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"Civ. P. 58, advisory committee's note to 1963 amendment. In particular, judgments on general jury verdicts may be entered by the clerk without the court's direction, but the court must ""approve the form of the judgment"" on a jury special verdict. Fed. R. Civ. P. 58(b). Notwithstanding this consistency, Rule 58 has u... | [
"purposes of § 1291 if not set forth on a document separate from the opinion. The issue arises because of Fed. Rule Civ. Proc. 58, which reads in part: We assume, without deciding, that the requirements for an effective judgment set forth in the Federal Rules of Civil Procedure must generally be satisfied before § ... | [
"alter or amend may accelerate an existing deadline for notice of appeal.. We do not agree with Peters and Osley that the district court’s minute order denying ABF’s attempted Civil Rule 59(e) motion to alter or amend shortened the deadline to appeal. The purpose of the separate document requirement is that the par... |
109 (1998)). However, even if the RFPA “protects” Flowers, this does not necessarily mean he should be entitled to damages from the Army. Military members can still seek injunctive relief under the RFPA. See also McDonough v. Widnall, 891 F.Supp. 1439 (D.Col.1995) (enjoining under the RFPA the Air Force’s use of financ... | [
"under the direct command of a uniformed, full-time U.S. Army lieutenant colonel.” Order on Motion to Dismiss & For Relief From Judgment Granted at 5, Stauber (No. A83-613). The record reflected that the employment and command structure, and the relative rank of the technicians, was the same whether the parties wer... | [
"received and considered that brief, as well as a responsive brief from the Flowers. II The Right to Financial Privacy Act We review de novo the district court’s judgment on the pleadings. Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir.2001). We also review de novo issues of statutory interpretation. Silver Sage Part... |
New York that it was issuing affidavits to its customers in order that they might file claims for refund of processing taxes paid by it with respect to sugar purchased by- them. Upon the above facts, as found by it, the Tax Court held that no part of the processing taxes claimed was borne by the processor, but that the... | [
"of petitioner, 321 U. S. 800; Helvering v. Insular Sugar Refining Corp., 141 F. 2d 713; cf. E. Regensburg & Sons v. Helvering, 130 F. 2d 507. A new administrative procedure for recovery of taxes paid under the Agricultural Adjustment Act was provided by Title VII of the Revenue Act of 1936, §§ 901-917, 49 Stat. 17... | [
"Mr. Justice Frankfurter delivered the opinion of the Court. This is a suit under Title VII of the Revenue Act of 1936, 49 Stat. 1648, 1747, 7 U. S. C. § 644 et seq., for a refund of processing taxes paid under the Agricultural Adjustment Act of 1933. The problem of the case derives from the procedural requirements... |
as recently as the spring of 1992. Although apparently four .plaintiffs have transferred and one has been dismissed, seven or eight plaintiffs remain at CSU for at least part of the 1993-94 school year and would be eligible to play on a reinstated team. We agree with- the district court that CSU fails the third prong o... | [
"as a private remedy for Title VI violations, at least in the absence of proof of intentional discrimination. In view of the foregoing, it is apparent to me that the only proper Title VI relief granted by the District Court is the order directing the respondents to take actions and make disclosures intended to insu... | [
"eligible to play on a reinstated team. We agree with- the district court that CSU fails the third prong of effective accommodation test. E Finally, defendant argues that the district court erred in holding that plaintiffs were not required to show discriminatory intent. Defendant reasons that because Title IX was ... |
"Rights of the Accused; E. Devitt & C. Black-mar, Federal Jury Practice and Instructions; W. Patton, Criminal Trial Manual for Pennsylvania; C. McCormick, McCormick’s Handbook of the Law of Evidence; and portions of Moore's Federal Practice. . As one court pointedly observed: [AJccess to the fullest law library anywher... | [
"a Judge of the Superior Court). Mr. Murray, after his untimely death, was succeeded by Stanley Van Ness, Esq., then personal counsel to Governor Richard J. Hughes, and in turn he became head of the new Department of the Public Advocate with its creation in 1974, with authority to represent prison inmates not only ... | [
"deprived of meaningful access to the courts if a law library is automatically deemed sufficient to satisfy the Bounds, supra, duty to assist inmates in the preparation of legal papers. Judge Scott concluded in Hooks v. Wainwright, 536 F.Supp. 1330 (M.D.Fla.1982), “no plan utilizing libraries alone could assure mea... |
of a shooting on May 25, 2003, in which a Mob gang member named Ricko Reed was the suspect. Petitioner was a documented member of the FSC gang based on petitioner’s numerous admissions to various police officers. (See 4 RT 1459-60, 1462-66, 1470-71,1475). Detective Nickerson testified that he believed the current shoot... | [
"California Supreme Court denied review. McGuire then filed a petition for habeas corpus relief in the United States District Court for the Northern District of California. That court denied relief. The Court of Appeals for the Ninth Circuit reversed and granted McGuire’s habeas petition. The court ruled that the p... | [
"22, 2002, respectively. Petitioner was a victim of a shooting on May 25, 2003, in which a Mob gang member named Ricko Reed was the suspect. Petitioner was a documented member of the FSC gang based on petitioner’s numerous admissions to various police officers. (See 4 RT 1459-60, 1462-66, 1470-71,1475). Detective N... |
trial, see XI R. at 467-68, 556, and the court again denied defendant’s motion to dismiss. Id. at 594-95. Because the defendants request that the case be dismissed, and not merely reversed and remanded for a new trial, this issue is not moot. . The defendants argue in the alternative that even if the interview notes we... | [
"were produced and delivered to petitioner at the trial, and he submits that this cannot appropriately be done in this Court, especially since neither the receipts nor the proffered list is contained in the present record, but can properly be done only in the District Court. He therefore asks us to vacate the judgm... | [
"he had meetings, either in person or by telephone, with Evelyn Rogers 16 times between May 9, 1988, and July 21, 1988. Defense counsel was furnished with Means’ handwritten notes for only four of those meetings. Finally, Means’ chronology reveals that he had 12 meetings, either in person or by telephone, with the ... |
the practice was temporarily enjoined by this court prior to adjudication on the merits. At no point during the hearing on the motion by plaintiffs for a temporary restraining order or during the trial on the merits was the mootness argument raised. Both plaintiffs and defendants have steadfastly litigated the allegedl... | [
"entitled to attorney’s fees as prevailing parties under 42 U.S.C.A. § 1988. On appeal we hold the action is not moot, the practices complained of violate the Establishment Clause, and plaintiffs are entitled to declaratory and injunctive relief. Morning Devotionals Everyone seems to be in substantial agreement tha... | [
"defendant is free to return to his old ways.” United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). In the case at bar, the district court held that: the issue of the constitutionality of the pre-“equal access” plan practice of pregame prayer is not moot. In fact, the practic... |
on the ground that his prior conviction for California first-degree burglary does not qualify as a “crime of violence.” We have jurisdiction under 28 U.S.C. § 1291 and we affirm. Talmore pled guilty in 2018 to violating 18 U.S.C. § 922(g)(1), which prohibits convicted felons from carrying firearms and ammunition. He ha... | [
"not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements. I Petitioner Michael Descamps was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). That unadorned offense carries a maximum penalty of... | [
"OPINION WALLACE, Senior Circuit Judge: In August 2009, Park pleaded guilty to being a felon in possession of a firearm, which is prohibited by 18 U.S.C. § 922(g)(1). The government now appeals from Park’s 37-month sentence, arguing that the district court erred when it refused to impose a “crime of violence” sente... |
stated that a “use” or “privilege” tax is a tax imposed upon property when such property is put to use in the manner contemplated by a given taxing act. A “use” tax presupposes ownership, that is, a prior purchase of the property. “The privilege of use is only one attribute, among many, of the bundle of privileges that... | [
"imposed upon distributors and retail dealers of gasoline, for the privilege of engaging in the business, an excise .tax of three cents and four cents respectively per gallon sold in the State. The Supreme Court of thé State declares it to be a privilege tax but points out that whether this tax is on the privilege ... | [
"Supreme Court has described the very tax here in question, “The use tax is not a tax on property but is described in the act as, and in fact is, in the nature of an excise tax upon the privilege of using, storing or consuming property.” Connecticut Light & Power Co. v. Walsh, 134 Conn. 295, 307, 57 A. 2d 128, 134.... |
"in particular that the heavy administrative burden of a 24-hour requirement on the County is evidenced by the district court's own finding: the fact that 20% of detainees do not receive a probable cause hearing within 24 hours despite the statutory requirement. Imposing the same requirement for bail would only exacerb... | [
"990 F.2d 1252 (5th Cir. April 5,-1993) (per curiam), we held that “[t]he rules, although providing for ‘appeal decisions within 120 days,’ contain no language that grants a separate right ‘not to be punished at all if a proper appeal is not conducted.’ ... [T]he disciplinary rules do not contain a ‘substantive pre... | [
"interpretation of state law is not cognizable in federal habeas proceedings.). State laws, however, may create liberty interests protected by the Due Process Clause. See Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460-61, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). In those situations, federal due process law s... |
"the Bur-dine standards, the fact that Williams, James and the other RTA decisionmakers may have E had multiple and mixed concerns about Hatch- ■ er, with an unspecified or shifting emphasis f among them, does not transform this case from r a ""pretext"" case into a “mixed motive"" case. A plaintiff who has produced no... | [
"is not a departure from, and does not require modification of, the Court’s holdings in Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248 (1981), and McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). The Court has made clear that “mixed-motives” cases, such as the present one, are different from pret... | [
"showing by the plaintiff raises an inference of unlawful discrimination only because of a presumption that these acts otherwise unexplained are more likely than not based on impermissible factors. Furnco Construction Corp. v. Waters, 438 U.S. at 577, 98 S.Ct. at 2949; Teamsters v. United States, 431 U.S. at 358 n.... |
1998) (landlord’s claim for unpaid rent against tenant Yugoslav bank expelled from United States); Beogradska Banka A.D. Belgrade v. Interenergo, Inc. (‘Beogradska Banka ”), No. 97 Civ. 2065(JGK), 1998 WL 661481 (S.D.N.Y. Sept.24,, 1998) (FRY bank’s claim of succession to SFRY bank and loans it held); Jugobank A.D. Bel... | [
"of Macedonia (“FYROM”) have intervened and oppose the relief requested by Plaintiff and each claim an interest in the Property. Slovenia moves to dismiss the Complaint pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that Plaintiff is not recognized as a sovereign state... | [
"asset/liability cases, a critical factor in the court’s political question analysis has been whether resolution of the case necessarily required judicial resolution of politically disputed successorship questions. Courts have been willing to adjudicate SFRY cases that could progress without adjudication of such qu... |
formulated in the various Circuits to implement the exercise of the power of review. That there is, at least on the surface, a wide difference of opinion need not surprise us. Common phrases are such as: “grossly excessive,” “inordinate,” “shocking to the judicial conscience,” “outrageously excessive,” “so large as to ... | [
"only have been intelligently determined by competent medical experts. However, we do not know if the jury did decide the right ear was burned. It was not essential for it to do so in order to return a verdict for the plaintiff because there was evidence that an electric shock may leave no external signs upon a bod... | [
"rules formulated in the various Circuits to implement the exercise of the power of review. That there is, at least on the surface, a wide difference of opinion need not surprise us. Common phrases are such as: “grossly excessive,” “inordinate,” “shocking to the judicial conscience,” “outrageously excessive,” “so l... |
324 U.S. 331, 65 S.Ct. 707, 708, 89 L.Ed. 981 and U. S. v. Cumberland Public Service Company, 338 U.S. 451, 70 S.Ct. 280, where there were “mere formalities designed ‘to make the transaction appear to be other than what it was,’ in order to avoid tax liability.” (Emphasis supplied.) In this case, the Tax Court made no ... | [
"by the Tax Court. That Court, on April 5, 1948, found that the proceeds of the transaction constituted income and that no part of it was chargeable to transfer of good will. It assessed a deficiency in excess profits taxes of $124,073.01 for the year 19-13. This is a petition to review the order. In the main, the ... | [
"was one in form only, incorporated for the sole purpose of avoiding taxes and having no legitimate business purpose, masquerading under the corporate form, and accordingly not a bona fide corporation.” Whether for tax purposes several acts constitute separate and distinct transactions or are integrated steps in a ... |
"the existence of a dispute. Loc.R. 104.3 (D. Md. 2016). This rule obviously applies to a discovery dispute and here. Defendants point out pending motions and multiple discovery issues as a basis to stay a decision by this Court. ""[T]he power to stay proceedings is incidental to the power inherent in every court to co... | [
"made after the date set for producing the discovery. (Pis’ Resp. to Mot. for Prot. Ord., p. 3). It is true that, generally, a motion for protective order must be made prior to the date set for the discovery. Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 414 (M.D.N.C.1991). In this case, though, the United States ... | [
"exist or are inappropriate, the court may lift the stay. Purolite Int’l, Ltd. v. Rohm & Hass Co., 24 U.S.P.Q.2d 1857 (E.D.Pa.1992); Rohm & Haas Co. v. Brotech Corp., 24 U.S.P.Q.2d 1369 (D.Del.1992). A trial court has broad discretion to stay all proceedings in an action pending the resolution of independent procee... |
upon the merely honest but unfortunate. Manley, 135 B.R. at 147. The general policy that exceptions to discharge are to be construed strictly against the creditor and liberally in favor of the debtor likewise applies to honest debtors only. Gerlach, 897 F.2d at 1052; In re Van Horne, 823 F.2d 1285, 1287 (8th Cir.1987);... | [
"subsections of section 523 merely because one subsection precludes discharge of penalties owed to the government. Palmer v. Levy (In re Levy), 951 F.2d 196, 199 (9th Cir.1991); see also In re Dahlstrom, 129 B.R. at 246 (“There is nothing in the language of § 523(a) or its legislative history to indicate that subse... | [
"not upon the merely honest but unfortunate. Manley, 135 B.R. at 147. The general policy that exceptions to discharge are to be construed strictly against the creditor and liberally in favor of the debtor likewise applies to honest debtors only. Gerlach, 897 F.2d at 1052; In re Van Horne, 823 F.2d 1285, 1287 (8th C... |
v. Clawans, 300 U.S. 617, 627, 57 S.Ct. 660, 81 L.Ed. 843 (1936). . McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 38 L.Ed. 867 (1894). See also United States v. Robinson, 361 U.S. 220, 226, 80 S.Ct. 282, 4 L.Ed.2d 259 (1959) stating that right to appeal in criminal cases in federal court was of relatively recent ... | [
"neglect of counsel, or have required a showing of plain error. In the first group are Dennis v. United States, 177 F.2d 195 (4th Cir.); Birtch v. United States, 173 F.2d 316 (4th Cir.) ; Moore v. Aderhold, 108 F.2d 729 (10th Cir.), and Crowe v. United States, 175 F.2d 799 (4th Cir.). The court in Mitchell v. Unite... | [
"1889, 10 L.Ed.2d 1059 (1963). . 115 U.S.App.D.C. 50, 317 F.2d 114 (1963). . Anderson v. United States, 318 U.S. 350, 356-357, 63 S.Ct. 599, 87 L.Ed. 829 (1943). . Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945). . Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957)... |
that appellants’ amended complaint merely restated and clarified the allegations of the original complaint. Amendment would not have had any effect favorable to the appel lants upon the district court’s later judgment. Thus, the district court was within its discretion in denying appellant’s motion. V. APPELLANTS’ MOTI... | [
"regards it as final. He believes he has already entered a valid judgment; he intends to have nothing further to do with the case. It is true that he must perform another act (entry of judgment) if the -appellate court remands the case, but the same is true whenever a district court is reversed on appeal. IV. By wa... | [
"on the merits. We have already reviewed the merits, and we dismiss the appeal of the denial of the new trial motion. A motion to alter or amend judgment pursuant to Rule 59(e), however, is appealable. E.g., Stephenson v. Calpine Conifers II, Ltd., 652 F.2d 808, 811 (9th Cir.1981); Weems v. McCloud, 619 F.2d 1081, ... |
the issue “comes perilously close to inadequate representation by counsel.” See United States v. Cruz, 25 M.J. 326, 330 (C.M.A.1987). In this case the trial defense counsel attempted during trial to raise the issue with the military judge. She was prevented from doing so, however, by his refusal to hear any evidence on... | [
"the question. Thus, the Government’s attempt to rebut the defense evidence of intoxication. It’s not being offered for the truth of the matter stated therein and you are not to infer that there was another incident involving the accused that night or speculate, in anyway, what the accused was really talking about.... | [
"Second, although not litigated, the matter was presented to and considered by the military judge as a mitigating matter. This Court has held in a number of cases that a failure to raise an Article 13, UCMJ, violation at trial waives the issue on appeal. United States v. Walker, 27 M.J. 878 (A.C.M.R.), aff'd, 28 M.... |
end and that its violation is a mere technical omission. But when the entire statute is considered, identification is seen to facilitate both constitutional and congressional limits on eavesdropping. Electronic interception of communications is a form of search and seizure subject to the fourth amendment. Unless a part... | [
"defeat the Amendment’s central purpose. United States v. Ventresca, 380 U. S. 102, 108. The materials to be seized are instead described with sufficient particularity if the warrant readily permits their identification both by those entrusted with the warrant’s execution and by the court in any subsequent judicial... | [
"constitutional surveillance. The government contends that the identification requirement serves neither end and that its violation is a mere technical omission. But when the entire statute is considered, identification is seen to facilitate both constitutional and congressional limits on eavesdropping. Electronic ... |
of counsel on the record”). Of course, a state prisoner who fails to comply with state procedural rules and suffers no actual prejudice from any alleged constitutional violation is not entitled to habeas relief. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Even if we reasoned that... | [
"felt was beyond its authority. Inexplicably, the court of appeals rejected the ineffective assistance of appellate counsel argument because the trial court was connect in its opinion that it did not have the power to review the claim. It was thus that the erroneous circular reasoning was concluded. The Ohio Suprem... | [
"review of the petitioner’s habeas claims. Id. at 993-94. Based upon Rogers, this Court concludes that MCR 6.508(D) was not a regularly followed procedural rule at the time of Petitioner’s 1986 convictions and his direct appeals, which were concluded in 1988. Petitioner is therefore not procedurally barred from bri... |
the income therefrom” and that “such activities were the taxpayer’s trade or business * * This contention is clearly unsupportable. A large part of the estate-trust consisted of stocks and bonds. Collecting the income therefrom does not amount to engaging in a “business.” Similarly, plaintiff’s interest in the H Street... | [
"characterized as the recoupment of the balance of his condemnation award spread over the term. Furthermore, he should be allowed to take a capital gain on the net income from the operation of the property at the time when that income was realized, which would appear to be at the end of each successive year. I find... | [
"is made that these corporations are sham organizations with no business purpose. So far as the record shows, they have been treated as separate taxable entities, and no effort has been made to attribute their income, losses, deductions, etc. to plaintiff. It is only their business which defendant would attribute t... |
argument, Plaintiffs cite to Gulf States Utilities Company v. Alabama Power Company, 824 F.2d 1465 (5th Cir.1987). In Gulf States, the Fifth Circuit held that contracts to purchase electricity at prices which were then incorporated in rate filings might be set aside if the plaintiff could show that it had been fraudule... | [
"rates. The filed tariff doctrine thus insulates defendant from any equitable claim that its charging these rates was improper. Because the rates for intra-Canada calls are set by Canadian tariffs, defendant may not invoke the filed tariff doctrine to protect itself from liability for those calls. Nevertheless, it ... | [
"the defendant at prices which were then incorporated in rate filings might be set aside if the plaintiff could show that it had been fraudulently induced to enter into the contracts. Id. at 1471-72. The court, however, distinguished setting aside the contracts from setting aside the rates, noting that “setting asi... |
(strip searches that are excessive, vindictive, harassing, or unrelated to any legitimate penological interest are not reasonable). It is also clear that prisoners retain a limited right to bodily privacy. Michenfelder, 860 F.2d at 333. However, under the second prong of Saucier, the inquiry is more particularized. The... | [
"conclusion that West’s search transgressed these clear limitations. The Supreme Court has expressly disavowed the right of an officer to disrobe an arrestee on the street pursuant to a search incident to an arrest without the presence of justifying factors. See Illinois v. Lafayette, 462 U.S. at 645, 103 S.Ct. 260... | [
"while inmates shower, use the toilet, or during a strip search, in violation of his Fourth and Fourteenth Amendment right of privacy. Incarcerated prisoners retain a limited right to bodily privacy under the Fourth and Fourteenth Amendments. Michenfelder v. Sumner, 860 F.2d 328, 333 (9th Cir.1988). The court must ... |
80 (1989). Congress not only wanted employees to have the option of continuous medical coverage; it also insisted that employees be fully informed of their options when their coverage ends. See 42 U.S.C. § 300bb-l(a), -6. When COBRA violations result in the loss of a qualified beneficiary’s insurance coverage, courts h... | [
"limits a plaintiffs recovery to the contractually-defined benefits that the plaintiff has been denied under his or her ERISA plan. See e.g., McRae v. Seafarers’ Welfare Plan, 920 F.2d 819, 822 (11th Cir.1991); Bishop v. Osborn Transp., Inc., 838 F.2d 1173, 1174 (11th Cir.1988), cert. denied, 488 U.S. 832, 109 S.Ct... | [
"of continuous medical coverage; it also insisted that employees be fully informed of their options when their coverage ends.”) Because Chenoweth was not fully informed of her rights and was not able to elect continued coverage under COBRA, this Court GRANTS Chenoweth’s motion for partial summary judgment and DENIE... |
a debt, a common practice is for the assignor to keep the books and papers representing the accounts and to attend to collections; no notification of the assignment being given to the debtors. The part played by the assignee prior to troubles of the assignor is a passive one. Under such conditions, possession of the ac... | [
"above cited and quoted, is cited as authority. In Re Smith (D. C.) 3 Am. Bankr. Rep. 95, 100 Fed. 795, the bankrupt was actually in possession of the property as agent of his wife, but the bankruptcy court directed the property turned over to the trustee, subject to the right of the wife in that court to establish... | [
"only on the assignee’s consent. The assignee might terminate the agency at any time and make collections himself. No notice of the assignment was given to the debtors prior to the filing of the petition in bankruptcy. The question upon these facts is whether the bankruptcy court has jurisdiction to adjudicate the ... |
a methane explosion on the high seas, and awarded pecuniary damages under DOHSA. Id. at 287 n. 20. The Court added in a footnote, “Assuming arguendo that China Steel qualifies as a foreign state under the FSIA,” it was still subject to suit under the waiver and commercial activity exceptions to the FSIA, 28 U.S.C. § 16... | [
"issue directly before us, we hold that foreign states are not “persons” protected by the Fifth Amendment. Our conclusion is based on a number of considerations. First, as the Supreme Court noted in Will v. Michigan Department of State Police, there is an “often-expressed understanding that ‘in common usage, the te... | [
"suggesting that the DOHSA claim could proceed against China Steel even if it were a “foreign state” under the FSIA. Plaintiffs’ arguments as to why foreign states are not “persons” are not persuasive. The cases they cite construing the term “person” as used in the Due Process Clause and other statutes deal with pl... |
of “incapacitated person” within its chapter on guardianship. 1975 Ala. Code § 26-2A-20(8). In this context, Alabama law defines “incapacitated person” as: “Any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, physical or mental infirmities accompanying advanced age... | [
"9(a); FDIC v. Calhoun, 34 F.3d 1291, 1299 (5th Cir.1994). However, where lack of capacity appears affirmatively on the face of the complaint, specific averment is unnecessary. Comstock v. Pfizer Retirement Annuity Plan, 524 F.Supp. 999, 1002 (D.Mass.1981). Defendants have moved to dismiss Plaintiffs’ First Amended... | [
"relevant inquiry is whether the litigant is “mentally competent to understand the nature and effect of the litigation she has instituted.” Bodnar v. Bodnar, 441 F.2d 1103, 1104 (5th Cir.1971); Donnelly v. Parker, 486 F.2d 402, 407 (D.C.Cir.1973) (stating that Rule 17(c) may require an inquiry into the plaintiffs “... |
backup its guarantee. Id. at 208, 87 S.Ct. 1557. Simply put, in a fixed annuity, “the policyholder has no direct interest in the fund and the insurer has a dollar target to meet.” Id. Thus, the Court concluded, in a fixed annuity “the insurer is acting in a role similar to that of a savings institution, and state regul... | [
"of that sentence is crucial to the opinion’s determination that the fixed annuity is not a security but an insurance product. Otto requests, both in its response to VALIC’s motion and in its petition for rehearing, that we withdraw our entire discussion of this issue and find in stead that the fixed annuity is a s... | [
"concerning the contractual terms, the court of appeals reversed its previous decision to hold that the contract was indeed a security. Id. at 1140-42. When Otto was first decided, the facts were understood as follows. Variable Annuity Life Insurance Co. (“VALIC”) had issued a contract which it termed a fixed annui... |
(6th Cir.1976); Ryan v. Shea, 525 F.2d 268, 270 (10th Cir.1975). On December 31, 1973, one day before the SSI program was to go into effect, the grandfather clause was amended in response to the perceived “wholesale” number of persons who had been entered onto state disability rolls in anticipation of the automatic tra... | [
"continuously disabled. Pub.L.No. 92-603, § 301. On December 31, 1973, one day before the SSI program was to become effective, Congress amended Pub.L.No. 92-603 to require that in addition to receiving benefits during December, 1973, an individual must have received benefits for one month prior to July, 1973, in or... | [
"Eighth Circuit noted in dicta that while grandfatherees were “conclusively presumed” to meet federal standards, rollbacks were not “automatically qualified.” Id. at 1115. Similarly, in Ryan v. Shea, 525 F.2d 268 (10th Cir. 1975), the Tenth Circuit explained that: As a part of the definition <)f eligibility, Congre... |
also examined Maus and ordered him to undergo an EKG. When Maus’s condition rapidly deteriorated, nurse DeGrave administered oxygen, an ambulance was called, and paramedics took Maus to an outside hospital. Although Maus contends that the medical staff should have diagnosed his condition more promptly because he compla... | [
"risk of harm”). A prison official is not liable if he “knew the underlying facts but .believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.” Farmer, 511 U.S. at 844, 114 S.Ct. at 1982; see Rich v. Bruce, 129 F.3d 336, 338 (4th Cir.1997) (holding that prison offici... | [
"Brennan, 511 U.S. 825, 836, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Deliberate indifference may be shown by “intentionally denying or delaying medical care.” Estelle, 429 U.S. at 104, 97 S.Ct. 285. “The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a ... |
1434-35. It is therefore inapposite to the appeal now before us. For the reasons that follow, we hold that § 1692k(a)(3) does not authorize the award of attorney’s fees and costs against a plaintiffs attorneys. We begin by analyzing the text of the statute. Section 1692k(a)(3) is silent as to who should pay attorney’s ... | [
"993 F.2d 718, 719 (9th Cir.1993) (“A court may grant attorney’s fees to a defendant under § 1988 only under the limited circumstances where the action is frivolous, unreasonable, or without foundation.” (internal quotation marks omitted)). As such, § 1988 cases are instructive in deciding whether fees are appropri... | [
"the law ... Congress has legislated that in certain cases prevailing parties may recover their attorneys’ fees from the opposing side. When a statute provides for such fees, it is termed a ‘fee shifting’ statute.” Id. The FDCPA is one such statute, providing that any debt collector who fails to comply with its pro... |
no evidence to establish that the amount of loss is below $200,000. The district court’s finding is not clearly erroneous. Angeles-Mendoza, 407 F.3d at 750. With regard to the enhancements for abuse of trust and the amount of loss, Herod asserts that they violate his Sixth Amendment rights pursuant to Booker. He states... | [
"ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES. Before KING, Chief Judge, and BARKSDALE, Circuit Judge. PER CURIAM: Defendant Francisco D. Pineiro was convicted in the United States District Court for the Western District of Louisiana of violating the federal controlled-substances laws. During sentencing, t... | [
"before this Court, the Supreme Court issued its decision in United States v. Booker. In Booker, the Supreme Court extended its Sixth Amendment holding in Blakely v. Washington, - U.S. -, 124 S.Ct. 2531, 2536-37, 159 L.Ed.2d 403 (2004), to the federal Sentencing Guidelines, holding that “[a]ny fact (other than a pr... |
Missouri, which at all conflicts with the views here presented. Indeed the views of the Court are sustained and-strengthened, by contrasting the present case with- that one. The state of Kentucky is the exclusive stockholder in the Bank of the Commonwealth:-but does this fact change the character of the corporation? Do... | [
"That amendment does not purport to do more than.to restrain the construction which might otherwise be given to the constitution;■ and if this case be not oqe óf which the Supreme Court could have taken -original jurisdiction, it is not within the amend- meat. This is not, we think, a case in which the character of... | [
"position as a stockholder is no different from that_of a sovereign state which is a stockholder. As was said by the Chief Justice in Bank of U. S. v. Planters’ Bank of Georgia, supra: “The state of Georgia, by giving to the bank the capacity to sue and be sued, voluntarily strips itself of its sovereign character,... |
to disclose). 340. Immaterial misrepresentations are not actionable because they do not have an adverse effect on either of the groups which the Lanham Act seeks to protect. Such statements are, by their very definition, ones which the purchasing public would not rely on in making its purchasing decisions, and, accordi... | [
"the probable effect which the advertiser’s handiwork will have upon the eye and mind of the reader. It is therefore necessary in these cases to consider the advertisement in its entirety and not to engage in disputatious dissection. The entire mosaic should be viewed rather than each tile separately. “[T]he buying... | [
"Lanham Act claim was dismissed because “[t]he inaccuracy in the statements would not influence consumers.” Id. at 855. Although the Second Circuit ultimately adopted a belt-and-suspenders approach, employing both the language of “inherent quality” and “materiality,” the court equated its standard with standards th... |
Finding Florence to be irrelevant to the consideration of this matter, the court below held that Masters was dispositive of the constitutional issue for the reasons outlined in the plaintiffs’ original brief. The court went on to hold that Masters clearly established the right for both adults and juveniles to be free f... | [
"to review final decisions of district courts, and the “denial of summary judgment is ordinarily not a final judgment.” Armstrong v. City of Melvindale, 432 F.3d 695, 698 (6th Cir.2006) (citations omitted). A district court’s denial of a claim of qualified immunity on summary judgment, however, is an appealable fin... | [
"affirmative defense, the defendant bears the burden of establishing entitlement to it. Gomez, 446 U.S. at 640, 100 S.Ct. 1920. The burden shifts to Plaintiffs to prove “that the right allegedly violated was clearly established at the time of the official’s allegedly impermissible conduct.” Camarillo v. McCarthy, 9... |
extinguish the SEC’s right to enforce the disgorgement judgment. A. SEC’s Right To Enforce the Disgorgement Judgment We first decide whether the SEC is a “creditor” for purposes of the Bankrupt- ey Code with respect to the disgorgement judgment, assuming the absence of a settlement agreement. Neither the Supreme Court ... | [
"a voluntary Chapter 7 petition in May 1995. In September 1995, the Commission obtained a judgment against the individual defendants, including Debtor, ordering them to disgorge various amounts of money (“Disgorgement Judgment”) and deposit the funds with the Receiver. Debtor was ordered to disgorge more than $6.6 ... | [
"(SEC is creditor with standing to object to bankruptcy discharge of disgorgement judgment); Maio, 176 B.R. at 171 (SEC has standing to enforce federal securities laws through bankruptcy nondischargeability complaint); In re Austin, 138 B.R. 898, 904-05 (Bankr.N.D.Ill.1992)(Federal Trade Commission (FTC) is credito... |
resolved without the intervenor, and (4) lack of adequate representation by existing parties. See Commodity Futures Trading Comm’n v. Heritage Capital Advisory Servs., Ltd., 736 F.2d 384, 386 (7th Cir.1984). The burden is on the party seeking to intervene of right to show that all four criteria are met. Keith v. Daley,... | [
"in the district court. O’Brien now contends that he should be allowed to intervene in the instant case under Fed.R.Civ.P. 24(a). The district court denied his petition to intervene, finding it untimely. II. DISCUSSION In order to intervene as a matter of right under Fed.R.Civ.P. 24(a), “a plaintiff must (1) make t... | [
"Acres of Land, 754 F.2d 855, 858 (7th Cir.1985). The applicant has the burden of proving each of the four elements of intervention as of right; the lack of one element requires that the motion to intervene be denied. 36.96 Acres, 754 F.2d at 858; CFTC v. Heritage Capital Advisory Services, Ltd., 736 F.2d 384, 386 ... |
Life & Accident Ins. Co., 347 F.2d 760 (3d Cir. 1965). On the motion for new trial, we have broad discretion to grant the motion if the jury charge was erroneous, but in considering the weight of the evidence argument, we must decide “whether sufficient evidence existed on the record which, if accepted by the jury, cou... | [
"OPINION OF THE COURT SEITZ, Chief Judge. This is an appeal by Harvlan, Inc. (“defendant”) from a district court judgment entered on a jury verdict awarding $40,000 to Clifford A. Hour-ston (“plaintiff”) as a finder’s fee. A previous jury had awarded plaintiff $50,000 which was set aside and a new trial ordered. On... | [
"KALODNER, Circuit Judge. Earl F. Smith (“decedent”) was killed when the pickup truck that he was driving collided with a train of the defendant, Reading Company, at a crossing in Topton, Pennsylvania. Plaintiff, as administrator of decedent’s estate, brought this suit in the District Court for the Eastern District... |
either in favor of or against union representation, rendering his letters and remarks in support of AFTRA as the typical activities of a union supporter. In addition, AFTRA used only its union staff to conduct the organizing campaign at WFMT. We uphold the Board’s determination the Terkel was not an AFTRA agent. C. Ter... | [
"a clipboard as individuals passed through the doctors’ entrance. App. at 213-14, 639 n. 9, 644. The hearing officer also found that Kay Tillow, who made numerous trips to the doctors’ entrance by ear to pick up union organizers and to check on voter turnout, had a voter eligibility list in her car. App. at 414, 44... | [
"WISDOM, Circuit Judge: In Excelsior Underwear, Inc., 156 N.L.R.B. No. 111 (1966) the National Labor Relations Board held that an employer may be required to submit to a Regional Director the names and addresses of employees eligible to vote in a representation election; the Director makes the list available to the... |
order of the federal court and is subject to its judgment and the execution thereof”. Id. 176 U.S.App.D.C. at 325, 540 F.2d at 1104. In Wilson, however, the Government had disclaimed the position that defendant was not entitled to the money and conceded at oral argument that the disposition of the money was a “decision... | [
"damages to the extent of its value. This petition, also styled as a writ of replevin, was earlier construed by this Court to be a motion under Rule 41(e), Fed.R.Crim.P., for the return of illegally seized property. See Mayo v. United States, 413 F.Supp. 160, (E.D.Ill.1976). The United States has answered the motio... | [
"successfully resisted by asserting that the property is subject to forfeiture. If the property is subject to forfeiture, appropriate proceedings should be started expeditiously. Third, the Government argues that adequate civil remedies exist for appellant’s relief. That is true. He could also bring a civil action,... |
discovery other than that specified in the order may take place until further notice, that conclusion is not the only possible one. When the court from which a subpoena issues is not the forum in which the underlying action is pending, a motion to quash that subpoena is properly brought in the issuing court, as was don... | [
"even hints that any other court may be given the power to quash or enforce them. See Productos Mistolin, S.A. v. Mosquera, 141 F.R.D. 226, 227-29 (D.P.R.1992) (quoting Advisory Committee Notes on 1991 amendments). There are other textual difficulties with transfer of motions to quash. Rule 45(c)(3)(A)(ii) directs ... | [
"textual reading of Rule 45 as drafted at that time, resulting in a finding that the rule “offer[ed] no authorization to transfer a motion to quash [a subpoena] and seems at least implicitly to forbid it” because “nothing in the Rules even hints that any other court may be given the power to quash or enforce [anoth... |
was waived by appellant Short’s counsel in the District Court. (See discussion, Point VI, opinion of Judge Prettyman.) If we are prepared to say that an un-counseled accused is not to be taken before a Grand Jury without first being afforded court appointed counsel (if indigent), we ought to declare this as a requireme... | [
"suffering as of October 5, 1959 from ■“Anxiety Reaction (Conversion Features),” the alleged criminal offense “was not a product of this mental disease.” Since the appellant’s discharge from ■St. Elizabeths he had had six court-appointed attorneys. Appellant’s own motions, his disagreements or dissatisfaction with ... | [
"discussion, Point VI, opinion of Judge Prettyman.) If we are prepared to say that an un-counseled accused is not to be taken before a Grand Jury without first being afforded court appointed counsel (if indigent), we ought to declare this as a requirement; the supervisory powers of this court and the District Court... |
the absence of rebuttal evidence. United States v. Vital, 68 F.3d 114, 120 (5th Cir.1995). “The defendant bears the burden of demonstrating that information the district court relied on in sentencing is materially untrue.” Davis, 76 F.3d at 84 (internal quotation marks and citation omitted). Here, the district court re... | [
"conviction may be reversed under the plain error standard only to avoid a manifest miscarriage of justice. Id. “Such a miscarriage would exist only if the record is devoid of evidence pointing to guilt, or ... because the evidence on a key element of the offense was so tenuous that a conviction would be shocking.”... | [
"internal quotation marks omitted); see also United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995) (confirming that “in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it”). United States v. Vital, 68 F.3d 114, 120 (5th Cir.1995). Rebuttal evidence must consist of mor... |
time by Schmid to Dohan, and the main point in issue at the trial was as to the terms of sale. The defendant contends that they were sold at the “long price,” which means that the price paid was for'the goods with duty paid on them. It is conceded that on such a sale any refunds of duty subsequently obtained would belo... | [
"upon the facts, which may be hither general or special, shall .have the same effect as the verdict of a jury.” But the verdict of a'jury settles all questions of- fact. As said by Mr. Justice Blatchford, in Lan easter v. Collins, 115 U. S. 222, 225: “ This court cannot review the weight of the- evidence, and can l... | [
"no bar to a recovery; 2, that, if the defendants were to be regarded as sureties, after the transfer of the title to the property in bond, instead of principals, they stood in no better position ; 8, that the laches of the customhouse officers, in delivering the goods without collecting the whole of the duties, co... |
that case the committees made recommendations and here there is no evidence of recommendations being made. But express recommendation is not essential to “dealing,” if discussion between respondent and the Association Board was designed to remedy grievances. We see no merit in respondent’s argument that there was insuf... | [
"562; and see National Labor Relations Board v. General Shoe Corp., 6 Cir., 1951, 192 F.2d 504, certiorari denied 1952, 343 U.S. 904, 72 S.Ct. 635, 96 L.Ed. 1323. The Wagner Act expressly declared as national policy that workers were to possess full freedom of association, self-organization, and designation of repr... | [
"The Board’s finding of domination and interference was based upon activities of four foremen of minor supervisory capacity, viz., Terry, Maiden, Holmes and Brown, in advocating the association or soliciting members for it; upon the fact that another foreman, Taylor, was found to have spied upon a union meeting; up... |
entered the premises empty-handed and reappeared ten minutes later carrying a bag which he placed in the trunk. Further, according to the affidavit, when Rutherford drove away from Spata-fora’s residence the police followed. A short distance away, Rutherford pulled over to the side of the roadway, and when a police car... | [
"Chicago in an automobile bearing a license plate issued to him. At 5:15 a. m. on March 7, only 36 hours after he had flown out of Chicago, Lance Gates, and his wife, returned to their home in Bloomingdale, driving the car in which they had left West Palm Beach some 22 hours earlier. The Bloomingdale police were aw... | [
"information indicating that Spatafora kept quantities of marijuana in his residence. Then, on November 7, 1985, according to Officer Fultz, an anonymous caller reported that his daughter had been in Spatafora’s residence on the preceding evening and had seen three suitcases of marijuana, one suitcase filled with c... |
this case as well as in others involving similar claims, I have no doubt that the burden of prosecuting a discrimination claim against WalMart was inevitably greater than it would have been had the defendant been a much smaller employer. As evidenced by WalMart’s many motions, the defendants used their considerable res... | [
"billed as “incredible.” Defendants’ Memorandum of Law in Opposition to Plaintiffs Application for an Award of Attorneys’ Fees, dated May 25, 2001, at 3. 1. Attorney’s Fees At the outset, this Court notes that this case was vigorously contested by City Defendants from start to finish. In the approximately one and o... | [
"spent on research over the course of the representation. In his supplemental opposition, the defendant maintains that this is an “excessive” figure, and arbitrarily suggests that it be reduced to 50 hours. After considering the appropriate Johnson factors, the Court concludes that such a reduction would be inappro... |
p. 472. The instruction given was a correct statement. There was substantia] evidence to prove that the destructive device found in appellant’s possession was of an incendiary nature and the jury were correctly instructed on the issue of whether it was in fact an incendiary bomb. The question was properly submitted to ... | [
"Mr. Sperry do when he got to Langley, Oklahoma? The only evidence we have is that which was produced here because Mr. Sperry didn’t take the witness stand and deny it, nor has anyone else denied it, * * * ” The trial judge overruled an objection, commenting that he didn’t understand the argument to include a refer... | [
"Collins v. United States, 383 F.2d 296, 302 (10 Cir. 1967), but the statement of the prosecuting attorney in this case falls far short of being prejudicial. A prosecutor may properly call to the jury’s attention that evidence before it is uncontradicted without impairing the rights of a defendant who elects not to... |
is not an admission by the government that its position was unreasonable, as this court noted in Keasler v. United States, 766 F.2d 1227 (8th Cir.1985): In determining the reasonableness of the government’s position, the legislative history of section 2412(d) is helpful. The House Judiciary Committee stated that the “r... | [
"made permanent those portions enacted as temporary provisions. See EAJA Amendments, 99 Stat. 183. The only change pertinent to our analysis, however, is the addition of a definition of the term “position of the United States”: “[Pjosition of the United States” means, in addition to the position taken by the United... | [
"* *. There is no question that Foley was the “prevailing party” in this litigation. The only dispute in this appeal is whether the position of the United States- was substantially justified. The legislative history is helpful in interpreting the substantially justified standard. The House committee report on the E... |
"See Naartex Consulting Corp. v. Watt, 722 F.2d 779, 788 (D.C.Cir.1983), cert. denied sub. nom. Naartex Consulting Corp. v. Clark, 467 U.S. 1210, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984); McLaughlin, 707 F.2d at 807. Accordingly, we uphold the district court’s denial of further discovery. IV For the foregoing reasons, the... | [
"1385 (1976). . Lamont v. Haig, No. 75-271 (D.D.C.1975) (unpublished order). See note 5 infra. . 28 U.S.C. § 1391 (1970), as amended by Act of Oct. 21, 1976, Pub.L. No. 94-574, § 2, 90 Stat. 2721-2722, and Act of Oct. 21, 1976, Pub.L. No. 94-583, § 5, 90 Stat. 2897-2898. The only two provisions at all relevant to t... | [
"claims occurred in the District of Columbia, and because all of the other significant events involved in the litigation took place in Maryland. In so ruling, the court relied on Lamont v. Haig, 590 F.2d 1124 (D.C.Cir.1978), in which the Court of Appeals for the District of Columbia Circuit held that venue is confe... |
"C.F.R. § 7.503(d). . Having found that Mr. Jenkins lacked authority to waive the privilege for defendant, the court does not address defendant’s assertion that there was evidence of ""betrayal or connivance,” and, therefore, a waiver should not apply. . Defendant also carelessly disclosed the Memorandum in unredacted ... | [
"no longer even work there. . There is also discussion in the papers both in regard to the prosecution memoranda and the Hantman report (see infra) in terms of work product. The operative factors on both sides of that issue are sufficiently similar in this context to the deliberative process question to require the... | [
"additional information concerning Mordo’s bicycle licensing agreement that Martindell neglected to request in the above discussed August 2,1995 fax. Therefore, pursuant to the previous discussion the Court finds that Document Nos. 26, 27, and 28 are discoverable in their entirety. Paragraph one of Documents 8 and ... |
be the husband’s separate property, and the surviving widow, by fulfilling the requirements of the law and obtaining a patent, would become the owner of only an undivided one-third of the land, and the-alien children would take the other two-thirds by inheritance from their deceased father, contrary to the intention of... | [
"the provisions to be complied with “ so as to entitle them to a grant.” As there could be no grant until there was some person entitled to receive it, the conclusion would seem to be irresistible that, under this provision, married settlers had no estate in the land which they could devise by will, until from bein... | [
"making the requisite proof, without further residence and cultivation of their own. Their title to the land was to come, not from their deceased ancestors, but from the United States. The title, it is true, was granted to them by reason of the possessory rights of their ancestor, but these were rights which he cou... |
of due process would permit this assignment of error to be sustained merely because appellate counsel could suggest different tactics than those used by trial counsel. While we have reduced the charge of assault with intent to.inflict bodily injury to a lesser included offense of assault with a dangerous weapon, we do ... | [
"elements of those offenses. The instructions on the charge of rape are criticized by the defense on the ground that, although the law officer gave the elements of carnal knowledge, use of force, and lack of consent, he erred in not defining each of these terms. With this we cannot agree. These are not words of art... | [
"due process would permit this assignment of error to be sustained merely because appellate counsel could suggest different tactics than those used by trial counsel. While we have reduced the charge of assault with intent to.inflict bodily injury to a lesser included offense of assault with a dangerous weapon, we d... |
basis for the seven vessels was $15,582,077, not the $11,945,523 determined by the Government. On December 17,1962, the court entered judgment for plaintiff in the amount of $351,749.83, plus interest, for the years 1947-49. The judgment was satisfied by a payment of $594,476.22 on April 16,1963. Similarly, in Texaco, ... | [
"RIVES, Circuit Judge. This suit for refund of income taxes for the years 1947 through 1950 was tried by the district court without a jury. Pursuant to a carefully considered opinion reported as Waterman Steamship Corporation v. United States, D.C., 203 F.Supp. 915, the court entered judgment for the taxpayer Water... | [
"relevant to this proceeding that citizens of the United States purchased ships from the Maritime Commission after March 8, 1946, under the Merchant Ship Sales Act of 1946. 9. In 1947 and 1948, plaintiff bought five vessels from the Commission under Section 4 of the Act. For each vessel, plaintiff paid an amount eq... |
plan.” U.S.S.G. § 5C1.2(a)(5). At sentencing the government argued that Baez-Leyva had not satisfied this requirement because he insisted at his safety-valve proffer that the twenty-kilogram delivery (worth roughly a million dollars) was his sole involvement with the cartel. Baez-Leyva responded that there was no direc... | [
"tossed onto the garage floor). The district court was entitled to credit the officers’ testimony that Barrera handed the bag to Mr. Montes. See United States v. Thornton, 197 F.3d 241, 247 (7th Cir.1999) (“In a swearing contest, the trial judge’s choice of whom to believe will not be rejected unless the judge cred... | [
"that he withheld any information. Therefore, he argues, his submission was timely and satisfied the requirements for safety-valve relief. Acevedo-Fitz bore the burden of proving by a preponderance of the evidence “that he provided a full and honest disclosure.” United States v. Montes, 381 F.3d 631, 637 (7th Cir.2... |
for “further distribution as opposed to a [purchase] for personal consumption.” Government Brief at 79. The Government’s reliance on Watson is misplaced. In Watson, we upheld a conviction for use of a telephone to facilitate distribution of narcotics, but only after concluding that “there was proof that the appellants,... | [
"result from the additional conviction. United States v. Walls, 577 F.2d 690, 699 (9th Cir. 1978). We find no adverse collateral legal consequences to these applicants; and, in the exercise of our discretion, we decline to review these appellants’ arguments on this issue. Appellant Davenport’s sentence on the felon... | [
"843(b), knowingly and willfully use a communication facility namely, a telephone, in facilitating a conspiracy to possess with intent to distribute and to distribute heroin and cocaine, in violation of Title 21, United States Code, Sections 846 and 841(a)(1). The telephone call specified in the indictment as the b... |
"facts elicited during the providence inquiry, the military judge found appellant’s pleas provident only to the lesser-included offense of attempting to obtain services under false pretenses in violation of Article 80, UCMJ. . As this particular case illustrates, the government had alternative offenses with which to ch... | [
"serial numbers and handwritten directions explaining how to clone cellular phones. Scott also possessed a credit card “wedge” that can be used to read account information from legitimate credit cards. Scott and his traveling companion at Midway were also holding some $25,000 in cash when they were stopped. As a fo... | [
"many activities which it criminalizes, however, a person could be convicted under the credit card fraud statute for: “[o]btain[ing] control over a credit card number as security for debt,” or “[r]emit[ting] to an issuer or acquirer a record of a credit card or credit card number transaction which is in excess of t... |
were tied to the decision in the lead cases by virtue of the agreement to be bound, and that we should expand the exceptions to the finality rules to include this situation. Appellants also argue that we should obviate the jurisdictional issue by making our judgment in Heinz applicable to them, even though they did not... | [
"this rule. In the alternative, it might be contended that appellant’s action should be allowed under the statute of limitations “saving clause” at the end of Rule 60(b). That clause excepts, from the one-year limitation, an equitable action to set aside a judgment because of “fraud upon the court.” However, the fa... | [
"said, one of the concerns underlying the “fraud on the court” exception is that such fraud prevents the opposing party from fully and fairly presenting his case. See Luttrell, 644 F.2d at 1276; Toscano, 441 F.2d at 934. Ambiguities in the agreement to be bound may have contributed to appellants’ loss of opportunit... |
Minnesota do not involve the same cause of action. It is well established that the government may have both a civil and a criminal cause of action as a result of a single factual situation. See, e.g., United States v. Ursery, — U.S. -, -, 116 S.Ct. 2135, 2140, 135 L.Ed.2d 549 (1996) (civil forfeiture actions and crimin... | [
"in Coffey v. United States. The judgment in that case was placed distinctly upon the ground that the facts ascertained in the criminal case, as between the United States and the claimant, could not be “again litigated between them, as the basis of any statutory punishment denounced as a consequence of the existenc... | [
"the dismissal of the North Dakota civil suit bars the prosecution of this criminal action in Minnesota. We need not determine to what extent the two cases are based upon the same facts, nor must we decide whether the SBA, which was represented in the civil suit in North Dakota by a special assistant United States ... |
performance of the conditions imposed by the laws of congress is indispensable to its creation, and to the existence of any literary prop erty in the published work. Wheaton v. Peters, 8 Pet. 591; Merrell v. Tice, 104 U. S. 557. Among these conditions the statutes require the deposit of a printed copy of the title of t... | [
"BETTS, District Judge. The act of congress, entitled “An act to amend the several acts respecting copyrights,” passed February 3d, 1831, (4 Stat. 436,) embodies the provisions of the acts of May 31st, 1790, and of April 29th, 1802, on the subject, and imposes on persons claiming the privilege of a copyright the sa... | [
"do not apply. In Callaghan v. Myers, 128 U. S. 617, 9 Sup. Ct. 177, 32 L. Ed. 547, the title of a book was deposited in 1867, while the notice of copyright gave the year as 1866. This variance was held to be immaterial. The date in the notice was conclusive, and the only effect of the mistake was to shorten the du... |
security interest in a liquor license. (2) Therefore, Article 9 of the Uniform Commercial Code does not apply and the filing of a financing statement was not required. (3) The agreement to reassign is therefore enforceable despite the failure to file a financing statement. II. Since 1981 there have been eight published... | [
"license. As there was no perfection of the security interest, Judge Brody held that under Section 9-301 of the Uniform Commercial Code the rights of the creditor were subordinate to those of the trustee. Judge Brody’s decision was cited and followed in In re Mason, 18 B.R. 817 (Bankr.W.D.Tenn.1982) and In re Genca... | [
"Commercial Code, is beyond the constitutional authority of the commission. See In re Rudy’s, Inc., 23 B.R. 1, 3 (Bankr.E.D.Mich.1981). For example, U.C.C. § 1-201(37) defines a “security interest” as \"an interest in personal property or fixtures which secures payment or performance of an obligation.” A liquor lic... |
specified in subparagraph (A) or (B) of this paragraph; The legislative history reveals that only a right to convert is not included in the definition of “equity security.” See S.Rep. No. 989, 95th Cong.2d Sess. (1978), 1978 U.S.Code Cong. & Admin.News 5787; Collier on Bankruptcy 101.16 (15th ed. 1993). A right to purc... | [
"hereby GRANTED. The obvious question remaining is how to characterize the MGIC stock option claims. The common stockholders’ committee urges us to find that these claimants hold no more than “equity securities” as defined in 11 U.S.C. § 101(15): (A) share in a corporation, whether or not transferable or denominate... | [
"follows: (C) warrant or right, other than a right to convert, to purchase, sell, or subscribe to a share, security, or interest of a kind specified in subparagraph (A) or (B) of this paragraph; The legislative history reveals that only a right to convert is not included in the definition of “equity security.” See ... |
rather than a cash basis; (c) no income accrued or was received for income tax purposes because of pending litigation, and (d) the purported return filed by Beecher was correct. The judgment is reversed with costs awarded to Beecher. The court is ordered to enter an order that the government take nothing by virtue of i... | [
"DENMAN, Chief Judge. Beecher, a farmer debtor, appeals from orders of the district court entered in proceeding under § 75 of the Bankruptcy Act. The orders here for review are the order of December 30, 1947, approving the final report of the receiver, and the order of August 23, 1948, approving the supplemental fi... | [
"your return, income reported is increased by $4,639.16.” Since this income was received by Beecher in his fiduciary capacity, it is obvious that the deficiency, computed upon such fiduciary income but assessed to him in his capacity as an individual, is invalid. We express no opinion as to the validity of Beecher’... |
rule that benefits determinations based on plan interpretations are to be reviewed de novo as courts construe the terms of trust agreements without deference to either party’s interpretation. 489 U.S. at 112, 109 S.Ct. 948. However, a deferential “abuse of discretion” review is used when the benefit plan gives the admi... | [
"the administrator acted within the scope of that discretion. See Haley v. Paul Revere Life Ins. Co., 77 F.3d 84, 89 (4th Cir.1996). If the reviewing court determines that the language of the plan confers discretion on the administrator to determine eligibility or to construe terms of the plan, then a court reviews... | [
"or administrator discretionary or final authority to construe uncertain terms, the court review^] the employee’s claim as it would ... any other contract claim — by looking to the terms of the plan and other manifestations of the parties’ intent.” Id. at 112— 13,109 S.Ct. 948. Thus, we have held that in deciding w... |
only that the contractor would pay all debts pertaining to the work, which is broader than the undertaking to pay for labor and materials, but also that he would pay and discharge “all liabilities for injuries which have been incurred in and about the said construction”. The court emphasized the importance of the langu... | [
"the claims for which recovery was allowed under the bond included not only cartage and towage of material, but also claims for drawings and patterns- used by the contractor in making molds for castings which entered into the construction of the ship. In United States Fidelity Co. v. Bartlett, 231 U. S. 237, where ... | [
"of subcontractors or materialmen. But the language quoted indicates strongly that that decision was based on the amount of the bonds exceeding the amounts claimed. If that was the basis, the differences in the factual situations are not significant. Liability of the prime contractor, whether under the Miller Act o... |
law has developed the meaning of that term. The happenstance that the ordered discovery might result in evidence bearing upon or even establishing priority does not make this issue ancillary to priority. We therefore hold that we are without power to entertain this petition for a writ of mandamus since the matter compl... | [
"PER CURIAM: Appellees have filed a motion to dismiss this appeal on the ground that it is interlocutory in nature and therefore not within the jurisdiction of the court. The motion is opposed by appellants. We grant the motion to dismiss. In Myers v. Feigelman, 455 F.2d 596, 59 CCPA 834 (1972), this court reversed... | [
"solicitor and Barnes et al. further argue that we lack jurisdiction to review decisions of the Commissioner of Patents, which we are here being asked to do. In re Wiechert, 370 F.2d 927, 938, 54 CCPA 957, 969 (1967), is cited to support that proposition. Furthermore, it is pointed out, the decisions involved here ... |
to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); see Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Upon reviewing the transcript of the plea hearing with respect to both Defendants, we find that Edwards’ and Hall’s guilty pleas were knowing... | [
"been under a lot of pressure and stress. The district court was therefore on notice that Damon’s state of mind could be a factor at any Rule 11 hearing. Cole and this case are much the same. For whatever reason, both district courts (there and here) erroneously dropped the subject of medication after the defendant... | [
"the district court, the violation of Rule 11(c)(1) is subject to plain error review. United States v. Martinez, 277 F.3d 617 (4th Cir.2002). The district court’s non-compliance with Rule 11(c)(1) satisfies the first two prongs of plain error review; thus, we turn to whether the error affected General’s substantial... |
the critical differences between [claims made and occurrence] type[ ] policies,” Pizzini v. Am. Int’l Specialty Lines Ins. Co., 210 F.Supp.2d 658, 669 (E.D.Pa.2002), which difference has been described as follows: The purpose of the notice provision in an occurrence policy [is] to give the insurer time to investigate t... | [
"v. Monarch Life Insurance Co., 487 F.Supp. 1299 (E.D.Pa.1980). We do not believe that the Brakeman holding should apply to a claims-made policy. None of the considerations leading to the holding in that case are present here. First, the court in Brakeman found that automobile drivers could not bargain over the sub... | [
"as follows: Both policies are intended to insure during a specified period of time against liability arising from the conduct of the insured. One type of policy, the occurrence policy, keys upon when that conduct occurs. If it occurs during the policy period, the insurer has a duty to indemnify and defend the insu... |
constitutional rights. . The government did establish by inference that Greene knew the medical records were fraudulent by establishing that Greene himself had written on the patient card submitted on behalf of his niece. . Nor do we feel that the government established the existence of separate conspiracies as to the ... | [
"(1959), the Supreme Court held only that a person could not be convicted and separately sentenced for both stealing and receiving the same goods because to do so would be to unlawfully “pyramid penalties.” See United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023,1027 n.15, 47 L.Ed.2d 222 (1976). Where a defendant ... | [
"United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The trial court concluded that Fuel’s admissions were voluntary and were made with full knowledge of her constitutional rights. . The government did establish by inference that Greene knew the medical records were fraudulent by establishing that Gr... |
be seized—that the executing officers cannot reasonably presume it to be valid.’” United States v. Martin, 297 F.3d 1308, 1313 (11th Cir.2002) (quoting Leon, 468 U.S. at 923, 104 S.Ct. 3405). Succinctly stated, if the magistrate has not “abandoned his neutral and detached role, suppression is appropriate only if the of... | [
"100 S.Ct. at 1380. The Government has not carried its burden of proving that any exception to the Fourth Amendment’s warrant requirement applies. We therefore hold that the police officers’ community caretaking responsibilities did not, under these circumstances, permit them to enter McGough’s apartment without a ... | [
"seized pursuant to a search warrant, and when a warrant has been issued, suppression is appropriate only in limited circumstances: In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing the... |
intercepted, could, nevertheless, not lawfully be divulged. However, in that situation, the interest of both parties in the privacy of the conversation would have been infringed by publication. On the other hand — according to this argument — a situation involving an unwanted, obscene call is distinguishable. In this l... | [
"is to reduce the scope of § 605 to exclusion of the exact words heard through forbidden interceptions, allowing these interceptions every derivative use that they may serve. Such a reading of § 605 would largely stultify the policy which compelled our decision in Nardone v. United States, supra. That decision was ... | [
"“fruit of the poisonous tree” — secondary evidence derived from the illegally seized evidence itself. Wong Sun v. United States, supra; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). See 18 U.S.C. § 2518(10)(a) (authorizing the suppression of any unlawfully intercepted w... |
v. International Credit Company, 525 F.Supp. 170, 172 (E.D.Mo.1981); In re Morristown Lincoln Mercury, Inc., 25 B.R. 377, 383 at n. 6 (Bankr.E.D.Tenn.1982); Johnson & Kirby, Inc., v. National Bank of Ft. Lauderdale, 338 So.2d 905, 906 (Fla.App.1976). See also Natural Resources, Inc. v. Wineberg, 349 F.2d 685, 688 at n.... | [
"and dismissed plaintiff’s Title VII claim as barred by res judicata. Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend shall be freely granted “when justice so requires.” This liberality of pleading or freedom of amendment, however, is limited when there is “undue delay, bad faith or ... | [
"Discussion Pursuant to Fed.R.Civ.P. 15(a) which is made applicable hereto by Bankruptcy Rule 7015(a), a party made amend its answer only “by leave of court or by written consent of the adverse party” if a responsive pleading has been filed or if no responsive pleading is permitted, 20 days after the original plead... |
her. Norris, 540 F.2d at 1244. In McDowell, the victim’s initial statements to police were that her attacker was white. Defense counsel was told only of the victim's subsequent description of her assailant— that he was black, with a medium afro and a medium build. At trial, the victim testified that she had always desc... | [
"(Opinion of Blackmun, J.)). Federal Rule of Criminal Procedure 16(a)(1)(C) likewise requires disclosure of information “material to the preparation of the defendant’s defense.” Under Rule 16, evidence is material if “there is a strong indication that it will ‘play an important role in uncovering admissible evidenc... | [
"the assailant. Robert McDowell is unmistakably black, and Patsy Mason first claimed that her assailant was white. Originally she claimed that he had shoulder length hair, later that he had an afro, and ultimately that his hair was flat. The state attempts to distinguish Norris from this case by stressing that Pats... |
codified in O.C.G.A. § 33-24-56.1, if ERISA preempts the statute, the statute will not prevent defendant from enforcing the language of the Plan. Under 29 U.S.C. § 1144(a), ERISA preempts all state statutes that “relate to any employee benefit plan ...” 29 U.S.C. § 1144(a) (1998). This general rule is limited by subsec... | [
"relieve any person from any law of any State which regulates insurance, banking, or securities.” § 514(b)(2)(A), as set forth in 29 U. S. C. § 1144(b)(2)(A) (saving clause). “Neither an employee benefit plan . . . nor any trust established under such a plan, shall be' deemed to be an insurance company or other ins... | [
"(“[t]he preemption clause is conspicuous for its breadth”). The key to determining whether a state law is preempted is whether the state law in question “relates to” an ERISA plan.; 29 U.S.C. § 1144(a). “A law [clearly] ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connectio... |
is pending. Id. at § 2244(d)(2). While the Eleventh Circuit has not yet addressed the issue, several courts of the Northern District of Georgia equitably toll the statute of limitation where the petitioner’s conviction became final prior to the enactment of section 2244. See Green v. Wharton, 1997 WL 404278 (N.D.Ga. Ju... | [
"one-year time limit did not begin to run against any state prisoner prior to the statute’s date of enactment. See Reyes v. Keane, 90 F.3d 676, 679 (2d Cir.1996) (allowing AEDPA’s time limit to run from date prior to enactment “would be entirely unfair and a severe instance of retroactivity”); Lindh v. Murphy, 96 F... | [
"ability to respond to the petition.” Ross v. Artuz, 150 F.3d 97, 99 (2d Cir.1998) (alteration in original) (internal quotations . and citation omitted). AEDPA changed this by imposing a one-year limitations period on habeas petitions that begins to run from the latest of several events, including the date on which... |
brought in the judicial district in which the defendant owning such property is found or in the judicial district in which the criminal prosecution is brought. Id. § 981(h). Here, Friko was indicted as a co-defendant in the Cardona criminal prosecution in the District of New Jersey. The government, therefore, contends ... | [
"OPINION AND ORDER MUKASEY, District Judge. As disclosed to the parties at a conference on April 18, 1991, the motion of claimant Maruquel Investment, Inc. to dismiss the complaint for lack of jurisdiction and for failure to state a claim is denied. The defendant accounts are alleged to be owned or controlled by Pe... | [
"Supp.1992), concerning venue in forfeiture cases, is unconstitutional. This question is one of law over which we exercise plenary review. See Air Courier Conf. of Am./Int'l Comm. v. United States Postal Serv., 959 F.2d 1213, 1217 (3d Cir.1992). Section 981(h) reads: In addition to the venue provided for in section... |
the loan. He acknowledged that they were being pledged as security by affixing his signature to the document titled “Description of Collateral”. Galizia was also aware that he did not own the Xerox computer. Finally, he either fabricated or was reckless in stating the value of his office equipment. Galizia has two year... | [
"statements found where the evidence indicated that the creditor relief exclusively on the personal guarantee of a majority stockholder); Lippert, supra, 84 B.R. at 617 (creditor failed to show reasonable reliance on a financial statement rather than on the debtor’s cash flow and its own security interests in machi... | [
"reasonable reliance on the written statement, § 523(a)(2)(A) imposes no reasonableness standard on the reliance concerning Mullet’s false representations that were not in writing. We disagree. Section 523(a)(2) is the successor to § 17(a)(2) of the Bankruptcy Act, 11 U.S.C. § 35(a)(2), and it only slightly modifie... |
Andersons dated January 20, 1965, and purportedly written by “Land Title Insurance Company” which indicated that Chas. W. Anderson, Inc. had clear title to 800 Coach ’N Six Court, subject to a single deed of trust in the sum of $9,500.00 recorded December 21, 1964. The evidence also established that this title letter w... | [
"machines for dissatisfied customers. When this court previously considered an appeal from a similar mail fraud prosecution for fraudulent misrepresentations where fraudulent misrepresentations were conveyed through salesmen at widely different places and times, it recognized that proof of such representations coul... | [
"I. LeVant, 45 T.C. 185, 203-205 (1965), affirmed on this issue 376 F. 2d 434 (C.A. 7, 1967); Edith G. Goldwasser, 47 B.T.A. 445, 455-457 (1942), affirmed per curiam 142 F. 2d 556 (C.A. 2, 1944), certiorari denied 323 U.S. 765 (1944) (involving specific shares of “letter” stock). The respondent has introduced no ot... |
"do not argue that the production of the requested documents would be unduly burdensome. .The theory was has been explained as follows: The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company’s stock is determined by the available material infor... | [
"all of these requirements as well, but only the reliance requirement concerns us here. Traditionally, plaintiffs in a rule 10b-5 suit had the burden of establishing that they relied on the fraudulent actions of the defendant. List v. Fashion Park, Inc., 340 F.2d 457, 463 (2d Cir.), cert. denied, 382 U.S. 811, 86 S... | [
"Production of Documents to All Plaintiffs, and to answer Interrogatory No. 2 of Defendants' First Set of Interrogatories to All Plaintiffs. . Defendants seek to compel production of documents responsive to Request Nos. 7 and 8 in the schedule attached to Defendants' Subpoena Duc-es Tecum served on WHB. . While pla... |
"'asking questions' were simply inadequate to alert the officers to the fact that there was a true threat at play""); Klebanowski v. Sheahan , 540 F.3d 633, 639-40 (7th Cir. 2008) (inmate's statements to guards expressing fear for his life without identifying who was threatening him or what the threats were and request... | [
"that his safety was in jeopardy, nor has he pointed out other facts or information the prison officials might have had at their disposal that would have led them to conclude that he was at risk. Farmer, 511 U.S. at 838-42, 114 S.Ct. at 1981-82; see infra at 10-11. Without such knowledge, defendants can hardly have... | [
"the officers knew only that he had been involved in an altercation with three other inmates, and that he wanted a transfer because he feared for his life. He did not tell them that he had actually been threatened with future violence, nor that the attack on September 8 was inflicted by gang members because of his ... |
that he would rule based on the existing record. Thus the record unequivocally supports Hanratty’s contention that the presiding official, having conducted the proceeding under Chapter 43, recharacterized, sua sponte, the agency’s action to one under Chapter 75, and did so after the record had closed, and after he had ... | [
"NIES, Circuit Judge. I. In this appeal, this court must consider the effect of amendments to Chapters 43 and 75 of Title 5 made by the Civil Service Reform Act of 1978, Pub.L. 95-454, 92 Stat. 1121 (CSRA). Petitioner, Albert Lovshin, was removed from his position as Electronics Engineer for the Department of the N... | [
"issue that is involved here. I would hold that Chapter 43 is the exclusive procedure for agency performance-based actions against employees filed after October 1, 1981, and that Chapter 75 cannot be used in such cases. Also, I would vacate the decision below and grant the request of the Board and remand the case t... |
"Safety, 17 F.Supp.2d 1260 (M.D.Ala.1998); Lewis v. Glickman, 1997 WL 276084 (E.D.La.1997); Smith v. Perry, 1997 WL 160293 (N.D.Tex.1997); Spencer v. AT & T Network Sys., 1998 WL 397843 (N.D.Ill.1998). . Section 7153 was redesignated as Section 7203 by Pub.L. 95-454, Title VII § 703(a)(1), October 13, 1978, 92 Stat. 12... | [
"McGuinness, 744 F.2d at 1821 (citations omitted). The Seventh Circuit concluded that either an individual should not be permitted to sue a federal agency under section 504, or alternatively that an individual asserting a claim based upon section 504 must first exhaust Title VII remedies. Id. at 1321-22. We note th... | [
"Shearson Lehman Bros., Inc., 698 F.Supp. 1078, 1086 (S.D.N.Y.1988) (refusing to recognize civil cause of action under section 15(a)(1)); Bull v. American Bank and Trust Co. of Pa., 641 F.Supp. 62, 65 (E.D.Pa.1986) (dismissing section 15(a)(1) claim because no private right of action recognized); Shotto v. Laub, 63... |
products. But even after noting this factual distinction, the Ninth Circuit noted its discomfort with using White as a guidepost when it stated that “we have difficulty with the [White] court’s reasoning.” Owens-Illinois, 698 F.2d at 971. Significantly, the plaintiff in the instant action has failed to allege that the ... | [
"law, is maritime in nature.... This would be true even though the conduct complained of may have been negligent construction or defective design and may have occurred ashore.”) Watz v. Zapata Off-Shore Co., 431 F.2d 100, 112-14 (5th Cir.1970); Sears, Roebuck & Co. v. American President Lines, Ltd., 345 F.Supp. 395... | [
"to invoke admiralty jurisdiction. Id. Myhran’s injury arose out of asbestos exposure during the repair of ships; however, to uphold admiralty jurisdiction by applying a mechanical analysis based solely on the distinction between repair and construction of ships would be inconsistent with the Supreme Court’s analys... |
2d 919. A vessel on the high seas without a master on board is an unseaworthy vessel, especially under the conditions that existed just prior to and at the time •of the stabbing and resulting death of •Captain John F. Farmer. A seaman of one vessel authorized or required to go aboard another vessel on business may sue ... | [
"that this error did not prejudice Kermaree. By returning a verdict in his favor, the jury necessarily found that Kermaree had not in fact been guilty of contributory negligence “even in the slightest degree.” The district judge refused to submit the issue of unseaworthiness to the jury for the reason that an actio... | [
"unanimous Court replied: For the admiralty law at this late date to import such conceptual distinctions would be foreign to its traditions of simplicity and practicality. We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty... |
premises. Appellant stated that he was the purchaser of the van from Williamson and needed some paperwork to straighten out an apparent hitch in the transaction. At that point, the officer subjected appellant to a “pat down” search. A firearm was discovered in the left front pocket of the jacket being worn by Patterson... | [
"McMILLIAN, Circuit Judge. Appellant Donald Clay appeals from a judgment finding him guilty of possession of a firearm as a convicted felon, 18 U.S.C. App. § 1202(a)(1). The district court imposed an eighteen-month suspended sentence and four years of probation. For reversal appellant argues that the district court... | [
"Tom Moss, an undercover police agent who was dressed in blue jeans and a T-shirt. Sgt. Moss opened the door, displayed his badge and identification, and ordered appellant into the house. Appellant immediately stepped backwards but did not attempt to run away. Sgt. Moss pulled out his revolver and again ordered app... |
a Separation Agreement are in the nature of alimony or support is to ascertain whether the parties to the agreement “intended” to create a support obligation or intended to divide the property amicably. In re Calhoun, 715 F.2d at 1107; In re Long, 794 F.2d 928, 930 (4th Cir.1986); REDACTED Courts have considered numer... | [
"operation of law; or (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support. The legislative history indicates: Section 523(a)(5) is a compromise between the House bill and the Senate amendment. The prov... | [
"courts have focused on numerous factors. The most significant factors include: 1.whether the obligation terminates on the death or remarriage of either spouse; Shaver v. Shaver, 736 F.2d 1314 (9th Cir.1984); In re Altavilla, 40 B.R. 938 (Bankr.Mass.1984); In re Ingram, 5 B.R. 232 (Bankr.N.D.Ga.1980); 2. the charac... |
sufficient to support a conclusion. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.1995). It is more than a scintilla but need not be a preponderance. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.2005). In a disability proceeding, the medical opinion of a claimant’s treating physician is generally given “controlling ... | [
"of “Disabled” or “Not Disabled.” The other means by which the ALJ may determine whether the claimant has the ability to adjust to other work in the national economy is by the use of a vocational expert. A vocational expert is an expert on the kinds of jobs an individual can perform based on his or her capacity and... | [
"is not inconsistent with the other substantial evidence in [the claimant’s] case record,” it will be given controlling weight. See id. But when the opinion of a treating physician is not supported by medical evidence and is inconsistent with the substantial evidence in the claimant’s record, the ALJ will not give ... |
"injunction stage, UT Austin suggested that it was unable to determine whether Fisher (or Michalewicz) would have been admitted without re running the entire admissions process. Opp. Mot. Prelim. Injunction at 12, Fisher, 645 F.Supp.2d 587 (No. 08-263), EOF No. 42. Regardless, it became clear in the summary judgment re... | [
"the full faith and credit clause; 3. Appellees’ complaint does not state such a claim; and 4. Appellees have failed to state a claim that the Registrar’s action denied them equal protection of the laws. We REVERSE and REMAND for entry of a judgment of dismissal by the district court. I. FULL FAITH AND CREDIT A Jus... | [
"No. 42. Regardless, it became clear in the summary judgment record that whether Fisher would have been admitted even if she had a perfect PAI score presented no genuine issue of fact. She would not have been admitted. The same was true for Michalewicz, then a co-plaintiff. . Plaintiffs \"must show that (1) they ha... |
the Third Circuit has not articulated a test for determining whether monetary damages are “incidental,” courts in this circuit have found that damages are incidental if they: (1) ‘flow directly from liability to the class as a whole on the claims forming the basis for the injunctive or declaratory relief;’ (2) are ‘cap... | [
"that the procedural safeguards of notice and opt-out are necessary, that is, when the monetary relief being sought is less of a group remedy and instead depends more on the varying circumstances and merits of each potential class member’s case.... Because it automatically provides the right of notice and opt-out t... | [
"In Allison v. Citgo, the Fifth Circuit held that “monetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief.” 151 F.3d at 415. By incidental, the Fifth Circuit stated that it meant only the following: damages that flow directly from liability to the ... |
as the iudgment of the -executive branch of the government is con cerned, the finality-of the action, taken in passing the title, has been settled. But we may go further. As appears by the report of the surveyor general and of the Land Department, transmitted to Congress in 1864, the fact that this land -had been final... | [
"exclusive jurisdiction, unassailable except by a direct proceeding for its correction or annulment. The execution and record of the patent are the final acts of the officers of the government for the transfer of its title, and as they can be lawfully performed only after certain steps have been taken, that instrum... | [
"1864, by Commissioner Edmunds of the-Land Office transferred thé title to the heirs of Baca. There is some controversy upon the fact as to whether the Commissioner had before him the proof he had demanded of the non-mineral character of the land. We think the lower courts rightly deduced from the .evidence “that t... |
States because they “still believe that ‘The streets are paved with gold.’ ” Surely an IJ cannot base a credibility determination on speculative beliefs rather than the evidence. Uwase v. Ashcroft, 349 F.3d 1039, 1042 (7th Cir.2003); see also Vukmirovic v. Ashcroft, 362 F.3d 1247, 1253 (9th Cir.2004). But even if this ... | [
"can be rebutted if the INS establishes by a preponderance of the evidence that the applicant could reasonably avoid persecution by relocating to another part of his or her country or that conditions in the applicant's country have changed so as to make his or her fear no longer reasonable (Reg. §§ 208.13(b)(l)(i) ... | [
"F.3d 722, 727 (10th Cir.2004). This standard of review is a deferential one, but we do not blindly accept an IJ’s determination that an alien seeking asylum or restriction on removal is not credible. Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996); see also Aguilera-Cota v. U.S. INS, 914 F.2d 1375, 1381 (9th Cir.19... |
App.D.C. 147, 36 F.2d 551, it was held that a loss, sustained by the taxpayer in a business transaction resulting from the pur chase and subsequent sale by the taxpayer of a house, was not deductible as a loss occurring in a “regular trade or business” within the provisions of section 204(a) of the Revenue Act of 1921,... | [
"of stock in the Weatherford Milling Company resulted from his activities in such avocation. Section 204 (a) and (b) of the Revenue Act of 1921 provides that a loss, in order to be deductible as a “net loss,” must not only have been incurred from the operation of -a trade or business, but from a trade or business r... | [
"business and still be entitled to the benefit of the statute. Oscar K. Eysenbach v. Commissioner of Internal Revenue, 10 B. T. A. 716; E. M. Elliott v. Commissioner of Internal-Revenue, 15 B. T. A. 494; Crane v. Commissioner of Internal Revenue, 17 B. T. A. 720. Under the Hughes Case, supra, one-fifth of' petition... |
PER CURIAM: The attorney appointed to represent Sandra Patricia Montoya-Amaya (Montoya) has moved for leave to withdraw and has filed a brief pursuant to REDACTED Montoya has not filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein. Counsel’s brief substantially ... | [
"April 12, 2005, the District Court for the Middle District of Pennsylvania (Kane, J.) held a sentencing hearing. Defendant’s counsel continued to argue that the offense level calculation was erroneous for the reasons cited in his earlier motion, but made no argument concerning his various theories of downward depa... | [
"requirement placed on counsel to “support his client’s appeal to the best of his ability”, Anders, 386 U.S. at 744, 87 S.Ct. 1396, and “to act with candor [to the court] in presenting claims for judicial resolution,” McCoy v. Court of Appeals [of Wisconsin], Dist. 1, 486 U.S. 429, 440, 108 S.Ct. 1895, 100 L.Ed.2d ... |
interest in privacy. When the facts of a case place it in the center of the continuum where the two interests overlap and create a tension, the right to family integrity may properly be characterized as nebulous, and thus a defendant may claim the protection of qualified immunity. However, when the facts of a case plac... | [
"can take temporary custody of children about whom they have received reports of abuse in order to guarantee their safety. See Hodorowski, 844 F.2d at 1217. Dearborne’s argument misconstrues the significance of our finding of nebulousness in Hodorowski-type cases. Cases claiming governmental interference with the r... | [
"place it in the center of the continuum where the two interests overlap and create a tension, the right to family integrity may properly be characterized as nebulous, and thus a defendant may claim the protection of qualified immunity. However, when the facts of a case place it squarely on the end of the continuum... |
treating physician may also ‘bend over backwards’ to assist a patient in obtaining benefits ... ”). No doubt, the purpose of the plaintiffs’ present inquiry is to test the possible bias of the law firm and the insurance company in the underlying state court personal injury action. We see no reason why that inquiry cann... | [
"than bias. This is different, of course, from a case where a party has filed a series of fraudulent lawsuits and there is substantial evidence that the prior lawsuits amounted to a fraudulent pattern, evidence lacking here. So saying, we recognize that there are a few cases permitting cross-examination concerning ... | [
"Court noted: Bias is a term used in the “common law of evidence” to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness’ like, dislike, or fear of a party, or by the... |
Fleming’s complaints have no merit. In order to prevail on a claim that defense counsel rendered ineffective assistance of counsel, the claimant must establish two things. First, that “ ‘counsel’s representation fell below an objective standard of reasonableness,’ ” and second, that “‘there is a reasonable probability ... | [
"make a sufficient showing of prejudice to justify an evidentiary hearing. II. DISCUSSION A prisoner is entitled to an evidentiary hearing on a section 2255 motion unless the motion, files and records of the case conclusively show that the prisoner is not entitled to relief. 28 U.S.C. § 2255; Voytik v. United State... | [
"was based on an unreasonable determination of the facts. For those reasons, Earp is entitled to an evidentiary hearing in federal court and we remand for that purpose. A In order to establish entitlement an evidentiary hearing, Earp is not required to conclusively establish in this appeal that counsel was prejudic... |
proceeding to a condemnation, as would justify the opinion, that no such measure was intended, and thus convert the seizure into a trespass. The judgment of the circuit court is to be reversed. “'Chase and Livingston, Justices, dissented from the opinion of the court in these cases, because the vessel, which was seized... | [
"lawful voyage; that the vessel and cargo were seized át Saint Jose by Captain Montgomery as prize of war, without any lawful or probable cause; that the vessel and cargo were not brought to the United States, nor proceeded against as prize of war in any court having jurisdiction to adjudicate upon the lawfulness o... | [
"war while sheltered by the’olive branch of peace. She is not composed in part of the neutral character of Mr. Pinto, and in part of the hostile character of her owner. She is an open and declared belligerent; claiming all the rights, and subject to all the dangers of the belligerent character. She conveys neutral ... |
"§ 1367(a)! In enacting 28 U.S.C. § 1367, Congress conferred upon federal district courts “supplemental forms- of jurisdiction ... [that] enable them to take full advantage of the rules on claim and party joinder to deal economically—in single rather than multiple litigation—with matters arising from the same transacti... | [
"claims for a number of valid reasons, id., at 726-727. See also Cohill, 484 U. S., at 350 (“As articulated by Gibbs, the doctrine of pendent jurisdiction thus is a doctrine of flexibility, designed to allow courts to deal with cases involving pendent claims in the maimer that most sensibly accommodates a range of ... | [
"that involve the joinder or intervention of additional parties. 28 U.S.C. § 1367(a). In enacting 28 U.S.C. § 1367, Congress conferred upon federal district courts “supplemental forms of jurisdiction ... [that] enable them to take full advantage of the rules on claim and party joinder to. deal economically — in sin... |
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