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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, ... | [
"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 and peacefully minding his own • affairs. Fundamental fai... | [
"scheme, id. at 900. In United States v. Gurolla, 333 F.3d 944 (9th Cir.2003), one of the largest undercover operations in history, the defendants were already part of a massive money laundering scheme in which Mexican banks laundered money to various drug cartels, id. at 948. In United States v. Williams, 547 F.3d... |
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 dupl... | [
"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 which was sustained by this Court on February 23, 1984.... | [
"which courts hear two or more related cases of entities that have filed bankruptcy petitions as a single case. The purpose of joint administration is to make case administration easier and less costly. The process has been called a “creature of procedural convenience,” because it avoids the duplication of effort t... |
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... | [
"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 by Cusic, would be obvious to one of ordinary skill in t... | [
"as to its availability. As to the Land and Eogers ’606 references, however, appellants raise the second part of the question about availability, based on our decision in In re Blout and Rogers, 52 CCPA 751, 333 F. 2d 928, 142 USPQ 173 (1964). They admit that they did not argue this point of law before the board, n... |
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... | [
"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 tax realty sold by the United States in possession of a... | [
"p. 107. Hawaii, Statute Laws, 1847, vol. II, pp. 81-94; Revised Laws, Hawaii, 1905, p. 1164 et seq. Thurston v. Bishop, 7 Haw. 421, 429, 437. “The. Commission was authorized to consider possession of land acquired by oral gift of Kamehameha I., or one of his high chiefs, as sufficient evidence of title to authoriz... |
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.Su... | [
"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, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). Thus,... | [
"Standards For Summary Judgment This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed. R. Civ. P. 56 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.... |
"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 app... | [
"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 of Gould, courts have found preemption when government e... | [
"In general, Congress intends to preempt only state regulation, and not actions a state takes as a market participant. See Bldg. & Constr. Trades Council v. Associated Builders and Contractors of Mass./R.I., Inc. (“Boston Harbor”), 507 U.S. 218, 227, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993); Engine Mfrs., 498 F.3d at... |
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... | [
"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, its complexity, and all the attendant circumstances, th... | [
"that the evidence, as presented, was insufficient to support the verdict of first degree murder. This court follows established procedures which make it clear that an inquiry into the sufficiency of the evidence is not within the proper functions of a federal court when reviewing a state conviction by way of habea... |
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 i... | [
"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 detain suspected shoplifters. Rather, the statute permi... | [
"the Supreme Court has not directly said whether Monell applies to private corporations, and there are powerful reasons to say no. Yet we and all other circuits that have considered the question have said yes. Why? It’s not easy to say. Our opinion in Iskander and virtually all of the circuit opinions after Monell ... |
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... | [
"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. The trustee received the letter, but did not forward it... | [
"has been noted thereon, be 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 ... |
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 bur... | [
"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 asserted by plaintiff are without substantial merit and must b... | [
"disabled within the meaning of the statute. Once the claimant has established an inability to return to his past relevant work, the burden of going forward with evidence shifts to the Secretary to show other jobs in the economy that the claimant is capable of performing. Where an exertional impairment is demonstra... |
"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), al... | [
"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, references, pointers and hypertext links, strongly sugge... | [
"DMCA Section 512 contains two definitions of the term \"service provider.” See 17 U.S.C. § 512(k). Because Veoh’s motion is based only on its claimed eligibility for safe harbor under Section 512(c), the broader definition under Section 512(k)(1)(B) applies. Under that provision, \"the term 'service provider’ mean... |
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 ba... | [
"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 serve an improper purpose, such as harassment or delay. U... | [
"to Rule 11 liability, an attorney must sign the pleadings or papers filed in the district court which are the focus of inquiry. Rathbun v. Warren City Schools (In Re Ruben), 825 F.2d 977, 984 (6th Cir.1987). The notes of the Advisory Committee on Rules explain that “[t]he new language stresses the need for some pr... |
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 ... | [
"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 defenses for causation solely by an act of God, an act of war... | [
"influence the dealers’ waste disposal practices. As this appeal comes to us on the district court’s grant of summary judgment in favor of the defendants-appellees, we must engage in a de novo review of the record. We will affirm the district court only if we agree that there is no genuine issue as to any material ... |
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) authori... | [
"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 drafting” or “mistake.” On the contrary, the parties appea... | [
"persons (a) ... [T]he trustee, with the court’s approval, may employ one or more ... professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title. 11 U.S.C. § 330 p... |
"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 warran... | [
"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. Pomponio, 635 F.2d 293, 298 (4th Cir.1980). However, un... | [
"that appellant had the use of the Government’s money during the period of the reorgani zation proceeding, and that since the underlying debt is not discharged by operation of Section 17 of the Bankruptcy Act, 11 U.S.C. § 35 (1964), neither is the interest which accrues by reason of the use of such money during the... |
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 in... | [
"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 included: (1) Lockhart had received satisfactory performanc... | [
"step of the McDonnell Douglas framework, we conclude that Fannie Mae met its burden in articulating a legitimate non-discriminatory reason for its termination of Paquin. Fannie Mae claims that Paquin’s termination resulted from substandard performance, as evidenced primarily by annual performance evaluations for t... |
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 pro... | [
"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 obtained or depositions to be taken or discovery to be had or ... | [
"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 judgme... |
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 ca... | [
"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 justifying-a search without a warrant. Preston did hold... | [
"to the vagrancy charge was seized. The Court determined that the search was not a contemporaneous one with the arrest, since the search was remote in time and place from the arrest, and there was no danger of the car being moved, since the men were under arrest and the car was in police custody. In Crawford v. Ban... |
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 ... | [
"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 inquiry does not end here, however. Having found a material di... | [
"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 prevail 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 existen... |
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... | [
"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, dividends, and interest received and accrued during the y... | [
"SWAN, Circuit Judge. This is an action by the executors of the will of Oliver Gould Jennings, a resident of Connecticut whose death occurred on October 13, 1936, to recover such part of the estate tax paid by them to the defendant collector as had been illegally collected. Their right to a refund of the amount cla... |
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 clo... | [
"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 ... for the purpose of providing for its participants or t... | [
"plan; AFC employees paid the entire premium themselves. Second, participation in the life insurance plan was voluntary. Defendants appear to recognize this point in arguing that AFC employees “understood that they could benefit from participating in the AFC Plan without having to purchase Metropolitan life insuran... |
"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 ... | [
"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 injured by- a police officer may establish the pertinent c... | [
"520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (quoting [City of Canton, Ohio u] Harris, 489 U.S. at 388, 109 S.Ct. 1197[, 103 L.Ed.2d 412] (1989)). “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.... |
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 medi... | [
"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 has not received adequate medical treatment states a vi... | [
"upder the eighth amendment is at an end jf it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety.” In assessing claims of Eighth Amendment violations, and equally importantly, in tailoring a proper remedy, we must analyze each claimed violation in lig... |
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... | [
"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 purchaser from the buyer. Pester, 964 F.2d at 844; In re Leed... | [
"Court decision in General Electric Credit Corp. v. Tidwell Industries, Inc., 115 Ariz. 362, 565 P.2d 868 (1977) (en banc). In that decision, the court held that an inventory and accounts receivable financer had the status of a protected “good faith purchaser” within the meaning of A.R.S. § 44r-2348 [U.C.C. § 2-403... |
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... | [
"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 under the FOIA. See 5 U.S.C. § 552(a)(4)(E). The distri... | [
"(1998) (citation and quotation marks omitted); see also Carter, 780 F.2d at 1481; Cornucopia Inst., 560 F.3d at 675-76. To moot a FOIA claim, however, the agency’s production must give the plaintiff everything to which he is entitled. Otherwise, there remains some “effective relief’ that can be provided the plaint... |
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-o... | [
"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, 971, 19 L.Ed.2d 1247 (1968)). It is the likelihood of mis... | [
"384 [88 S.Ct. [967] at 971, 19 L.Ed.2d 1247]. 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 te... |
"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 ... | [
"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 virtue of the statement denying their existence. . . . “. ... | [
"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 Court held that the materiality of a contingent event “... |
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 high... | [
"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 commanders to give it effect as a code of conduct is not required... | [
"face alleges a violation of section (1), Article 92, violation of a “lawful . . . regulation.” In discussing this Article, the Manual for Courts-Martial, supra, paragraph 171a, defines a general regulation as follows: ' “A general order or regulation is one which is promulgated by the authority of a Secretary of a... |
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 t... | [
"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 is a matter properly addressed in the first instance to t... | [
"point, however, we do not rely, as did the district court, on the absence of a retail concept in the magazine industry, a finding on which we express no opinion. Instead, we base our decision on the narrower ground that appellant does not maintain in his business the kind of “establishment” which Congress exempted... |
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 withi... | [
"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, multilayer strip made up of a core of oriented nylon sheet... | [
"Commerce was not required to examine the physical characteristics of the accused product, the expectations of the ultimate purchasers, the ultimate use of the accused product, or the channels of trade. See 19 C.F.R. § 353.29(i)(2). Wheatland’s argument that the Orders exclude only line and dual-certified pipe that... |
"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, 842-4... | [
"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 letter explained “FCRA would not apply to any communicatio... | [
"See Whitman v. Am. Trucking Assocs., Inc., 531 U.S. 457, 481, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). In contrast, the FTC's interpretive rules are not necessarily subject to Chevron deference. See, e.g., Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 157, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (... |
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 ... | [
"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 discretion that resides with the magistrate judge to manage the... | [
"Opinion for the Court filed by Circuit Judge RANDOLPH. RANDOLPH, Circuit Judge: On the motion of British American Tobacco (Investments) Ltd. — BATCo—for an emergency stay pending its interlocutory appeal, we upheld our jurisdiction over the appeal, entered a stay of the district court’s orders requiring the produc... |
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. Stov... | [
"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, accompanied by a police detective, was waiting for the h... | [
"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 th... |
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 deferre... | [
"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 at a later date by an amendment to the option. The st... | [
"analysis.”) (citing Correia v. Fitzgerald, 354 F.3d 47, 53 (1st Cir.2003)). A. Breach of Contract and Promissory Estoppel 1. Affirmative Misrepresentation At the heart of both House’s breach of contract and promissory estoppel claims is the proposition that the Company represented to him that he would have ten yea... |
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 Californi... | [
"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 prices and supply to which that decision gave confirmation. O... | [
"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, o... |
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 j... | [
"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 plaintiff is now, and ever since the date of his birth ... | [
"1968 election. That injunction was granted, and no appeal was taken by the state officials. As is plain from the opening words of its opinion in the present proceeding, the District Court recognized that no request for injunctive relief was before it: “We concern ourselves here with the propriety of entertaining t... |
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 Mot... | [
"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, concealing that purchase, and refusing to grant the plaint... | [
"Nobel), 179 B.R. 313, 315 (Bankr.M.D.Fla.1995). In support of it claim, Bombardier argues that since Debtor allowed its secured property to be converted to her own purposes — by giving custody of it to her boyfriend, and by allowing the property to be lost, and apparently unrecoverable— Debtor embezzled its proper... |
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... | [
"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 interrogatories to be directed to any matter that may be inqui... | [
"interests of his clients. ' In performing his various duties, however, it is es sential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to b... |
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 ... | [
"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. The claimant’s normal neurological report does not negate ... | [
"disability does not mandate finding of disability by Secretary). The treating physician opined that plaintiff was totally disabled at step three. Clearly, this opinion is not binding on the Secretary in making his ultimate determination of disability. Further, the treating physician’s opinion that plaintiffs physi... |
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 fore... | [
"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 States, 417 U. S. 333, 345-346, and n. 15 (1974). Even tho... | [
"challenge to his RICO conspiracy conviction is built completely on the alleged invalidity of Count One, we similarly uphold his conviction under Count Two for violation of 18 U.S.C. § 1962(d). 2. The Statute of Limitations and the Meaning of “Enterprise” Brennan raises two other challenges to his RICO convictions ... |
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 ... | [
"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 person from any liability, civil or criminal, heretofore... | [
"for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” This restraint against injunc-tive action is not absolute. The Supreme Court has recognized this modification : “ * * * in cases where complainant shows that in addition to the illegality of an exaction in the... |
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.Col... | [
"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 that the bankruptcy court is compelled to hear and decide... | [
"for mandatory abstention and states: Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11, but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a cour... |
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 re... | [
"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 in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348... | [
"PER CURIAM: Thomas Charles Brown appeals from the district court’s denial of his initial petition for relief under 28 U.S.C. § 2255. Brown argues that his sentence should be vacated because of the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We hold that the new r... |
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 up... | [
"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 arguments based on the pleadings and affidavits submitted by t... | [
"money. “It is not necessary to rely on the so-called ‘equitable doctrine of relation back.’ United States Fidelity & Guaranty Co. v. U. S., 10 Cir., 1952, 201 F.2d 113, 121. It suffices to say that the rights of the Internal Revenue Collector can rise no higher than those of its debtor whose right to property is s... |
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 ... | [
"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 the award must be adequate to provide an incentive “to at... | [
"a legal services organization should be limited to the organization’s costs. In this case the defendants would have us take a new approach. We decline to do so, and take this opportunity to explain why we adhere to our previously stated views. First and foremost, we think that compensating public interest lawyers ... |
'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 all... | [
"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 conferring jurisdiction upon the court. If. the last fin... | [
"of the amount in controversy and determines the question of jurisdiction; and it is indisputably the law that if the ultimate recovery is for less than the amount claimed, this is immaterial on the question of jurisdiction. Scott v. Donald, 165 U.S. 58, 17 S.Ct. 265, 41 L.Ed. 632. From early days, the broad sweep ... |
"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 r... | [
"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 in favor of the Department of Commerce as concerns Bergma... | [
"claims should be dismissed because they are (1) time barred by the statute of limitations, (2) the plaintiff failed to exhaust his administrative remedies, and (3) the plaintiff inappropriately used the Privacy Act to challenge the substantive decisions of the Army. a. Statute of Limitations Actions to enforce rig... |
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 rever... | [
"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. Supportive California authority consists of Delta Air Line... | [
"with prejudice by the District Court. Delaval then moved for summary judgment, contending that the charterers’ actions were not cognizable in tort. The District Court granted summary judgment for De~ laval, and the Court of Appeals for the Third Circuit, sitting en banc, affirmed. East River S.S. Corp. v. Delaval ... |
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 CR... | [
"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 limited furnishers’ liability under § 1681s-2(a) by prohib... | [
"a plaintiffs claim against a CRA fails as a matter of law. Id. at 67-68. In other words, to carry his burden, the plaintiff had to demonstrate some causal relationship between the CRA’s allegedly unreasonable reinvestigation and the failure to discover inaccuracies in his account. We hold that plaintiffs suing fur... |
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 (... | [
"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 indictment. Characteristically, these statutes to which th... | [
"move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him.” In addition to the period after indictment, the period between arrest and indictment must be considered in evaluating a Speedy Trial Clause claim. Dillingham v. United States, 423 U.S. 64 [96 S.Ct.... |
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 Arkan... | [
"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 power must always be determined with appropriate regard to ... | [
"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. Industr... |
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.... | [
"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 of 1989 was not factored into the computation of the fin... | [
"misrepresentation claim for failure to satisfy the requirements of Fed.R.Civ.P. 9(b). Christiania decided not to file a third amended complaint, and final judgment dismissing the action was entered on August 26, 1991. Christia-nia appeals. We affirm in part, reverse in part, and remand this case to the district co... |
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- cr... | [
"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 transfer of any of Ms property, and the effect of the enforcem... | [
"of the petition, and are therefore disqualified; and, third, that one of these creditors, the Havre de Grace Banking & Trust Company, is estopped from filing the petition, because it endeavored to induce the respondent to make a general assignment to it, or its nominee, for the benefit of his creditors. Taking np ... |
. 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.... | [
"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 may be treated as a single employer. The Williams cour... | [
"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 em... |
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 ... | [
"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 relations matter, an arrangement of employees under which so... | [
"v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.1995); Swineford v. Snyder County Pa., 15 F.3d 1258, 1270 (3d Cir.1994). A plaintiff must first demonstrate the activity in question was protected. Second, the plaintiff must show the protected activity was a substantial or motivating factor in the alleged retaliat... |
"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 Me... | [
"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 administrative and judicial orders forbidding certain comm... | [
"First Amendment and libel law, but find it unnecessary to ultimately determine these issues because we hold that the injunction must be vacated as its scope and meaning are unclear. When considering the validity of this injunction under the First Amendment, we have “an obligation to ‘make an independent examinatio... |
(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 ... | [
"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 this core ruling on irreparable injury warrants furthe... | [
"Motion for Preliminary Injunction A preliminary injunction may issue only where the movant has shown “(1) irreparable harm and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them fair ground for litigation, and a balance of hard ships tipping de... |
"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. Tr... | [
"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, actually administered the plan for Equitable. . In severa... | [
"of CNA’s complete file relating to plaintiffs claim. (Id.). CNA responded in writing to the California DOI on July 19, 2002, stating that it would refer plaintiffs file to a medical consultant for review. (Id. at 44). CNA also indicated that it would reevaluate plaintiffs claim and that a decision would be made “w... |
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... | [
"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 convening authority does not promulgate his formal and ... | [
"he claims was imposed upon him in violation of the United States Constitution. He can be rearrested at any time the Board or parole officer believes he has violated a term or condition of his parole, and he might be thrown back in jail to finish serving the allegedly invalid sentence with few, if any, of the proce... |
"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 p... | [
"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 plaintiff for a claim under the applicable Plan; and 5) all ... | [
"See Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996): A district court cannot manufacture predominance through the nimble use of subdivision (c)(4). The proper interpretation of the interaction between subdivisions (b)(3) and (c)(4) is that a cause of action, as a whole, must satisfy the predomina... |
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 ... | [
"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 time limit for these actions, they may be maintained only ... | [
"Hartford defrauded the court of appeals by using the article as evidence in support of its case. The Supreme Court ordered that the decision obtained in the court of appeals be set aside. The court finds Hazel-Atlas distinguishable from the instant case in that here there is no allegation of attorney involvement i... |
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,... | [
"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 words “as required by this Act” to the quoted provision. S... | [
"compensation for the performance of professional “legal” services; non-legal services are not compensable. See, Cle-Ware Industries, Inc. v. Sokolsky, 493 F.2d 863, 874 (6th Cir. 1974); In re Mabson Lumber Co., 394 F.2d 23, 24 (2d Cir. 1968); In re Hardwick & Magee, 355 F.Supp. 58, 71-74 (E.D.Pa.1973). A second fu... |
"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 a... | [
"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 made detailed provision for the problems that were bro... | [
"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. Jurisdiction to Entertain Tax Claims Under 28 U.S.C. § 1... |
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 ... | [
"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 section 552(e) is narrower than the Privacy Act in the sense... | [
"Cross, 640 F.2d 1051, 1054-55 (9th Cir.1981); Rocap v. Indiek, 539 F.2d 174, 177 (D.C.Cir.1976). While this federal control may be “manifested in various forms” and consists of a “confluence of several ‘federal’ characteristics,” Dennie has alleged no facts which make either defendant a federal agency. See Irwin, ... |
"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,... | [
"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 jury’s verdict. Otherwise, the errors are harmless and do n... | [
"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 the double flooring,” the court’s jury instruction allowe... |
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. Knau... | [
"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. Petitioners are further handicapped in their efforts to remai... | [
"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 Perdido v. I.N.S., 5 Cir., 1969, 420 F.2d 1179, 1181. While resident aliens are entitled to the full protection of this country’s laws, until they o... |
"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 oppos... | [
"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. The court has found no cases that directly address the ... | [
"the motion to dismiss is that Kimes is not truly seeking dismissal under § 1307, but rather is attempting, belatedly, to object to confirmation of her plan under § 1325. (Powers’ Memorandum of Points and Authorities, Filed March 21,1991, P. 4, lines 6-7, P. 5-8, lines 28-16). She says: “[T]he most serious problem ... |
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 a... | [
"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 away and he told me not to act stupid, and he showed me... | [
"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” of the offense. Patino, 962 F.2d at 266. Although the case law draws a fine line between those alterations that creat... |
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 S... | [
"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 sentence. However, we affirm the consecutive sentences for the... | [
"v. Middleton, 673 F.2d 31, 33 (1st Cir.1982) (same). . The circuits are uniform on this point. See eg., United States v. Aguilar, 849 F.2d 92, 98 (3d Cir.1988); United States v. Benevento, 836 F.2d 60, 73 (2d Cir.1987); United States v. Grubbs, 829 F.2d 18, 19 (8th Cir.1987) (per curiam); United States v. Stalling... |
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... | [
"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, October 24, 1969], 397 U.S. 592, 90 S.Ct. 1351, 25 L.Ed... | [
"to children or imposed on unwilling adults. The defendant urges that under Stanley the transportation and receipt of obscene matter for private use is constitutionally protected, and that only certain types of public distribution of obscene matter, as described in Redrup, may be subjected to governmental control. ... |
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... | [
"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 proceeding on June 23, 1939. The district court immediately a... | [
"and the Ball Foundation. The claim in question was in existence at the time of the institution of the reorganization proceedings. It was a chose in action which passed to the subsidiary debtor in possession and it was the duty of the subsidiary debtor in possession to collect it. The claim was merely an incident t... |
"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 Fift... | [
"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, therefore, affirm the enhancement of West’s sentence for ... | [
"‘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 whether a prior sentence counts for criminal history purpos... |
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... | [
"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 officers on patrol she had just been raped and that the perp... | [
"are normally and reasonably related to police administrative concerns. See id. at 601-02, 110 S.Ct. 2638; Carmona, 873 F.2d at 573; accord Rodney, 85 N.Y.2d at 292-94, 624 N.Y.S.2d 95, 648 N.E.2d 471. In Muniz, the Supreme Court explained that “a routine booking question exception ... exempts from Miranda’s covera... |
"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, AP... | [
"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 additional judicial remedies in situations where Congre... | [
"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 (D.C.Cir.2005). Thus, for example, relief will be deemed... |
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... | [
"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 called so. German Alliance Ins. Co. v. Kansas, 233 U. S. 3... | [
"highways thereof.” 49 Stat. 543, as amended, 54 Stat. 920, 49 U. S. C. § 302 (a) and (b). “Sec. 203. . . . “(b) Nothing in this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to inc... |
"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.C... | [
"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 in bad faith. See Ganaway v. Shelter Mut. Ins. Co., 795 S... | [
"that the district court should have disregarded the contractual choice of Kansas law and applied California law because, as the employee’s state of residence and performance under the contract, California has a materially greater interest in applying its law to invalidate the covenant not to compete, citing Restat... |
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); Not... | [
"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 deportation would cause “extreme hardship” within the meaning... | [
"justify estoppel, although it continued to reserve decision on the resolution of this issue. Thus, the principle of these decisions is that courts must not apply the private law notion of estoppel to the Government and that the more restrictive circumstances under which estoppel of the Government might arise remai... |
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 violen... | [
"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 was taken to headquarters until approximately midnight h... | [
"supra, 318 U.S. at page 344, 63 S.Ct. at page 614. In Upshaw v. United States, supra, 335 U.S. at page 412, 69 S.Ct. at page 171, Mr. Justice Black held that the Mc-Nabb rule was to apply to voluntary as well as involuntary confessions. The purpose of the requirement for prompt commitment was to prevent “secret in... |
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 argu... | [
"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 is reasonably necessary” to achieve the purposes of supe... | [
"'in a sex offender treatment program, and participation if further ordered, was reasonably related to the purposes of supervised release. See York, 357 F.3d at 20. As noted, such purposes include the need to deter further criminal conduct, the need to protect the public from further crimes by the defendant, and th... |
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 approvin... | [
"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 witnesses admitted to bail. Appellants contend that the proc... | [
"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 * * *... |
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 c... | [
"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. Suppl. Mem., Ex. B.) The Court concludes that the facts ... | [
"that it cannot avail as a defense, or if under any contingency it may raise an issue. * * * I am not in any sense passing on the facts, but it seems to me that they do raise an issue and can be availed of as a defense. * * * “The allegations of the several portions of the defendant’s answer, which plaintiff seeks ... |
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 narro... | [
"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 without authority to restrict the application of the stat... | [
"Development, Inc. v. Fanslow, 547 F.Supp. 207, 211 (N.D.Ill. 1980) (“plaintiff must allege how it was injured competitively by the RICO violation in order to state a cause of action under § 1964(c).”); Harper v. New Japan Securities Int’l, 545 F.Supp. 1002, 1007 (C.D.Cal.1982); Van Schaick v. Church of Scientology... |
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 Ac... | [
"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, however, to find that the release and covenant not to ... | [
"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 years, see id. § 3621(2), 104 Stat. at 4965. It also a... |
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 evidenc... | [
"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 Evidence and to Remand to the Board of Immigration Appeals (t... | [
"this offense, Cardenas had been accorded first time offender treatment under any law. If he has not, then he is not deportable as charged in the order to 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... |
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... | [
"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-compliance. We note that the magistrate expressly exonerated... | [
"Discussion, a. The Rule 60(b) Motion. After the Tribe became aware of Lone Dog’s grand jury testimony, it moved for relief from judgment on the grounds of newly discovered evidence under Fed.R. Civ.P. 60(b)(2), fraud of an adverse party under Fed.R.Civ.P. 60(b)(3), and fraud upon the court under Fed.R. Civ.P. 60(b... |
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... | [
"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 antidumping duty order. Background On August 22, 1984, the Inter... | [
"NIES, Chief Judge. Intrepid appeals from the order of the United States Court of International Trade in Intrepid v. Pollock, 712 F.Supp. 212 (Ct.Int’l Trade 1989) (Tsoucalas, J.), denying its motions under 15(a) and (d) of the Rules of the Court of International Trade for leave to supplement and amend its complain... |
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 acti... | [
"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 leading brands. It has also abandoned the use of the hy... | [
"courts (Darling Shops of Tennessee v. Brack, 8 Cir., 95 F.2d 135, 141) and in Minnesota (Bakkensen v. Railway Co., 184 Minn. 274, 238 N.W. 489, 490; Carpenter v. Tri-State T. & T. Co., 169 Minn. 287, 289, 211 N.W. 463, 464; Vogel v. Osborne & Co., 32 Minn. 167, 20 N.W. 129), but generally (20 Am.Jur. 532, Sec. 630... |
"§ 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 Zuroko... | [
"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 now-familiar “lode-star” calculation. See Stowe v. Bolo... | [
"taken as some emerging Massachusetts standard”); Connolly v. Harrelson, 33 F.Supp.2d 92, 95-96 (D.Mass.) (approving hourly rate of $200 in civil rights case for attorney with twenty-five years of experience), aff'd, 201 F.3d 426, 1999 WL 699906 (1st Cir.1999); McLaughlin ex rel. McLaughlin v. Boston Sch. Comm., 97... |
"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 erro... | [
"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 trial. Agent Bernal described the “bad boy” figure as “an... | [
"saw the evidence differently and found Foley guilty on all counts. The case then proceeded to sentencing, where the district court imposed a below-Guidelines sentence of 72 months’ incarceration and also ordered restitution in the amount of $2,198,204. This appeal followed. II. A. Sufficiency of the Evidence 1. Wi... |
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 ... | [
"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 Stiffel. This it had every right to do under the federal pat... | [
"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... |
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 (9t... | [
"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 back injury. The AU failed to consider the VA finding and ... | [
"of benefits where the record has been fully developed and where further administrative proceedings would serve no useful purpose. Id. In the past, we have credited evidence and remanded for an award of benefits where (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) ther... |
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 no... | [
"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 ease.” Ibid. Furthermore, ambiguities in that regard must... | [
"Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). This is true whether the state law ground is substantive or procedural. Id. If a state prisoner “has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is... |
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 ... | [
"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 “prohibited transactions” with the Funds by receiving ex... | [
"a frivolous breach, suggested that the Secretary could maintain a suit under that provision against a party in interest who participated in a transaction prohibited under section 406(a)(1). The court observed: Congress proscribed several “acts or practices” in ERISA’s substantive provisions that involve nonfiducia... |
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 wh... | [
"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) (stating that party invoking federal jurisdiction must alleg... | [
"incarcerated in Wisconsin. See Polakoff v. Henderson, 370 F.Supp. 690, 693 (N.D.Ga.1973), aff'd, 488 F.2d 977 (5th Cir.1974) (“A prisoner does not acquire a new domicile in the place of his imprisonment, but retains the domicile he had prior to incarceration.”); see also Singletary v. Cont’l Ill. Nat’l Bank & Trus... |
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 Youn... | [
"§ 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. In that case, Simon sued 1600 defendants, including the ... | [
"(7th Cir.1997). It bars a subsequent suit if the claim upon which the suit is based arises from the “same incident, events, transaction, circumstances, or other factual nebula as a prior suit that had gone to final judgment.” Okoro v. Bohman, 164 F.3d 1059, 1062 (7th Cir.1999). The three requirements of claim prec... |
"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... | [
"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 construction of Section 12’s service of process provision,... | [
"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... |
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 th... | [
"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, 1512, 84 L.Ed.2d 518 (1985). None of these circumstance... | [
"§ 2000e(b). We therefore need not decide when, if ever, an employer covered by the statute can be held liable for conduct toward someone who is not its employee; but we note in passing that Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C.Cir. 1973), and Doe v. St. Joseph’s Hospital, 788 F.2d 411, 421-25 (7t... |
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, ... | [
"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 Harvester Co., 498 F.2d 1187, 1140 (9th Cir., cert. denied,... | [
"to absolute immunity can at most enjoy the protection of qualified immunity. See Harlow, 457 U.S. at 807, 102 S.Ct. at 2732. In restricting absolute immunity to those functions intimately associated with the judicial process, courts have made use of the distinction between prosecutorial and judicial duties and dut... |
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 a... | [
"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 of an Individual Retirement Account (IRA). On February ... | [
"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... |
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 bet... | [
"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 issued remain to be determined. . UNC Resources, Inc., i... | [
"Code ineffective as to conferral in tribal courts of civil jurisdiction over non-Indians as defendants). 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 distric... |
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