dismissed his appeal under Circuit Rule 3(b) for failure to pay the required docketing fee. It is plain, then, that this fourth complaint would promptly be dismissed on grounds of claim preclusion if we were to reinstate Young’s complaint and remand to the district court. See, e.g., Cent. States, S.E. & S.W. Areas Pension Fund v. Hunt Truck Lines, Inc., 296 F.3d 624, 628 (7th Cir.2002); REDACTED Bethesda Lutheran Homes and Services, Inc. v. Born, 238 F.3d 853, 857 (7th Cir.2001). AFFIRMED. | [
{
"docid": "17072154",
"title": "",
"text": "§ 1132(c)(3). The district court dismissed Simon’s ERISA claims on the grounds of res judi-cata and collateral estoppel, noting that Simon had brought a similar claim against the ALLCARE Plan in an earlier lawsuit filed in the Central District of California. ... | [
{
"docid": "7879348",
"title": "",
"text": "12(b)(6) motion. When the motion was called on September 25, the defendant’s lawyer duly relayed the request for a briefing schedule. The judge responded by ordering the complaint dismissed, though without prejudice. He gave no reason for the dismissal, or for... |
503080 | "been identified, and there has been no document discovery. Assuming this case reaches the summary judgment stage, Plaintiffs will be required to adduce significantly more evidence establishing that agents of the Fixing Banks violated the CEA and did so acting within the scope of their employment. . Notably, Plaintiffs do not claim' to be clients of UBS who suffered losses as a result of UBS front-running their orders or triggering their stop loss orders. See SAC ¶¶ 301-02. Rather Plaintiffs allege that they ""suffered harm in respect of the sales they conducted where the relevant sales price was artificially lowered by collusive manipulation” by the Defendants' in connection with the PM Fixing. SAC ¶¶ 323-28. . Citing REDACTED LGMF asserts that statutory personal jurisdiction under the Sherman Act—and seemingly under the CEA—is proper only if Plaintiffs can show that venue is proper because “LGMF is ‘an inhabitant,’ ‘may be found,' or ‘transacts business’ in this district.” LGMF Mem. at 3. This argument is at best a red herring. Daniel requires a plaintiff establishing jurisdiction under the Sherman Act to also satisfy the coordinate venue provision quoted-above. Daniel, 428 F.3d at 423. The jurisdictional provision of the CEA, 7 U.S.C. § 25, is phrased differently and has not been interpreted to require plaintiffs to also satisfy the CEA’s parallel venue provision. See In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11-md-2262 (NRB), 2015 WL 6696407, at *19 n.28." | [
{
"docid": "23092078",
"title": "",
"text": "circumstances, a plaintiff must look to other service of process provisions, notably those specified in Fed.R.Civ.P. 4 or incorporated therein from state law to satisfy this requirement. 2. Applying Section 12 to the Jurisdiction Defendants In view of this co... | [
{
"docid": "12291527",
"title": "",
"text": "HSBC, and Société Générale (collectively, the “Fixing Banks”). Plaintiffs are individuals and entities that sold physical gold, gold futures traded on the Commodity Exchange, Inc. (“COMEX”) market, shares in gold exchange-traded funds (“ETFs”), or options on ... |
511296 | number of Title VII cases, beginning with Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir.1973), could perhaps be cited in support of such liability, including our own Doe on behalf of Doe v. St. Joseph’s Hospital, 788 F.2d 411, 422-23 (7th Cir.1986), and that Title VII precedents have been influential in the interpretation of the age discrimination law. But the cases in question are ones in which the defendant so far controlled the plaintiffs employment relationship that it was appropriate to regard the defendant as the de facto or indirect employer of the plaintiff, as where a hospital prevents a nurse from being employed by a hospitalized patient. Shrock v. Altru Nurses Registry, 810 F.2d 658, 660 (7th Cir.1987); REDACTED Indirect employment is a more limited theory of liability than aiding and abetting. A consultant who advised an employer on how to get rid of its older employees without creating evidence of a violation of the age discrimination law would be an aider and abettor but not an indirect employer, for he would not control the employment relationship, as the hospitals in the Sibley and Doe cases did. We need not hold definitively that aider and abettor liability does not exist under the ADEA (though only an aider and abettor who is itself an employer, albeit not the employer of the employee discriminated against, could possibly be squeezed into the statute). It would make no difference in this case. For | [
{
"docid": "469345",
"title": "",
"text": "of nature or otherwise fantastic, or irreconcilably in conflict with indubitable documentary or physical evidence, stipulations of fact, admissions, or evidence of equivalent certainty. See Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1... | [
{
"docid": "232848",
"title": "",
"text": "684 F.2d 769, 773 (11th Cir.1982). The district court found that Zaklama failed to prove that he was discharged by Mt. Sinai or one of its agents. The court stressed that it was Jackson Memorial that operated the residency program and employed Zaklama, not Mt. ... |
386970 | that prosecutors enjoy absolute immunity in discharging that responsibility, Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the courts of appeals have generally held that prosecutors acting in their investigative or administrative capacities merit only qualified immunity. See Dellums v. Powell, 660 F.2d 802 (D.C.Cir.1981); Mancini v. Lester, 630 F.2d 990 (3d Cir. 1980); Marrero v. City of Hialeah, 625 F.2d 499 (5th Cir.1980), cert. denied, 450 U.S. 913, 101 S.Ct. 1353, 67 L.Ed.2d 337 (1981); Lee v. Willins, 617 F.2d 320 (2d Cir.1980), cert. denied, 449 U.S. 861, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981); REDACTED cert. denied, 442 U.S. 930, 99-S.Ct. 2861, 61 L.Ed.2d 298 (1979). While the Supreme Court did not accept or reject the validity of this distinction in Imbler, 424 U.S. at 430-31, 96 S.Ct. at 994-995, it appeared willing to endorse the distinction in Harlow. 102 S.Ct. at 2735 n. 16. Since the duty of recommending the hiring or firing of assistant United States attorneys is a classic example of an administrative function, Hardin is not entitled to absolute immunity in this case. This conclusion is buttressed by directly applying the criteria which the Supreme Court has found to be relevant in adjudicating immunity questions. A decision on immunity must be: Predicated upon a considered inquiry into the immunity historically accorded the | [
{
"docid": "18055174",
"title": "",
"text": "if it determines the record warrants such a ruling in light of this opinion or to allow Nevada Bell’s good faith defense to go to the jury. See Fountila v. Carter, 571 F.2d 487, 489-90 (9th Cir. 1978); Chisholm Brothers Farm Equipment Co. v. International Har... | [
{
"docid": "22156474",
"title": "",
"text": "of evidence. At some point, and with respect to some decisions, the prosecutor no doubt functions as an administrator rather than as an officer of the court. Drawing a proper line between these functions may present difficult questions, but this case does not... |
669763 | Keogh Plan, Pension and Profit Sharing Plan, and IRA are reasonably necessary for his support and that of his dependents and thus are exempt pursuant to K.R.S. 427.150. That statute provides: (1) An individual is entitled to exemption of the following property to the extent reasonably necessary for the support of him and his dependents in addition to property totally exempt under subsection (2) of this section: (b) ... assets held, payments made, and amounts payable under a stock bonus, pension, profit-sharing, annuity, or similar plan or contract, providing benefits by reason of age, illness, disability, or length of service.... Neither party has raised the issue that any of these three plans or account are not included under the statute. Following REDACTED which held that an IRA account was exempt, we find that the plans and account in this case are included under K.R.S. 427.150. The disputed issue is whether the entire cash values of these funds are reasonably necessary for the support of the debtor and his dependents. First, the Court notes that the objecting party has the burden of proving that the exemptions are not properly claimed. Bankruptcy Rule 4003(c). Tretter has the burden of proving that the amount claimed exempt (cash value — $69,072.86) is not reasonably necessary for the support of the debtor and his dependents upon his retirement, illness or disability. Secondly, exemption statutes are entitled to a construction liberal to the debtor. In re Worthington, supra at 739; | [
{
"docid": "15853875",
"title": "",
"text": "MEMORANDUM AND ORDER G. WILLIAM BROWN, Bankruptcy Judge. This matter comes before the Court on the objection of the trustee to two claimed exemptions of the debtor, specifically an exemption of the cash surrender value of life insurance policies and exemption... | [
{
"docid": "13941233",
"title": "",
"text": "debtor’s right to receive present or future payments, or payments received by the debtor, under a stock bonus, pension, profit sharing, annuity, individual retirement account, individual retirement annuity, simplified employee pension, or similar plan or cont... |
633248 | Whites argue that even if the Code was validly adopted, the existence of the Tribal Court does not defeat federal jurisdiction, because the Tribal Court does not have jurisdiction over this type of civil action involving a non-Indian. They cite the Code’s absence of an explicit jurisdictional grant in civil actions between the tribe and non-Indians and the requirement that in civil actions Tribal Court jurisdiction is predicated on the consent of the non-Indian party. Also argued by the Whites is that even if the Code is read to confer Tribal Court jurisdiction over this type of action, it is probably invalid, because there is no congressional authorization nor is the matter material or essential to tribal self-government, citing REDACTED Accordingly, the Whites draw the conclusion that no valid tribal forum exists to redress the alleged deprivations, and, therefore, under the Dry Creek exception to Indian sovereign immunity, the federal district court had jurisdiction. Our conclusion is not in accord with the statement just made because we are of the conclusion that the Indians enjoy immunity in this situation. The Pueblo of San Juan Indians contend that under the explicit holding of the United States Supreme Court in Santa Clara, the federal courts lack jurisdiction to hear complaints under the ICRA, except in habeas corpus proceedings. The Pueblo asserts that this case cannot be | [
{
"docid": "4928172",
"title": "",
"text": "of UNC’s liability for damages caused by the Churchrock spill. Whether this action should be extended to reach a proposed class of defendants and whether a final injunction and declaratory judgment on the subject of Navajo Tribal Court jurisdiction should be i... | [
{
"docid": "23477400",
"title": "",
"text": "Indians, 595 F.2d 1153, 1154 & n.1 (9th Cir. 1979). So long as a case is pending, the issue of federal court jurisdiction may be raised at any stage of the proceedings either by the parties or by the court on its own motion. 1 Moore’s Federal Practice ¶ 0.60[... |
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