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362 F.2d 210 (6 Cir. 1966) ; Duggins v. United States, 240 F.2d 479, 482 (6 Cir. 1957) ; Ekberg v. United States, 167 F.2d 380, 388 (1 Cir. 1948). . Welty raises for the first time, on appeal, the contention that the conspiracy sentence under § 371 is invalid because there can be no consecutive punishment for conspirac... | [
"puts in jeopardy the life of any person by the use of a dangerous weapon or device, the penalty for such crime shall be a fine of not more than $10,000 or imprisonment for a term or not more than 25 years or both. Here, the defendants were charged in Count I of the information with a violation of §§ 2113(a) and 21... | [
"to record indications of the intention of the sentencing judge. We need not restate in detail the facts relating to each of their cases. They are governed by the principles here announced, and these require the granting of their motions to correct the sentences imposed upon them. The orders of the district court d... |
§ 85-1308. . For the legislative history see 2 Environmental Law Reporter, 10022f.; Ray M. Druly, “The Refuse Act of 1899” (Monograph No. 11), pp. 3-4, Environment Reporter, 1972. . Report No. 91-917 of House Committee on Government Operations, 91st Congress, 2nd Session (1970), p. 2. The Report adds that this “restric... | [
"illegally caused. In response to the holding in Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629 (1888) that there was no federal common law prohibiting an obstruction to a navigable stream, Congress moved speedily to pass the Rivers and Harbors Act of 1890, 26 Stat. 426. This was later r... | [
"1899: New Tasks for an Old Law, 22 Hastings L. J. 782 (1971), while others use it to refer to the entire Rivers and Harbors Act of 1899, see, e. g., Rodgers, Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U. Pa. L. Rev. 761, 766 (1971). It has been suggested that since § 13 p... |
the district court. AFFIRMED. . Edwards' original Motion for Protection of Trial Dates or in the Alternative Motion for Continuance stated that it sought to protect the dates of July 8 to August 8, 1998. Subsequently, at a status conference held June 17, 1998, Edwards’ counsel clarified that he only sought protection b... | [
"se and, alternatively, abused its discretion when it refused to grant him a continuance. Second, he asserts that the court erred in refusing to suppress the statements he made to the Alcoholics Anonymous workers the night of his arrest. Third, he maintains that the .trial judge erroneously admitted into evidence t... | [
"that the government presented overwhelming evidence against Edwards regarding his sale of drugs on two occasions to an informant. Under these circumstances, even assuming a Confrontation Clause violation, any error is harmless beyond a reasonable doubt. Thus, we will affirm the judgment of the district court. III.... |
which focused on assessing the propriety of Solitro’s leaving cover. This argument is incorrect; the court did not abuse its discretion in admitting this evidence. Likewise, the court did not abuse its discretion in instructing the jury that “events leading up to the shooting” could be considered by it in determining t... | [
"Court has used the same “objectively reasonable” standard in describing both the constitutional test of liability, see Graham, 490 U.S. at 397, 109 S.Ct. at 1872, and the Court’s own standard for qualified immunity. Anderson, 483 U.S. at 639, 107 S.Ct. at 3038. It seems unlikely that this case would deserve a diff... | [
"28, 2000, were violative of decedent’s Fourth Amendment right to be free from an unreasonable seizure of his person. In order to find that such a violation had occurred, plaintiff had to prove that Solitro’s and/or Saraiva’s actions were not “objectively reasonable.” Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865,... |
"Janie Clayton was part of the purchase price. It is true that if the bank had made inquiry of law enforcement officials as to the record and reputation of Leroy Clayton that it would not have put them on notice since Leroy Clayton had no previous record or reputation for violations of the Internal Revenue law. In equi... | [
"which claimant’s interest arises, has a record or. reputation for violating state or federal liquor laws, then claimant must, before acquiring such interest, have been informed, in answer to his inquiry of a federal or principal local law enforcement officer, that such person has no such record or reputation. The ... | [
"and where the contract of purchase is made. The duty to make this inquiry is relieved only by the absence of the “reputation” with any of these officers in the event inquiry is not made. Myers, having a reputation with one of the enforcement officers enumerated in (b) (3) as contemplated by the act, and the claima... |
917 F.2d 382, 385 (9th Cir.1990) (citations omitted). In order for defendants’ approved vendor policy to survive plaintiffs’ free speech claims, it thus must be “reasonably related to legitimate penological interests” as determined by applying the Turner four-factor test. Prison Legal News, 397 F.3d at 699. Here, there... | [
"identity). The first element of the Turner test directs us to (1) determine whether the Department’s regulation is legitimate and neutral; and (2) assess whether there is a rational relationship between the governmental objective and the regulation. We hold that tying the receipt of subscription non-profit newslet... | [
"“rational relationship” standard affords prison officials great flexibility to establish policies that would best balance the penological interests of the institution with the constitutional rights of the inmates. Turner, supra, 482 U.S. at 89. In determining whether the prison policy is reasonably related to some... |
nephews, 2% are grandchildren, 3% are cousins, 1% are spouses and 1% are aunts or uncles. The new DSS policy terminates the benefits of these recipients unless 1) the recipient or landlord was disabled, 2) the recipient could show that he was, in fact, not related to the landlord or 3) the entire household qualified fo... | [
"Because we conclude that § 1611 (f) does not violate the Constitution, there is no occasion to consider the remedial issues raised by the appeal and cross-appeal. Social welfare legislation, by its very nature, involves drawing lines among categories of people, lines that necessarily are sometimes arbitrary. This ... | [
"effectively creates two categories of illegitimates and treats each differently. Defendant urges us to uphold the constitutionality of this restriction because it is a reasonable means of preventing spurious claims. Plaintiffs assert that this restriction is an unconstitutional denial of due process because it is ... |
paid or had “the final word as to what bills should or should not be paid and when.” Adams v. United States, 504 F.2d 73, 75 (7th Cir.1974), cert. denied sub nom. Estate of Klein v. Commissioner, 421 U.S. 991, 95 S.Ct. 1998, 44 L.Ed.2d 482 (1975). In the context of this case, “the word ‘final’ means significant rather ... | [
"does include officer and employee, but certainly does not exclude all others. Its scope is illustrated rather than qualified by the specified examples. In our judgment the section must be construed to include all those so connected with a corporation as to be responsible for the performance of the act in respect o... | [
"F.2d 1282, 1291, 198 Ct.Cl. 855 (1972). Although the appellant may not always have had the “final” say about paying creditors, in the apocalyptic sense of that word, he did have significant control over disbursements. This is sufficient for section 6672 liability to attach. Hartman v. United States, 538 F.2d 1336,... |
"consent of Hudson, at the end of Hudson’s case. However, allegations concerning the use of trademarks remain in the case to the extent the allegations or facts so developed affect the allegations with regard to sections one and/or two of the Sherman Act. (Trans. 10/14 at 50 to 78.) . The parties have not indicated wha... | [
"of interstate commerce.” United States v. Consolidated Laundries Corp., 291 F.2d 563, 573 (2d Cir. 1971). Some commentators have argued, however, that relevant market should be considered a necessary element of Section 2 conspiracy claims, at least in civil cases. See, e.g., 3 Von Kalinowski, supra, § 9.02[4]. In ... | [
"The Capper-Volstead Act, 7 U.S.C. § 291, was adopted in 1922 to make clear that the antitrust laws would not prohibit farmers from organizing collectively for purposes of marketing their products. The Supreme Court has construed the exemption as permitting “farmer-producers to * * * fix prices at which their coope... |
evidence is a violation of the accused’s due process rights. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of... | [
"See id., at 86 (relying on Mooney v. Holohan, 294 U. S. 103, 112 (1935), and Pyle v. Kansas, 317 U. S. 213, 215-216 (1942)). Brady held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irr... | [
"the state court adjudication of his Brady claim resulted in a decision that is contrary to, or involves an unreasonable application of, federal law. 28 U.S.C. § 2254(d)(1). He argues that the recorded pretrial interviews with Brown and Dane Dickson contained “material” impeachment evidence under Brady on the issue... |
v. Adolph Coors Co. (In re Globe Distributors, Inc.), 145 B.R. 728 (Bankr.D.N.H.1992); In re WHET, Inc., 61 B.R. 709 (Bankr.D.Mass.1986). . In re Pub. Serv. Co. of New Hampshire, 160 B.R. 404, 418 (Bankr.D.N.H.1993). . Id. at 418-420. . Boston & Maine Corp. v. Sheehan, Phinney, Bass & Green, P.A., 778 F.2d 890, 894 n. ... | [
"to a case are those which foster and enhance, rather than retard or interrupt the progress of reorganization.” In re Richton International Corp., 15 B.R. 854, 855 (Bankr.S.D.N.Y.1981). While the policy aim behind these provisions is to promote meaningful creditor participation in the reorganization process, In re ... | [
"Matter of Consolidated Bancshares, Inc., 785 F.2d 1249, 1253 (5th Cir. 1986); In re Rockwood Computer Corp., 61 B.R. 961, 964-965 (Bankr.S.D.Ohio 1986); In re Russell Transfer, Inc., 59 B.R. 871, 873 (Bankr.W.D. Va.1986); Matter of Patch Graphics, 58 B.R. 743, 745 (Bankr.W.D.Wis.1986); In re General Oil Distributo... |
standard, the parties’ almost certain knowledge at the time the fees were paid that the most important condition would not be met rendered the value of the loan essentially illusory, and therefore not reasonably equivalent to the fees being paid. Id. at 153-54. Although Adler does state that “the term Value’ [excludes]... | [
"whether Mr. and Mrs. Chomakos received property of reasonably equivalent value in exchange for the money they wagered at the casino is the point at which their bets were placed. See In re Morris Communications NC, Inc., 914 F.2d 458, 466 (4th Cir.1990), quoting Collier on Bankruptcy § 548.09 at p. 116 (15th ed.198... | [
"548.05[l][b], at 548-35. None of the forms of value Appellants argue Adler received, singly or combined, rises to a level that may be deemed “reasonably equivalent” commercial value. First, the statute requires that the debtor must have “received” the value in question “in exchange” for the transfer or obligation ... |
days remained to be served on the original sentence. Zavada is not eligible for conditional release until March 18, 1962. Zavada urges that he was in federal custody in Ohio under the parole violation warrant and that when the United States subsequently released him to the state authorities it lost jurisdiction over hi... | [
"the commitment order “to keep” the prisoner means keep him in the Los Angeles jail until time to take the train for McNeil Island in the state of Washington. We cannot shut our eyes to the fact that there must have been an interval of time when the commitment order necessarily required him to be “kept” where the m... | [
"under the warrant issued by the United States Board of Parole in 1962, and incarcerated in the United States Penitentiary at Atlanta, Georgia, to complete service of his 1958 federal .sentence. On June 14, 1966, appellant petitioned the United States District Court for the Northern District of Georgia for a writ o... |
counsel and independent experts. Cook thus appears to advocate a per se rule prohibiting disclosure of trade secrets to a competitor’s employees. When pressed on this issue at oral argument, however, Cook backed away from the contention that a per se rule applies. Such a retreat is not surprising in light of the fact t... | [
"trial attorney. The defendant has represented to this Court that its in-house counsel involved in this litigation neither conduct scientific research nor prosecute patents. These attorneys simply do not face Mr. Greene’s prospect of having to distil one’s own thoughts from a competitor’s thoughts during the course... | [
"employee’s position at the new employer, disclosure of the trade secrets would be inevitable. See PepsiCo, Inc. v. Redmond, 54 F.3d 1262 (7th Cir.1995) (enjoining employee from working for competitor based on inevitable disclosure of trade secrets even though employee did not enter into non-compete agreement); Pay... |
case” because the Act “creates a new right” that is “exclusive”); Haseltine v. Central Bank of Springfield, 183 U. S. 132, 134 (1901) (“[T]he definition of usury and the penalties affixed thereto must be determined by the National Banking Act and not by the law of the State”). In addition to this Court’s longstanding a... | [
"Mr. Justice STRONG delivered the opinion of the court. In an action like the present,'brought to recover that which is substantially a statutory penalty, the statute must receive a strict, that is, a literal construction. The defendant is not to be subjected to a penalty unless the words of the statute plainly imp... | [
"as the “power to destroy,” McCulloch v. Maryland, 4 Wheat. 316, 431 (1819), supports the established interpretation of §§85 and 86 that gives those provisions the requisite pre-emptive force to provide removal jurisdiction. In actions against national banks for usury, these provisions supersede both the substantiv... |
standards governing the substance of the agency decision to recommend a major federal action which can guide the judicial reweighing that plaintiffs seek. Courts that have discussed, either de-cisionally or in dicta, whether APA review extends to the merits of the agency’s final decision have reached varying results. T... | [
"brought to the attention of the District Court under its reserved jurisdiction. We affirm the judgments of the District Court and vacate all orders granting injunctions by this court. . Intervenor on the side of the plaintiffs is The Sierra Club. . Intervenors on the side of the defendants are: . In the meantime t... | [
"136 (1971). The preliminary question here then is whether Section 101 of NEPA [together with Section 102(1)] provides “law to apply” standards governing the substance of the agency decision to recommend a major federal action which can guide the judicial reweighing that plaintiffs seek. Courts that have discussed,... |
that such a “pageant” may not rise to the level of artistic endeavor that “Hair” or “La Cage aux Folies” represent, it is still expression. Defendants have failed to produce evidence, authority or argument that evaluations of the degree of “art” in entertainment make a difference in the extent of constitutional protect... | [
"newspaper they were rationally related to an article that itself was clearly entitled to the protection of the Fourteenth Amendment. Thornhill v. Alabama, supra. The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The conviction on count one must therefore be reve... | [
"law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which taken as a whole, do not have serious literary, artistic, political, or scientific value. ... |
Ass’n, 322 F.3d 1039, 1046 (9th Cir.2003)). IV. DISCUSSION Kostick makes a bifurcated equal protection challenge to Hawaii’s reapportionment plan. He first protests the extraction of non-resident military personnel, their dependents, and non-resident students. He argues that using a population base that does not includ... | [
"may be according to the number of their inhabitants as reported in the last preceding decennial census of the United States.” Art. IV, §1, ¶1. Similarly, the Pennsylvania Constitution requires that “[i]n each year following the year of the Federal decennial census, a Legislative Reapportionment Commission shall be... | [
"at this preliminary stage of the proceedings, the plaintiffs have not established a likelihood of success on the merits of their claim that the permanent resident population basis violates equal protection. Nor do the equities and public interest weigh in favor of an injunction that risks jeopardizing the primary ... |
parties’ familiarity with the underlying facts and procedural history of the case. When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the BIA’s denial of a motion to r... | [
"it will apply preclusion principles in immigration proceedings. Matter of Fedorenko, 19 I. & N. Dec. 57, 61 (B.I.A.1984). In addition, the Supreme Court has stated that “where a common-law principle is well established, as are the rules of preclusion, the courts may take it as given that Congress has legislated wi... | [
"BIA.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). Here, the BIA did not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning. It is not entirely clear whether we include the IJ’s decision in our review in such a situation. Compare Yan Chen, 417 F.3d at 271 (“ ‘[0]... |
1978, pp. 5787, 5865, 6320. Or, if Congress particularly approved of a judicial result, it codified it. For instance, § 510(c), which authorizes bankruptcy courts to equitably subordinate certain claims, is “intended to codify case law, such as Pepper v. Litton, 308 U.S. 295 [60 S.Ct. 238, 84 L.Ed. 281] (1930), and Tay... | [
"law when an offer of compromise is accepted but which subsequently fails of consummation. The framers of the 1898 Bankruptcy Act, wishing to avoid confusion on a concept so central in bankruptcy, offered explicit language on the nature of a discharge within a confirmation. Section 14(c) of the Bankruptcy Act of 18... | [
"by a bankruptcy court to balance the equities among claims of conflicting creditors to see that injustice or unfairness is not done in the administration of a bankruptcy estate. Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939); Taylor v. Standard Gas and Electric Co., 306 U.S. 307, 59 S.Ct. 543, 8... |
further argued that all parts of the statute must be reconciled and given consistent, harmonious, and sensible effect if that can be done; that all of the words contained in it must be given effect; that it will not be presumed that Congress used extra and idle verbiage; and that a taxing statute should be liberally co... | [
"any such enlargement in the scope of its provisions. 56 Cong. Rec., Pt. 12, App. p. 698; 65th Cong. 3d sess., Sen. Rep. No. 617, p. 17. We cannot, however, regard the slight negative inference which might be drawn from the failure of these chairmen to point out the enlargement of the class of organizations made su... | [
"consistent, harmonious, and sensible effect if that can be done; that all of the words contained in it must be given effect; that it will not be presumed that Congress used extra and idle verbiage; and that a taxing statute should be liberally construed in favor of the taxpayer. These are recognized rules of a gen... |
once again spoken on this subject when, on June 9, 1952 in the matter of Brotherhood of Railroad Trainmen v. Howard, 72 S.Ct. 1022, 1025, Justice Black speaking for the. majority said: “Here, as in the S'teele case [Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173], colored workers must look t... | [
"courts were not ousted of their jurisdiction, we upheld the right of employees to sue the carrier although the employment relationship still existed. The case before us is quite different from Switchmen’s Union v. Mediation Board, 320 U. S. 297, and General Committee v. M.-K.-T. R. Co., 320 U. S. 323. Those concer... | [
"colored workers must look to a judicial remedy to prevent the sacrifice or obliteration of their rights under the Act. For no adequate administrative remedy can be afforded by the National Railroad Adjustment or Mediation Board. The claims here cannot be resolved by interpretation of a bargaining agreement so as t... |
"of an expert report on the literal eve of the class certification hearing. In any event, the contents of Dr. Blume's affidavit would not alter the Court's bottom-line conclusion that class certification is inappropriate in this particular case. . In the motion to amend, Plaintiffs also express a desire to ""add and/or... | [
"and refunded Ms. Kirkland’s payment for the second year. Ms. Kirkland filed suit in the Superior Court of Richmond County against Midland and Balboa on October 13, 1997, alleging breach of fiduciary duty, fraud, theft, and money had and received. Shortly thereafter, Balboa removed the case to federal court. On Dec... | [
"As Plaintiffs have emphasized, it would not be appropriate for the Court to evaluate the merits of their claim and decide whether to invoke a per se analysis in the context of this motion for class certification. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974) (“We find n... |
that sovereign immunity would apply as long as the federal official’s actions were “within the outer perimeter of [his] line of duty.” 360 U.S. at 575, 79 S.Ct. at 1341. Therefore, a federal employee who exercises discretion in carrying out his official duties will be immune from liability for common-law torts as long ... | [
"inevitable.” The Court of Appeals also found it to be undisputed “that the work which the contractor had done in the river bed was all authorized and directed by the Government of the United States for the purpose of improving the navigation of this navigable river.” It is also conceded that the work thus authoriz... | [
"are entitled to absolute immunity for common law torts committed while acting within the course of their employment. The plurality continued that the immunity extended even to malicious acts that were within the outer perimeter of the federal employee’s line of duty. Id. at 575, 79 S.Ct. at 1341, 3 L.Ed.2d at 1443... |
U.S. 306, 311, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Dombrowski v. Eastland, 387 U.S. 82, 84, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967). By citing these Supreme Court cases, we do not suggest that any one of them supplies precisely controlling law as to our present case. The Courts of Appeals do supply well-argued opinions ... | [
"conferred upon members of Congress by the “Speech or Debate” clause in the United States Constitution. The “Speech or Debate” clause does not apply, or purport to apply, to state legislators. United States v. Craig, 7 Cir., en banc, 1976, 537 F.2d 957, cert. denied sub nom. Markert v. United States, 425 U.S. 973, ... | [
"panel of the Seventh Circuit held that a state legislator was entitled to a federal common law speech or debate privilege in a federal criminal prosecution, but that he had waived such privilege. On rehearing en banc, United States v. Craig, 537 F.2d 957 (7th Cir.), cert. denied sub nom., Markert v. United States,... |
child photographed but of the exhibition which the photographer sets up for an audience that consists of himself or likeminded pedophiles.... The picture of a child “engaged in sexually explicit conduct” within the meaning of 18 U.S.C. §§ 2251 and 2252 as defined by § 2255(2)(E) is a picture of a child’s sex organs dis... | [
"denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118 (1987). The court explained that “lasciviousness is not a characteristic of the child photographed but of the exhibition which the photographer sets up for an audience that consists of himself or like minded pedophiles.” Id. The court did not, however, clarify th... | [
"(which we describe in greater detail, infra) meets the definitions in subsections (A), (B), (C), or (D). The photograph thus depicts sexually explicit conduct only if it contains a “lascivious exhibition of the genitals or pubic area.” Congress did not expressly define “lascivious exhibition of the genitals or pub... |
who supplies a carrier with inaccurate information about a cargo, without regard to the carrier’s conduct. Moreover, even if it were assumed that the common law defense of equitable estoppel were incorporated into the statutory cause of action created by § 1303(5), the defense simply has no application here. Traditiona... | [
"23,441. Moreover, appellants cannot escape their own brochure definitions. “A Limited Risk Forward, or LRF, is a hedged contract to buy or sell a specific commodity for a specific price on or before a specific date.” An option is “a right to buy (or sell) a commodity (sugar, tin, silver, etc.) at a fixed price, fo... | [
"were incorporated into the statutory cause of action created by § 1303(5), the defense simply has no application here. Traditionally, the doctrine of equitable estoppel operates to preclude a party [who has made representations of fact through his words or conduct] ‘[f|rom asserting rights which might perhaps have... |
Hughey, 877 F.2d 1256, 1261 (5th Cir.1989) (collecting cases), rev’d on other grounds, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990)). And in order to make a victim whole, prejudgment interest may be necessary to “allow an injured party to recoup the time-value of his loss.” William A. Graham Co. v. Haughey, 646... | [
"their victims whole.” Rochester, 898 F.2d at 983. See also Smith, 944 F.2d at 626. Prejudgment interest reflects the victim’s loss due to his inability to use the money for a productive purpose, and is therefore necessary to make the victim whole. This is especially true when, as in this case, the victim is a fina... | [
"prejudgment interest in a criminal restitution order to ensure compensation “in the full amount of each victim’s losses.” 18 U.S.C. § 3664(f)(1)(A). The district court therefore acted within its discretion in awarding prejudgment interest on funds that it determined MetLife and New York Life would have otherwise p... |
9, 2001. This petition followed. II. Discussion: Where the BIA adopts the findings and reasoning of the IJ, this court reviews the decision of the IJ as if it were that of the BIA. Al-Harbi v. INS, 242 F.3d 882, 887 (9th Cir.2001). The standard of review is extremely deferential: “administrative findings of fact are co... | [
"been questioned at home, Chebchoub testified that they have never been arrested or taken into custody. In October 1995 Chebchoub applied for relief from deportation proceedings, claiming persecution by the Moroccan government on the basis of political opinion, imputed political opinion, and social group. In a deci... | [
"a summary order adopting, and affirming the IJ’s decision in its entirety, dismissing the appeal in an order dated May 9, 2001. This petition followed. II. Discussion: Where the BIA adopts the findings and reasoning of the IJ, this court reviews the decision of the IJ as if it were that of the BIA. Al-Harbi v. INS... |
"Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and held that officials were not liable for constitutional violations where they reasonably believed that their conduct was constitutional. See E. Clarke, Safford Unified Sch. Dist. No. 1 v. Redding; Why Qualified Immunity is a Poor Fit in Fourth Amen... | [
"which his action violated a student’s constitutional rights, a school board member, who has voluntarily undertaken the task of supervising the operation of the school and the activities of the students, must be held to a standard of conduct based not only on permissible intentions, but also on knowledge of the bas... | [
"conduct was constitutional. See E. Clarke, Safford Unified Sch. Dist. No. 1 v. Redding: Why Qualified Immunity is a Poor Fit in Fourth Amendment School Search Cases, 24 B.Y.U. J. Pub.L. 313, 329 (2010). The Supreme Court first introduced the \"clearly established” prong in reference to an officer's good faith and ... |
with due process. Wenz, 55 F.3d at 1507; Custom Vinyl Compounding Inc. v. Bushart & Associates, Inc., 810 F.Supp. 285, 287 (D.Colo.1992). Because the Colorado long-arm statute extends personal jurisdiction within the state as far as the federal constitutional requirements of due process permit, Keefe v. Kirschenbaum & ... | [
"Kuenzle's skis. Prior to the district court's consideration of Tyrolia’s motion to dismiss, the Kuenzles reached a settlement with Hoback, leaving Tyrolia as sole defendant. . The \"minimum contacts\" principle was first articulated in International Shoe v. Washington, 326 U.S. 310, 311-12, 66 S.Ct. 154, 156, 90 L... | [
"Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) (citing Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878)). The cornerstone of the due process inquiry is an analysis of the defendant’s contacts with the selected forum. The famous International Shoe ca... |
"of less than ideal clarity if the agency’s path may reasonably be discerned.” 419 U.S. at 285-86, 95 S.Ct. 438 (citing Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595, 65 S.Ct. 829, 89 L.Ed. 1206 (1945)). Because the administrative record reflects that APHIS adequately addressed the relevant facts, engaged in su... | [
"possible presence of the Mexican Spotted Owl in the project area. Arguably, the owls or their habitat could be “present” despite the determination that the project would have “no effect” on them. However, Southwest Center cannot rely on the Forest Service Manual and Handbook, as this court has determined that it d... | [
"its reasons for considering this evidence, which was not included in the record. When reviewing an agency action, the district court “will engage in a substantial inquiry, but it must not substitute its own judgment for that of the Agency.” Abramowitz v. United States EPA 832 F.2d 1071, 1075 (9th Cir.1987). In mos... |
"attached several passages from a catechism and the Bible, see Pl.'s Resp. Exs. 2, 6, three notarized witness statements relating to one of Mr. Schrader’s arrests for civil contempt, see Pl.'s Resp. Ex. 4, and several memoranda of law relating to banking, bankruptcy and ""defeating corruption by law,” see Pl.’s Resp. E... | [
"Per Curiam. A long line of this Court’s precedents acknowledges that, generally, a judge is immune from a suit for money damages. See, e. g., Forrester v. White, 484 U. S. 219 (1988); Cleavinger v. Saxner, 474 U. S. 193 (1985); Dennis v. Sparks, 449 U. S. 24 (1980); Supreme Court of Va. v. Consumers Union of Unite... | [
"Missouri. The conduct of the Judges complained of by plaintiff herein is confined by plaintiff’s allegations to their official conduct with respect to the actions in which they had judicial responsibility. The principle is well established that judicial officers are immune from suits for money damages for acts per... |
result of a default under the contract or lease between the parties and are recoverable under the contract and applicable state law. See, e.g., In re F & N Acquisition Corp., 152 B.R. 304, 308 (Bankr.W.D.Wash.1993); In re Hillsborough Holdings Corp., 126 B.R. 895, 898 (Bankr.M.D.Fla.1991). Entitlement to attorneys’ fee... | [
"award of attorneys’ fees to the landlords’ counsel without regard to the terms of the lease. In re Westworld Community Healthcare, Inc., 95 B.R. 730 (Bankr.C.D.Cal.1989). The respective records in all of the other cases we found considering attorney fees under § 365(b)(1) included lease provisions allowing attorne... | [
"fees from the debtor. Attorneys’ fees incurred in attempting to collect sums due from debtors following default may be recovered as pecuniary loss under § 365(b)(1)(B) if such monies were expended as the result of a default under the contract or lease between the parties and are recoverable under the contract and ... |
must be enough of a showing that the jury could reasonably find for that party.” Abbes v. Embraer Servs., Inc., 196 Fed.Appx. 898, 899-900 (11th Cir. 2006)’ (quoting Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)). When deciding whethfer summary judgment is appropriate, “the evidence, and all inferences drawn fr... | [
"without the latter’s written consent). Notwithstanding the contrary policy language, EmbroidMe argues that it can still prevail on its claim for reimbursement because Travelers failed to timely notify Em-broidMe that Travelers was unwilling to pay these previously-incurred expenses. According to EmbroidMe, because... | [
"106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wingate v. Gage Cnty. Sch. Dist., No. 34, 528 F.3d 1074, 1078-79 (8th Cir.2008). Where, as here, the Court confronts cross-motions for summary judgment, this approach is only slightly modified. When considering FMM’s Motion, the Court views the record in the light most favora... |
for review and motions for a stay of removal and a stay of the voluntary departure period. We denied both motions. II. The government argues that we lack jurisdiction over the petition for review under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), which provides that a determinatio... | [
"two the number of witnesses he could call to testify, and (3) the principles of res judicata should apply to the question of whether he had suffered past persecution, since he had been admitted to the United States as a refugee in 1996. The BIA dismissed his appeal, holding that Mr. Romanishyn had asserted no grou... | [
"“[a] determination by the Attorney General as to whether the status of any alien should be adjusted under this section is final and shall not be subject to review by any court.” NACARA § 202(f); Centeno v. U.S. Att’y Gen., 441 F.3d 904, 905 (11th Cir.2006); Ortega v. U.S. Att’y Gen., 416 F.3d 1348, 1350 (11th Cir.... |
earring during school hours and on school grounds. Breen and Crews struck down regulations which dictated the students’ appearance both in and out of school. We find that the Board's gang policy is rational and does not unconstitutionally curtail a student’s freedom to choose his own appearance. See Kelley v. Johnson, ... | [
"competition in the boys’ program. The answer must depend on whether it is permissible for the defendants to structure their athletic programs by using sex as one criterion for eligibility. If the classification is reasonable in substantially all of its applications, I do not believe that the general rule can be sa... | [
"1, 55, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). . Mr. Justice Powell stated in concurrence that “I find no negative implication in the opinion with respect to a liberty interest within the Fourteenth Amendment as to matters of personal appearance.” 425 U.S. at 249, 96 S.Ct. at 1447. Cases in this circuit have uniforml... |
to the district court failed to demonstrate the degree of fame necessary under the statute. Although the plaintiff had provided affidavit testimony that its business had grown from $100 million in sales from 87 stores in 1994 to $280 million from 228 stores operating in 27 states in 1998, and that it had expended tens ... | [
"FTDA must fail because the FTDA does not apply retroactively; (3) Enterprise met its burden of proof on dilution and/or likelihood of dilution; or (4) Enterprise met its burden of proof by clear and convincing evidence that Advantage abandoned its rights in its slogan. The district court dismissed Advantage’s pend... | [
"as defining the limits of a statute’s coverage. Putting together the extraordinary power the Act confers on a “famous” mark and the improbability that Congress intended to grant such outright exclusivity to marks that are famous in only a small area or segment of the nation, with the hints to be gleaned from the H... |
pleading requirement must be reconciled with Federal Rule 8 and its requisite of notice pleading. One court has declared: “So long as the complaint affords defendant notice of the claims against him and evidences a reasonable belief on plaintiff’s part that his complaint has merit,” both Rule 8 and 9 will be satisfied.... | [
"of Fed.R.Civ.P. 8, which encourages “short and concise” pleadings, and the particularity requirement of Rule 9(b). Given the seriousness of fraud allegations, however, Rule 9(b) was designed both to insure that plaintiffs have an adequate basis for such allegations and to provide defendants with sufficient informa... | [
"long as the complaint affords defendant notice of the claims against him and evidences a reasonable belief on plaintiff’s part that his complaint has merit,” both Rule 8 and 9 will be satisfied. Gilbert v. Bagley, 492 F.Supp. 714, 726 (M.D.North Carolina, 1980). See In re Hart, 461 F.Supp. 328, 330 (E.D.Ark.1978);... |
with racial bias, violated rights secured to him by the Civil Rights Act of 1870, codified at 42 U.S.C. § 1981. This statute provides: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to ... | [
"within one of the enumerated rights protected by § 1981. A Section 1981 reads as follows: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws ... | [
"Magistrate Judge hereby RECOMMENDS that defendant’s motion for summary judgment be GRANTED as it relates to this claim. In summary, the undersigned finds that plaintiff has failed to establish evidence supporting a prima facie ease with regard to any of his Title VII claims. Accordingly, the undersigned RECOMMENDS... |
of a large sum of money to build up its good will with the mistaken idea that it had a right to do so; and it follows that it did not acquire the right to use a trademark confusingly similar to that of the defendant. The defendant has not been guilty of laches but objected to the plaintiff’s conduct as soon as he disco... | [
"Trade-marks, 9 ; Taylor v. Carpenter, 2 Sandf. (N. Y.) Ch. 603; Coddington, Dig. 9. Complainant’s, pills have been in the market as a vendible article for more than forty years, and during that whole period have.been sold under tradgrinarks of the forms heretofore sufficiently described, and they are still sold un... | [
"likely to he misled. In McLean v. Fleming, supra, the court (cit ing Gorham Co. v. White, 14 Wall. 511) said: “Two trade-marks are substantially the same, in legal contemplation, if the resemblance is such as to deceive an ordinary purchaser, giving such attention to the same as such a purchaser usually gives, and... |
of such a nature as to justify suit against [a corporate defendant] on causes of action arising from dealings entirely distinct from those activities.” Id. at 318, 66 S.Ct. at 159. Finally, for perhaps the first time, the Court recognized reciprocity as a significant jurisdictional consideration, reasoning that a party... | [
"As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. In response to these chang... | [
"at 159. Contrastingly, the Court mentioned “instances in which the continuous corporate operations within a state were thought so substantial and of such a nature as to justify suit against [a corporate defendant] on causes of action arising from dealings entirely distinct from those activities.” Id. at 318, 66 S.... |
procedural distinctions between law and equity. The differentiation between equitable and legal doctrines, and between equitable and legal remedies, is part of the warp and woof of Anglo-American jurisprudence and is deeply imbedded in our system of law. It has not been abrogated or affected by the commendable simplifi... | [
"distinction between legal and equitable forms of action. Rule 2, Federal Rules of Civil Procedure. However, the distinction which has been abolished is a procedural and not a substantive one. 1 Moore’s Federal Practice, p. 144; 17 Hughes, Federal Practice, § 18563; Bellavance v. Plastic-Craft Novelty Co., D.C., 30... | [
"the patent laws and authorizes the granting of injunctions according to the course and principles of courts of equity to prevent the violation of any rights secured by patent, and empowers the court to grant recovery of profits and damages. While the Rules of Civil Procedure (Rule 2) provide for one form of action... |
that Ferryman did not qualify for safety valve relief and sentenced Ferryman to the mandatory minimum sentence of imprisonment for sixty months. Ferryman timely appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). II. DISCUSSION We review the district court’s interpretation of the Sentenc... | [
"and 963 (the 1993 incident). The indictment alleged that in July 1993, Real-Hernandez and others loaded approximately 18 duffel bags containing nearly 1,800 pounds of marijuana into two inflatable, Zodiac-type boats headed for Silver Strand State Beach in Coronado. Meanwhile, the district court postponed Real-Hern... | [
"foregoing reasons, we affirm Cata-lano’s sentence of sixty months. . The \"safety valve\" provisions of 18 U.S.C. § 3553(f) allow a defendant to be sentenced without respect to any applicable mandatory minimum sentence if the court finds at sentencing, after the Government has been afforded the opportunity to make... |
demonstrates a public need for reactivation of the routes. This would certainly be a relevant factor in evaluating public need, but as the Commission stated, such evidence alone does not establish public need. The Commission has reasonably inferred that any aggressive carrier can acquire operations under temporary auth... | [
"north thereof. This is all Adirondack’s previous practice has been. But the new certificate will permit it to inaugurate short-haul and commuter operations without any finding of public need for such service or any inadequacy in existing facilities. And the statement that Hudson’s fears are conjectural and unsuppo... | [
"plaintiff’s services was given due consideration. The contention of the plaintiff in the Application Case No. MC-103926 (Sub-No. 9) that the Commission is required to consider plaintiff’s past unauthorized operations as evidence of public convenience and necessity is without merit. The law is settled that unauthor... |
PER CURIAM: The attorney appointed to represent Ronald Lymuel has moved for leave to withdraw and has filed a brief in accordance with REDACTED Lymuel has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave t... | [
"character of the Defendant and the nature of the crime, which are important § 3553(a) factors. Defendant was sentenced to 78 months. On February 9, 2006, Pulyer’s counsel filed an Anders brief arguing only that the right to appeal was waived by the agreement to plead guilty. On March 15, 2006, Pulyer submitted a p... | [
"ORDER AND JUDGMENT PER CURIAM. This matter is before the court on the government’s motion to enforce the appeal waiver contained in defendant’s plea agreement. The motion is filed pursuant to United States v. Hahn, 359 F.3d 1315 (10th Cir.2004) (en banc). In response, defendant concedes that the government’s motio... |
Healthcare, Inc., 57 F.3d 350, 356-57 (3d Cir.), cert. denied 516 U.S. 1009, 116 S.Ct. 564, 133 L.Ed.2d 489 (1995) (finding no preemption where plaintiffs attempted to hold HMOs liable for their role as arrangers of their decedents’ medical treatment); Roessert v. Health Net, 929 F.Supp. 343 (N.D.Cal.1996) (holding tha... | [
"her contention that her underlying state law claim for medical malpractice is not preempted. Mary Kuhl’s claim for emotional distress, like the Kuhls’ other state law claims, is based upon Lincoln National’s failure to expeditiously precertify payment for the St. Louis surgery. We conclude that Mary Kuhl’s claim f... | [
"also Kearney v. U.S. Healthcare, Inc., 859 F.Supp. 182, 186-87 (E.D.Pa.1994) (holding in a ease similar to those at bar that ERISA preempts plaintiffs direct negligence claim, but not its vicarious liability claim). The HMOs’ reliance on Corcoran is misplaced. Although United’s decisions in Cor-coran were in part ... |
not have personal causes of action against Jim Dandy. As will be discussed infra, Falcon establishes that persons without claims themselves cannot represent a class who may have claims. In combination, these two facts force a conclusion against Rhoades and Lowery on the class action question, and obviate any necessity ... | [
"either the defendant or the fund awarded to the class. Mr. Justice Powell, with whom Mr. Justice Stewart joins, dissenting. Respondents are two credit card holders who claim that petitioner charged them usurious interest in violation of the National Bank Act and Mississippi law. They filed this action late in 1971... | [
"if neither Abron (for sake of argument) nor the Geraghty plaintiff has anything concrete to gain by a favorable class determination on the merits, still she or he may possess sufficient interest to act as a class representative. As stated by the Third Circuit, “we can perceive no reasoned distinction between the p... |
under section 1381. The Mobile Plan cross-appeals the district court’s failure to order CCC to immediately begin interim payments under 29 U.S.C.A. § 1401(d) and the district court’s failure to award liquidated damages and attorneys fees to the Mobile Plan under 29 U.S.C.A. § 1132(g)(2). 1. The Contributing Obligor Tes... | [
"Justice Brennan delivered the opinion of the Court. The question presented by these cases is whether application of the withdrawal liability provisions of the Multi- employer Pension Plan Amendments Act of 1980 to employers withdrawing from pension plans during a 5-month period prior to the statute’s enactment vio... | [
"granting of summary judgment to the Pension Fund is AFFIRMED. . In 1980 Congress amended ERISA by means of the Multiemployer Pension Plan Amendments Act (\"MPPAA”), 29 U.S.C. §§ 1381 et seq., to protect beneficiaries of multi-employer pension plans from the effects of the withdrawal of a contributing employer. Und... |
which deal with appointment of a guardian ad litem, child abuse investigation, placement of and services to foster children, foster care licensing, child care facility licensing, and the Interstate Compact on the Placement of Children, set forth the requirements that state and local officials must undertake, they do no... | [
"the hands of his foster parents is not harm inflicted by state agents. See Milburn v. Anne Arundel County Dep’t of Social Servs., 871 F.2d 474 (4th Cir.), cert. denied, — U.S. -, 110 S.Ct. 148, 107 L.Ed.2d 106 (1989). It is even more clear that harm suffered by a child in the custody of a parent or grandparent is ... | [
"circuits, in none of these prior cases did the court actually reach the question of whether a child welfare statute required removal of a child from an unsafe environment, thus potentially imposing substantive as well as procedural requirements on state officials and creating a liberty or property interest suffici... |
reasonably foreseeable testimony from this witness would have raised this defense. The Government did call as a witness the Special Agent of the Criminal Investigation Division (CID) who negotiated and made an undercover purchase of the hashish from appellant. Nothing in his cross-examination indicates how the witness ... | [
"the judge erred when he refused to require a grant of immunity for a defense requested witness. In United States v. Martin, No. 78 1151, 9 M.J. 731 (NCMR 1979), on reconsideration, 9 M.J. 746 (NCMR 1980), this Court was confronted with a similar issue, whether the convening authority abused his discretion by refus... | [
"regardless of defense theories or requests. United States v. Stewart, 20 U.S.C.M.A. 300, 43 C.M.R. 140 (1971). See United States v. Sawyer, 4 M.J. 64 (C.M.A.1977); United States v. Graves, 1 M.J. 50 (C.M.A.1975). Any doubt whether the evidence is sufficient to require an instruction should be resolved in favor of ... |
through bankruptcy unaffected, but overlooks the significance of section 506(d) when read together with section 501, which governs proof of claims. Section 501(c) authorizes the debtor as well as the creditor to file a proof of claim, including proof of a secured claim under section 506(a). Such a filing not only drags... | [
"of the security. 823 F.2d at 189. Then, addressing the effect of bankruptcy upon liens, the court stated that: [t]he presence of the mortgagees in the bankruptcy proceeding requires comment, in view of the old saw (which, as this case shows, is no better than a half- truth) that liens pass through bankruptcy unaff... | [
"section 506 merely an optional creditor's remedy, is consistent with the notion that liens pass through bankruptcy unaffected, but overlooks the significance of section 506(d) when read together with section 501, which governs proof of claims. Section 501(c) authorizes the debtor as well as the creditor to file a ... |
issue of liability, I wrote: When the original Complaint was filed in 2012, the courts were split as to the degree of culpability implicit in the term “defalcation.” To. some courts, a simple breach of fiduciary responsibility was sufficient. In re Sherman, 658 F.3d 1009, 1017 (9th Cir. 2011), In re Uwimana, 274 F.3d 8... | [
"the Bankruptcy Court’s determination. It said that it was “convinced” that BankCh-ampaign was “abusing its position of trust by failing to liquidate the assets,” but it nonetheless affirmed the Bankruptcy Court’s decision. Id., at 27a-28a. In turn, the Court of Appeals affirmed the District Court. It wrote that “d... | [
"the defalcation standard would be met, even if the debtor was, at the time, unaware of the fiduciary duties imposed by the Construction Trust Fund Statute. Id. In Bullock, the Supreme Court resolved a split among the circuits as to the meaning of defalcation by holding that it requires proof of an “intentional wro... |
U.S. at 111, 113 S.Ct. 566. Although a plaintiff who received only a judgment is not a prevailing party, see Rhodes v. Stewart, 488 U.S. 1, 4, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988), a plaintiff awarded nominal damages is a prevailing plaintiff, Farrar, 506 U.S. at 112, 113 S.Ct. 566 (plaintiff prevailing party when award... | [
"negative character reference. Although it did not order reinstatement or backpay, it did order a panoply of remedial measures, at least some of which were unquestionably personal to Hashimoto. The government’s failure to acknowledge these important aspects of the EEOC’s disposition of Hashimoto’s claim manifests a... | [
"506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Farrar provided one of the clearest formulations of the prevailing party jurisprudence. To qualify as a prevailing party, the plaintiff must (1) obtain actual relief, such as an enforceable judgment or a consent decree; (2) that materially alters the legal relat... |
complies with all terms of probation, including the payment of restitution. Doc. # 27. Defendant was also ordered to complete 200 hours of unpaid community service, pay $7,500 in restitution, and pay a $30 special assessment. Id. Pursuant to 18 U.S.C. § 3402, Federal Rule of Criminal Procedure 58(g)(2)(B), and Local Ru... | [
"its discretion in deeming her motion untimely under Fed.R.Crim.P. 33(b)(2). French relies on United States v. Mack, 362 F.3d 597 (9th Cir.2004), and Rodgers v. Marshall, 678 F.3d 1149 (9th Cir.2012), neither of which compels a contrary conclusion. In Mack, we held that it was structural error to forbid a pro se de... | [
"it in the first instance to the district court and further development of the record. In sum, on remand, the Government is permitted to present additional evidence related to the restitution award for these five victims. See Jones, 616 Fed.Appx. at 729. V. CONCLUSION For the foregoing reasons, we VACATE the restit... |
that Defendant’s use of the disputed mark] was likely to create confusion in the minds of potential buyers as to the source, affiliation, or sponsorship of the parties’ products ... The question of likelihood of confusion is decided by considering a variety of factors including: (1) strength of the Plaintiff’s mark; (2... | [
"(1983). Even if the jury’s verdict was based on sharply conflicting evidence and the court of appeals determines that reasonable persons might reach a contrary result, the jury verdict must be upheld. Slavin v. Curry, 690 F.2d 446, 449 (5th Cir.1982); United States v. 6,162.78 Acres of Land, 680 F.2d 396, 398 (5th... | [
"here. B. Likelihood of confusion Once a plaintiff shows ownership in a protectible trademark, he must next show that the defendant’s use of the mark “creates a likelihood of confusion in the minds of potential customers as to the ‘source, affiliation, or sponsorship’ ” of the product at issue. Westchester Media v.... |
provided for arbitration, and that the defendant “had offered and by its answer renews its offer to submit the differences or controversies to arbitration.” The plaintiff replied to the counterclaim in January, 1931, and noticed the cause for trial in March, the defendant serving a cross notice on the following day. In... | [
"of late deliveries were made; also failure to build in accordance with the specifications. On July 30, 1925, the arbitrators selected by the parties failed to agree on a third arbitrator. The plaintiff then presented a petition to the Supreme Court of the state of New York, praying for the appointment of a third a... | [
"any action under section 3 of this title, (B) denying a petition under section 4 of this title to order arbitration to proceed, (C) denying an application under section 206 of this title to compel arbitration, (D) confirming or denying confirmation of an award or partial award, or (E) modifying, correcting, or vac... |
"infringement ""amount[s] to counterfeiting is a legal conclusion” for the Court, not the jury. See State of Idaho Potato Comm'n, 425 F.3d at 720 (citing Humetrix, Inc. v. Gemplus S.C.A., 268 F.3d 910, 921 (9th Cir.2001)). . Plaintiffs argue that the Third Circuit affirmed the District Court for the Eastern District of... | [
"produced at trial demonstrate that it earned $31,921.00. In assessing damages in this matter, I exercise my discretion because I find that the profits reflected in the records produced by Mr. Miller are inadequate to compensate Plaintiff for Mr. Miller’s unlawful conduct. Thus, I award Plaintiff $100,000.00. 7. Pu... | [
"224 at 13-14.) However, neither the district court nor the Third Circuit opinion makes any reference or devotes any discussion to the circuit split identified in the cases above. See Choice Hotels Int'l, Inc. v. Pennave Associates, 159 F.Supp.2d 780, 786 (E.D.Pa.2001). In fact, appellant’s brief in Choice Hotels I... |
the defendant must file the notice of removal ‘within 30 days after receipt ... of a copy of an amended pleading, motion, order or other paper’ that contains solid and unambiguous information that the case is removable.”) (citation omitted). “The federal courts have given the reference to ‘other paper’ an expansive con... | [
"amount in controversy greater than $75,000. See 28 U.S.C. § 1332. Plaintiffs concede that complete diversity exists, but they contend that Defendant’s notice of removal was untimely because it was filed more than 30 days after service of the initial pleadings. See 28 U.S.C. § 1446(b). Here, the grounds for removal... | [
"See, e.g., Riggs v. Continental Baking Co., 678 F.Supp. 236, 238 (N.D.Cal.1988) (“The elements of remova-bility must be specifically indicated in official papers before the statutory period begins to run.”); Gilardi v. Atchison, Topeka & Santa Fe Railway Co., 189 F.Supp. 82 (N.D.Ill.1960) (where initial pleading f... |
"Id. (emphasis added). The notice stated: Public notice is inapplicable to these regulations because they are promulgated pursuant to Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854), and are thus withm the foreign affairs function of the U.S. and the foreign affairs exemption of 5 U.S.C. 553(aXD... | [
"averment that the prohibition of the act of Con gress in question was repugnant to the Constitution because in enacting the same \"Congress exceeded its designated powers under the Constitution of the United States and attempted, under the guise of its powers under the Commerce Clause, to exercise police power exp... | [
"States v. Yoshida International, Inc., 526 F.2d 560, 63 CCPA 15 (1975); Consumers Union of the United States, Inc. v. Kissinger, 506 F.2d 136, 148-49 (D.C.Cir.1974) (Leventhal, J., dissenting) cert. denied, 421 U.S. 1004, 95 S.Ct. 2406, 44 L.Ed.2d 673 (1975); U.S. Const., art. 1, § 8, cl. 3 (\"Congress shall have ... |
350 (1975)). In this case, however, as detailed in my previous discussion, the plaintiffs have failed to show any likelihood that they will suffer adverse consequences in the future pui-suant to the disputed student assignment plan. Moreover, nothing prevents the plaintiffs from bringing an action should they subsequen... | [
"Mr. Justice Powell delivered the opinion of the Court. In this case, brought under 42 U. S. C. § 1983, we consider the elements and prerequisites for recovery of damages by students who were suspended from public elementary and secondary schools without procedural due process. The Court of Appeals for the Seventh ... | [
"Since no factual issue was raised, plaintiffs were not obliged to present evidence showing they suffered emotional harm. At this juncture, allegations of emotional injury contained in the complaint are sufficient to show that there was emotional injury. But even if no emotional injury occurred, the 244 plaintiffs ... |
in the duffel bag and the waterproof ammunition storage containers found in the barn evidences his subjective expectation of privacy in those materials. See United States v. Villarreal, 963 F.2d 770, 773 (5th Cir.1992) (“Individuals can manifest legitimate expectations of privacy by placing items in closed, opaque cont... | [
"and the subsequent viewing did not exceed the scope of the original examination; and (2) the search was based on Kellar’s authority to consent to a search of the computer. (1) Defendant’s Reasonable Expectation of Privacy Not all invasions of privacy are searches or seizures within the meaning of the Fourth Amendm... | [
"the disks found near the desktop computer in the office, which were the subjects of the pre-warrant search at issue. In addition, Runyan clearly exhibited a subjective expectation of privacy in both sets of materials in question. Runyan’s placement of the non-electronic pornography in the duffel bag and the waterp... |
the omissions and misstatements were made with reckless disregard for their truth or falsity. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Defendants contend that if the affidavit were redacted to reflect these alleged omissions and misstatements, then the affidavit was insufficient to su... | [
"implies that these omissions were intentional. The district court, at the suppression hearing, allowed Martin to present evidence regarding omissions from the affidavit. Having examined the evidence at that hear ing, we believe the district court was correct in finding that the omissions from the affidavit did not... | [
"omitted); see also United States v. Jacobs, 986 F.2d 1231, 1234 (8th Cir.1993). To be entitled to a hearing on this issue (“Franks hearing”) a defendant must make a substantial preliminary showing that includes allegations of deliberate falsehood or of reckless disregard for the truth[.][T]hose allegations must be... |
"as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution. Appellees desire to cross-appeal the district court’s denial of their motion to dismiss the indictment with prejudice. It is well settled that no independent j... | [
"(3) the superseding indictment should have been dismissed for failure to state an offense against M.E.S. and failure to afford M.E.S. notice of the charges against it; (4) the search warrant executed for documents held by M.E.S. was overly broad; and (5) M.E.S.’s motion for discovery of certain government document... | [
"denying a motion to dismiss the indictment on double jeopardy grounds is appealable within the Cohen collateral-order exception. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). It reasoned the right against double jeopardy was not only to be free from subsequent convictions but also fro... |
removal, and relief under the Convention Against Torture (CAT). The BIA concluded that Petitioner had not met his burden of showing eligibility because of major inconsistencies between Petitioner’s testimony and that of his witness, as well as prior inconsistent statements made by Petitioner. In so ruling, the BIA uphe... | [
"adopting any or all of the IJ’s findings of fact is not infected by an erroneous application of law by the IJ. If the BIA had disclaimed the IJ’s erroneous statement of the burden of proof as it did with the IJ’s credibility findings, and articulated an independent assessment of the evidence under the correct stan... | [
"explained the discrepancies in the record. Kaita timely filed her petition for review. II. When the BIA’s decision substantially relies upon the decision of the IJ, this court has jurisdiction to consider the IJ’s decision, as well as the BIA’s decision. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). Because th... |
referred to was to be paid to the stockholders of the debtor in the form of a liquidation dividend. In short, the debtor had paid all its debts after a Chapter XI arrangement and was still solvent and in possession of a surplus fund. The Referee was correct in concluding that he had no jurisdiction to disallow the pena... | [
"RIFKIND, District Judge. Motion by debtor to reopen proceedings under Chapter XI of the Bankruptcy Act, 11 U.S.C.A. § 701 et seq., and to appoint a referee for the purpose of distributing a fund to the persons legally entitled to share therein. The debtor filed its petition for an arrangement under Section 322 of ... | [
"retention of jurisdiction. It was, nevertheless,, also provided that “upon confirmation of this Plan by the Court, the Debtor shall be released and discharged of all its unsecured debts.” (Emphasis supplied) The defendant contends that after confirmation of a Chapter XI plan of arrangement the jurisdiction which t... |
right to cancel under the World War I statute (which was the equivalent of the convenience-termination clause) “was asserted later, in court” and “operated to curtail the damages recoverable.” Id. at 16. In John Reiner & Co. v. United States, supra, 163 Ct. Cl. 381, 325 F. 2d 438, the Government cancelled the contract ... | [
"the award would be made on the base work if that was all to be ordered, and on the full contract price if money was found for the additives by June 15th; but this course might have excessively complicated the bidding if one, or some, rather than all, of the additives were finally chosen to be included. We cannot s... | [
"the contract — it cannot escape the normal common law consequences of its wrongful action by thereafter terminating the contract for its own convenience. The answer, we think, is that the convenience article was precisely intended to allow the Government to avoid the consequence that it pay unearned profits. See G... |
of objection did not constitute consent, in the absence of proper notice; and (2) a money satisfaction was not possible. Third, the DUA argued, “while prohibiting the transfer of the Debtor’s experience account to OPK [might] enhance the payment to creditors, such enhancement would come at the ex pense of all other Mas... | [
"debtor bankruptcy estate. This jurisdictional inquiry did not involve an inquiry into how the bankruptcy court reached that judgment, or whether that judgment was correct, and therefore does not implicate the merits of the claim itself. Furthermore, although bankruptcy courts have jurisdiction over the matter, thi... | [
"of the Sale Motion, notice was inadequate, and therefore the DUA is not now precluded from relitigating the propriety of relief under § 363(f) with respect to the “interest” of the DUA (if it is appropriately called an interest at all) that the present motion places in issue. Second, the protections of § 363(m) ar... |
correct his sentence under 28 U.S.C. § 2255 in which he identified twenty-nine reasons his attorney, Nishay Sanan, rendered ineffective assistance during the plea, sentencing, and direct appeal phases of his case. The district court denied the motion, and Wyatt appeals. II. On appeal, Wyatt claims that the district cou... | [
"because the assistance of counsel he received at trial and on direct appeal was constitutionally defective. The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Strickland v. Washington, 466 U.S... | [
"counsel encompasses the right to effective assistance of counsel. Watson v. Anglin, 560 F.3d 687, 690 (7th Cir.2009) (citations omitted). A party asserting ineffective assistance of counsel bears the burden of establishing two elements: (1) that his trial counsel’s performance fell below objective standards for re... |
by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. Carver v. Jackson, 4 Pet. 1, 80 [7 L.Ed. 761]; Vicksburg & Meridian R. Co. v. Putnam, 118 U.S. 545... | [
"to all the inferences fairly deducible from the evidence. See Gunning v. Cooley, 1930, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Mattson v. Central Electric & Gas Co., 8 Cir., 1949, 174 F.2d 215; Stolting v. Everett, 1952, 155 Neb. 292, 51 N.W.2d 603. We think the evidence clearly presents a sufficient basis for th... | [
"assuring its proper conduct and of determining questions of law. Herron v. Southern Pacific Co., 283 U.S. 91, 95. In charging the jury, the trial judge is not limited to instructions of an abstract sort. ít. is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusio... |
in Teamsters has been employed by numerous courts in employment discrimination cases to grant nonapplicants applicant status where the nonapplicant can demonstrate that he was deterred from applying because of discrimination and that had he applied, he would have been discriminatorily rejected. White v. Carolina Paperb... | [
"and do permit a different prima facie case to be made. The crucial factor in the Teamsters formulation was that the plaintiff in that case alleged that he had been deterred from applying for the position in question because discrimination would have rendered it futile for him to do so. In refusing to enact an auto... | [
"United States, 1977, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396, a Title VII case, the Supreme Court held, at 364-68, that relief could be awarded to nonapplicants if they were able to prove that but for the discrimination of which they complain, they would have applied for the positions. Presumably, in order to ... |
act as intermediaries instead of principals, and the supposed rarity of commercial paper prepayments in general. See, e.g., id. at 37-38. Alfa and ING sought, and were granted by the district court, interlocutory review of the bankruptcy court’s decision denying summary judgment. See In re Enron Creditors Recovery Corp... | [
"McMAHON, District Judge. INTRODUCTION Before the Court is the appeal of the defendants in two adversary proceedings from an order of the Bankruptcy Court (Gonzalez, J.) denying their motions for summary judgment. See Enron Creditors Recovery Corp. v. J.P. Morgan Sec., Inc. (In re Enron Creditors Recovery Corp.), 4... | [
"to acquire title to the commercial paper rather than to retire debt. Id. at 37-41. At several points in its opinion, the bankruptcy court, to buttress its denial of summary judgment, emphasized facts (most of which are disputed) regarding the allegedly unusual nature of Enron’s redemption. These include the above-... |
inconsistent with equity; also, in general terms, upon want of equity on the face of the petition, and adequacy of remedy at law. (1) It is .a general rule in equity that all persons materially interested, either legally or beneficially, in the subject matter of a suit,, are to be made parties to it; that the court may... | [
"discussed by counsel. • But it is not necessary for us to consider and answer those questions, for, in view of the nature of the facts presented and the remedies prayed for in the bill proposed to be filed, we think that the suit is defective' for want of essential parties whose rights would be vitally affected by... | [
"VAN DEVANTER, Circuit Judge, after stating the case as 'above, delivered the opinion of the court. The principle that a court cannot directly adjudicate the rights of a person who is not before it is fundamental (Gregory v. Stetson, 133 U. S. 579, 10 Sup. Ct. 422, 33 L. Ed. 792), and is as applicable to courts exe... |
a de facto amendment to Section 15.2 of the operating agreement. The means by which the Members Committee can act and the method by which any provision of the Operating Agreement can be amended are each set forth in detail in Section 8 and Section 18.4 of the Agreement, respectively. Evidence of compliance with the ter... | [
"creditors could not be created by making a partial assignment of a single claim. More recently, in In re Averil, Inc., 33 B.R. 562 (Bankr.S.D.Fla.1983), an involuntary Chapter 7 petition was filed by a corporation and two individuals, the debtor successfully moved to dismiss the petition on the ground that the two... | [
"which refers to the payees in the conjunctive, is nevertheless a single promise to pay. It creates a single right to payment, which may be shared jointly by the payees, and which may be enforced only by both payees. 16 B.R. at 809. As a result, the court held that, although two of the petitioning creditors constit... |
"as an observer. . Thus, as of now, male guards do not conduct any body searches of female inmates. See supra page 1532, ¶ 2; page 1533, ¶ 1. . Judge O’Scannlain states that I fail ""to pinpoint precisely which legitimate Fourth Amendment interest is violated by these searches."" Majority at 1524. He is sorely mistaken... | [
"a State may consistently with the Fourth Amendment compel a suspect to undergo surgery of this kind in a search for evidence of a crime. II The Fourth Amendment protects “expectations of privacy,” see Katz v. United States, 389 U. S. 347 (1967) — the individual’s legitimate expectations that in certain places and ... | [
"they therefore violate protected Fourth Amendment interests. Far from it, our prior case law suggests that prisoners’ legitimate expectations of bodily privacy from persons of the opposite sex are extremely limited. See Grummett v. Rushen, 779 F.2d 491, 495-96 (9th Cir.1985) (pat-down searches of male inmates that... |
"128 S.Ct. 2783, as similar to recognized ""exceptions"" to the First Amendment's protections-""obscenity, libel, and disclosure of state secrets."" Id. at 635, 128 S.Ct. 2783. Most circuits have adopted a two-part test for evaluating Second Amendment cases following Heller. First, they ""ask whether the challenged law... | [
"law survives the proper level of scrutiny. See United States v. Greeno, 679 F.3d 510, 518 (6th Cir.2012); Heller v. District of Columbia, 670 F.3d 1244, 1252 (D.C.Cir.2011) (Heller II); Ezell v. City of Chicago, 651 F.3d 684, 701-04 (7th Cir.2011); United States v. Chester, 628 F.3d 673, 680 (4th Cir.2010); United... | [
"law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.... If it does not, our inquiry is complete. If it does, we evaluate the law under some form of means-ends scrutiny. If the law passes muster under that standard, it is constitutional. If it fails, it is invalid. United St... |
Lockhart In Jackson, an African-American woman filed a Title VII class action and an individual disparate impact claim asserting, among other things, that she was constructively discharged. The district court granted a motion to dismiss the Title VII class claims and the individual disparate impact claim filed by the p... | [
"F.3d 836 (6th Cir.1994). Although the opinion in Wilson Metal Casket Co. did not address the applicability of the single filing rule to a ease brought under the ADEA, the federal courts to address the issue have uniformly held that the rule is applicable in the ADEA context. Anson v. Univ. of Texas Health Science ... | [
"scope of the administrative investigation which can reasonably be expected to grow out of the administrative charge of discrimination.”). There was no EEOC investigation in this case. Hoffman argues that any investigation of her claims would have invariably uncovered the alleged class-based pervasive hostile work ... |
its institution. Here, the wage increase was instituted following an impasse that in reality had been in existence since February when the parties showed themselves determined not to retreat from their positions in regard to arbitration, union shop, job selection and checkoff. Fitzgerald at one point made clear that no... | [
"insistent in its demand for some form of union security during its negotiations with the respondent, the preponderance of the credible evidence does not support the respondent’s position that the Union had, in effect, presented an ultimatum that no contract would be consummated which did not afford union security.... | [
"8(a) (5). And this is so, even though the employer may have desired to reach an overall agreement. N.L.R.B. v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230; N.L.R.B. v. United Nuclear Corporation, 381 F.2d 972 (10th Cir.). Unilateral action in matters of this kind can be justified only after the parties have b... |
selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance.” 42 U.S.C. § 9607(a). The Environmental Response Act thus retroactively imposes liability on numerous persons for cleanup of pre-enactment contamination. The governmen... | [
"life,” and that “the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.” Id. at 15, 96 S.Ct. at 2892. It reasoned that although the Act imposed new liability for disabilities developed prior to its enactment, its operation was “ju... | [
"facts, it is distinguishable from the instant case. First, Congress intended CERCLA to function retroactively. CERCLA’s chief liability provision uses the past tense. See 42 U.S.C. § 9607(a)(2) (applicable to those who “owned” or “operated” a facility at .the time a hazardous substance was disposed). Moreover, CER... |
to rebut that presumption. Id. at 45. Innovative objects to these findings, arguing that it submitted evidence sufficient to rebut the presumption and that the Magistrate Judge improperly considered inadmissible evidence. Innovative’s Mem. Supp. Obj. 8-9. Innovative’s arguments are unavailing. Market responds that Inno... | [
"be descriptive, the applicant may proceed under § 1052(f) to assert that its mark, though descriptive, has acquired what is known as a secondary meaning and, if the applicant proves secondary meaning, it can secure registra tion. If the Patent and Trademark Office finds the mark suggestive on the other hand, it wi... | [
"success, long-felt need and acquiescence are also relevant to the issue of validity. Graham, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545. E. Presumption of validity and burden of proof Section 282, 35 U.S.C. creates a presumption that a patent is valid and imposes the burden on the attacker to prove invalidity by cle... |
F.Supp. 41 (D.Del.1975). Petitioner has clearly exhausted his first two claims which were fully presented to the trial court in the evidentiary hearing held in connection with the second motion for a new trial, D.5A-71, and briefed and argued to the State Supreme Court, D.5A-Briefs in No. 249, 1978. Petitioner’s ninth ... | [
"at the PCR hearing, his own recollections of Tranti-no’s demeanor preclude the assertion that the Equanil dosage adversely affected petitioner’s demeanor before the jury. 408 F.Supp. at 486. Relief with respect to Claim (C) was properly denied by the district court. 2. Trantino’s Claim (D) encounters a more seriou... | [
"by the Superior Court, need not be presented again to the state courts (this time under the PCHA) as a prerequisite to federal habeas corpus review (see Supp.App. p. 14). The magistrate erred, however, in concluding that state remedies for petitioner’s remaining two claims had not been exhausted because the merits... |
misconduct. The continuity required to establish a “pattern of racketeering activity” is a limitation or parameter that helps to effectuate Congressional intent. As to the purported continuity in this case, the allegedly fraudulent acts occurred, at most, within a matter of months. That related but otherwise innocent m... | [
"law fraud that do not implicate the mails (or the wires) do not constitute “racketeering activity” under the definition found within the RICO statute. Subsection 1961(1)(B). See New England Data Services, Inc. v. Becker, 829 F.2d 286, 291 (1st Cir.1987) (“In RICO, the plaintiff must go beyond a showing of fraud an... | [
"determining continuity. Barticheck v. Fidelity Union Bank/First Nat’l State, 832 F.2d 36, 39 (3d Cir.1987). But the continuity question should not be affected by the fact that a particular fraudulent scheme involved numerous otherwise “innocent” mailings, rather than only a few. As the Court of Appeals for the Sev... |
Qualico Miscellaneous Inc., 161 F.Supp.2d 1314, 1319 (M.D.Ala.2001). Where, as here, a plaintiff seeks to prove intentional discrimination through circumstantial evidence of the employer’s intent, the Court applies some version of the familiar tripartite burden-shifting analysis articulated in McDonnell Douglas Corp. v... | [
"S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). Since this motive or intent is seldom capable of proof by direct evidence, the Supreme Court has established a legal framework which allows a court to infer discriminatory motive on the basis of circumstantial evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, ... | [
"here, a plaintiff seeks to prove intentional discrimination through circumstantial evidence of the employer’s intent, the court applies the famil iar burden-shifting analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dept. of Comm. Affairs v. Burdine, ... |
the . . . manner which the state court has construed it to require.” Here, by contrast, it is evident that the ordinance was administered so as, in the words of Chief Justice Hughes, “to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought . . . immemorially associa... | [
"the goods, wares, or merchandise intended to be sold or the nature of the canvass to be made, or the census to be taken, and by what authority. The application shall also state the name of the party desiring the permit, his permanent street address and number while in the city and if after investigation the Mayor ... | [
"more than four years later said that they were — to issue a permit “if, after an investigation [they] found that the convenience of the public in the use of the streets or sidewalks would not thereby be unduly disturbed.” This case, therefore, is a far cry from Cox v. New Hampshire, supra, where it could be said t... |
"342 (5th Cir. 2015). The latter is a right, guarded by various protections, while the former is akin to an act of grace. The difference is evident, for instance, in whether denial of the motion is subject to judicial review. The Supreme Court has ruled that denials of statutory motions to reopen are subject to judicia... | [
"present in the United States when the motion is filed”); cf. Prestol Espinal v. Att’y Gen., 653 F.3d 213 (3d Cir.2011) (in the context of statutorily authorized motions for reconsideration, holding that the “post-departure bar regulation conflicts with Congress’ clear intent for several reasons”). The uniform alig... | [
"This Court, and the Supreme Court, have treated statutory motions to reopen differently from regulatory (i.e., sua sponte) motions to reopen. For example, we have held that Section 1252(a)(2)(B), which eliminates our jurisdiction to review denials of discretionary relief in removal proceedings, applies to regulato... |
of the investigation of charges and issuance of complaints under Section 10 [29 U.S.C. § 160] ...” (emphasis supplied). In a long and unbroken series of decisions by the Supreme Court and the Courts of Appeal, this provision, and the general scheme of the Act, have been interpreted to preclude judicial review of the Ge... | [
"the March, 1968 refusal. It is apparent that the General Counsel cannot be compelled either by the Board or this court to bring an action or amend his complaint because under § 3(d) of the Act he “has unreviewable discretion to refuse to institute an unfair labor practice complaint,” Vaca v. Sipes, 386 U.S. 171, 1... | [
"through informal negotiated settlements without board action or approval and prior to hearing are not in conflict with the intent and purposes underlying the Act. The Supreme Court has stated that “the Board’s General Counsel has unreviewable discretion to refuse to institute an unfair labor practice complaint.” V... |
or explained why she was adopting the expert’s testimony over the Dictionary’s definition. We find that there was no actual conflict for the purposes of this legal question. Other circuits have found that the expert and the Dictionary conflict where they disagreed in categorizing or describing the requirements of a job... | [
"fingers on that hand remain weakened). Fingering is defined as “[packing, pinching, or otherwise working primarily with fingers rather than with the whole hand or arm_” Id., Appendix C at C-3. This requirement of frequent fingering is beyond the limitations assigned to Smith in the ALJ’s hypothetical questions. Sm... | [
"adopting the expert’s testimony over the Dictionary’s definition. We find that there was no actual conflict for the purposes of this legal question. Other circuits have found that the expert and the Dictionary conflict where they disagreed in categorizing or describing the requirements of a job as it is performed ... |
if possible, that the court commit him to some institution for a pre-plea mental examination of some type to determine his mental competency. THE COURT: You say he is unable to confer with you at the present time? MR. BOWLING: Not intelligently, no, sir, I don’t think so. THE COURT: Has he had any medical treatment tod... | [
"PER CURIAM: David Tom appeals from an order of the District Court for the Southern District of New York which denied his motion under 28 U.S.C. § 2255 to vacate his conviction and sentence to twelve years’ imprisonment for violation of the federal narcotics laws. His motion was based on the claim that, due to the ... | [
"he bore the burden to establish his incompetency by clear and convincing evidence. The jury found Allen did not meet his burden of proof, thus finding him competent to stand trial. B. Plea of Guilty Less than a month later, on November 10, 1987, Allen changed tack and entered a blind plea of guilty. In preparing t... |
fees from defendants. At very least, say defendants, the latter is so — plaintiffs’ right, as the prevailing party, to recover fees is cut off by Rule 68. See Bitsouni v. Sheraton Hartford Corp., 52 U.S.L.W. 2354 (D.Conn. Nov. 23, 1983). In rejecting defendants’ post-trial motion for costs, including attorneys’ fees as... | [
"fees as “costs” should be read into Rule 68. It is, thus, appellant’s position that as a matter of law this Rule 68 offer of judgment translates into an offer to pay $5,000 plus traditional costs plus attorney’s fees. The City of Springfield challenges appellants’ interpretation arguing that the $5,000 settlement ... | [
"CLAIM UNDER RULE 68 Defendants contend that their pretrial offer of judgment under Rule 68 was at least as favorable as the judgment plaintiffs finally obtained. For that reason, they say the district court erred in disallowing their motion for post-offer costs including attorneys’ fees. In defendants’ view, Rule ... |
v. Foundation Reserve Ins. Co., 683 F.2d 331 (10th Cir.1982); Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571 (7th Cir.1982) cert. denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618 (1982); Wilson v. U.S. Dept. of Agriculture, 584 F.2d 137 (6th Cir.1978); Skidmore v. Beech Aircraft Corp., 672 F.Supp. 923 (M.D.La.... | [
"Retail Credit Co., 420 F.Supp. 859, 863 (W.D.Pa.1976). In this case, the consent of Defendant Todd was not conveyed to the court in any manner within thirty days of service upon him. His filing of an answer in this court on January 28 is not significant, since the answer was not only silent as to removal but also ... | [
"regarding the propriety of removal are resolved in favor of remand and state court jurisdiction. Shamrock Oil & Gas Corp. v. Sheets, supra; Clyde v. National Data Corp., 609 F.Supp. 216 (N.D.Ga.1985). This overarching principle guides the Court in construing the disputed “service or otherwise” language in 28 U.S.C... |
longer has a state remedy for the claims brought in this petition. The Sixth Circuit faced a similar set of circumstances in Rust v. Zent, 17 F.3d 155 (6th Cir.1994). The court analyzed the issue as follows: Exhaustion is a problem only if the state still provides a remedy for the habeas petitioner to pursue, thus prov... | [
"(1965) (fundamental fairness exception applies to claims that defendant asked counsel to raise on direct appeal). It is clear that collateral relief would be unavailable to petitioner. See People v. Beamon, 31 Ill. App. 3d 145, 145-146, 333 N. E. 2d 575, 575-576 (1975) (abstract of decision) (not invoking fundamen... | [
"in which the petitioner was convicted. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir.1994). The exhaustion requirement is also satisfied if it is clear that a claim is procedurally barred under state law. Gray v. Netherland, 518 U.S. 152, 161-62, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). In such a case, however, the h... |
Inc., 417 F.2d 129 (5th Cir.1969). In this case it does not appear to a legal certainty that the amount in controversy is less than the jurisdictional limit, therefore, the $50,000.00 requirement is met. B. Diversity Plaintiff argues that Defendant Allstate must be deemed a citizen of the State of Texas because of Titl... | [
"remand. Following oral argument, the case is now before the court for decision on plaintiff’s motion. Four challenges to this court’s removal jurisdiction have been asserted. I. Plaintiff first claims that 28 U.S.C. § 1332(c) requires that in any “direct action” against an insurer in which the insured is not joine... | [
"In this case it does not appear to a legal certainty that the amount in controversy is less than the jurisdictional limit, therefore, the $50,000.00 requirement is met. B. Diversity Plaintiff argues that Defendant Allstate must be deemed a citizen of the State of Texas because of Title 28 U.S.C. § 1332(c)(1) which... |
and were properly disallowed. First, a “claim” includes the “right to payment, whether or not such right is reduced to judgment, liquidated, unliqui-dated, fixed, contingent, matured, unma-tured, disputed, undisputed, legal, equitable, secured, or unsecured.” 11 U.S.C. § 101(5)(A) (2000). The touchstone of any “claim” ... | [
"UNDER ADVISEMENT ORDER RE: “PUT RIGHT” CHARLES G. CASE, II, Bankruptcy Judge. I. Introduction This Order resolves several related matters. First, Einstein/Noah Bagel Corp. (“ENBC”) and Einstein/Noah Bagel Partners, L.P. (“Bagel Partners”), (collectively “Debtors”), filed their “Motion for Order Pursuant to Bankrup... | [
"II. DISCUSSION Section 101(5) of the Bankruptcy Code defines a “claim” broadly to mean a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured....” 11 U.S.C. § 101(5)(A); se... |
HAND, Circuit Judge (after stating the facts as above). The evidence was sufficient to sustain a verdict upon the count for manufacturing. Taylor was found in the very act of preparing the bottles and in the midst of paraphernalia proper for making whisky out of alcohol and water. Rouda was present and by his own admis... | [
"PER CURIAM. Plaintiff in error was convicted upon each of two counts of an indictment under the National Prohibition Act (41 Stat. 305); the first count charging the unlawful manufacture and possession of intoxicating liquors, and the second charging the possession of certain implements and materials designed for ... | [
"HAND, Circuit Judge (after stating the facts as above). The evidence was sufficient to sustain a verdict upon the count for manufacturing. Taylor was found in the very act of preparing the bottles and in the midst of paraphernalia proper for making whisky out of alcohol and water. Rouda was present and by his own ... |
IX claim. Our decision to grant the preliminary injunction is legally only a prediction about the merits of plaintiffs’ case. United States v. Local 560, 974 F.2d 315, 330 (3d Cir.1992). We hasten to add, however, that in view of the statistical evidence produced at the preliminary injunction hearing, there is little d... | [
"Mr. Justice Stevens delivered the opinion of the Court. Petitioner’s complaints allege that her applications for admission to medical school were denied by the respondents because she is a woman. Accepting the truth of those allegations for the purpose of its decision, the Court of Appeals held that petitioner has... | [
"The opportunity to compete in undergraduate interscholastic athletics vanishes quickly, but the benefits do not. We believe that the harm emanating from lost opportunities for the plaintiffs are likely to be irreparable. 2. Irreparable Harm to Defendants We do not believe that the defendants will be irreparably ha... |
fees claimed by the libelant under a New York statute, and the concluding paragraph of the opinion by Mr. Justice Swayne contains the following broad and comprehensive statement of the rule on this subject: “A state law may give a substantial right of such a character that, where there is no impediment arising front th... | [
"agreed with Sir Robert Phillimore in the same case in the Court of Admiralty, L. R. 2 Ad. & Ec. 3, “ in his statement of the common law of England, with respect to the liability of the owner of a vessel for injuries occasioned by the unskillful navigation of his vessel, while under the control of a pilot, whom the... | [
"was extended in Re Putnam, 55 F.(2d) 73 (C. C. A. 2d, 1932), to cover a similar situation, except that the state court suit was brought after the petition for limitation of liability had been filed in the federal court. Canada Malting Co. v. Paterson Steamships, 285 U. S. 413, 52 S. Ct. 413, 415, 76 L. Ed. 837 (19... |
in Par-ratt that the state remedies were sufficient to satisfy the requirements of due process because the “remedies provided could have fully compensated the [plaintiff] for the property loss he suffered.” 451 U.S. at 544, 101 S.Ct. at 1917 (emphasis added). Thus, Parratt does not require that a plaintiff actually rec... | [
"afforded plaintiff an opportunity to respond, but plaintiff failed to do so. Defendants’ motion for summary judgment is ripe for consideration. In Parratt v. Taylor, supra, the Supreme Court recognized that where an inmate has suffered negligent deprivation of his property by a State employee and the loss is not t... | [
"In responding to the argument that Nebraska’s tort claims procedure did not adequately protect the plaintiff’s property interest because it did not provide him with all the relief available in actions brought under section 1983, the Court held in Par-ratt that the state remedies were sufficient to satisfy the requ... |
as long as the stipulations in the plea were accepted by the District Court. Waivers of rights to appeal are generally enforced in this circuit unless “a miscarriage of justice” would result. See United States v. Khattak, 273 F.3d 557, 562 (3d Cir.2001). Without deciding to affirm on the basis of Appellant’s waiver, we... | [
"supplemental briefing. Third Circuit L.A.R. 109.2(a). The Court’s inquiry when counsel submits an Anders brief is thus twofold: (1) whether counsel adequately fulfilled the rule’s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues. Marvin, 211 F.3d at 780 (citing Uni... | [
"are endangered if counsel fails to pursue an appeal without advising a client of the reasons for doing so. “[WJhile these exceptions [to the enforceability of a waiver] may be few in kind and sporadic in frequency in comparison with the bulk of cases where waivers are presumptively enforceable, they are the except... |
merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. 596 F.2d at 72. The material facts in this case are not in dispute. Defendants concede that the plaintiffs were fired; that letters of suspension were mailed to all the plain... | [
"Motion, JA at 62a. Although we express no views on the merits of appellants’ argument, it certainly presents issues of fact and credibility which contradict appellees’ particularized and general allegations. The assertion that the inmates could control who observed them, and when, rebuts the contention implicitly ... | [
"indication in the case before us that the district court made such a determination. Since the district court’s decision was made on the basis of a paper record, without an evidentiary hearing, we are in as good a position as the district judge to determine the propriety of granting a preliminary injunction. See Ja... |
"838; Baltimore Gas & Elec. Co. v. ICC, 672 F.2d 146, 149 (D.C.Cir.1982). As I show below, infra at 1095-96, the court’s error results from its misreading of Eagle-Picher v. United States EPA, supra note 5. The court notes correctly, however, maj. op. at 1081, that some of this court’s opinions have broadly suggested t... | [
"least is inefficient and upon completion of the agency process might prove to have been unnecessary.” FTC v. Standard Oil Co. of California, 449 U.S. 232, 242, 101 S.Ct. 488, 494, 66 L.Ed.2d 416 (1980). The two doctrines are intended to further slightly different interests. Ripeness is primarily concerned with ens... | [
"as in this case, there are no institutional interests favoring postponement of review, and in fact the agency and the court have a positive interest in immediate review, “there are no conflicting interests to balance.” Eagle-Picher, 759 F.2d at 918. It is enough that the petitioner show that it has suffered suffic... |
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