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and the BIA issued its final order on October 8, 1997. Thus, the IIRI-RA’s transitional rules apply here. The IIRIRA’s transitional rules incorporate 8 U.S.C. § 1105a(e), which provided in relevant part: An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the admini... | [
"review of the exclusion hearing. The Thorsteinssons then filed the present petition for review of the Board’s denial of their request to reopen the deportation proceedings. II The admission and exclusion of aliens is a matter vested almost exclusively in the executive and legislative branches of the federal govern... | [
"administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order. The petitioner argues that these statutory provisions have properly been interpreted to concern only final orders. That is, under these provi... |
provided that Bail may be allowed pending appeal or certiorari only if it appears that the case involves a substantial question which should be determined by the appellate court, (emphasis added.) The Supreme Court amended subdivision (a) (2) in 1956 to provide for bail “unless it appears that the appeal is frivolous o... | [
"of federal law that bail after conviction and pending appeal is a remedy normally available to a prisoner. See Hudson v. Parker, 156 U.S. 277, 285, 15 S.Ct. 450, 39 L.Ed. 424. The existence of power to grant bail .is, indeed, essential for the protection of the right to appeal. Otherwise a short sentence might be ... | [
"frivolous or taken for delay, “bail should ordinarily be granted * * *. It is to be denied only in cases in which, from substantial evidence, it seems clear that the right to bail may be abused or the community may be threatened by the applicant’s release. [Citing cases.]” Leigh v. United States, 82A S.Ct. 994, 8 ... |
discrimination. See Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1194-95 (11th Cir.2004); see also Bechtel Const. Co. v. Sec’y of Labor, 50 F.3d 926, 928-31, 934-35 (11th Cir.1995) (holding that the employer’s shifting reasons demonstrated pretext inasmuch as it initially denied that the employee’s performa... | [
"to “introduce significantly probative evidence showing that the asserted reason is merely a pretext for discrimination.” Id. at 1228. Lewis did not present any statistical evidence of discrimination and, with the exclusion of the statements attributed to Carter and Dunning, he offered no direct evidence of discrim... | [
"of pretext, see Bechtel Construction Co. v. Secr. of Labor, 50 F.3d 926 (11th Cir.1995), and Howard v. BP Oil Co., Inc., 32 F.3d 520, 525 (11th Cir.1994), the examples in this case do not present such a situation. At most, the jury could find that performance was an additional, but undisclosed, reason for the deci... |
further alleges that Ogden and Mayor DeStefano arranged to have the disciplinary hearing stenographic record altered “in at least two critical respects,” though plaintiff does not specify what they are. Plaintiff has provided no evidentiary support for his musings that Chief Ogden or others lied, and that the Chief and... | [
"at some time after the initial taking . . . satisfies] the requirements of procedural due process.” 451 U. S., at 539 (footnote omitted). We reasoned that where a loss of property is occasioned by a random, unauthorized act by a state employee, rather than by an established state procedure, the state cannot predic... | [
"to justify a conviction and termination of plaintiff. Plaintiff further alleges that Ogden and Mayor DeStefano arranged to have the disciplinary hearing stenographic record altered “in at least two critical respects,” though plaintiff does not specify what they are. Plaintiff has provided no evidentiary support fo... |
granted has power, in its discretion, to reopen the closed estate, without notice at any time [In re Rochester Sanitarium & Baths Co. (C. C. A.) 222 F. 22; In re Schreiber (C. C. A.) 23 F.(2d) 428; certiorari denied Schreiber v. Public Nat. Bank & Trust Co., 277 U. S. 593, 48 S. Ct. 529, 72 L. Ed. 1005; In re Paine (D.... | [
"HOUGH, Circuit Judge. The power of reopening estates depends upon section 2, subd. 8, of the Bankruptcy Act. The statute presupposes that estates have been closed, and authorizes the court to “reopen them whenever it appears that they were closed before being fully administered.” We have held in Re Goldman, 129 Fe... | [
"with his amended schedules,” and to the creditor “to oppose, the granting of such a discharge on the merits.” The judgment creditor appeals. Sec. 2, sub. a(8), of the Bankruptcy Act, 11 U.S.C.A. § 11, sub. a(8), empowers the bankruptcy courts to reopen estates “for cause shown.” The previously existing limitation ... |
F.2d 158, 148 A.L.R. 1045. In the case of Jennings v. United States, D.C.Va., 177 F.Supp. 597, 599, the Treasury Agent made an examination somewhat similar to that made by Agent Scott in this case, resulting in an assessment based largely upon a percentage estimate which the Court adjudged- inaccurate and unfair. The C... | [
"which we are bound to accept, unless clearly erroneous. Fed.R.Civ.P. 52(a), 28 U.S.C. We cannot say that the trial judge, who was in a position to weigh the evidence and observe the witnesses, was clearly erroneous on this record. Aside from this, however, we do not perceive that this finding would be determinativ... | [
"the later period of time when the agent made his computations. The record is inadequate for this Court to determine what is the precise percentage formula by which the Cabaret Tax can be accurately computed. However, the plaintiffs conceded that their test conducted over a longer period of time disclosed a percent... |
Congress to exclude from interstate commerce. These arguments overlook, they disregard, the dominant, the controlling, fact that the act, though passed in aid of state purposes and powers, deals with, and only with, commerce interstate. It takes up where state power ends, and by supplementing state legislation it makes... | [
"the Constitution is presented by the second count of the information.- That count alleges that the prison-made goods described were sold to a purchaser in Ohio for shipment via railway express from a prison in Alabama. Whether the court below intended to sustain this count is not clear; but the state confines its ... | [
"11 S. Ct. 865; 35 L. Ed. 572; Clark Distilling Co. v. Western Maryland R. R. Co., 242 U. S. 3.11, 37 S. Ct. 180, 61 L. Ed. 326; L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845. So the states in the exercise of their police power regulate the stealing of automobiles, but Congress supplementarily forbids and punishes the... |
Opinion for the court filed by Circuit Judge HENDERSON. KAREN LeCRAFT HENDERSON, Circuit Judge: Jeffrey Schnitzer appeals the district court’s dismissal of his tort claim against the United States. Schnitzer was injured while serving a 29-year sentence at the United States Disciplinary Barracks (USDB), Fort Leavenworth... | [
"Specialist Campbell. You may consider these factors only, however, for the extent to which — if any — they reflect on SPC Campbell’s truthfulness. They may not be considered in determining an appropriate sentence for SPC Schnitzer for his crimes. [Questions to members omitted.] EVERETT, Senior Judge, with whom GIE... | [
"summary transfer to segregation, and removal of Lt. Col. Garity as presiding officer of the USDB Disciplinary and Adjustment Board. He further seeks a declaratory judgment that appellees violated his constitutional rights. Jurisdiction is sought under the general federal question statute, 28 U.S.C. § 1331. On Sept... |
then defendant could not have acted justifiably in self-defense. Justification or self-defense contemplates an intentional act to protect oneself. Accident means that the requisite intent to act for one’s own protection is lacking.” Given this exchange between the parties, we reject the argument that the New York court... | [
"first, the judge concluded that while the prosecutor’s statement was error, it was harmless beyond a reasonable doubt when considered in the totality of the circumstances. As to the second, the judge concluded that the New York “justification” statute does not make the distinction contended for by Washington, and ... | [
"of the issue,” the Court deemed the argument waived because it had only been raised for the first time in petitioner’s merits brief to the Court. Id. at 34, 124 S.Ct. 1347. The question Baldwin left open is now before us: Where state and federal claims share the same legal standard, has a federal claim been “fairl... |
"in light of the purpose served by the forum.” Good News Club, 533 U.S. at 106-07, 121 S.Ct. 2093 (internal citations, quotations omitted); see also Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510 (“The State may not exclude speech where its distinction is not reasonable in light of the purpose served by the forum ... nor... | [
"aside the question as to whether specialty license plates represent “a government-crafted message”- — and I do not believe that they do — -the proper question is not whether when the government speaks must it always allow others to speak, but whether a forum exists in which speech is occurring, and if so, whether ... | [
"Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106, 121 S.Ct. 2093, 2100, 150 L.Ed.2d 151 (2001). The State’s power to restrict speech in a limited forum is not, however, unlimited. Id. Any such restriction “must not discriminate against speech on the basis of viewpoint, and the restriction must be reasonable ... |
"Inc. v. United States, 275 F.3d 1366, 1369 (Fed.Cir.2002) (“[Mlootness ... is a threshold jurisdictional issue.”), and Tech. Innovation, Inc. v. United States, 93 Fed.Cl. 276, 278 (2010) (""The mootness of a case is properly the subject of an RCFC 12(b)(1) motion.""), unth Baker, 369 U.S. at 196, 82 S.Ct. 691 (holding... | [
"by the APA. . The source of confusion upon this point may be in part that § 701(a)(2) codifies “traditional principles of nonreviewability, ” Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 160 (D.C.Cir.2006), according to which a matter committed to agency discretion is not reviewable because courts lack jud... | [
"417, 420-21 (1983). As a question of jurisdiction, mootness is an exception to “the long-standing rule in the Federal courts that jurisdiction is determined at the time the suit is filed and, after vesting, cannot be ousted by subsequent events, including action by the parties.” F. Alderete Gen. Contractors, Inc. ... |
a price which would unjustly enrich the defendants at the expense of the city and its taxpayers had been fully accomplished before the mailings referred to in each of the last four counts of the indictment. It is well settled that it is not sufficient that the use of the mails relied upon must merely relate to the sche... | [
"letter of credit were then sent by the Pauls Valley bank by railway express to its correspondent, Liberty National Bank at Oklahoma City, Okla., which bank forwarded it to Fort Worth National Bank of Fort Worth, Texas, for collection. The Fort Worth bank, in the regular course of its business, mailed Christian’s c... | [
"United States mail must be used “for the purpose of executing such scheme or artifice or attempting so to do.” It is vital to the commission of the offense that the use of the mail relied upon by the Government be in furtherance of the alleged scheme. The demurrer to the indictment attacks its validity on the grou... |
solely in its capacity as a private developer and without federal financial assistance. It is the established law in this circuit that the URA definition of “program or project undertaken by a Federal agency, or with Federal financial assistance” does not encompass the situation when a private party undertakes a federa... | [
"42 U.S.C. § 4601 et seq., but was refused such aid. It then sought a judicial declaration that it was entitled to benefits under the Act but the court dismissed its complaint and Parlane appeals. The statute extends assistance to persons displaced by the acquisition of real property “for a program or project under... | [
"transform these private corporations into governmental entities or instrumentalities of the state. We agree with the District Court that the evidence indicates that both the Pantheon and Pershing Redevelopment corporations should be considered private entities. Thus, acquisitions of property by these corporations ... |
might not have been held liable to the defendant in the event the latter was held liable to the plaintiff because the jury might have found that the third-party defendant did not act “willfully”, but Rule 14 is clearly not limited to situations where the third-party defendant will automatically be liable to the defenda... | [
"Code must be construed to include all those so connected with a corporation as to be responsible for the performance of the act in respect of which the violation occurred.” 8A Mertens, Federal Income Taxation § 47A.25a, at 128-29 (1964). More than one officer of a corporation may be liable for this penalty for fai... | [
"the event the latter was held liable to the plaintiff because the jury might have found that the third-party defendant did not act “willfully”, but Rule 14 is clearly not limited to situations where the third-party defendant will automatically be liable to the defendant for all or part of the plaintiff’s claim. Se... |
"cause of action under a statute against a party not in violation of a statute or liable under any of its provisions. In the decisions cited by Hines, the courts determined the existence of a private cause of action against parties in violation of or liable under a statute. Eg., Transamerica Mortg. Advisors, Inc. v. Le... | [
"in Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1 (1888). There the Court held that there was no federal common law “which prohibits obstructions and nuisances in navigable rivers.” Id., at 8. Although Willamette involved private parties, the clear implication of the Court’s opinion was that in the absence of sp... | [
"that primary products may be hazardous substances. See, e.g., Conservation Chemical, 619 F.Supp. at 239. . Hines alternatively asks that we recognize an implied cause of action against chemical manufacturers who are not responsible parties under CERCLA. Hines provides no support for the rather novel contention tha... |
The plaintiff seeks an order enjoining defendant Ford Motor Company from refusing to supply to its dealers automobiles without factory-installed radios which are identical to automobiles delivered with them, i. e., having identical dashboards but with an empty compartment or hole where the radio is ordinarily installed... | [
"CAFFREY, District Judge. This matter came on for hearing before the Court upon plaintiffs’ motion for a preliminary injunction filed pursuant to the provisions of 15 U.S.C.A. § 26. The motion seeks an order enjoining defendant Ford Motor Company from the practice of supplying to its dealers certain of its automobi... | [
"COFFIN, Circuit Judge. This is an appeal from a denial of a preliminary injunction sought by a manufacturer of automobile radios, Automatic Radio Mfg. Co., Inc. (Automatic), against Ford Motor Company (Ford), to restore its competitive position in the automobile radio market pending the outcome of a private antitr... |
therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married its mother.” Id., 409 U.S. at 5... | [
"Shapiro v. Thompson, 1969, 394 U.S. 618, 641-642, 89 S.Ct. 1322, 1335, 22 L.Ed.2d 600, 619; Bolling v. Sharpe, 1954, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884. In upholding the constitutionality of Title 42, U.S.C. § 416(h)(3)(B), I would follow the majority opinion of the three-judge statutory court in J... | [
"words: Under these decisions, a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally. We therefore hold that once a State posits a judicially enforceable right on behalf of children to needed support from their natural fathers there i... |
"and, in lieu of argument, permitted both parties to file simultaneous supplemental briefs on the § 1693Z claim. In its supplemental brief, Propel raised two entirely new arguments on why the Court should dismiss the § 1693Z claim, one merits-based and one jurisdictional, based on standing. The Court will not address t... | [
"82 L.Ed.2d 556 (1984)(\"personal\"); Valley Forge, supra, at 472, 102 S.Ct. 752(standing requires that the plaintiff \" 'personally has suffered some actual or threatened injury' \"); United States v. Richardson, 418 U.S. 166, 177, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974)(not \"undifferentiated\"); Public Citizen, Inc... | [
"challenge is limited to an actual case or controversy. See U.S. Const., art. Ill, § 2. “The doctrine of standing gives meaning to these constitutional limits,” Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014), by requiring a plaintiff to “allege[] such a personal stake in t... |
arguable merits of the union’s proffered interpretation of a contract in order to determine whether a union breached its duty of fair representation in failing to arbitrate a grievance. Moreover, sometimes it is appropriate for the court to determine if the plaintiffs’ contractual claims are meritless as a matter of la... | [
"upon their retirement. Defendant moved for summary judgment, arguing that no genuine issues of material fact existed since plaintiffs’ benefits did not vest under the applicable provisions of ERISA, the governing plan documents, or the collective bargaining agreements between Chromalloy and the respective unions r... | [
"representation. Nevertheless, for reasons that will become clear below, it is sometimes helpful to look at the arguable merits of the union’s proffered interpretation of a contract in order to determine whether a union breached its duty of fair representation in failing to arbitrate a grievance. Moreover, sometime... |
cross-examine without first informing their clients that they have a fundamental constitutional right to insist upon cross-examination and without obtaining from their clients a formal written waiver of this constitutional right. How does a poor, uneducated, non-television-watching defendant know that he has a fundamen... | [
"was violated when her attorney stipulated to the admission of evidence without her stated waiver of such right on the record. Her argument is based on Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938), and other cases holding that where a fundamental constitutional right is waiv... | [
"2798, 2802-03, 101 L.Ed.2d 857 (1988). Day after day in the courts of the United States defense counsel make the decision not to cross-examine without first informing their clients that they have a fundamental constitutional right to insist upon cross-examination and without obtaining from their clients a formal w... |
this circuit that offenses which occur within one year of the offense of conviction may be considered relevant conduct for sentencing. See United States v. Bethley, 973 F.2d 396, 400-01 (5th Cir.1992) (finding drug transactions that occurred six months prior to the offense of conviction to be relevant conduct); United ... | [
"a \"relevant consideration.” USSG § 1B1.3 application note 9(B). As an example, the commentary cites a defendant's failure to file an income tax return in three consecutive years as part of the same course of conduct where the tax return is statutorily required at precise yearly intervals. We do not believe that t... | [
"considered relevant conduct). In two recent cases this court has found that the time interval between offenses is too remote to consider the extraneous offense to be relevant conduct. In both of those cases the offense of conviction took place more than a year in time from the offense in question. See United State... |
"to Dismiss at pp. 5-6. The meaning of these statements is not clear. The Court can only assume that debtors do not concede that the Illinois exemption statute is preempted by ERISA, in light of their underlying argument that the same statute entitles them to their claimed exemptions. Indeed, debtors specifically state... | [
"here were established and maintained by the debtors individually through their own contributions rather than by an employer or employee organization. Therefore, they are not within section 1003(a) and the state law exemption is not preempted by ERISA. Debtors also claim an exemption for their Arizona State Pension... | [
"in this case demonstrates a lack of diligence in the performance of his duties that is, at best, inexcusable. C. Objection to Exemption of IRAs Blunt, Ellis & Loewi, as previously noted, did not receive notice of the amendment to debtors’ schedules filed May 18, 1990, at which time debtors added the IRAs to their ... |
S.Ct. 57, 19 L.Ed.2d 76 (1967). In this case, the district court had ample evidence from which to conclude that the Stevenson patent was obvious. It was therefore not required to consider secondary factors. The district court’s conclusion was not erroneous. AFFIRMED. . Foot slippage refers to the tendency of a rider’s ... | [
"before the patent examiners. Westinghouse Electric Corp. v. Titanium Metals Corp. of America, 454 F.2d 515 (9th Cir. 1971); Exer-Genie, Inc. v. McDonald, 453 F.2d 132 (9th Cir. 1971); Pressteel Co. v. Halo Lighting Products, Inc., 314 F.2d 695, 697 (9th Cir. 1963). Although the district court did not find that the... | [
"the platform. The platform of the claimed board has a section that is flat, with an inclined foot-depressible lever coupled to the rearward end section, the lever being oriented so its plane slopes upwardly and rearwardly from the platform. Obviousness In determining the presence or absence of obviousness, and in ... |
the term for a competing diet soda. A.J. Canfield Co. v. Vess Beverages, Inc., 612 F.Supp. 1081 (N.D.Ill.1985). The district court had concluded that “chocolate soda” was merely descriptive of the flavor but that Canfield had demonstrated that it could likely show secondary meaning so as to earn trademark protection. T... | [
"determining whether “chocolate fudge” had acquired a secondary meaning. 36. No survey however, has been presented to demonstrate whether “chocolate fudge” has established in defendant’s market a secondary meaning as to the origin of plaintiff’s product. 37. Alan Canfield stated that he did not know whether such a ... | [
"success as to both issues. Although Canfield may not have a substantial chance of prevailing at trial, see Yoo Hoo Beverage Corp. v. A.J. Canfield Co., No. 85-3701 HLS (D.N.J. March 19, 1986) [available on WESTLAW, DCTU database] (district court denied Can-field’s petition for preliminary injunction); A.J. Canfiel... |
the floor statements in favor of the bill remain uncontested.’ ” Alexander, 159 F.3d at 1325 n. 8 (quoting Garrett v. Hawk, 127 F.3d 1263, 1265 n. 2 (10th Cir.1997)). . The Garrett court held that § 1997e(a)’s exhaustion requirement applied to both claims raised in that case, but the court reversed the district court’s... | [
"appellees violated his Eighth Amendment right to be free of cruel and unusual punishment by using excessive force against him and being deliberately indifferent to his medical needs. Appellees moved the district court to dismiss Miller’s complaint, as amended, for failure to allege a constitutional violation. The ... | [
"administrative process turns out? The version of § 1997e(a) that predated the PLRA permitted a court to “continue such case for a period of not to exceed 180 days in order to require exhaustion of such plain, speedy, and effective administrative remedies as are available.” In 1996 Congress deleted the requirement ... |
government does not dispute MacDougall’s self-characterization as an offloader. Rather, the question is a legal one: at what point did importation cease? The essence of MacDougall’s argument is that the importation of hashish was complete once the contraband had crossed the United States border, which occurred in this ... | [
"Circuit has noted, a defendant cannot “escape criminal responsibility on the grounds that he did not join the conspiracy until well after its inception [citations omitted]; or because he plays only a minor role in the total scheme.” United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir.1980) (en banc). 2) Importa... | [
"marijuana unloaded at Calibogue Cay, Hilton Head in 1979. The issue in MacDougall’s challenge to his convictions of conspiracy to import and importation of hashish is not factual; the government does not dispute MacDougall’s self-characterization as an offloader. Rather, the question is a legal one: at what point ... |
"by failing to provide a clear, written notice of the reasons for its denial of Wigod's application. Doc. 28 at ¶¶ 67-72. ICFA ""is a regulatory and remedial statute intended to protect consumers, borrowers, and business persons against fraud, unfair methods of competition, and other unfair and deceptive business pract... | [
"Robinson, 266 Ill.Dec. 879, 775 N.E.2d at 960. A plaintiff may allege that conduct is unfair under ICFA without alleging that the conduct is deceptive. Saunders v. Mich. Ave. Nat’l Bank, 278 Ill.App.3d 307, 214 Ill.Dec. 1036, 662 N.E.2d 602, 608 (1996). While charging an unconscionably high price generally is insu... | [
"act or practice by the defendant; (2) the defendant’s intent that the plaintiff rely on the deceptive or unfair practice; and (3) the unfair or deceptive practice occurred during a course of conduct involving trade or commerce.” Siegel v. Shell Oil Co., 612 F.3d 932, 934 (7th Cir.2010), citing Robinson, 266 Ill.De... |
issue or is entitled to register it, but whether it is likely that he would be damaged if a registration of the mark were granted to appellant. Since appellee has been continuously deriving revenue from the use of the mark on confections since a time prior to its adoption by appellant, it is evident that the registrati... | [
"oppositions on the ground that the opposers could not quality “under any of the descriptiveness clauses, geographi cal or otherwise, of Section 5” of the Trade-Mark Act of 1905, and further held the notations of appellee to he registrable as valid technical trade-marks. All the opposers took separate appeals to th... | [
"for the first time, so far as we are able to learn, the question of whether a surname, without including the baptismal name, is within the prohibition of said proviso. The next contention of appellant is that appellee will not be damaged by the registration of the mark applied for by appellant, and that there is n... |
further proceedings consistent with this opinion. It is so ordered. The INS’s immigration-enforcement functions are now handled by the Bureau of Immigration and Customs Enforcement in the Department of Homeland Security. See Clark v. Martinez, 543 U. S. 371, 374, n. 1 (2005). Although the Government has deported Lopez,... | [
"prior conviction was a felony under applicable state law and was punishable under the Controlled Substances Act, the court held that § 2L1.2(b)(2) applied. Id. We agree with the reasoning of the First Circuit in Restrepo-Aguilar and of the four other circuits that have considered this issue. See, e.g., United Stat... | [
"by pursuing his application for cancellation of removal, which the Immigration Judge refused to consider after determining that Lopez had committed an aggravated felony. Compare United States v. Wilson, 316 F. 3d 506 (CA4 2003) (state-law felony is an aggravated felony); United States v. Simon, 168 F. 3d 1271 (CA1... |
"United States (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States, or (3) any act which is indictable under subchapter II of chapter 53 of title 31, United States Code, or under section 1956 or 1957 of this title. . The Court is, of course, mindful that the... | [
"Kahn next claims that since the transactions in question here were “isolated” and had no connection with a comprehensive scheme of interstate racketeering, application of the Travel Act, 18 U.S.C. § 1952, was improper. He relies chiefly upon Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971... | [
"of the United States (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States, or (3) any act which is indictable under subchapter II of chapter 53 of title 31, United States Code, or under section 1956 or 1957 of this title. . The Court is, of course, mindf... |
"112 S.Ct. 1311. Therefore, Grand Estates’s §§ 1962(a) and (b) claims should be dismissed because these claims, like Grand Estates’s § 1962(c) claim, fail to satisfy the ""proximate cause” requirement. Supra Part III.C. . The defendants argue that Grand Estates cannot bring claims under Sections 349 and 350 because it ... | [
"jury had adequate evidence to support their finding identifying Schnabolk, Kalon and An-dra as an association-in-fact and as the persons who conducted the enterprise as well. We have considered appellants’ other contentions regarding the RICO claim and have found them to be meritless. B. The New York General Busin... | [
"383 F.Supp.2d 526, 561-62 (S.D.N.Y.2005); Constr. Tech., Inc. v. Lockformer Co., 704 F.Supp. 1212, 1222 (S.D.N.Y.1989). “The critical question” in assessing a suit by a corporate competitor “is whether the matter affects the public interest in New York, not whether the suit is brought by a consumer or a competitor... |
relevant market. LektroVend, 660 F.2d at 268. Courts have traditionally applied the rule of reason standard in the majority of Section 1 challenges to allegedly anticompetitive contracts, combinations and conspiracies. U.S. Trotting, 665 F.2d at 787. 2. Sherman Act Section 2 Violations Under Section 2 of the Sherman Ac... | [
"these facts, could a rational trier of fact find that Olympia was a victim of monopolization? The offense of monopolization under section 2 of the Sherman Act requires proof of monopoly power (the power to raise prices without losing so much business that the price increase is unprofitable, see, e.g., Ball Memoria... | [
"a specific intent to achieve a monopoly in a relevant market; (2) predatory or anticompetitive conduct in furtherance of the purpose to monopolize; and (3) a dangerous probability of success in the relevant market. See Lektro-Vend Corporation v. Vendo Company, 660 F.2d 255, 270 (7th Cir.1981), cert. denied, 455 U.... |
exam when limitation of motion was tested. The BVA decision in this case states: “The veteran’s rheumatoid arthritis is manifested by complaints of joint pain, with no more than minimal objective findings shown on recent examinations.” This is the only language in the BVA decision that appears to comment on the appella... | [
"v. Derwinski, 1 Vet.App. 118, 120-21 (1991); Fugere v. Derwinski, 1 Vet.App. 103, 108-09 (1990) (quotations omitted); Payne, at 87; Bentley v. Derwinski, 1 Vet.App. 28, 31 (1990). If, in considering this question upon remand, the BVA determines that venous thrombosis is not service connected, it must give adequate... | [
"in the record to the veteran’s complaints of pain, and despite his failure to raise the issue of the applicability of regulations related to pain, the BVA was required to consider the applicability of 38 C.F.R. § 4.40 (1992) and § 4.45(f) (1992). See Quarles v. Derwinski, 3 Vet.App. 129, 139 (1992); Schafrath v. D... |
1974 would be frustrated: The District cannot point successfully, however, to any “exceptional circumstance[ ]” to justify a departure from our rule that we will not hear an argument made for the first time on appeal. See Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416, 419 n. 5 (D.C.Cir.1992); see also Single... | [
"the psychiatric examination because he confronts \"a variety of solicitous, confidence-inspiring mental health professionals” who \"presentí] a therapeutic facade beneath which exists a real adversity of interests,” id. at 1158. Whichever of these incompatible perceptions is correct, one must admire the dissent's ... | [
"A. The District of Columbia seeks to take advantage of the Department’s recent regulatory change by claiming, for the first time on appeal, that the Department’s anti-docking regulation (as it existed prior to the August 1992 revision) is ultra vires as applied to public employers. Paralleling the reasoning the De... |
"reason that Plaintiff is unable to show any flaw in OIG's investigation is that he did not obtain the underlying investigative record in discovery. See Def.’s Reply, Ex. M, Decl. of Matthew J. Sharbaugh, ECF No. 59-2, ¶¶ 3-9. . Plaintiff originally identified a third potential comparator — Inspector Maureen Powers — d... | [
"these provisions is that Section 4405(a) applies certain amendment prospectively, and Section 4405(b) applies others retroactively. See Motion Picture Ass’n of Am. v. FCC, 309 F.3d 796, 801 (D.C.Cir.2002) (describing the principle that “ ‘individual sections of a single statute should be construed together’ ”) (qu... | [
"807 F.2d 208, 215 (D.C.Cir.1986); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir.1981), aff'd, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983); Western Mining Council v. Watt, 643 F.2d 618, 626 (9th Cir.), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981). A court may dismiss a complaint for failu... |
unconstitutional statute, in violation of plaintiff’s rights and to his irreparable damage, is not a suit against the state, and that ‘individuals who, as officers of the state, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, eith... | [
"those instances where the act complained of, considered apart from the official authority alleged as its justification, and as the personal act of the individual defendant, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the wrongdoer in his individual ... | [
"suits against the State. Questions of this sort havé arisen many times in this court, but the matter was set at rest in Ex parte Young, 209 U. S. 123, 150, 155, where it was held that a suit to restrain a state officer from executing an unconstitutional statute, in violation of plaintiff’s rights and to his irrepa... |
plaintiff’s motion to amend to voluntarily dismiss Herman Dziewienski from the action sub judice. The defendants move to dismiss for lack of subject matter jurisdiction based on their contention that Herman Dziewienski is an indispensable party who must be joined in this action, but because he cannot be joined without ... | [
"the action and on such terms as are just.” This court has interpreted Rule 21 to mean, “Parties of course may be dropped in order to achieve the requi site diversity of citizenship if their presence is not essential to a just and meaningful adjudication.” As indicated, the court’s power to dismiss parties is circu... | [
"U.S. 102, 125, note 22, 88 S.Ct. 733, 746, note 22, 19 L.Ed.2d 936 (1968). It is beyond peradventure that joint tortfeasors are not indispensable parties in the federal forum. See: Field v. Volkswagenwerk-AG, 626 F.2d 293, 298 n. 7 (3d Cir.1980); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970); Windert Watch ... |
"501(c) public charity. . The Plan also contained an Exculpation Provision, barring suits against the Released Parties for any acts or omissions in connection with the bankruptcy, and an Injunction Provision, enjoining suits in violation of either the Release or Exculpation Provision. The bankruptcy court upheld the Ex... | [
"verity of the testimony, matters which are part and parcel of the purpose of the reference to the Master to make findings and report to the Court, are absent____ Id. at 518. The Court noted that the district court at no time had an opportunity to see the witnesses. The defect, according to the Seventh Circuit, was... | [
"Vacated and remanded by published opinion. Judge DIAZ wrote the opinion, in which Chief Judge TRAXLER and Judge AGEE joined. OPINION DIAZ, Circuit Judge: We consider in this case the circumstances under which a bankruptcy court may approve nondebtor release, injunction, and exculpation provisions as part of a fina... |
Bailey suffered damages as a result of this act. The remaining issues on liability are: (1) was the destruction of Bailey’s right of first refusal unjustifiably induced? (2) who, if anyone is liable for inducing or conspiring to induce this injury? Before examining the law and evidence on these issues, the Court first ... | [
"146 N.Y.S.2d 808 (1st Dept. 1955); Brandt v. Winchell, 283 App.Div. 338, 127 N.Y.S.2d 865 (1st Dept. 1954). “The mere fact that a series of tortious acts is part of a plan or scheme does not change the character of the liability or remedy, for traditional relief may, nevertheless, be available.” Ruza v. Ruza, supr... | [
"these findings, the court concluded that Continental and Foster had combined with Meister Brau to unlawfully interfere with Bailey’s right of first refusal and are therefore liable to him jointly and severally for the consequences of their tortious acts. Bailey I, supra, at 880. Continental takes the position that... |
is in progress combined with the imprisonment of plaintiff for disobeying the orders offend notions of fundamental fairness and thus violate due process of law. Although the defendants’ actions do not appear improper, I need not deal with the merits of plaintiff’s contention, for this action is barred at the threshold ... | [
"1031, 89 L.Ed. 1495 (1944), reversed the judgment of dismissal and stated that the finding that petitioner had not stated a claim on which relief could be granted was erroneous. The ground was that the defendant judge was not, under the allegations, performing judicial function so as to be immune. The complaint in... | [
"42 U.S.C., Section 1983, it should be noted that the Civil Rights Act creates no exception to judicial immunity. Pierson v. Ray, supra. There is nothing in the legislative history of the Civil Rights Act which abrogates or in any way impairs the doctrine of judicial immunity. Byrne v. Kysar, 347 F.2d 734 (7th Cir.... |
where the parties simultaneously seek certification and settlement approval, require “courts to be even more scrupulous than usual” when they examine the fairness of the proposed settlement. Id. at 805. This heightened standard is designed to ensure that class counsel has demonstrated “sustained advocacy” throughout th... | [
"Atlantic because it required the parent corporation to institute internal mechanisms to prevent improper sales and marketing methods. Lazar contends the settlement violates legal standards necessary for approval. Lazar claims Bell Atlantic (equated with its shareholders) received nothing while defendant directors ... | [
"Warfarin, 391 F.3d at 534. We have explained that this “heightened standard is designed to ensure that class counsel has demonstrated sustained advocacy throughout the course of the proceedings and has protected the interests of all class members.” Prudential, 148 F.3d at 317 (internal quotation marks omitted). In... |
U.S.C. § 922(a)(6) and sentenced to 70 months imprisonment. We affirmed his conviction on direct appeal, in which Vmon raised a constitutional challenge to his convictions under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), for the first time in his reply brief. Vmon petitioned the Suprem... | [
"ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before BIRCH, DUBINA and MARCUS, Circuit Judges. PER CURIAM: This case is before the Court for consideration in light of United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We previously affirmed Appellant’s sentence. See United States v. ... | [
"ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before KING, Chief Judge, and REAVLEY and GARZA, Circuit Judges. PER CURIAM: The Supreme Court has granted Defendant-Appellant Taylor’s petition for writ of certiorari, vacated our previous judgment in this case, and remanded the case to this court for further ... |
no Eighth Amendment violation because the harm inflicted was de minimis. It is unclear to me what rationale the panel uses to support its position. Does the panel opinion stand for the proposition that the sexual abuse of prisoners is not offensive to contemporary standards of decency and human dignity? Is the opinion ... | [
"claim and there is, instead, much to support it. We therefore conclude that sexual abuse of a prisoner by a corrections officer may in some circum stances violate the prisoner’s right to be free from cruel and unusual punishment. The Eighth Amendment sets constitutional boundaries on the conditions of imprisonment... | [
"spoke: “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.’ ” Id. at 9-10, 112 S.Ct. 995 (quoting Whitley, 475 U.S. at ... |
(1981). . Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103 (Iowa 1995). . Creating two subclasses consisting of privity states and non-privity states will not avoid the conflict of laws. Privity is not the only conflict. There are irreconcilable differences among the states with respect to disclaimer requirements, limit... | [
"more connected to the performance of the contract than Ohio. iv. Location of Subject Matter of the Contract Defendant contends that Illinois was the' location of the actual subject matter of the contract, while Plaintiff argues that, because R & C retained “ownership” of the drawing under the 1989 Agreement, the “... | [
"considered: “(a) the place of contracting, (b) the place of negotiation of the' contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicile, residence, nationality, place of incorporation and. place of business of the parties.” Restatement (Second) of Confli... |
759. Additionally, the district court [acting as an appellate court] may not make its own independent factual findings. If the bankruptcy court’s factual findings are silent or ambiguous as to an outcome determinative factual question, the district court may not engage in its own factfinding but, instead, must remand t... | [
"bankruptcy court’s decision to determine whether its factual findings are clearly erroneous and its legal conclusions, which are subject to de novo review on appeal, are correct. Education Assistance Corp. v. Zellner, 827 F.2d 1222, 1224 (8th Cir.1987). It is important to bear in mind that when a district court ac... | [
"as an appellate court] may not make its own independent factual findings. If the bankruptcy court’s factual findings are silent or ambiguous as to an outcome determinative factual question, the district court may not engage in its own factfinding but, instead, must remand the case to the bankruptcy court for the n... |
Folsom location. Citing California law, All Professional further argues that application of the liquidated damages clause would be inappropriate in this case because Century 21 was the party that chose to terminate the franchise agreement. (Opp’n to Mot. for Summ. Adjudication at 42:7-10 (citing Postal Instant Press, I... | [
"as to why this formula is unreasonable, other than some vague notion that it would be unfair to do so. Again, Defendants fail to meet their burden of showing that this calculation is unreasonable. Unless Defendants can proffer another persuasive argument, Radisson would be entitled to liquidated damages in the sum... | [
"absent a California supreme Court decision. See Gravquick A/S v. Trimble Navigation Int'l, Ltd.., 323 F.3d 1219, 1222 (9th Cir.2003). The Sealy Court based its proximate cause analysis on a single case involving a licensor-licensee relationship decided by another intermediate California appellate court in 1931. 43... |
manner that shocks the conscience, thereby violating his substantive due-process rights under the Fourteenth Amendment. See, e.g., Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952); Geinosky v. City of Chicago, 675 F.3d 743, 750 (7th Cir.2012). Renneke’s claim fails, however, because mere oral ... | [
"S.Ct. 2258, 138 L.Ed.2d 772 (1997)). This reluctance is grounded, in part, in the realization that “guideposts for responsible de-cisionmaking in this unchartered area are scarce and open-ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). It also finds roots in ou... | [
"alleged actions as described by plaintiff. Not every threat will arise to the level of a constitutional violation, of course. But where the credibility of the threats presents a jury question as to whether the threats foreseeably resulted in the seizure of the person, a constitutional violation can occur. Cf. Blac... |
or horses); Savage v. Jones, 225 U. S. 501, 529, 532 (requirement that certain labels reveal package contents); Carey v. South Dakota, 250 U. S. 118, 121 (prohibition of shipment by carrier of wild ducks); Dickson v. Uhlmann Grain Co., 288 U. S. 188, 199 (prohibition of margin transactions in grain where there' is no i... | [
"extravagant applica tion of the language quoted to say that it could be extended to include the owner of a place of amusement who does not necessarily buy, sell or exchange merchandise or otherwise participate in commerce. Asakura v. Seattle, 265 U. S. 332, relied on by plaintiff, does not support his contention. ... | [
"Congress has acted on the identical subject, appellant relies upon a number of previous opinions of this Court. Ohio ex rel. Clarke v. Deckebach, 274 U. S. 392, 395, 396; Frick v. Webb, 263 U. S. 326, 333; Webb v. O’Brien, 263 U. S. 313, 321, 322; Terrace v. Thompson, 263 U. S. 197, 223, 224; Heim v. McCall, 239 U... |
of 18 U.S.C. § 287 is an issue of first impression in this circuit. Four other circuits have held that materiality is not an element of § 287. See United States v. Upton, 91 F.3d 677, 685 (5th Cir.1996); United States v. Taylor, 66 F.3d 254, 255 (9th Cir.1995); United States v. Parsons, 967 F.2d 452, 455 (10th Cir.1992... | [
"or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any • false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or... | [
"first we must determine whether materiality is an element of § 287 and, if so, we must then ascertain whether the district court committed plain error by failing to submit the question of materiality to the jury. Four Circuit Courts have addressed this issue reaching two different conclusions. Compare United State... |
have supported mandamus jurisdiction over the applicant’s complaint. Hence, Carballo’s remaining request for a review of a final decision of the Secretary must be dismissed pursuant to § 405(g). . The government also challenges plaintiffs’ contention that general federal question jurisdiction also exists over their com... | [
"Supreme Court has recognized that totally precluding judicial consideration of constitutional issues raises serious constitutional problems. Weinberger v. Salfi, supra, 422 U.S. at 762, 95 S.Ct. at 2465, 45 L.Ed.2d at 537; Johnson v. Robison, 415 U.S. 361, 366 & n. 8, 94 S.Ct. 1160, 1165, 39 L.Ed.2d 389, 397 (1974... | [
"405(g) jurisdiction where no decision to terminate benefits had yet been made, and we would be reluctant to blaze the trail. Resolution of the issue of § 1331 jurisdiction over the Secretary is also difficult. While we are inclined to agree with the Eighth Circuit’s decision that Salfi did not preclude § 1331 juri... |
runs from Monroe to CFC. The existence of an express trust or fiduciary relationship is tested under federal law standards. See In re Frain, 230 F.3d 1014 (7th Cir.2000). Express trusts require an explicit declaration of trust, a clearly defined trust res, and an intent to create a trust. In re Janikowski, 60 B.R. 784,... | [
"that contemplated by § 523(a)(4): “The fiduciary relationship referred to in § 523(a)(4) has been held to be limited to express and technical trusts, neither of which the law implies from a contract.” Johnson 158 B.R. at 995 (citing In re Marchiando, 142 B.R. 246, 249 (N.D.Ill.1992)). In Johnson, the court conside... | [
"from Monroe to CFC. The existence of an express trust or fiduciary relationship is tested under federal law standards. See In re Frain, 230 F.3d 1014 (7th Cir.2000). Express trusts require an explicit declaration of trust, a clearly defined trust res, and an intent to create a trust. In re Janikowski, 60 B.R. 784,... |
court explained, that “re-quir[es] little more than notifying the Court of the intent to appeal.” Id. Mr. Stoffel moved for reconsideration of the Veterans Court decision, which was denied. He filed a timely appeal with us. II. Discussion We possesses limited jurisdiction to review decisions of the Veterans Court. “Exc... | [
"these decisions provide the “rule of law” here. As noted, Willsey alleges that the Veterans Court did not, in the case below, apply the rule for determining CUE set out in Russell. The Veterans Court’s short, unpublished decision mentions Russell but makes no attempt to show how Willsey’s claim failed to meet its ... | [
"relevant part, that after the Veterans Court renders a decision in a case, any party to the case “may obtain a review of the decision with respect to the validity of any statute or regulation ... or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in ma... |
company under 42 U.S.C., § 1983. The Court concludes they are not, regardless of which way the fact question above referred to might be decided. The Court makes this decision in the face of Plaintiff’s contention that Defendant acted pursuant to and in accordance with certain provisions of the Uniform Commercial Code, ... | [
"found that Title 28, U.S.C. Section 1343, provided the requisite jurisdiction and that plaintiffs-appellants stated a claim for which relief could be granted under Title 42, U.S.C., Section 1983. Hall, et al. v. Garson, et al., 5 Cir. 1970, 430 F.2d 430. On remand, the district court denied the injunctive relief r... | [
"contracts whose terms are self-executing. Unlike cases involving garnishment, replevin, claim and delivery, attachment, or distraint procedures, we deal here with repossession, which is a self-help remedy: the creditor, either by himself or by means of a private collection agency, may enter the premises of a debto... |
person whose signature is required. If a document is signed in violation of this rule, the court on motion or on its own initiative, shall impose on the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reason... | [
"Rule 11 Sanctions? Judge Cordova imposed sanctions against Bamford for violating the strictures of Bankruptcy Rule 9011. That rule permits an award of sanctions against a person who signs a pleading in violation of the rule, the represented party, or both. Bankr.R. 9011(a). As explained in the advisory committee n... | [
"not because it cannot itself sign a document.” Id. at 548, 111 S.Ct. at 931. The Chisholm judge relied upon that reasoning to hold that the imposition of sanctions against the debtor’s president was incorrect as a matter of law when the pleadings were not signed as an individual, but solely in his capacity as an o... |
"traditional common law immunities and to allow functionaries in the judicial system the latitude to perform their tasks absent the threat of retaliatory § 1983 litigation."" Id. at 686-87 (footnote omitted). ""Though such suits might be satisfying personally for a plaintiff, they could jeopardize the judicial system's... | [
"the named plaintiffs an immediate preliminary hearing to determine probable cause for further detention.” Id. at 107-08, 95 S.Ct. 854. The Court then noted: The District Court correctly held that respondents’ claim for relief was not barred by the equitable restrictions on federal intervention in state prosecution... | [
"enforcement proceedings subject to agency adjudication are entitled to absolute immunity. The rationale for according absolute immunity in the civil rights context is to incorporate traditional common law immunities and to allow functionaries in the judicial system the latitude to perform their tasks absent the th... |
878 F.2d 523, 532-33 (1st Cir.1989). But, even if retaliatory motive is established, the leader may yet escape liability by demonstrating that there is no causation between the improper intent and the restrictions on the legislator’s speech: i.e., that the legislator would have suffered the same restrictions in the abs... | [
"as the Court of Appeals held that summary judgment was inappropriate on Lesage’s §1983 action seeking damages for the school’s rejection of his application for the 1996-1997 academic year even if petitioners conclusively established that Lesage would have been rejected under a race-neutral policy, its decision is ... | [
"the Supreme Court clarified in Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998), [A]t least with certain types of claims, proof of an improper motive is not sufficient to establish a constitutional violation — there must also be evidence of causation. Accordingly, when a public employee... |
notice of appeal as required by Rule 4(b), Federal Rules of Appellate Procedure, is mandatory and jurisdictional, United States v. Stigall, C.A.6th (1967), 374 F.2d 854, 855-856 [1-3], certiorari denied (1967), 389 U.S. 885, 88 S.Ct. 159, 19 L.Ed.2d 184, it has been held: ■X* ■$£ •3v -Jf 'X* * * * The notice of appeal ... | [
"the office had been open as required by F.R.Civ. P. rule 77(c), 28 U.S.C.A. His affidavits further assert that if, contrary to the best recollection of the clerk who mailed it, the notice was sent by regular mail rather than by air mail, then the notice of appeal would have been received during business hours on S... | [
"I. This court cannot exercise jurisdiction absent a timely notice of appeal. United States v. Langham, 77 F.3d 1280, 1280 (10th Cir.1996) (“A timely notice of appeal is both mandatory and jurisdictional.”). The timing requirements for filing appeals in the federal courts are set out in Rule 4 of the Federal Rules ... |
Lowrance brought an action against Hacker to collect the balance. On July 31, 1987, after a three-day bench trial, the district court entered judgment for Lowrance in the amount of $39,309.30 plus interest. The court reserved judgment on the question whether Hacker’s contract with Rosen-thal required Hacker to pay Lowr... | [
"HARLINGTON WOOD, Jr., Circuit Judge. Plaintiff Thomas J. Lowrance brought this action against Stephen J. Hacker to collect monies allegedly owed by Hacker as a result of Hacker’s commodity trading activities. Hacker raised the affirmative defense of accord and satisfaction, claiming that agreement was reached betw... | [
"1987, the district court entered a written decision holding that Rosenthal’s assignment to Lowrance included the right to attorney’s fees, and awarding Lowrance $8,273 of the $12,343 in fees he requested. Judgment in conformity with that ruling was entered on June 14, 1988. Hacker prosecuted separate appeals from ... |
by Rule 4(f), but on the other hand they meant to implement and enlarge the service of process * * outside the territorial limits of the district * * *. In this light these subsections of Rule 4 are not in conflict with each other but consistent, and should thus be construed.” [17 F.R.D. at 425], We also agree that “th... | [
"the cause to the District Court for further proceedings on the sole issue of whether Northern was subject to the jurisdiction of the District Court. lSomewhat to our surprise, Northern made no attempt to secure amendment of its prior pleadings which admitted facts on which the District Judge relied in part in his ... | [
"See 2 Moore, Federal Practice, para. 4.19, pp. 948-949 (2d ed. 1948). Furthermore, I am persuaded that the framers of the federal rules did not mean to limit Rule 4(d) (7) by Rule 4(f), but on the other hand they meant to implement and enlarge the service of process upon statutory agents, and, particularly upon st... |
to recognize and enforce an arbi-tral award notwithstanding a previous set-aside of the award by a court in the seat of the arbitration). Whether a secondary-jurisdiction court has discretion to enforce an award that has already been set aside in the primary jurisdiction, or under what circumstances enforcement of an a... | [
"accept that there is no basis in the law for attacking the award has come at a cost to the party with whom Harbert entered into the arbitration agreement and to the judicial system. In litigating this case without good basis through the district court and now through this Court, Harbert has deprived Hercules and t... | [
"enforcement.” Id. at 197 n. 2 (quoting Albert JaN van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judioial Interpretation 355 (1981)). The same principles and concerns govern here, where appellants seek to enforce an arbitration award that has been vacated by Colombia’s Consejo de Esta... |
B.R. 588 (Bankr.M.D.Ga.2006). Judge Leif M. Clark presumed that debtor’s counsel was a Debt Relief Agency in In re Mendoza, 347 B.R. 34, n. 6 (Bankr.W.D.Tex.2006). However, he did not find a violation of any Debt Relief Agency requirement and therefore awarded no relief under § 526. Judge Adams also concluded that debt... | [
"of 11 U.S.C. §§ 526, 527 and 528 in the first instance, and the applicability of those statutes to attorneys who are licensed to practice law, regulated by the laws of the state wherein they are admitted, and admitted to practice in United States Bankruptcy Courts. These two other issues are jurisdictional and of ... | [
"“The term 'debt relief agency’ means any person who provides any bankruptcy assistance to an assisted person in return for the payment of money or other valuable consideration, or who is a bankruptcy petition preparer under section 110 [11 USCS § 110].” 11 U.S.C. § 101(12A). Other district courts have held that ba... |
DISCUSSION “We review the district court’s imposition of the terms and conditions of supervised release for an abuse of discretion.” United States v. Boston, 494 F.3d 660, 667 (8th Cir.2007). We recognize that the district court is afforded wide discretion in imposing supervised release conditions. Id. The district cou... | [
"10. The defendant shall submit his person, residence, office or vehicle to a search, conducted by a United States Probation Officer at a reasonable time and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release; failure to submit to a search may ... | [
"Jorge-Salgado’s failure to register would constitute a state crime under Minnesota law, the sex offender registration condition imposed by the district court was simply a more specific pronouncement of the mandatory condition that he not commit a state crime during his term of supervised release. Therefore, the di... |
have been but had not been secured. GTC claimed that “The fact that the joint arrangement was in violation of law was of overwhelming importance and would have materially crippled the appeal” of the Proxy Statement, and that “At the least * * * this Court should adjourn the Annual Meeting, vacate the proxies obtained b... | [
"to by the defendants and the Commission would in effect merely require the Committee to supply all stockholders who furnished proxies to them with material correcting the misstatements complained of in its complaint. To decree that the stockholders who gave their proxies to the Committee may revoke them, is to con... | [
"Kauder v. United Board & Carton Corp., 199 F.Supp. 420, 423-424 (S.D.N.Y.1961). Contrast J. I. Case Co. v. Borak, supra, 377 U.S. at 432-433, 84 S.Ct. at 1555, 12 L.Ed.2d 423. We thus conclude that Judge Tyler was right in denying GTC’s initial application for an injunction. On April 22, the day of the stockholder... |
ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Id. at 646 (internal quotations and citations omitted). Because the Order effectively terminated the litigation between the parties, it is final. Accordingly, we have jurisdiction. STANDARD OF REVIEW A bankruptcy court’s... | [
"DEASY, Bankruptcy Judge. I. JURISDICTION AND STANDARD OF REVIEW The Bankruptcy Appellate Panel has jurisdiction of this appeal pursuant to 28 U.S.C. § 158(b). The Bankruptcy Court’s findings of fact are evaluated pursuant to the “clearly erroneous standard” of review and its conclusions with respect to the law are... | [
"to hear appeals from: (1) final judgments, orders and decrees; or (2) with leave of court, from certain interlocutory orders. 28 U.S.C. § 158(a); Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). A decision is considered final if it “ends the litigation... |
to him, this Court is compelled to conclude that he has satisfied the “solicitation” prong of the “solicitation-plus” rule. Here, the plaintiffs affidavit clearly states that Mark Athletic, through Mark and Pfeffer, has “personally and regularly called on its customers and potential customers located in the State of Ne... | [
"the state. When considering this criteria, the facts presented by plaintiff fail to establish that Schmitt Co.’s presence in New York is sufficiently continuous and substantial to warrant the exercise of jurisdiction pursuant to § 301. As previously noted, Schmitt Co. is not licensed to conduct business in the sta... | [
"The Court must therefore analyze a defendant's connections to the forum state “not for the sake of contact-counting, but rather for whether such contacts show a continuous, permanent and substantial activity in New York.” Weinstein, Korn & Miller, New York Civil Practice, 11301.16, at 3-32. In assessing jurisdicti... |
the Rehabilitation Act of 1973 Defendant’s basic contention appears to be that the conduct of defendants cannot be challenged by a private action under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. This argument is plainly mistaken. Under prevailing authority, a private right of action does exist to e... | [
"K. K. HALL, Circuit Judge: Frances B. Davis, a Licensed Practical Nurse (“LPN”), appeals from a final judgment entered against her in a civil action filed under the Civil Rights Act of 1871, 42 U.S.C. § 1983, and under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, (“the Act”). The Southeastern Co... | [
"the scope of the statutory scheme. Nevertheless, defendant contends that this right cannot be pursued in this forum at this time. The contention is mistaken, as can be shown by an examination of the arguments propounded in favor of the motion to dismiss. MOTION TO DISMISS I. The Private Right of Action Under Secti... |
decision of August 1958 with respect to 1942 is binding and res judicata in the present case, even though the defendant may not have raised in that proceeding any question as to the prior abatement under the Current Tax Payment Act. That decision bars further litigation not only on those aspects of the 1942 tax which w... | [
"deficiency was mailed? In my opinion, it did. The statement of claim says plainly enough that the parties stipulated that the plaintiff’s “correct tax liability” was $26,046.54, and that upon this stipulation the Board entered its order. The Government does not contend that this procedure was effective compromise ... | [
"95; James v. Commissioner, 31 B.T.A. 712, 720. The rule is founded upon the necessity of according finality to court judgments. The parties, having had the opportunity to litigate their controversy, are conclusively bound by the compromise agreed upon. Their former cause of action is merged into the compromise jud... |
626(d), which provides: No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Secretary. Such a charge shall be filed— (1) within 180 days after the alleged unlawful practice occurred. Mr. Leff was discharged by defenda... | [
"26 U.S.C. § 626(d) to notify the Secretary of Labor of his intent to sue at least 60 days prior to filing suit and within 180 days of the alleged discriminatory event. The district court granted Western Union’s motion and dismissed the complaint with prejudice. On this appeal Templeton contends that the court erre... | [
"under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC]. Such a charge shall be filed (1) within 180 days after the alleged unlawful practice occurred. This 180-day notification requirement is a prerequisite to an action based on the ADEA, Templeton v. Wester... |
applicable where, as here, federal jurisdiction is bottomed on diversity of citizenship. 6. The location of the parties, the convenience of prospective witnesses, and the accessibility of evidence. See, e.g., Anastasi Brothers Corp. v. St. Paul Fire & Marine Insurance Co., 519 F.Supp. 862, 864 (E.D.Pa. 1981). 7. The re... | [
"(1972), have been complied with. See also, Scherk v. Alberto-Culver Co., 417 U.S. 506, 518-19, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974); National Equipment Rental, Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964); Fireman’s Fund American Ins. Companies v. Puerto Rican Forwarding Cos., Inc., 492 F.2d... | [
"contract. (3) The place where the transactions are to be performed. (4) The availability of remedies in the designated forum. (5) The public policy of the initial forum state. (6) Location of the parties, the convenience of prospective witnesses, and the accessibility of evidence. (7) The relative bargaining power... |
cause, not the pleadings filed by the pro se litigant. In the instant case, it is all of Defendant’s own pro se pleadings which are at issue. In Johnson the client confirmed the use of another attorney to draft his pro se pleadings while in the instant case Defendant vehemently denies this allegation. Defendant maintai... | [
"1969). We are disquieted by yet another facet of plaintiff’s approach to these proceedings. An unverified statement brought to our attention is to the effect that an attorney (or attorneys) have been, and still are, actively assisting him with legal advice and, in the main, by drawing v. the papers before v. now a... | [
"Court in which a pro se party’s pleadings were drafted, or appeared to have been drafted, by an attorney, this Court has not yet addressed the issue of attorney ghostwriting. However, a number of other federal courts have found that attorneys who had ghostwritten briefs or other pleadings for ostensibly pro se lit... |
late 1982 and early 1983, or whether the interest debt was incurred only when it became due each month. If the interest debt was incurred back in 1981, then section 547(b) allows the trustee to avoid the payments to Borden. But if the interest debt was incurred for the first time as it came due at the end of each month... | [
"first half of the month in May, June, and July, 1980, for the interest which accrued in each of the preceding months. Shortly after IPSCO made the payment in July for the June interest the Bank learned of IPSCO’s insolvency. On July 31, 1980, IPSCO filed a voluntary petition for relief under Chapter 11 of the Bank... | [
"the month in which the legal obligation to pay arose. Section 547(c)(2) was not intended to cover the kind of transaction before this court. IPSCO had received the full consideration and was obligated to the Bank for the full amount for much more than 45 days before the interest payments were made. The section 547... |
issue applies to them as it does to the psychiatric hospitals. . Moreover, another decision has recognized that the NJDEP is entitled to Eleventh Amendment immunity as an arm of the State, see, e.g., Woodland Private Study Group v. State of N.J., Dept. of Env. Protection, 616 F.Supp. 794, 799-800 (D.N.J.1985), vacated ... | [
"actions differ. All are Class Members in MDL 551. The Classes, and the scope of claimants, coincide. This situation differs, therefore, from that in National Super Spuds, Inc. v. New York Mercantile Exchange, 660 F.2d 9 (2d Cir.1981), where the reviewing court proscribed a settlement in which claims held by a port... | [
"by its own citizens in federal court is not absolute; a state may waive its immunity and consent to suit in federal court by giving an “unequivocal indication” that it consents to suit in federal court. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 and n. 1, 105 S.Ct. 3142, 3145 and n. 1, 87 L.Ed.2d 171 (19... |
was formerly the practice of courts to dismiss such causes, construing every intendment against the pleader; but now the courts recognize the fact that it is more important to determine the issues than the formality of pleadings, provided, of course, that the facts alleged in, the bill of complaint entitle the plaintif... | [
"& Co. v. United States, 196 U. S. 375, 395, 25 Sup. Ct. 276, 279 (49 L. Ed. 518), which was an action under the Sherman Anti-Trust Act, held: “Whatever may be thought concerning the proper construction of the statute, a bill in equity is not to be read and construed as an indictment would have been read and constr... | [
"overcharges. The pleading contained a request that the overcharge as to each sale be treated as a separate cause of action as though set forth in a separate count or claim. The prayer was for damages in the sum of $3000 and for general relief. The defendants filed a motion to dismiss the amended complaint. The cou... |
"As noted, it is unclear whether any or all of these teams were in existence at the time plaintiffs were students, or more specifically, when UC Davis implemented the “wrestle-off"" policy in Fall 2001. As this court has noted in numerous orders, plaintiffs never tried out for the men’s varsity wrestling team after Fal... | [
"became more concerned as a result of the publicity that arose from an article published in a Georgia newspaper. The article made light of the fact that Duke had a female football player and caused Goldsmith to express a belated concern that Mercer’s presence on the team could be more harmful than helpful. Mercer v... | [
"in damages for failing effectively to accommodate the athletic interests of both men and women unless the aggrieved women first provide the appropriate university officials with notice of their disadvantageous treatment and an opportunity to cure it. We disagree and so, with respect to the central issue in this ca... |
not actually motivate the adverse employment action. Smith v. Chrysler Corp., 155 F.3d 799, 805-06 (6th Cir.1998); Manzer v. Diamond Shamrock Chem. Co., 29 F.3d 1078, 1084 (6th Cir.1994). The first method is essentially an attack on the credibility of the employer’s proffered reason. Manzer, 29 F.3d at 1084. It consist... | [
"evidence that ADP had a reasonable basis to be dissatisfied. This court has adopted an “honest belief’ rule with regard to an employer’s proffered reason for discharging an employee. Smith v. Chrysler Corp., 155 F.3d 799, 806-07 (6th Cir.1998). Under this rule, as long as an employer has an honest belief in its pr... | [
"there is a sufficient basis in the evidence for doing so.” Manzer, 29 F.3d at 1083. If the employer had an honest belief in the proffered basis for the adverse employment action, and that belief arose from reasonable reliance on the particularized facts before the employer when it made the decision, the asserted r... |
demonstrate that the alleged property deprivation continues up to the time that plaintiff filed her initial Complaint. However, in the opinion granting defendant’s Motion to Dismiss, this Court noted that even if defendant “continued still” to withhold her property, the fact that the employer refused to remedy the alle... | [
"of the alleged discriminatory event. See 29 C.F.R. § 1614.105(a)(1). A plaintiffs administrative complaint is untimely unless it is brought within the 45-day limitations period, or unless the plaintiff establishes a basis for equitable tolling. See id. § 1614.107(b). After investigating plaintiffs’ complaints, the... | [
"have been raised prior to the entry of judgment”). 1. Withholding of Personal Property First, plaintiff proposes to amend her retaliation claim based on the alleged continued withholding of her personal property to add more detail in order to demonstrate that the alleged property deprivation continues up to the ti... |
MEMORANDUM Seal A appeals the sentence imposed following his guilty plea conviction for conspiring to engage in racketeering activities and committing a violent crime in aid of racketeering in violation of 18 U.S.C. §§ 1962(d) and 1959(a)(5). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the legality o... | [
"refusal to plea). The district court did not err by concluding that Murphy failed to prove an unconstitutional motive. We also conclude, for reasons similar to those described above, that the government’s decision to withhold a § 5K1.1 motion was not arbitrary under Wade, 504 U.S. at 186, 112 S.Ct. at 1844. Mainta... | [
"assistance rendered by a defendant offering cooperation as a term of his plea agreement unless and until the government makes a 5K1.1 motion for downward departure based on substantial as-sistanee. See U.S.S.G. § 5Kl.l(a) (giving the factors to be considered by the sentencing court in evaluating a defendant’s assi... |
with the result; perhaps no one is completely satisfied. Yet, there must be an end to every dispute so that the parties may go on with their lives unburdened by the demands and risks of litigation, and the court may turn its attention to other cases. After two decades of litigation, that point has been reached. This ca... | [
"PER CURIAM: Hirotoshi Yamamoto appeals from a partial summary judgment granted by District Judge King sitting as the bankruptcy court. Yamamoto initially claimed we lacked jurisdiction over this appeal and he claims that Judge King should be disqualified from presiding over the adversary proceedings in this case. ... | [
"Honorable Martin Pence, Senior District Judge, presided over Corey’s Chapter 11 proceedings because Hawaii’s only bankruptcy judge recused himself. We treat an appeal from the decision of a district judge in a bankruptcy proceeding as an appeal from the final decision of a district court appealable under 28 U.S.C.... |
review the evidence and not simply rubber-stamp the Commissioners decision. Clifford, 227 F.3d at 869. III. Discussion Benefits are available only to those individuals who can establish disability under the terms of the Social Security Act. Estok v. Apfel, 152 F.3d 636, 638 (7th.Cir.1998). Under section 423(c)(1)(B)(1)... | [
"the record. Her physical complaints during this time period related almost exclusively to problems with her hip, and not to her neck impairment which she claims as her disability. In fact, her spinal condition appeared to improve during this period, and the physical examination in the nearest proximity to the time... | [
"F.3d 329, 333 (7th Cir.1994). However, the district court is required to critically review the evidence and not simply rubber-stamp the Commissioner’s decision. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.2000). III. Discussion “Benefits are available only to those individuals who can establish disability under ... |
in appropriate circumstances, may recover punitive damages.” However, a debtor cannot succeed on a § 362(h) claim without alleging harassment or coercion. See Divane v. A & C Elec. Co., 193 B.R. 856, 859 (N.D.Ill.1996); In re Hazzard, 1995 WL 110588 at *2 (Bankr.N.D.Ill.1995) (holding that there exists “a need to find ... | [
"to the state court judge before first obtaining permission here to pursue the citation. As earlier noted, Debtor testified that even more questions about his finances were asked by Mr. Howe. That testimony was credible despite denials by Mr. Howe. However, we need not resolve that issue because the acknowledgment ... | [
"claim against the debtor that arose before the commencement of the case under this title; .... 11 U.S.C. § 362(a). Section 362(h) creates a statutory remedy for individual debtors who are injured by a violation of the automatic stay. It provides: (h) An individual injured by any 'willful violation of a stay provid... |
"argues that he cannot be liable for fraudulent conveyances because the transfers did not prejudice Acequia's creditors. Aside from being factually questionable (the magistrate judge concluded that ""[t]here is no question that the withdrawals occurred and that creditors] (both secured and unsecured), ... were harmed_”... | [
"machine. Instead, Terminal deposited it and the Bank applied the money to Terminal’s pre-existing indebtedness. This was the basis of the trustee’s fraudulent transfer claim. For recovery the trustee relied on section 67d(2)(d) of the Bankruptcy Act, 11 U.S.C. § 107(d)(2)(d) (repealed 1978), which provided in pert... | [
"authority to recover fraudulent transfers. See 11 U.S.C. § 1107(a); Besing v. Hawthorne (In re Besing), 981 F.2d 1488, 1491 n. 5 (5th Cir.), cert. denied, - U.S. -, 114 S.Ct. 79, 126 L.Ed.2d 47 (1993); Verco Indus, v. Spartan Plastics (In re Verco Indus.), 704 F.2d 1134, 1137 (9th Cir.1983). . Clinton argues that ... |
"found that the defendant refused to accept responsibility for his complete role in his offense. The district court did not clearly err in deciding not to grant the defendant a two-point reduction for acceptance of responsibility. Conclusion The district court did not clearly err in calculating the drug amount under U.... | [
"favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction.” Franco-Torres, 869 F.2d at 801. The district court’s reliance on the presentence report rather than “defendant’s version of the facts” thus is not clearly erroneous. United States v. Beard, 913 F.2d ... | [
"961 F.2d 685 (7th Cir. 1992), is misplaced. In Trussel we affirmed the district court’s decision to deny the defendant an acceptance of responsibility reduction because the defendant had attempted to withdraw his guilty plea and did not admit his full role in the conspiracy. Id. at 691. In the present case, the di... |
part provides : “Any delinquent registrant * * * may be classified in or reclassified into Class I-A, Class I-A-0 or Class I-O, whichever is applicable, regardless of other circumstances * * * ” . At the time of the filing of the complaint, appellant had received an Order to Report for Induction, SSS Form 252, but the ... | [
"Ill), which provides: “No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negativ... | [
"exception to that statute has, however, been judicially carved out in Oestereich v. Selective Service System Local Board No. 11, 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402, (1968) and Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970). Appellant recognizes the jurisdic... |
of Kentucky for a writ giving him relief from an indictment pursuant to which Kentucky officials had lodged an interstate detainer against petitioner. The Court upheld the jurisdiction of the Kentucky federal court because petitioner’s Alabama custodian “acts as agent for the demanding State, and the custodian State is... | [
"not the sentence, and is cognizable in habeas corpus. We do not dismiss petitioner’s action here only upon the failure to allege a justiciable case under § 2255. Petitioner’s first § 2255 motion in Arkansas was filed pro se, and we will liberally review the facts alleged to determine whether there are any jurisdic... | [
"had not yet begun to serve. And it also enabled a petitioner held in one State to attack a detainer lodged against him by another State. In such a case, the State holding the prisoner in immediate confinement acts as agent for the demanding State, and the custodian State is presumably indifferent to the resolution... |
"578 (3d Cir. 2012) ; 3d Cir. L.A.R. 31.3. However, there is no hybrid-representation case involving an appellant who, like Johnson, filed a pro se brief with our permission and later filed a counseled brief after we appointed an attorney. Therefore, the usual rule against hybrid representation does not apply. In addit... | [
"(3d Cir.1991) (finding waiver because “[n]owhere in the ‘Statement of the Issues Presented’ or the ‘Argument’ section of plaintiffs appellate brief are [the district court’s] conclusions questioned”). For these reasons, “we usually refrain from addressing an argument or issue not properly raised and discussed in t... | [
"required to consider Essig’s pro se argument. Issues that counseled parties attempt to raise pro se need not be considered except on a direct appeal in which counsel has filed an Anders brief. Cf. United States v. Mosely, 810 F.2d 93, 98 (6th Cir.), cert. denied, 484 U.S. 841, 108 S.Ct. 129, 98 L.Ed.2d 87 (1987); ... |
was fully aware.” The court rejected Maria’s youth as a factor to support a variance, noting that many drug dealers are the same age. The court then discussed the § 3553(a) factors and found that they either supported a Guidelines sentence or were neutral, at best, but that none supported a variance. Because the distri... | [
"of their sentences. We will begin with Orlando’s appeals, and in so doing, we will also reach the merits of some of the other defendants’ appeals. II. Severance Joseph Orlando contends his trial should have been severed from that of co-defendant Victor Samaha. He maintains the failure to grant his pre-trial motion... | [
"motion, finding that Rosalinda Miranda had not demonstrated compelling prejudice or shown that a limiting instruction would not protect her interests. We review the district court’s denial of severance for abuse of discretion. Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). We ha... |
standard. Strict scrutiny applies when the classification affects a fundamental interest or a suspect class. Public education is not a right created by the Constitution, and, therefore, is not a fundamental interest. Plyler v. Doe, 457 U.S. 202, 221, 102 S.Ct. 2382, 2397, 72 L.Ed.2d 786 (1982); San Antonio Indep. Sch. ... | [
"that there is no such presumption operative at MIB. Visually impaired persons have held supervisory and nonmanual labor positions at MIB in the past and continue to do so today. Even if there were some “presumption” as to the inability of these people to hold such positions, it obviously is “rebuttable,” as demons... | [
"mooted the constitutional question. The existence of a constitutional right is probably difficult to prove. There is no fundamental right to a free appropriate public education. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 29-37, 93 S.Ct. 1278, 1294-1299, 36 L.Ed.2d 16 (1973). Strict scrutiny ... |
grant of summary judgment is reviewed de novo. Id. Likewise, the court’s interpretation and application of the Bankruptcy Code and state law are reviewed de novo. Ruskin v. DaimlerChrysler Servs. N. Am., L.L. C. (In re Adkins), 425 F.3d 296, 298 (6th Cir.2005); Van Aken v. Van Aken (In re Van Aken), 320 B.R. 620, 623 (... | [
"Bushey), 210 B.R. 95, 98 (6th Cir. BAP 1997). Furthermore, a bankruptcy court’s interpretation of the Bankruptcy Code is reviewed de novo. In re Troutman Enters., 253 B.R. at 10. De novo review means that the issue is decided as if it had not been heard before. Mapother & Mapother, P.S.C. v. Cooper (In re Downs), ... | [
"Cir.1999). The bankruptcy court’s grant of summary judgment is reviewed de novo. Treinish v. Norwest Bank Minn., N.A. (In re Periandri), 266 B.R. 651, 653 (6th Cir. BAP 2001). The bankruptcy court’s interpretation and application of the Bankruptcy Code and pertinent state law are reviewed de novo. Ruskin v. Daimle... |
is settled law in this circuit that Rule 42(a) empowers the district court to order consolidation for pre-trial purposes. MacAlister v. Guterma, 263 F.2d 65, 68 (2d Cir. 1958). However, this power is not unharnessed and such extraordinary relief should be granted only under compelling circumstances and when attempts to... | [
"17 (S.D.N.Y.1958). This relief is designed to avoid a needless waste of time, money and effort and to expedite the litigation. The defendants will have had their full opportunity to cross-examine the deponents in the Lober action (Cf. Rule 26(d)) and the right to conduct further discovery proceedings on matters no... | [
"each party-plaintiff’s choice. The function of general counsel is merely to supervise and coordinate the conduct of plaintiffs’ cases, at this time only for pre-trial purposes. An orderly and expeditious disposition at trial is dependent, in large part, on the manner in which the pre-trial proceedings are conducte... |
short of statutory right; or without observance of procedure required by law.”). The burden of persuasion on these issues falls upon the party challenging the validity of the rule. Defendants contend that the SEC exceeded its rulemaking authority in two respects: (1) imposing liability on the basis of mere possession o... | [
"and the price of shares rises. In this case, as in warehousing, a buyer of securities purchases stock in a target corporation on the basis of market information which is unknown to the seller. In both of these situations, the seller’s behavior presumably would be altered if he had the nonpublic information. Signif... | [
"most, to that of § 10(b).” Def. Reply Mem. at 2 (emphasis in original). Nothing in the Supreme Court’s Schreiber opinion supports that assertion. In Schreiber, the Court concluded only that “the term ‘manipulative’ as used in § 14(e) requires misrepresentation or nondisclosure.” Schreiber, supra at 12,105 S.Ct. at... |
of authority.” United States v. Garcia, 56 F.3d 418, 422 (2d Cir.1995) (internal quotation marks and citations omitted). McNeice’s permit application provided express consent for town officials to enter and inspect his property in connection with the building laws. His letter of August 13, 2010, partially revoked conse... | [
"the Fourth Amendment. Plaintiffs Anobile, Omboni, Rahner, George Fulfree and Richard Ful-free were subject only to these types of searches, which we have concluded were within the parameters of the regulation. The claims of these plaintiffs therefore must fail. c. Consent to Search Defendants contend that plaintif... | [
"of all the circumstances.” (internal quotation marks omitted)). As long as it is not coerced, the consent is valid, and “[therefore, knowledge of the right to refuse consent is not a requirement to a finding of voluntariness.” Garcia, 56 F.3d at 422; see also United States v. Drayton, 536 U.S. 194, 206, 122 S.Ct. ... |
(8th Cir.1991), cert. denied, 503 U.S. 985, 112 S.Ct. 1670, 118 L.Ed.2d 390 (1992) (claim against third party seller of plan financial program preempted by ERISA); First Nat. Life Ins. Co. v. Sunshine-Jr. Food Stores, Inc., 960 F.2d 1546, 1550 (11th Cir.1992), cert. denied, 506 U.S. 1079, 113 S.Ct. 1045, 122 L.Ed.2d 35... | [
"context. On the contrary, Congress in passing the statute expected that “a federal common law of rights and obligations under ERISA-regulated plans would develop.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 56, 107 S.Ct. 1549, 1557, 95 L.Ed.2d 39; accord Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 1... | [
"481 U.S. 41, 56, 107 S.Ct. 1549, 1558, 95 L.Ed.2d 39 (1987). And, though Congress may preempt state law remedies without providing a corresponding remedy under federal law, see Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991) cert. dismissed, — U.S. -, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992)... |
"relief from the judgment without properly considering whether amendment of the complaint was allowable -under Rule 15(c) or, alternatively, whether the statute of limitations should be subject to equitable tolling, we reverse and remand for further proceedings. On remand, the district court should carefully consider a... | [
"because the record did not contain contradictory evidence on this point, we cannot say that this “new evidence” is such that a new hearing on defendant’s motion to dismiss “would probably produce a new result.” Walus, 616 F.2d at 288. McKnight’s real complaint, it appears, is that the district court erroneously de... | [
"the complex issues of relation back and equitable tolling, as well as other issues that may arise. REVERSED AND REMANDED. . Donald’s argument to this court focused on his contention that the district court abused its discretion in failing to appoint counsel to assist him with his complaint. \"Lack of counsel may s... |
caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (3) if raised by ... | [
"-, 107 S.Ct. 837, 841-42, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring) (discussing the “tension” between “the two central principles of our Eighth Amendment jurisprudence”). Turning back to the Texas sentencing procedure, we see that the jury is to respond to three “special issues.” The third issue involves pr... | [
"the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result”). . See id. § 3(b)(2) (asking “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a ... |
these claimants, by .this hond, an additional protection, which would become the ordinary and primary one, and usually would be sufficient, and to do this without diminishing the obligation of the government to see that these claims were paid, as far as that result could be accomplished by the funds which it retained. ... | [
"if any, of the United States or the laborers or material-men, and also that if the Guar-, anty Company is entitled to subrogation to any right of the United States Government arising through the building contract, the bank can make no claim by reason of the assignment. Henningsen, for we may: leave Clive out of co... | [
"ordinary and primary one, and usually would be sufficient, and to do this without diminishing the obligation of the government to see that these claims were paid, as far as that result could be accomplished by the funds which it retained. In that event the equitable priority of such claimants in the fund, if such ... |
under the Fourteenth Amendment is brought pursuant to 42 U.S.C. § 1983, and “require[s] a two-step analysis.” Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir.1996); see also Greco v. Guss, 775 F.2d 161, 170 (7th Cir.1985). First, the court must determine whether N&N has been deprived of a protected interest; seco... | [
"process clause sense. The statement that a liquor license is not property may have been intended just to emphasize these limitations, which appear in section 1 of the Liquor Control Act right after the statement. So we must look behind labels, cf. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 448 (2d C... | [
"their burden in opposing defendants’ motion for summary judgment as to this claim. As the Seventh Circuit explained in Doherty: “Procedural due process claims require a two step analysis. The first step requires us to determine whether the plaintiff has been deprived of a protected interest; the second requires a ... |
MEMORANDUM Sham Shadq Begum, a native and citizen of Fiji, petitions for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s denial of her application for asylum, withholding of removal and relief under the Convention Against Torture (the “CAT”). We lack jurisdiction to review the... | [
"is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). The BIA’s decision can be overturned “only where the evidence is such that a reasonable factfinder ... | [
"contrary. Id. at 87. II. The INA bars any court from exercising jurisdiction over a determination by the Attorney General regarding the satisfaction of the timeliness requirement for asylum applications. 8 U.S.C. § 1158(a)(3); see also Stroni, 454 F.3d at 87; Sharari v. Gonzales, 407 F.3d 467, 473 (1st Cir.2005). ... |
of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The BIA found that Perez failed to establish a prima facie case for withholding of deportation or asylum. To establish a prima facie case for withholding of deportation a petitioner must, inter alia, show a clear probability of persecution, and... | [
"relative visa, which were filed at the same time. The BIA denied Petitioner’s motion to reopen. The Board ruled that the unadjudicat-ed visa petition did not establish that he was entitled to the relief he sought because his status may only be adjusted if he establishes by “clear and convincing evidence” that the ... | [
"had denied respondent’s motion to reopen, and respondent reported to us, incor rectly, that “the sole question before the Ninth Circuit was whether the Respondent had established a prima facie case of a well founded fear of persecution.” Brief in Opposition 20. Petitioner’s reply memorandum, though, eliminated any... |
a number of areas, at a level considerably above Chris’ level. 46. Due to Chris’ age and size, it is appropriate that Chris matriculate to high school during the upcoming academic year. Accordingly, Plaintiff requests that Chris be placed in the MIMH class at Norcross High School, while Defendant seeks to implement its... | [
"(1987), and now affirm. II At the outset, we address the suggestion, raised for the first time during oral argument, that this case is moot. Under Article III of the Constitution this Court may only adjudicate actual, ongoing controversies. Nebraska Press Assn. v. Stuart, 427 U. S. 539, 546 (1976); Preiser v. Newk... | [
"in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.”) Here the school districts are challenging whether the Modified Order can properly be applied to them. We can thin... |
and operated, by the spouse of an individual who voluntarily surrendered his company’s supplier license (rather than try to rebut a long catalogue of dishonest and illegal conduct) and who told lottery officials that he hoped to remain in the field of Michigan charitable gaming, and it was formed just before the husban... | [
"indicating that fewer outlets were operating in the area and that Henry had obtained work permits, thus demonstrating a willingness to do the repairs that Herró had not. Subsequently, on May 16,1994, the district judge granted summary judgment for defendants (PLApp. A-2). ANALYSIS The district court granted summar... | [
"348 (7th Cir.1992) (“the state’s act of singling out an individual for differential treatment does not itself create the class”) (emphasis in original), affirmed, — U.S. -, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). It is true that older eases from this Circuit suggest a broader reach to the Equal Protection Clause. S... |
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