query_id stringlengths 4 6 | query stringlengths 75 2.13k | positive_passages listlengths 1 1 | negative_passages listlengths 20 20 |
|---|---|---|---|
751207 | a degree of factual certainty in determining the actual date of rejection. Moreover the requirements of notice and opportunity for a hearing under Bankruptcy Rule 9014 provide the creditors and the court with an opportunity to examine the efficacy of a debtor’s decision to reject a lease under the guidelines of the bus... | [
{
"docid": "11100712",
"title": "",
"text": "that the question of adequate assurance of future performance could best be determined at the time of confirmation of a plan. To do so, however, will imperil the Debtor’s financing efforts and probably make it impossible to promulgate a plan leading, in all l... | [
{
"docid": "3582619",
"title": "",
"text": "pre-condition to any assumption or rejection of an unexpired lease: 11 U.S.C. § 365 specifically states that the trustee, subject to court approval, may assume or reject an executory contract. Bankruptcy Rule 6006 states that a proceeding to assume or reject a... |
703775 | claims rather than the proposed class action. Nor did it err in finding that plaintiffs did not meet their burden of showing a lack of Macon lawyers willing or able to handle their individual claims. The district court did not err in applying a $100 hourly rate, at the lowest end of the Macon lawyer’s rates, which it d... | [
{
"docid": "22274962",
"title": "",
"text": "fees award. All attorneys who contribute their services to a case may be awarded reasonable attorneys’ fees. See, e.g., Tasby v. Estes, 651 F.2d 287 (5th Cir.1981) (authorizing the award of two fees even when work is partially duplicative). We find the award ... | [
{
"docid": "21592184",
"title": "",
"text": "expenses are appropriate expenses under § 1920 to the extent they are reasonable. See Dowdell v. City of Apopka, 698 F.2d 1181, 1192 (11th Cir.1983). The court did not err in disallowing the photocopying costs. Plaintiffs did not present required evidence reg... |
726873 | on the issue of malice may not be shifted to the defendant. Against this background, I turn to consideration of Gagne’s claims. I consider first, and reject, Gagne’s contention that the SJC “emasculate[d]” Mullaney by examining the jury charge as a whole rather than determining whether the trial judge “in fact” placed ... | [
{
"docid": "9816239",
"title": "",
"text": "proof upon the defendant. The burden of proof must be on the state throughout; not sometimes on the state, and sometimes on the defendant, (emphasis ours). In a habeas corpus case decided this year, we held that incorrect instructions on the burden of proof ma... | [
{
"docid": "2498270",
"title": "",
"text": "been done intentionally, without justification or excuse, “there is nothing to rebut the natural presumption.” (Emphasis added.) As the district court, 460 F.Supp. at 1219-20, and the Massachusetts Supreme Judicial Court, 377 N.E.2d at 921 — 23, both found, th... |
554246 | prohibit all adverse consequences that flow from invocation of the privilege against self-incrimination. As a general proposition of law, this court agrees. But as is true with most legal axioms, it is their application to a specific set of facts that dictates the merits of a particular case. Defendants deny that § 63 ... | [
{
"docid": "3182773",
"title": "",
"text": "MEMORANDUM AND ORDER WHITMAN KNAPP, District Judge. Defendants John J. Villani and Donald Eucker seek to have this court enjoin the New York Stock Exchange from conducting disciplinary proceedings against them during the pendency of this criminal action. They ... | [
{
"docid": "18167886",
"title": "",
"text": "while criminal charges arising out of the same conduct were pending forced him to choose between preserving his fifth amendment privilege and losing the civil suit. The Court of Appeals stated that “He was not forced to surrender his privilege against self-in... |
260183 | be the same as that for the land vehicle, to wit: probable cause. B.Warrant Requirement Now that a standard of probable cause has been established for nautical searches, a discussion should ensue regarding the requirement of a warrant. When the police have probable cause to believe that contraband is present in a vehic... | [
{
"docid": "22638702",
"title": "",
"text": "mobility is not a sufficient justification for the fashioning of an exception to the warrant requirement, especially in the face of heightened expectations of privacy in the location searched. Motor homes, by their common use and construction, afford their ow... | [
{
"docid": "1793930",
"title": "",
"text": "in a long time, contrary to Barbin’s statement that it had been used the day before. A later investigation by officers at the mouth of the Rio Grande River disclosed tire tracks which matched the tires on the vehicle and “where a tongue of a trailer had been d... |
510714 | 1239 (9th Cir.2000) (holding that corroboration may be required only where there is a “legitimate reason” to question the applicant’s credibility). Further, “due process requires that an applicant be given a second opportunity to establish eligibility for asylum where the adverse credibility determination was based, wi... | [
{
"docid": "22682672",
"title": "",
"text": "after further proceedings on remand. Accordingly, we hold that the BIA on remand need not necessarily deem credible the petitioner’s testimony when we have remanded because the petitioner was not asked about inconsistencies, or because the IJ did not address ... | [
{
"docid": "10089746",
"title": "",
"text": "because the IJ did not give Bhattarai notice and an opportunity to present the corroborative testimony before denying his asylum application. See Ren, 648 F.3d at 1091. The government argues that Bhattarai was on notice of the need for his brother’s testimony... |
235145 | "Cir. 2001) ). The requirement that a relevant product market for antitrust purposes comprises more than a single brand ""stems from the principle that antitrust law serves to protect competition, not competitors."" House of Brides, Inc. v. Alfred Angelo, Inc. , No. 11 C 07834, 2014 WL 64657, at *6 (N.D. Ill. Jan. 8, 2... | [
{
"docid": "15254885",
"title": "",
"text": "business of publicly displaying baseball games. As such, the Court finds that the Cubs’ conduct falls into the Major League Baseball exemption from antitrust laws and therefore Counts I and II must be dismissed Even if the baseball exemption did not apply, th... | [
{
"docid": "11700468",
"title": "",
"text": "Law, Antitrust Law Developments 521 (4th ed.1997) (quoting H.J., Inc. v. Int’l Tel. & Tel. Corp., 867 F.2d 1531, 1540 (8th Cir.1989)). Thus, the general standard articulated in du Pont, in conjunction with the specific factors announced in Brown Shoe, provide... |
365117 | 673. If the court finds that the agency’s conclusion that the project will have no significant adverse environmental consequences is unreasonable, it will require that an EIS be prepared in connection with the project. Foundation for North American Wild Sheep v. U.S. Department of Agriculture, 681 F.2d at 1178; Portela... | [
{
"docid": "5673436",
"title": "",
"text": "agencies make an independent environmental assessment of the proposed action. The Court below correctly recognized this in distinguishing this case from Mahelona v. Hawaiian Electric Company, 418 F.Supp. 1328 (D.Hawaii 1976) wherein the Corps of Engineers erro... | [
{
"docid": "23080203",
"title": "",
"text": "Stewart & Krier, Environmental Law and Policy 754 (2d ed. 1978). Hart v. Denver Urban Renewal Authority, 551 F.2d 1178 (10th Cir. 1977), is not inconsistent with our approach in this case. There it was held that the loan and grant contract’s provision that HU... |
60790 | inquiry is often “not [upon] the fact of punishment but rather its character and purpose. Shillitani v. United States, 384 U.S. 364, 369, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966) (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911)). The test, as formulated by the Shi... | [
{
"docid": "23710811",
"title": "",
"text": "contempt proceedings. E. g., Latrobe Steel v. United States Steelworkers, 545 F.2d 1336, 1342-43 (3d Cir. 1976). The difference between criminal and civil contempt is in the intended effects of the court’s punishment. United States v. Asay, 614 F.2d 655, 659 ... | [
{
"docid": "22953868",
"title": "",
"text": "within ninety days ... the court may, upon motion by plaintiff, consider a refund of such a portion of the fine as this court deems appropriate ... (emphasis added). The amended order also clarified that the source of the court’s contempt power was Fed.R.Civ.... |
126168 | "Cir.1985), this does not mean that a defendant’s opening statement revealing his defense theory cannot open the door to 404(b) evidence. See United States v. Kolodesh, 787 F.3d 224, 236 (3d Cir.2015) (concluding that 404(b) evidence was relevant to counter the defense theory, as revealed during the defendant's opening... | [
{
"docid": "4127735",
"title": "",
"text": "need to infer the person’s character as a step in the reasoning from the other acts to the conduct in issue.”). As we explain below, that did not occur here. “[T]he line between what is permitted and what is prohibited under Rule 404(b) is sometimes quite subt... | [
{
"docid": "8693432",
"title": "",
"text": "admitted prior bad acts evidence in drug cases. United States v. Miller, 673 F.3d 688, 696 (7th Cir.2012) (“[Ajdmission of prior drug crimes to prove intent to commit present drug crimes has become too routine.”); see also United States v. Jones, 389 F.3d 753,... |
789131 | their own common use, subject only to the rights since surrendered by the constitution to the general government.” Martin v. Waddell, 41 U.S. (16 Ped.) 366, at 410, 10 L.Ed. 997 (1842). Assuming that the Chippewa ceded all their rights in the navigable waterways within the boundaries of the ceded area to the United Sta... | [
{
"docid": "22549982",
"title": "",
"text": "land in that. State.” 138 U. S. 242, 250. In the recent case of Hardin v. Jordan, (1891,) 140 U. S. 371, in which there was a difference of opinion upon the question whether a survey and patent of the United States, bounded by a lake which was not navigable, ... | [
{
"docid": "14798869",
"title": "",
"text": "Arizona. The Court held at 597-598, 83 S.Ct. at 1496: Arizona’s contention that the Federal Government had no power, after Arizona became a State, to reserve waters for the use and benefit of federally reserved lands rests largely upon statements in Pollard’s... |
625763 | "where it satisfied statutory requirements of providing for a security interest, identified the collateral, and bore debtor’s signature.). . 1 Barkley Clark and Barbara Clark, The Law of Secured Transactions under the Uniform Commercial Code, § 2.02[l][d] (3d ed.2015) (hereafter ""Clark”). . See City of Arkansas City, ... | [
{
"docid": "14526510",
"title": "",
"text": "moot. IT IS SO ORDERED. . Doc. No. 15. . Doc. No. 21. . Doc. No. 28. .Doc. No. 30. . 28 U.S.C. § 157(b). . 28 U.S.C. § 1334. . 11 U.S.C. § 101 et seq., hereinafter the “Code.” . Doc. No. 28, at 1. .Doc. No. 30. . Doc. No. 30, at 2 n.l. . See Doc. No. 30, Exhi... | [
{
"docid": "19770852",
"title": "",
"text": "create. The prudent potential creditor would have read the relevant portion of the agreement, seen that Schedule B was blank, and concluded — and would have been reasonable in concluding — that LaSalle had no security interest in Certified’s tort claims. Furt... |
833112 | Act, as amended, 29 U.S.C.A. § 152(3). Specifically, the Company’s answer contends that the 14 district managers are supervisors within the meaning of Section 2(11), as amended, 29 U.S.C.A. § 152(11). The Company contends, therefore, that its refusal to bargain is not violative of the Act since the certification of the... | [
{
"docid": "22634075",
"title": "",
"text": "an investigation and certification of representatives pursuant to § 9 (c) of the Act. Extensive hearings on this second stage took place in October, 1938, at which the Crystal City Union appeared and participated. On January 13, 1939, the Board issued its dec... | [
{
"docid": "18692552",
"title": "",
"text": "ZOBEL, District Judge. Northeast Utilities Service Corporation (the “Company”) petitions for review of a final order of the National Labor Relations Board (the “Board”). The Board eross-ap-plies for enforcement of that order, pursuant to sections 10(e) and (f... |
815101 | whichever parent a minor chooses not to notify. I cannot agree that the Constitution prevents a State from keeping both parents informed of the medical condition or medical treatment of their child under the terms and conditions of this statute. The welfare of the child has always been the central concern of laws with ... | [
{
"docid": "21385517",
"title": "",
"text": "District Court agreed, that it is virtually impossible to predict future criminal conduct with any degree of accuracy. Moreover, they say, the statutory standard fails to channel the discretion of the Family Court judge by specifying the factors on which he s... | [
{
"docid": "23346843",
"title": "",
"text": "the basis of the qualitative differences in maturity between children and adults, see Schall v. Martin, 467 U. S. 253, 265-267 (1984); Thomp son v. Oklahoma, 487 U. S. 815, 853-854 (1988) (O’Connor, J., concurring in judgment) (collecting cases); Stanford v. ... |
717477 | for injury or loss of property, or personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his [or her] office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance... | [
{
"docid": "20113059",
"title": "",
"text": "road sign inventory indicated that “slippery when wet” signs were located in two places on the half-mile stretch of road bracketing the curve where the accident occurred, and the Assistant Chief of Maintenance of the park stated that in 1990, a slippery road ... | [
{
"docid": "11014653",
"title": "",
"text": "the bar of sovereign immunity is absolute and the plaintiff cannot redraft his claim to avoid the exception to the FTCA. Id. The FTCA provides a limited waiver of the federal government’s sovereign immunity when its employees are negligent within the scope of... |
213856 | generating source from which the particular taxing power takes its being, and that it is the power to transmit, or the transmission from the dead to the living, on which such taxes are more immediately .rested. * * * it is the power to transmit or the transmission or receipt of property by death which is the subject le... | [
{
"docid": "22414756",
"title": "",
"text": "or after death.” It was held that they were not. But those gifts were not of the class now involved, gifts in contemplation of death, made before the passage of the .Act, which are expressly named by § 402 (c) as subject to its provisions. This Court has not ... | [
{
"docid": "17239446",
"title": "",
"text": "of course imperative that the tax be imposed on the transfer of the property in order to avoid the constitutional prohibition against unapportioned direct taxes. From this, it seems to us, it follows that the valuation of the estate should be made at the time... |
554164 | court noted that “Federal Rule of Civil Procedure Rule 59(e) requires that, ‘A motion to alter or amend a judgment must be filed no later than 10 days after the entry of judgment.’ ” R. Vol. 2 at 222 (quoting Fed.R.CivJP. 59(e)). Because Ms. Wallace filed her motion after the ten-day period had expired, the district co... | [
{
"docid": "23383632",
"title": "",
"text": "the expenses and costs associated with a return to court. In response, Mr. Howell filed a pro se objection describing his travel difficulties — leaving a job placement workshop early and requiring his father to miss work to drive him 1200 miles round-trip for... | [
{
"docid": "17393656",
"title": "",
"text": "with this question (indeed, the plaintiff there had not filed any post-judgment motion). To apply Rost to the materially different configuration of this case would undercut the procedural protections erected by the Civil Rules to safeguard the finality of jud... |
31268 | were afforded the appropriate level of process. Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir.1994). 1. Step One: Deprivation of a Property Interest The first inquiry turns on whether plaintiffs’ claim implicates a protected property interest, and the scope of that interest. Property interests “are created ... | [
{
"docid": "16133032",
"title": "",
"text": "Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the [pleaded] factual content [] allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.... | [
{
"docid": "15292730",
"title": "",
"text": "overtime compensation pursuant to the FLSA, which defendants argue does not meet this element. Mr. Hinsdale responds that FLSA actions are equivalent to Title VII actions, because “both arise from remedial federal legislation designed to protect employees.” O... |
440187 | her continuous excitement is borne out in the recording of the telephone call itself; Wilcox admits that D.T. was crying and that her voice sounded noticeably upset. (T. Tr. at 302). The district court did not abuse its discretion in concluding that D.T. was still under the stress of excitement caused by the abuse when... | [
{
"docid": "23103451",
"title": "",
"text": "the admissibility of what would otherwise be hearsay and give meaningful cautionary instructions.” We do not know which statements Malone is objecting to; he identifies none. We can only note, once again, that, as Malone admits, the District Court was careful... | [
{
"docid": "3897994",
"title": "",
"text": "was neither unreasonably harsh nor unconstitutional. Therefore, we affirm Wilcox’s 110-month sentence. B. Finally, Wilcox appeals the district court’s award of restitution to D.T.’s mother, Melissa, under the Mandatory Victims Restitution Act, 18 U.S.C. § 3663... |
121522 | determining whether to reconsider claims: § 502(j) is supplemented by Federal Rule of Bankruptcy Procedure 3008, which states: “A party in interest may move for reconsideration of an order allowing or disallowing a claim against the estate. The court after a hearing on notice shall enter an appropriate order.” FED. R. ... | [
{
"docid": "14884950",
"title": "",
"text": "to object to the compromise but instead of doing so, Boegner filed a motion asserting that Darling had committed fraud and that any monies which Darling is entitled to receive in this case should be held in a constructive trust for Boegner. The Darlings conte... | [
{
"docid": "13239691",
"title": "",
"text": "the claimant from making her claim). The documentary evidence that is now available clearly shows that this is not the case. Motion to Reconsider at 1 (Docket Entry 278). Her argument rests on seven documents she attached to her motion. All existed at the tim... |
205158 | Eleventh and District of Columbia Circuits apply impact analysis to subjective practices and criteria. See, e.g., Zahorik v. Cornell University, 729 F.2d 85 (2d Cir.1984); Grant v. Bethlehem Steel Corp., 635 F.2d 1007 (2d Cir.1980), cert. denied, 452 U.S. 940, 101 S.Ct. 3083, 69 L.Ed.2d 954 (1981); Wilmore v. City of W... | [
{
"docid": "5456807",
"title": "",
"text": "meet ‘the burden of showing that any given requirement [has] ... a manifest relationship to the employment in question.’ ” Dothard, 433 U.S. at 329, 97 S.Ct. at 1851 (quoting Griggs v. Duke Power Co., 401 U.S. at 432, 91 S.Ct. at 854). “The touchstone is busin... | [
{
"docid": "2777092",
"title": "",
"text": "housed with nonwhite female cannery workers, just as white and nonwhite male cannery workers were housed together. . The district court also used impact analysis to test an English language requirement and in an alternate holding in favor of defendants on the ... |
507121 | Though it would be only an easement of flight which was taken, that easement, if permanent and not merely temporary, normally would be the equivalent of a fee interest. It would be a definite exercise of complete dominion and control over the surface of the land. The fact that the planes never touched the surface would... | [
{
"docid": "22452055",
"title": "",
"text": "use, although with private capital and for private gain, are not subject to actions in behalf of neighboring property owners for the ordinary damages attributable to the operation of the railroad, in the absence of negligence. Such roads are treated as public... | [
{
"docid": "21981650",
"title": "",
"text": "be controlling. The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land woul... |
814011 | not ignored in the negotiations between the parties to the agreement. The Union in the first draft of a proposed contract had inserted a “Maintenance of Standards” provision which would have required the respondent to maintain its insurance and bonus plans for its union employees. This provision, however, was unaccepta... | [
{
"docid": "4139150",
"title": "",
"text": "The defendants assert also that, under the applicable Nebraska law, evidence to establish the alleged oral profit-sharing agreement was competent for the reason that “Parol evidence is admissible to show a contemporaneous oral agreement on the faith of which a... | [
{
"docid": "22968404",
"title": "",
"text": "they are within its scope. (3) An integrated agreement that is not binding or that is voidable and avoided does not discharge a prior agreement. But an integrated agreement, even though not binding, may be effective to render inoperative a term which would ha... |
598694 | only if all the defendants do not reside in the same state can venue then lie in a district in which a substantial part of the events or omissions giving rise to the claim occurred. Motion at 11; see Cobra Partners L.P. v. Liegl, 990 F.Supp. 332, 335 (S.D.N.Y.1998). Thus, Defendants assert that in this ease, because De... | [
{
"docid": "16072492",
"title": "",
"text": "exists with respect to Linda-mood-Bell, I conclude that venue is also proper with respect to Lindamood-Bell. See 28 U.S.C. § 1391(c) (“For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial distri... | [
{
"docid": "13206287",
"title": "",
"text": "...”—is the same language found in other venue-establishing statutes. See, e.g., 18 U.S.C. § 981(h) (civil forfeiture venue statute: “... may be brought in ...”); 28 U.S.C. § 1391 (general venue statute: “... may ... be brought only in ... ”); 28 U.S.C. § 139... |
173884 | excluded under Federal Rule of Evidence 403. Accordingly, Defendants’ Motion to Strike the Affidavit of Plaintiffs’ Proposed Expert is DENIED. C. Preliminary injunctive relief standard Under Federal Rule of Civil Procedure 65, injunctive relief is an extraordinary remedy whose purpose is to preserve the status quo. In ... | [
{
"docid": "21679362",
"title": "",
"text": "application, Kalmanson stated that he attempted to negotiate the permit matter over many months but that his calls to various city officials, including the mayor, were never returned or that he was otherwise rebuffed. Plaintiffs-Appellees filed their verified... | [
{
"docid": "3149631",
"title": "",
"text": "McQueary states that he wishes to congregate, picket, or demonstrate on that portion of a public right-of-way that is within 300 feet of a funeral, wake, memorial service or burial in a manner that does not, and is not intended to disrupt the event. (Rec. No. ... |
825026 | both federal law and state law: (1) Federal law. Plaintiffs have stated claims against the state defendants arising under 42 U.S.C. §§ 1981, 1983,1985, and 1986. Since there is no express federal remedy for wrongful death under the civil rights statutes (42 U.S.C. §§ 1981, 1983, and 1985), the common and statutory law ... | [
{
"docid": "22870402",
"title": "",
"text": "the State has a law which if enforced would give relief. The federal remedy is supplementary to the State and the state remedy need not be first sought and refused before the federal one is invoked.” 81 S.Ct. at page 482, 5 L.Ed.2d 492, at page 503. With a cl... | [
{
"docid": "8771993",
"title": "",
"text": "death of the party whose rights were allegedly violated. No federal statute directly addresses the issue: “federal law simply does not ‘cover every issue that may arise in the context of a federal civil rights action.’ ” Robertson v. Wegmann, 436 U.S. 584, 588... |
298899 | nonmoving party bears the burden of proof at trial, the moving party may discharge its burden by pointing out “an absence of evidence to support the nonmoving party’s case.” Id. at 325, 106 S.Ct. 2548. Once the initial burden has been met, the burden shifts to the nonmoving party to “set out specific facts showing a ge... | [
{
"docid": "22370355",
"title": "",
"text": "district court’s order denying additional discovery for abuse of discretion. See United States v. Kitsap Physicians Serv., 314 F.3d 995, 1000 (9th Cir.2002). A party requesting a continuance pursuant to Rule 56(f) must identify by affidavit the specific facts... | [
{
"docid": "12823555",
"title": "",
"text": "judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers t... |
736157 | government contracts the principles of general contract law. United States v. Standard Rice Co., 323 U. S. 106, 111, and cases cited. That has been done in other cases where the Court has considered the enforceability of “liquidated damages” provisions in government contracts. United States v. Bethlehem Steel Co., 205 ... | [
{
"docid": "22547975",
"title": "",
"text": "such hy\"courts ofj ustiae, who leave it to be enforced where this can be done in its real character, viz., that of a penalty” [Italics not in original.] See, also, Quinn v. United States, 99 U. S. 30; Clark v. Barnard, 108 U. S. 436, 454; Watts v. Camors, 11... | [
{
"docid": "754968",
"title": "",
"text": "strictly to deter physicians from breaching their contracts. A liquidated damage provision is “a sum fixed as an estimate made by the parties at the time when the contract is entered into, of the extent of injury which a breach will cause.” Williston, Contracts... |
77618 | privilege extended to those unable to pay filing fees when the action is neither malicious nor frivolous. And the grant or denial of leave to proceed in forma pauperis is a matter committed to the sound discretion of the district court. Since the filing fee was $15.00 and petitioner had $66.85 in his penitentiary accou... | [
{
"docid": "10771859",
"title": "",
"text": "MEMORANDUM AND ORDER STANLEY, Senior Judge. This is a class action for declaratory and injunctive relief brought by the plaintiffs individually and on behalf of all past, present and future inmates of the United States Penitentiary, Leaven worth, Kansas, who ... | [
{
"docid": "23155801",
"title": "",
"text": "requirement should be equally applicable to dismissals under § 1915(d). Of course, once the district court makes that predicate finding, it remains free to decide whether, on consideration of all the circumstances, dismissal with prejudice is the appropriate ... |
585146 | a broken IUD and plainly see that some error of Teva's caused the break. But as the district court held, that is exactly the sort of speculation that is insufficient to sustain a products liability action under the Indiana law. Dalton provides no explanation for how a lay juror faced with a broken IUD could identify th... | [
{
"docid": "10717739",
"title": "",
"text": "The law of the Seventh Circuit acknowledges this same dichotomy. See Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 641-42 (7th Cir.2010). General causation refers to “whether the substance at issue had the capacity to cause the harm alleged, while ‘individual c... | [
{
"docid": "12216887",
"title": "",
"text": "doctrine of res ipsa loquitur applies, raising an inference of negligence on the part of Ford. We affirm. I. BACKGROUND The Piltches were co-owners of a 2003 Mercury Mountaineer. While driving the Mountaineer in 2006, the Piltches were involved in a car' acci... |
304813 | read the Heinz case as holding that there is no-contract unless there is a formal execution. On the contrary the case stands for the proposition that where a union and an employer reach an agreement concerning working conditions of employees, the employer has a duty to execute a written agreement and he may be required... | [
{
"docid": "22449368",
"title": "",
"text": "the previous contract because of his own failure formally to ratify it is not only inconsistent ■ with his own actions; it is without legal substance as well. There is nothing in the Act which compels the conclusion that collective bargaining contracts must b... | [
{
"docid": "11620823",
"title": "",
"text": "and the parties cannot be expected to foresee all the problems that will develop in an industrial establishment within the period of the contract and more scope must be left for decisions made in the course of performing the agreement. The parties to the coll... |
373702 | at 798 n. 3. These statements in XRX and Nash bring to mind the fact that an error in making distribution does not normally effect a windfall to the trustee. An exception might be the situation which arose in Prindible, where the court felt that the trustee was feathering his own commissions at the expense of a credito... | [
{
"docid": "7503559",
"title": "",
"text": "the trust instrument, Cleveland Clinic Foundation v. Humphrys, 97 F.2d 849, 856 (6th Cir.), cert. denied, 305 U.S. 628-29, 59 S.Ct. 93, 83 L.Ed. 403 (1938); II Scott on Trusts § 164 at 1254-57 (3d ed. 1967), and that contracts ultra vires entered into by the t... | [
{
"docid": "20219736",
"title": "",
"text": "ask, if the debtor was only a conduit and its creditors would not otherwise have had any reasonable expectation of recovering this money, why should those creditors receive a windfall now? From the standpoint of debtor’s creditors, in whose behalf the Trustee... |
565090 | defendant, but to demonstrate that the defendant’s confession contained details not present in his accomplice’s confession. Thus, the Supreme Court recognized that when there is a non-hearsay purpose to be served, a confession of another person may be admissible. The State’s reliance on Street is undercut by the absenc... | [
{
"docid": "22607007",
"title": "",
"text": "new trial at which he was acquitted. To argue, in this situation, that [petitioner’s] conviction should nevertheless stand may be to place too great a strain upon the [Delli Paoli] rule — at least, where, as here, the other evidence against [petitioner] is no... | [
{
"docid": "1704656",
"title": "",
"text": "that our cases consistently have viewed an accomplice’s statements that shift or spread the blame to a criminal defendant as falling outside the realm of those ‘hearsay exception[s] [that are] so trustworthy that adversarial testing can be expected to add litt... |
434707 | arguments to the contrary, Oklahoma law provides no guidance for the classification of attorney’s fees for choice-of-law purposes. 1. Tenth Circuit Cases Rosene cites to two Tenth Circuit cases to support its assertion that attorney’s fees are substantive. In REDACTED Although a federal court and not an Oklahoma state... | [
{
"docid": "18887446",
"title": "",
"text": "HOVIC should be made. Accordingly, on remand the district court should modify the judgment and enter a judgment in HOV-IC’s favor, giving credit in accord with this opinion. V. HOVIC argues that as the prevailing party, it is entitled to attorney’s fees as ma... | [
{
"docid": "12757082",
"title": "",
"text": "OK will place additional flocks with them. We must first address a threshold choice-of-law question. Beginning in 1997, OK’s broiler contracts included a choice-of-law provision, designating the law of Arkansas as the governing law. Consequently, in its order... |
343701 | these decisions. None of them mentions, let alone attributes significance to, the fact that the subject of the challenged communication materially affected the corporation’s business. The press cases emphasize the special and constitutionally recognized role of that institution in informing and educating the public, of... | [
{
"docid": "22661484",
"title": "",
"text": "a handbill having a commercial message on one side but a protest against certain official action on the other. The reliance is wholly misplaced. The Court in Chrestensen reaffirmed the constitutional protection for “the freedom of communicating information an... | [
{
"docid": "22691989",
"title": "",
"text": "might argue with comparable logic that the State may control the volume of expression by the wealthier, more powerful corporate members of the press in order to “enhance the relative voices” of smaller and less influential members. Except in the special conte... |
663383 | claims as not affording basis for federal relief, it also declared that, since appellant had not petitioned for certiorari on any of the Arkansas Supreme Court’s judgments and orders, he had not exhausted his state remedies, and that “this Court must and does find that there are no exceptional circumstances involved in... | [
{
"docid": "22662840",
"title": "",
"text": "in the Hawk opinion points to past exhaustion. Very little support can be found in the long course of previous deci sions by this Court elaborating the rule of exhaustion for the proposition that it was regarded at the time of the revision of the Judicial Cod... | [
{
"docid": "5546843",
"title": "",
"text": "In Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761 (1950), Darr, a prisoner of the State of Oklahoma, had been convicted of armed bank robbery. He took no direct appeal from his conviction but later applied to the Oklahoma Court of Criminal Appeals f... |
844659 | of his principal. Because neither judge drew this line explicitly, however, and because both judges’ opinions can be read to condemn, as fraudulent, any effort to collect a debt by reminding the debtor’s managers that payment is in their personal interest, we are reluctant to affirm the judgment on a § 548(a)(1) theory... | [
{
"docid": "17638541",
"title": "",
"text": "payment to her of the other $100 conferred a benefit equal to the cost by cancel-ling the debt of that amount. Snyder v. Partridge, 138 Ill. 173, 29 N.E. 851, 854 (1891); Reagan v. Baird, 140 Ill.App.3d 58, 94 Ill.Dec. 151, 157, 487 N.E.2d 1028, 1034 (1985). ... | [
{
"docid": "22026269",
"title": "",
"text": "the hands of Basile, Kaufman, and SIG Partners. If ANB and other outside creditors are the real parties in interest, then again River Bank has no legitimate objection to the trustee’s recognition of SFSA’s claim. 3. If a distribution to SFSA is likely to be r... |
811751 | United States, 5 Cir., 293 F. 575, the court held that the party referred to in section 601 was the accused, the defendant in the criminal case, and not the surety. To the same effect is Henry v. U. S., 288 F. 843, 32 A.L.R. 257, where the undersigned spoke for the Circuit Court of Appeals of the Seventh Circuit. Likew... | [
{
"docid": "1603920",
"title": "",
"text": "relieved from further liability. Thereupon the government appealed. The bill of exceptions is meager. It consists of the testimony of Costello. He related his advanced age and his physical and financial misfortunes. The court conceived that these matters, whic... | [
{
"docid": "9512083",
"title": "",
"text": "government for the expenses incurred. I find that the default of the defendant was willful, that the petitioner was not a party to. such default, and that he made diligent search and spent considerable money in an attempt to apprehend the defendant. ■ United S... |
100989 | thereof, and who claims ownership of the money, is able, by reason of the facts alleged, to know and investigate all facts relevant to the seizure and to frame a responsive pleading to the complaint. Additionally, the claimant is not a person reasonably likely to be unaware of the circumstances surrounding his brother’... | [
{
"docid": "22643226",
"title": "",
"text": "process have been met. As we stressed in Barker, none of these factors is a necessary or sufficient condition for finding unreasonable delay. Rather, these elements are guides in balancing the interests of the claimant and the Government to assess whether the... | [
{
"docid": "10528486",
"title": "",
"text": "district court for further development. C. Constitutional Due Process Appellees claim, and the district court found, that the delay between the seizure of the Parcels on or around October 4, 1989 and the summary judgment hearing on September 12, 1990, without... |
245136 | "rule from [the Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case."" Williams v. Taylor , 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). ""In applying this standard, we must decide (1) what was the decision of the state courts with regard to the questions ... | [
{
"docid": "14218415",
"title": "",
"text": "the United States,” 28 U.S.C. § 2254(d)(1), “or was based on an unreasonable determination of the facts” in light of the state court record. 28 U.S.C. § 2254(d)(2). Because the present matter involves allegations of ineffective assistance of counsel our analy... | [
{
"docid": "14313173",
"title": "",
"text": "clearly established Federal law, as determined by the Supreme Court of the United States[.]” 28 U.S.C. § 2254(d)(1). “A decision is contrary to clearly established federal law ‘if the state court arrives at a conclusion opposite to that reached by [the Suprem... |
186055 | original plea agreement and reinstated after Taylor had that plea agreement set aside. If Taylor had entered his plea before the jury in his first trial was impaneled and sworn, his double jeopardy claim would be foreclosed. In United States v. Barker, 681 F.2d 589 (9th Cir.1982), the defendant was charged with first-d... | [
{
"docid": "22719630",
"title": "",
"text": "felony murder. Goodall v. United States, 86 U. S. App. D. C. 148, 180 F. 2d 397; Green v. United States, 95 U. S. App. D. C. 45, 218 F. 2d 856. Even more important, Green’s plea of former jeopardy does not rest on his conviction for second degree murder but i... | [
{
"docid": "23181808",
"title": "",
"text": "automatic retrial rule whenever a defendant is tried for a jeopardy-barred crime and is convicted of a lesser included offense. Rather, the Court relied on the likelihood that the conviction for manslaughter had been influenced by the trial on the murder char... |
755532 | objection to SFSA’s claim, River Bank sought admission, and it was turned away on the ground that it lacked a legal interest. Outside of bankruptcy, an order denying a motion to intervene is immediately appealable. Sam Fox Publishing Co. v. United States, 366 U.S. 683, 687-88, 81 S.Ct. 1309, 1311-12, 6 L.Ed.2d 604 (196... | [
{
"docid": "22634911",
"title": "",
"text": "the 1922 Commission order. The Brotherhood thereafter filed its motion to intervene generally as a party defendant, alleging that the primary purpose of the suit was to nullify its agreement with River Road and to deprive the Brotherhood members of the work t... | [
{
"docid": "22026237",
"title": "",
"text": "EASTERBROOK, Circuit Judge. During the 1980s River Bank America lent more than $7 million to SIG Food Services Associates (SFSA), to finance SFSA’s purchase of equipment for a group of Sizzler Family Steakhouses. SFSA leased the equipment to FBN Food Services... |
20239 | instance of Spectrum honoring a client’s racial preference in shift assignments.” We deny this request for two reasons. First, Appellants did not raise this issue before the district court. See, e.g., Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir.2008) (observing “an argument not raised before the district... | [
{
"docid": "22135552",
"title": "",
"text": "contention on appeal is that, under the Fair Housing Act Amendments, 42 U.S.C. § 3613(c)(2), and judicial decisions such as Christiansburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978), prevailing defend... | [
{
"docid": "11868392",
"title": "",
"text": "Entm’t, Inc., 508 F.3d 348, 360 (6th Cir.2007); Ivory v. Jackson, 509 F.3d 284, 297 (6th Cir.2007). “Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment.” Scottsdale Ins. Co. v. Flowers, 51... |
36164 | irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324, 332 (4th Cir.2009). Judge Pearson has summarized the parties’ burdens in a summary judgm... | [
{
"docid": "17429101",
"title": "",
"text": "on the subject property. Subsequently, this mortgage was released . On July 26, 1995, defendant United States of America, through the Internal Revenue Service, recorded in the proper county a lien against the Debtor in the amounts of $688.75 and $38,162.56. O... | [
{
"docid": "13944261",
"title": "",
"text": "56, as to the Vietnamese plaintiffs’ domestic law claims is granted for the same reasons. The motion for partial summary judgment on statute of limitations grounds is denied. See infra Part VIII.D. 2. Law Applicable to Motions a. Rule 56 Rule 56(c) of the Fed... |
347162 | he used this information when he excused the officers from the court. It was alleged that his consideration of the trial experience of the members had the “inevitable effect of discriminating against lower ranking officers.” The convening authority is directed by Article 25, Code, 10 U.S.C. § 825, supra, to select as c... | [
{
"docid": "13282829",
"title": "",
"text": "decision to uphold the reversal by the board of review. United States v Crawford, 15 USCMA 31, 35 CMR 3 (1964), presented a problem similar to that encountered in this case. In Crawford, the question was whether the method by which enlisted court members were... | [
{
"docid": "21304120",
"title": "",
"text": "are “best qualified” to serve on court-martial panels simply because “selection for command is competitive.” 48 MJ at 255. In that regard, I note that, even though promotion to grade E-7 is competitive, we held in McClain that the blanket exclusion of ranks b... |
405909 | court will review the standards required under Rule 9(b). This court has articulated the standards for pleading fraud with the particularity required by Rule 9(b) of the Federal Rules of Civil Procedure in a number of prior decisions. See Remmes v. International Flavors & Fragrances, Inc., 389 F.Supp.2d 1080, 1087-88 (... | [
{
"docid": "5075958",
"title": "",
"text": "common law, may nonetheless be appropriate for failure to plead with the sufficiency or particularity required by Fed.R.Civ.P. 9(b). The Elevator argues that the fraud allegations here are insufficient under the standards of Rule 9(b), as articulated in this c... | [
{
"docid": "5893291",
"title": "",
"text": "e.g., Wright v. Brooke Group Ltd., 114 F.Supp.2d 797, 832 (N.D.Iowa 2000) (reiterating the requirements for pleading fraud pursuant to Rule 9(b)). Although the “fraud” claims were originally asserted in state court, prior to removal, the Vendors offered and we... |
422641 | the non-government claimant must have incurred necessary cost of response in responding to the release at the facility. United REDACTED contends that in determining when a claim in bankruptcy arises, the court should focus on when the debtor’s conduct occurred not when the harm becomes known or discovered. In Jensen,... | [
{
"docid": "1121488",
"title": "",
"text": "differently from other claims. This argument ignores the only Ninth Circuit authority in this area, In re Dant & Russell, Inc., 853 F.2d 700 (9th Cir.1988). At issue there was whether private claims against the debtor under CERCLA could be accorded administrat... | [
{
"docid": "1869014",
"title": "",
"text": "land.... Findings (4-7-92) at 3. The apparent inconsistency in these findings is resolved through the court’s citation to In re Jensen, 127 B.R. 27 (9th Cir. BAP 1991), aff'd, 995 F.2d 925 (9th Cir.1993). In Jensen, the BAP discussed when claims arise for purp... |
423196 | that the burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits.”) Therefore, this Court must determine if the Coast Guard has proven that there was substantial evidence to support its finding that Great Lakes did not prove ... | [
{
"docid": "21099850",
"title": "",
"text": "the oil and gas industry’s offshore operations, drilling fluids make up the majority of the effluent produced from exploration and development, and produced water represents a majority of the effluent from production. Produced sand is a minimal component of t... | [
{
"docid": "8432819",
"title": "",
"text": "in which the compensation is not premised on who may have been responsible for causing such injury. No-fault insurance includes personal injury protection and medical payments benefits in cases involving personal injuries resulting from operation of a motor ve... |
186928 | King v. Hahn, 885 F.Supp. 95, 98 (S.D.N.Y.1995). Taking all the above elements into account, the Court finds that this factor does not support Haas’s request to stay the federal action. (6) Whether State or Federal Law Supplies the Rule of Decision The mere existence of state law issues in a case does not mandate abste... | [
{
"docid": "16040808",
"title": "",
"text": "of policies governed by Illinois law, and cover liabilities of Raymark worldwide. The issue as to which law applies has not been determined nor do we know if Illinois and Connecticut law differ. In any event, state law supplies the rule of decision on the mer... | [
{
"docid": "570187",
"title": "",
"text": "¶ 203[4], p. 2141 (2d ed. 1948, 1982 update)). The district court did not abuse its discretion in finding this factor “unhelpful.” E. The Rule of Decision This was another “unhelpful” factor. Madonna argues that “the presence of state law issues supports absten... |
760783 | or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 29 U.S.C. § 152(11). Ph... | [
{
"docid": "7846983",
"title": "",
"text": "the alleged damages by the Company’s “unlawful refusal to recognize and bargain with it.” I. WERE MAXWELL AND HARDY SUPERVISORS? We turn first to the question of whether or not there is substantial evidence in the record to justify the Board’s findings that Ma... | [
{
"docid": "13547760",
"title": "",
"text": "or discipline employees. . The phrase “whichever last occurs” thus makes each condition, although stated in the disjunctive, a requirement for retirement eligibility. . Under Article I, Section 14B of the Pension Plan: Continuous Service as an Employee under ... |
541751 | "12(b)(1). IV. For the reasons set forth above, we will affirm the order of the District Court. This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. . Appellant’s App. at 21. . Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir.2009); Gould Elecs. Inc. ... | [
{
"docid": "22828636",
"title": "",
"text": "of particular issues. This inquiry involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.” Worth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The plaintiff bears the burden of ... | [
{
"docid": "20591626",
"title": "",
"text": "J.A. Vol. I at 36:2-13. . Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). . Steele v. Blackman, 236 F.3d 130, 134 n. 4 (3d Cir.2001). . Pub. Interest Research Grp. of N.J., Inc. v. Magnesium Elek... |
92607 | his First Amended Complaint, the state filed a motion for summary judgment on the ADA claims. The Court granted defendants’ motion finding that Palotai had not tendered evidence tending to show (1) that he was disabled under the ADA or (2) that there was a causal connection between any disability and his suspension or ... | [
{
"docid": "22166615",
"title": "",
"text": "its decision rested entirely on the perceived procedural shortcomings in the post-suspension process. f — H I — I Í-H It is undisputed that appellee’s interest in the right to continue to serve as president of the bank and to participate in the conduct of its... | [
{
"docid": "7195004",
"title": "",
"text": "470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1, 5-6 (1st Cir.2000). Plaintiffs supervisory duties alone do not qualify as such a protected interest — even if we assume, despite indications to the contrar... |
414711 | Brady seeks relief, the legislature declared “that the state has the responsibility to act to assure that every individual within [New York] is afforded an equal opportunity to enjoy a full and productive life.” N.Y. Exec. L. § 290, ¶ 3. Each stat ute appears to have been enacted for entirely unrelated policy purposes.... | [
{
"docid": "21033539",
"title": "",
"text": "v. Center for Humanities, Inc., — U.S. -, ---, 116 S.Ct. 2211, 2224-25, 135 L.Ed.2d 659 (1996), Consorti v. Armstrong World Indus., Inc., 103 F.3d 2, 4 (2d Cir.1996); Bunt v. Altec Indus., Inc., 962 F.Supp. 313, 320 (N.D.N.Y.1997) (Hurd, M.J.); Kukla v. Syfus... | [
{
"docid": "12180276",
"title": "",
"text": "of the supreme court ... In reviewing a money judgment in an action in which an itemized verdict is required by rule forty-one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have b... |
119575 | organic disulphides. It is clear to us from our study of Emeleus that it was beyond the author’s skill as a chemist to alter the reaction conditions or reactants in order to make a stable pentafluoride. No other evidence appears in the record before us which shows that a person of ordinary skill in the art, upon readin... | [
{
"docid": "23080268",
"title": "",
"text": "device or chemical compound disclose an operative process for reproducing the article or product.” Authority cited for this proposition was the Cohn, Marden Bifocal and other cases. Implicit in all of these cases is the concept of a certain degree of knowledg... | [
{
"docid": "5854860",
"title": "",
"text": "Fields affidavit, which states that the authors of Nomura did not make the disclosed dicarboxylic acid TMBP and dimethyl ester TMBP compounds, overcomes the PTO’s rejection. It is urged that Donohue I and In re Samour, 571 F.2d 559, 197 USPQ 1 (CCPA 1978), req... |
827062 | “hardship status,” and after a discussion determined not to reopen plaintiff’s classification. The next day the executive secretary mailed the following letter to plaintiff notifying him of the Board’s action: “This is to advise you that the board reviewed your file on November 19, 1969 regarding your petition to reope... | [
{
"docid": "22844523",
"title": "",
"text": "objector were not presented or considered at the time he was given his I-A classification. The only other condition required by §§ 1625.2 and 1625.4 to be met therefore was that the information presented by appellant, “if true, would justify a change in the r... | [
{
"docid": "10240725",
"title": "",
"text": "and consider anew the classification of a registrant (a) * * * if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant’s classification;... |
648202 | court made two legal errors that undermine the jury’s verdict on Odessa’s claim for breach of contract. First, it contends that it was entitled to a directed verdict or judgment as a matter of law because there was not substantial evidence to support Odessa’s contract claim. The City postulates that there were a limite... | [
{
"docid": "21608573",
"title": "",
"text": "both at the end of Allstate’s case in chief and at the conclusion of all evidence, contending that Allstate had failed to present any evidence that established a proper measure of recoverable damages sufficient to support a jury verdict. The motions were deni... | [
{
"docid": "22568425",
"title": "",
"text": "that, without obtaining a license from Montgomery, they downloaded VPIC 4.3 from a bulletin board and incorporated it as a utility on four FLD discs. The defendants challenge the propriety of Montgomery’s copyright infringement claim on two grounds. First, th... |
93238 | the patented invention solves. Stratoflex, 713 F.2d at 1535. The prior art is not to be narrowly confined to the methods and inventions of the subject art, but extends to other analogous arts. Graham, 383 U.S. 1, 86 S.Ct. 684; L.D. Schreiber Cheese Co. v. Clearfield Cheese Co., 540 F.Supp. 1128, 1134-35 (W.D.Pa.1982), ... | [
{
"docid": "22589300",
"title": "",
"text": "basis for determining whether art is analogous under the standards of the Court of Customs and Patent Appeals is to look at whether it deals with a problem similar to that being addressed by the inventor. Indeed, the trial court relied on the following analys... | [
{
"docid": "1006085",
"title": "",
"text": "when the same device or method, having all of the elements contained in the claim limitations, is described in a single prior art reference. Richardson v. Suzuki Motor Co., 868 F.2d 1226, 1236, 9 USPQ2d 1913, 1920 (Fed.Cir.1989); Perkin-Elmer Corp. v. Computer... |
136519 | that William came to the station voluntarily. That says nothing of the circumstances surrounding his interrogation. Whether a person is in custody depends on the objective surrounding circumstances. Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). A suspect does not have to be arreste... | [
{
"docid": "2731921",
"title": "",
"text": "not alone dispositive; indeed, the Supreme Court has held that a suspect interrogated in his own bedroom in a boardinghouse that had other occupants was in custody under Miranda, see Orozco v. Texas, 394 U.S. 324, 325-26, 89 S.Ct. 1095, 1096-97, 22 L.Ed.2d 311... | [
{
"docid": "11293686",
"title": "",
"text": "to habeas relief on this ground. IV. Next, Loza argues that the Ohio Supreme Court’s decision upholding the vol-untariness and admissibility of his confession was based on an unreasonable determination of the facts and was contrary to or an unreasonable appli... |
154753 | all categories contain sexually arousing content. The Plaintiff cannot point to any reason— nor can we conceive of any — why the Turner analysis would come out differently with respect to the images at issue, particularly in the context of this case. All of the observations made in Mauro and Bah-rampour are equally app... | [
{
"docid": "22747202",
"title": "",
"text": "found invalid by the District Court. D We also agree with the District Court that the decision to censor or withhold délivery of a particular letter must be accompanied by minimum procedural safeguards. The interest of prisoners and their correspondents in un... | [
{
"docid": "22792352",
"title": "",
"text": "U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). “Thus, when a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect [prisoners’] constitutional rights.” Mauro v. Arpaio, 188 F.3d 1... |
606322 | a subsequent change in citizenship. Hawes v. Club Ecuestre El Comandante, 598 F.2d 698, 701 (1st Cir.1979). 28 U.S.C. § 1332(a)(1) grants federal district courts original jurisdiction over civil actions (where the amount in controversy exceeds $10,000) between “citizens of different States.” To show state citizenship f... | [
{
"docid": "12480273",
"title": "",
"text": "federal courts on the ground of diversity of citizenship. Possibly no better reason for this fact exists than that such citizens were not thought of when the judici-aiy article of the federal Constitution was drafted. It is even more probable that citizens of... | [
{
"docid": "3358590",
"title": "",
"text": "California state court. III. THE CITIZENSHIP OF BEN LIPPS A. Legal Standard For diversity purposes, the citizenship of an individual is determined by the location of his or her domicile. Rodriguez-Diaz v. Sierra-Marbinez, 853 F.2d 1027, 1030 (1st Cir.1988). “A... |
605278 | "Hymas, 678 F.Supp. 1473, 1476 (D.Idaho 1988) (court found University of Idaho immune since judgment would have to be satisfied by state funds or would have to be supplemented by state funds); Sorey v. Kellett, 673 F.Supp. 817, 822-23 (S.D.Miss.1987) (state universities immune since College Board acts as alter ego of s... | [
{
"docid": "2106774",
"title": "",
"text": "State Prison, 415 F.2d 247, 250-51 (3d Cir.1969), cert. denied, 397 U.S. 948, 90 S.Ct. 967, 25 L.Ed.2d 129 (1970); see also Kovats v. Rutgers, the State University, 822 F.2d 1303 (3d Cir.1987). I need not laboriously apply the nine factors to the facts of this... | [
{
"docid": "23373577",
"title": "",
"text": "although important, is not dispositive. We so held in Port Authority Police Benevolent Association v. Port Authority of New York and New Jersey, 819 F.2d 413 (3d Cir.1987). Payment is only meaningful in light of the entity’s other attributes. Blake v. Kline, ... |
778293 | "v. Wardell, 258 U.S. 537, 42 S.Ct. 393, 66 L.Ed. 753, contra, since there was in that case no substitution but the addition of the successor collector as defendant, with express reservation of remedy against the original defendant. Pullman Company v. Croom, 231 U.S. 571, 34 S.Ct. 182, 58 L.Ed. 375, does not reach the ... | [
{
"docid": "22814964",
"title": "",
"text": "any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty.” A recovery for acts don... | [
{
"docid": "4378811",
"title": "",
"text": "capacity but as the agent of the United States. Second Nat’l Bank of Saginaw v. Woodworth, D.C.S.D.Mich., 54 F.2d 672, affirmed 6 Cir., 66 F.2d 170. While he was the formal party defendant, the real party in interest was the United States, which, by its interv... |
23227 | Cir. 1961). Here, however, defendant alleges that his counsel purported to speak on behalf of the United States Attorney; that ‘a “working agreement” had been formulated by the defense counsel and the United States Attorney and that said agreement was breached and disavowed by both parties concerned.’ See Machibroda v.... | [
{
"docid": "6708934",
"title": "",
"text": "U.S. 487, 495, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962). The Supreme Court has held that “A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void.” Machibroda v. United States, supra at 493, 82 S.Ct. at 513... | [
{
"docid": "22864443",
"title": "",
"text": "for his guilty plea, is instructed to, and does, claim total understanding of the charges against him and affirm the total absence of any bargain when questioned by the trial judge. This scenario will sometimes end in a sentence which comports with the defend... |
204235 | "§ 106. The issue is therefore whether the elements needed to establish the breach of contract claim are qualitatively different from those needed to establish the copyright infringement claim. The Shepards argue that European Pressphoto Agency's breach of its promise amounts to an extra element that makes the nature o... | [
{
"docid": "1848807",
"title": "",
"text": "element is required instead of or in addition to the acts of reproduction, performance, distribution or display, in order to constitute a state-created cause of action,” there is no preemption. Computer Assocs. Int'l Inc. v. Altai, Inc., 982 F.2d 693, 716 (2d ... | [
{
"docid": "6153950",
"title": "",
"text": "31, 2009) (same). Plaintiffs, because they seek the protection of the Copyright Act, acknowledge that the subject matter requirement is met, but argue that each of their state-law causes of action fails the general scope requirement and, hence, is not preempte... |
830809 | "true, with all reasonable inferences drawn in Bokros' favor. Wolfolk v. Rivera, 729 F.2d 1114, 1116 (7th Cir.1984). That of course involves no actual findings of fact. .For that purpose Thomas used a preprinted form, with blanks left for specifying such particulars as the principal amount, finance charge and annual pe... | [
{
"docid": "4089659",
"title": "",
"text": "(8th Cir.1980) (“A TILA violation occurs ... and the one-year limitations period begins to run, when credit is extended through the consummation of the transaction between the creditor and its customer without the required disclosures being made.”); Rust v. Qu... | [
{
"docid": "23498684",
"title": "",
"text": "created, no earlier than October 31, 1984. See Moor v. Travelers Insurance Co., 784 F.2d 632, 633 (5th Cir.1986) (credit transaction consummated and statute of limitations begins to run from “the moment a contractual relationship is created between a creditor... |
104459 | his motions filed under 28 U.S.C. § 2255 (2000) and Fed. R. Civ. P. 59(e). The orders are not appeal-able unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appeal-ability will not issue absent “a substantial showing of the denial of a constitutional... | [
{
"docid": "22657538",
"title": "",
"text": "appeal three issues upon which the district court entered summary judgment in favor of the State: (1) whether his confession was illegally obtained; (2) whether the imposition of the death penalty in North Carolina unconstitutionally discriminates against the... | [
{
"docid": "22880481",
"title": "",
"text": "EDITH H. JONES, Circuit Judge: Bruce Wayne Houser, Texas prisoner # 460890, moves for a certificate of appeal-ability (COA) to appeal the dismissal of his 28 U.S.C. § 2254 petition for failure to exhaust administrative remedies and as procedurally barred. In ... |
502475 | to accept the Rover and Land Rover lines constituted a lack of good faith on its part under the Dealers Day in Court Act. The DDICA, which has been described as “a fringe area of antitrust law * * * designed in part to supplement [those] laws,” requires the manufacturer to act in good faith in carrying out the provisio... | [
{
"docid": "14395600",
"title": "",
"text": "the court found that the evidence did not show any acts of coercion or intimidation by Chrysler and thus the court did not need to expressly decide the above question. In support of allowing the action is a statement from the legislative history that “Manufac... | [
{
"docid": "11892963",
"title": "",
"text": "cert. denied, 369 U.S. 887, 82 S.Ct. 1161, 8 L.Ed.2d 288 (1962). . Kotula v. Ford Motor Co., 338 F.2d 732 (8th Cir. 1964), cert. denied, 380 U.S. 979, 85 S.Ct. 1333, 14 L.Ed.2d 273 (1965); see also Milos v. Ford Motor Co., 317 F.2d 712 (3rd Cir.), cert. denie... |
745235 | a factor is a permissible basis for departure under any circumstances,” or, in other words, we must decide as a matter of law if departure was warranted. Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). This phase of the review is plenary. United States v. Kikumura, 918 F.2d 1084, 1098 (... | [
{
"docid": "15655512",
"title": "",
"text": "18 U.S.C. § 371, and two counts of money laundering, in violation of 18 U.S.C. §§ 1956, 1957. The district court also upwardly departed three levels from the Sentencing Guidelines based on the amount of loss, number of victims, and number of fraudulent scheme... | [
{
"docid": "494100",
"title": "",
"text": "a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. 18 U.S.C. § 3553(b) (emphasis added). The guidelines applicable at the time of Key’s sen... |
89012 | 466 B.R. 188 (S.D.N.Y.2011) (‘Stem does not affect the ability of the bankruptcy court to rule on state law fraudulent conveyance claims.... ”); Burtch v. Seaport Capital, LLC (In re Direct Response Media, Inc.), 466 B.R. 626 (Bankr.D.Del.2012); but see Heller Ehrman, LLP v. Arnold & Porter, LLP, et al. (In re Heller E... | [
{
"docid": "22720130",
"title": "",
"text": "Justice Brennan delivered the opinion of the Court. The question presented is whether a person who has not submitted a claim against a bankruptcy estate has a right to a jury trial when sued by the trustee in bankruptcy to recover an allegedly fraudulent mone... | [
{
"docid": "12599345",
"title": "",
"text": "bankruptcy court might assume that it has plenary authority to decide fraudulent conveyance actions. As it turns out, that court would be mistaken.”); Stettin v. Regent Capital Partners, LLC. (In re Rothstein, Rosenfeldt, Adler, P.A.), No. 11-62612-CIV-MARRA,... |
838956 | property of the nation and subject to all the requisite legislation by Congress.” * * * the federal government is charged with ensuring that navigable waterways, like any other routes of commerce over which it has assumed control, remain free of obstruction. * * * the Rivers and Harbors Act of 1899, an assertion of the... | [
{
"docid": "22369708",
"title": "",
"text": "history of the Act, in the predecessor statutes, or in nonstatu-tory law — that Congress might have intended that a party who negligently sinks a vessel should be shielded from personal responsibility. We therefore hold that the remedies and procedures specif... | [
{
"docid": "15750037",
"title": "",
"text": "and Harbors Appropriation Act of 1899, 33 U.S.C. §§ 401 et seq. In Neches Canal Co. v. Miller & Vidor Lumber Co., 24 F.2d 763 (5th Cir. 1928), this court held that a private party could enjoin another private party who had violated 33 U.S.C. § 401 by building... |
871884 | Gary W. v. State of La., 622 F.2d 804, 805 (5th Cir.1980) (stating that proper way to raise issue of district court’s allegedly improper application of the law was by appeal of district court’s underlying ruling, not by appeal of denial of Rule 60(b) motion). Attorneys’ Fees Plaintiff and the City also challenge the di... | [
{
"docid": "9766576",
"title": "",
"text": "In light of this Court’s ruling in Meiburg, the district court struck all requests for fees relating to TMDL implementation. The court also eliminated time spent on redundant work, general background re search, unsuccessful motions, and certain specific litiga... | [
{
"docid": "22899141",
"title": "",
"text": "of the appropriate hourly rates for Goodman and Gesinsky, but the district court denied the motion. Luciano now appeals the attorneys’ fee award. Olsten now cross-appeals to prevent Luciano from enforcing the attorneys’ fees judgment, contending that if it pr... |
827829 | of the record, briefs, and arguments in this case, we conclude that with one exception the alleged grounds for relief are without merit and warrant little comment. Miller was not incompetently represented in violation of his Sixth Amendment right to adequate counsel. The transcript simply does not show that his attorne... | [
{
"docid": "12482568",
"title": "",
"text": "and each defendant denied having given any statement or confession to the officers. The trial was before the court without a jury. The prosecution took counsel by surprise when Espin’s confession was offered and admitted in evidence. Counsel was permitted to ... | [
{
"docid": "9686880",
"title": "",
"text": "brother, who had been arrested also as a suspect in the same robbery and abduction. All three were advised that they had a right to remain silent and that anything they said could be used against them in court. A police detective then took Grover Robbs aside a... |
504467 | that Congress intended to draw its meaning from varying state statutes providing for corporate regulation. Further, the artificial nature of the suggested state definition, which would measure capital in terms of authorized rather than issued stock, would require its rejection in the absence of an express mandate to re... | [
{
"docid": "17999409",
"title": "",
"text": "and alternatively, that even if the original issue tax be deemed applicable, it should be limited to that portion of the total issue representing the $6,304,845 “Premium on Capital Stock” which was transferred to the “Capital Stock” subaccount. Plaintiff’s po... | [
{
"docid": "23611538",
"title": "",
"text": "the state law on these questions prior to May 1, 1936; (4) whether payments of dividends under these circumstances were prohibited by state law. Acceptance of the Government’s contention would mean that courts administering the 1942 Act must first determine w... |
213196 | "limit the sovereign immunity of others when it wants to. .Contemporaneously with Senate ratification of the Treaty with the Yakimas in 1859 (12 Stat. 951), the Supreme Court said, ""[i]t is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any... | [
{
"docid": "22795235",
"title": "",
"text": "reasoning of that decision recognizes the importance of preserving the traditional aspects of tribal sovereignty over the relationships among reservation Indians. Our more recent cases have made it clear, however, that commercial transactions between Indians ... | [
{
"docid": "15049352",
"title": "",
"text": "to the State of New York do not permit the State of New York to govern activity which is described as “civil/regulatory” in nature on Indian reservations, (3) N.Y.Penal Law §§ 225.05 and 225.30 is eivil/regulatory, as opposed to criminal/prohibitory, in natur... |
670505 | evidence that she had been discriminated against on the basis of her sex. The court, therefore, entered judgment in favor of defendants, 486 F.Supp. 86. II. Standard of review Although discrimination vei non is essentially a question of fact, the trial court’s finding of nondiscrimination is a resolution of the ultimat... | [
{
"docid": "22312925",
"title": "",
"text": "ninety days after the alleged unlawful employment practice occurred . ” The filing here was not until long after any alleged June 1967 act took place. In sum, filing with the EEOC is a jurisdictional prerequisite to federal court consideration of a discrimina... | [
{
"docid": "23350128",
"title": "",
"text": "694 (5th Cir. 1974). Hiring the Project Director Plaintiff contends that, by transferring Robert Watts, a male, instead of promoting her to Project Director, defendant discriminated against her on account of sex. The elements of such cases are clear. In order... |
636463 | "this matter discretely (in the context of this adversary proceeding) rather than in the Debtor’s bankruptcy case, in part because the Debtor, in filing the Complaint, retained counsel different from the counsel who filed his Chapter 13 bankruptcy case. .The Supreme Court has stated: [T]he FAA’s purpose [is] ""to rever... | [
{
"docid": "22538134",
"title": "",
"text": "978, 985 (CA2 1942). That view has been steadily eroded over the years, beginning in the lower courts. See Scherk, supra, at 616 (Stevens, J., dissenting) (citing cases). The erosion intensified in our most recent decisions upholding agreements to arbitrate f... | [
{
"docid": "6877374",
"title": "",
"text": "an existing controversy arising out of such a contract, ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. 9 U.S.C. § 2 (1994). The Supreme Court has interpreted § 2 of the ... |
580553 | Street nevertheless be hailed into court to be told never to discriminate again? Certainly, if there is evidence “that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.” United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 8... | [
{
"docid": "12547659",
"title": "",
"text": "rescission in favor of a request for declaratory judgment. A two-day trial was held. At the close of plaintiffs’ case, the district court granted defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 41(b). The court’s order of dismissal a... | [
{
"docid": "14169506",
"title": "",
"text": "case or controversy requirement of the Constitution requires that moot cases be dismissed; in a moot case, there is no longer the vitality and interest among the parties that our adversary system of justice requires. As the Supreme Court has made clear, the “... |
331427 | a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). But Guerrero and Garrett are unique § 2255 cases. Specifically, in Guerrero, the government ... | [
{
"docid": "23126932",
"title": "",
"text": "court, we adhere to our general rule against considering issues for the first time on appeal. See McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir.2002) (“[Aft-sent extraordinary circumstances, [this court] will not consider arguments raised for t... | [
{
"docid": "23069351",
"title": "",
"text": "is any other flaw in the colloquy. Indeed, the colloquy amply demonstrates that the District Court took care to apprise Mabry of the consequences of the waiver and ensure that he understood the terms of the plea agreement and entered into it willingly. Accord... |
570602 | Code specifically provides for a right of contribution in situations such as the present one. La.Civ.C. Art. 2103. Even if the initial complaint were viewed as arising under federal rather than state law, the law of Louisiana would control as to this particular contribution issue. As Professor Moore has stated, “The th... | [
{
"docid": "2026207",
"title": "",
"text": "the settlement along the lines stated above it must proceed in its action for contribution along those same lines. Lastly, Murphy contends that it is entitled under Pennsylvania law to contribution from Local 249 as “a party commonly responsible for a wrong co... | [
{
"docid": "771581",
"title": "",
"text": "was at one time plaintiff’s lawyer and a stockholder in Nicole’s, had entered into a joint venture with the defendant. This joint venture, according to the defendant, led to the creation of Nicole’s. The defendant asserts that if plaintiff’s allegations that de... |
338547 | Court now fixes at $2,650.00. . The claim of Glen Alexander, husband of Lois Alexander, was not submitted to the jury, and the complaint will be dismissed as to him. . M.F.A. Mutual Insurance Co. v. McKinley, 1968, 245 Ark. 326, 432 S.W.2d 484; M.F.A. Mutual Insurance Co. v. Wallace, 1968, 245 Ark. 230, 431 S.W.2d 742;... | [
{
"docid": "18218927",
"title": "",
"text": "a passenger in an automobile to have insurance protection available under the driver’s policy, which may afford primary coverage, and under his own policy, which may afford secondary coverage, and to sustain injuries due to the negligence of an uninsured moto... | [
{
"docid": "11793772",
"title": "",
"text": "policies presents a different problem as these clauses, as usually written with the limitation of only being liable for the difference between the policy limits of the primary insurer and the policy under consideration, generally operate to provide no protect... |
404895 | 23.) For example, issues remained regarding the scope of review to be applied to post-ROD (record of decision) design changes by the EPA which may have significantly changed the approved remedy, as to which the direct defendants may have argued that such changes were not in accordance with law or were otherwise inconsi... | [
{
"docid": "5691586",
"title": "",
"text": "its liability to the United States or a state in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement.” CERCLA § 113(f)(2). Allen acknowledges that § 113(f)(2) does pe... | [
{
"docid": "14493355",
"title": "",
"text": "In addition, this is not the first time that the Eleventh Circuit has encountered consent decrees in the context of CERCLA. In fact, this Court has held that a consent decree gives a party a right to contribution under § 113(f) in Atlanta Gas Light Co. v. UGI... |
373307 | a gift. Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 730 [49 S.Ct. 499, 504, 73 L.Ed. 918], And, importantly if the payment proceeds primarily from “the constraining force of any moral or legal duty,” or from “the incentive of anticipated benefit” of an economic nature, Bogardus v. Commissioner, 302 U.S. 34, 41 ... | [
{
"docid": "22771552",
"title": "",
"text": "in part upon this practice in Commissioner v. Smith, 324 U. S. 177, 324 U. S. 695. And in its 1950 Act affording limited tax benefits for “restricted stock option plans” Congress adopted the same kind of standard for measurement of gains. § 130A, Internal Rev... | [
{
"docid": "17951341",
"title": "",
"text": "v. United States, 343 U.S. 711, 714. A gift in the statutory sense, on the other hand, proceeds from a “detached and disinterested generosity,” Commissioner v. LoBue, 351 U.S. 243, 246; “out of affection, respect, admiration, charity or like impulses.” Robert... |
180857 | them rendered the corporation insolvent because the assets of the corporation do not become a trust fund until the insolvent company ceases to do business. Comment, Shareholder’s Liability for Dividends Improperly Declared and Paid, 1 Sw.L.J. 220, 235 (1947). While this theory has been sharply criticized in the past, i... | [
{
"docid": "14948003",
"title": "",
"text": "the corporate note, should be treated differently— that is, the note should be fully enforced —because otherwise shareholders will insist on cash in exchange for their resale of shares to the corporation, and this will hinder such transactions. Petitioners’ a... | [
{
"docid": "2361185",
"title": "",
"text": "imposing liability upon stockholders and directors for redemptions made when the corporation is insolvent or which render the corporation insolvent. The statute imposing liability upon stockholders impliedly grants a defense against payment of redemption debt ... |
183796 | that the IRS policy is a direct violation of 11 U.S.C. § 525, which provides in relevant part as follows: [A] governmental unit may not deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against... | [
{
"docid": "7253322",
"title": "",
"text": "from considering such compromises, nor does it prevent the debtors from seeking compromise of a nondischarged tax debt from the IRS once the bankruptcy is completed. The IRS further states that debtors’ argument that § 525 is applicable to its actions in this ... | [
{
"docid": "13043695",
"title": "",
"text": "of the Bankruptcy Code provides in pertinent part that “a governmental unit may not deny, revoke, suspend or refuse to renew a license, permit, charter, franchise or other similar grant to, condition such a grant to, [or] discriminate with respect to such a g... |
783930 | are not binding precedent in this circuit. PER CURIAM: Adrian Parker seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2255 (2012) motion as successive. The order is not appealable unless a circuit justice or judge issues a certificate of ap-pealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certifica... | [
{
"docid": "22657267",
"title": "",
"text": "a substantial showing of the denial of a constitutional right.” (Emphasis added.) A “substantial showing” does not entitle an applicant to a COA; it is a necessary and not a sufficient condition. Nothing in the text of § 2253(c)(2) prohibits a circuit justice... | [
{
"docid": "15137365",
"title": "",
"text": "unreasonable determination of the facts based on the evidence presented. Accordingly, the Court DENIES petitioner’s first ground for relief as meritless. D. Certificate of Appealability An appeal from the denial of a habeas corpus action may not proceed unles... |
351391 | "732, 735 (11th Cir.1998) (""In evaluating the sufficiency of a complaint, a court must accept the well-pleaded facts as true and resolve them in the light most favorable to the plaintiff.”). . TILA defines a creditor as a person who both regularly extends loans and the person to whom the debt is ""initially payable.” ... | [
{
"docid": "4826693",
"title": "",
"text": "loan’s servicer, BAC, to properly respond to the Khans’ request for information about the mortgage loan owner. Defendant relies upon the recent opinion issued in Holcomb v. Federal Home Loan Mortgage Corporation, 2011 WL 5080324 (S.D.Fla. Oct. 26, 2011). In Ho... | [
{
"docid": "13510744",
"title": "",
"text": "action against a servicer for a violation of Section 1641(f)(2). Section 1641(f)(2) does not provide for a servicer’s liability for dam ages if it fails to comply with the section’s obligations, 15 U.S.C. § 1641(f)(2), and the only provisions within Section 1... |
434756 | — inadequate management performance at the Carson store and labor law violations — were pretexutal. More substantive evidence is required to rebut a defendant’s legitimate nondiscriminatory reason sufficiently to withstand summary judgment than is required to establish a prima facie case. “[T]he mere existence of a pri... | [
{
"docid": "22388414",
"title": "",
"text": "a plaintiff must offer evidence that “give[s] rise to an inference of unlawful discrimination.” Burdine, 450 U.S. at 253, 101 S.Ct. 1089. “The prima facie case may be based either on a presumption arising from the factors such as those set forth in McDonnell ... | [
{
"docid": "23263034",
"title": "",
"text": "discharged in retaliation for filing a complaint with the EEOC. The district court granted summary judgment in favor of Columbia on all claims. II AGE DISCRIMINATION The allocation of burdens and order of presentation of proof for claims of discrimination ari... |
509038 | is futile to attempt to rebut the plaintiffs’ approximation of the hours they worked by relying on the absence of a form of proof the law does not require. The defendant’s theory, if accepted, would effectively read into the Act a requirement not found either in its text or its legislative history. Thus, the cases are ... | [
{
"docid": "9572143",
"title": "",
"text": "any consequence. See Turner Depo. at 83, 100-02; Carpenter Depo. at 89-90. Thus, Defendant has failed to establish, as a matter of law, that Plaintiffs, as System Support Technicians, are exempt as administrative employees. 3. Overtime Calculation Finally, Def... | [
{
"docid": "22962363",
"title": "",
"text": "we reverse the district court’s grant of summary judgment in defendants’ favor as to the lead plaintiffs’ “off the clock” claims and vacate the grant of summary judgment as to the lead plaintiffs’ claim that their time-sheets were improperly altered. I. Factu... |
813580 | recitals of the elements of a cause of action, supported by mere conclusory statements” will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). The Court must not, however, convert this “plausibility” requirement into an analysis of whether the non-moving party is likely to succ... | [
{
"docid": "15002618",
"title": "",
"text": "of summary judgment, they failed to meet their threshold burden of proof regarding the loss of contents; the district court did not err in concluding that there was no genuine issue of material fact regarding uncompensated loss of contents. Lastly, the distri... | [
{
"docid": "21779354",
"title": "",
"text": "8(a)(2) requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to rel... |
391136 | Defendant did not exercise ordinary and reasonable care to get the truck and trailer off the highway, nor to signal, nor warn approaching traffic of the danger. This was actionable negligence and plaintiff is entitled to recover therefor. Ross, the driver of the automobile, was guilty of some negligence, which is imput... | [
{
"docid": "3676791",
"title": "",
"text": "with which it must have struck the bulkhead, the explanation of his inability to stop before he ran it into the bulkhead can only be either that he was driving too fast, or that the brakes were defective or inadequate to hold the heavy load. Even if the driver... | [
{
"docid": "17199519",
"title": "",
"text": "5 Cir., 1940, 110 F.2d 596, for the proposition that the doctrine of comparative negligence prevails in Georgia. A motion to strike was never intended to furnish an opportunity for the determination of disputed and substantial questions of law, O’Reilly v. Cu... |
337450 | that they cannot avoid grappling directly with the particular circumstances before them. The difficulties are compounded by the courts’ rejection of all rules-of-thumb for characterizing treasury stock transactions as taxable or not. Failure to retire the shares does not require a result favoring the Commissioner of In... | [
{
"docid": "3125348",
"title": "",
"text": "shares of Pure Carbonic was increased to 132,-299, and taxpayer acquired 100% ownership by a cash purchase of 14,771 shares followed by the exchange described above. Thus about 82% of the Pure Carbonic stock was acquired for shares of Air Reduction stock and t... | [
{
"docid": "6193789",
"title": "",
"text": "identical with its predecessor. The problem of whether a corporation’ makes a profit, in a real sense, or in a tax sense, by dealing in its own shares, has been thoroughly discussed in the opinion of this court in the case of Anderson, Clayton & Co. v. United ... |
51897 | is Salmon’s subjective and otherwise unexplained dislike for a full-time elementary teaching position, despite her years of uninterrupted experience at the elementary level. Salmon’s personal outlook on the matter, without more, is insufficient to create a genuine issue of material fact that her transfer was an adverse... | [
{
"docid": "23208452",
"title": "",
"text": "is not intended to prevent employers from changing the job responsibilities of their 40 to [70] year old employees. Neither is the Act intended to give 40 to [70] year old employees the right to walk out and sue their employer because they dislike their chang... | [
{
"docid": "19781771",
"title": "",
"text": "366 (2d Cir.1980) (holding that plaintiffs proffered evidence that she had tailored her master’s and doctoral coursework to prepare her for teaching junior high students so that her reassignment from teaching junior high art classes to elementary school art c... |
431755 | "Cir.1983). No such extrinsic evidence, however, was presented to the Court on the instant motion, and the Court must, in assessing that which has been presented, '""resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought[.]’ ” Beacon Enters. Inc. v. Menz... | [
{
"docid": "5866773",
"title": "",
"text": "MEMORANDUM OPINION AND ORDER HAIGHT, District Judge: Plaintiffs Holiday Inns, Inc. (“HI”) and Holiday Inns (Lebanon), Inc. (“HI-L”) bring this action against defendant Aetna Insurance Company (“Aetna”) to recover under an insurance policy in force when plainti... | [
{
"docid": "2582405",
"title": "",
"text": "the defendant’s contract of insurance.” However, there was absolutely no evidence in Metal Cutting that a fire or explosion ensued from the mechanical breakdown. If a mechanical-breakdown exclusion that did not limit the class of insured ensuing perils had bee... |
746856 | can we say with any show of assurance what would have happened, however he faced? Had the burden of proof been on the respondent to prove that the beam, if in place, would not have saved the libellant, a finding that it would not have might be open to reversal; but a finding that the libellant failed to prove that it w... | [
{
"docid": "12297257",
"title": "",
"text": "in the rung would have been disclosed upon such an examination, but there was no testimony that it would, and, as the record stands, the failure to inspect had no connection with the injury. The same considerations do not, however, dispose of the count for un... | [
{
"docid": "22821570",
"title": "",
"text": "based on the ship’s unseaworthiness ; although apparently it is a proper factor in fixing the amount of the recovery. Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. Be that as it may, Judge Ryan expressly found that the libellant was free fr... |
623263 | of proving late notice of suit. See In the Matter of Brandon, 97 N.Y.2d 491, 743 N.Y.S.2d 53, 769 N.E.2d 810 (2002). The opinion is narrow in scope, but Rosenberg urges that New York will likely expand the rule outside the arena of SUM coverage. The Second Circuit had previously certified a related question “[wjhere an... | [
{
"docid": "13191892",
"title": "",
"text": "PER CURIAM. On November 14, 2002, this court certified the following question to the New York Court of Appeals: Where an insured has already complied with a policy’s notice of claim requirement, does New York require the insurer to demonstrate prejudice in or... | [
{
"docid": "6154201",
"title": "",
"text": "notice of entry of judgment upon the attorney for the insured, or upon the insured, and upon the insurer, then an action may ... be maintained against the insurer under the terms of the policy or contract. If such a provision is not included in the policy, a c... |
173081 | OPINION PHILLIPS, Circuit Judge: The State of North Carolina has appealed from a judgment of the United States District Court for the Eastern District of North Carolina granting Marine Lance Corporal Ernest Cisneros’ petition to remove a state prosecution for vehicular homicide and related offenses to federal court, de... | [
{
"docid": "8884795",
"title": "",
"text": "WILKINSON, Circuit Judge: The question before us is whether a United States Marine may remove to federal court, pursuant to 28 U.S.C. § 1442(a)(1), his state criminal prosecution arising out of an accident which occurred while he was driving in a military conv... | [
{
"docid": "8275012",
"title": "",
"text": "OPINION and ORDER LARKINS, District Judge: This cause comes before the Court as a civil action against the United States, filed pursuant to provisions of the Federal Tort Claims Act, arising out of a collision, which occurred in the Eastern District of North C... |
532666 | in the following discussion, at id.: Our research has revealed only one precedent which has presented this identical issue under the Bankruptcy Code, In re Canganelli, 132 B.R. 369 (Bankr.N.D.Ind.1991). The Debtor cites several cases decided under the predecessor Bankruptcy Act to the same effect. In re Wrobel, 18 F.Su... | [
{
"docid": "12380377",
"title": "",
"text": "SUA SPONTE ORDER VACATING ORDER OF DISCHARGE BECAUSE OF CLERICAL MISTAKE COMBINED WITH NOTICE OF THE ENTRY THEREOF DAVID S. KENNEDY, Chief Judge. The ultimate issue for judicial determination here is whether a bankruptcy court may vacate an order of discharge... | [
{
"docid": "18153511",
"title": "",
"text": "Section 727(e) permits a complaint seeking revocation to be filed within one year after the discharge was granted. We do not see how this provision precludes the court from setting aside an order of discharge under Bankruptcy Rule 9024 six months after its is... |
602586 | copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.... 17 U.S.C. § 107. In this case, it is evident that Defendant did not use Plaintiffs poster for any of th... | [
{
"docid": "22067407",
"title": "",
"text": "remained exclusively judge-made doctrine until the passage of the 1976 Copyright Act, in which Justice Story’s summary is discernible: “§ 107. Limitations on exclusive rights: Fair use “Notwithstanding the provisions of sections 106 and 106A, the fair use of ... | [
{
"docid": "1762799",
"title": "",
"text": "use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching ..., scholarship or research is not an infringement of copyright.” 17 U.S.C. § 107. In addition, section 107 specifies four factors to consider in determining wheth... |
656549 | Co. v. NLRB, 380 U.S. 300, 317-18, 85 S.Ct. 955, 13 L.Ed.2d 27 (1965); NLRB v. Insurance Agents Internat’l Union, 361 U.S. 477, 491, 494-95, 497-99, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960). Hence, under the preemptive primacy of federal labor law, Boys Mrkts., Inc. v. Local 770, Retail Clerks Union, 398 U.S. 235, 242, 90 S.... | [
{
"docid": "23173806",
"title": "",
"text": "which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.” Avco maintains that this ... | [
{
"docid": "836614",
"title": "",
"text": "merging districts is a breach of the provisions of the International's constitution relating to changes in the boundaries of districts. The basic question is whether Congress, by the enactment of § 301(a), intended to confer jurisdiction over internal union aff... |
790977 | count. See United States v. Barnes, 660 F.3d 1000, 1007 (7th Cir.2011); United States v. White, 406 F.3d 827, 831-32 (7th Cir.2005). Resentencing on the restructured judgment will allow the district court to reconsider the entire “sentencing package.” Barnes, 660 F.3d at 1007. Brooks originally received a total of 150 ... | [
{
"docid": "23694053",
"title": "",
"text": "mandatory minimum sentences, stating that “[s]ince [§ 924(c)(1)(A)’s] subsections alter only the minimum, the judge may impose a sentence well in excess of seven years, whether or not the defendant brandished the firearm.” Harris v. United States, 536 U.S. 54... | [
{
"docid": "22881045",
"title": "",
"text": "U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), set forth a new standard to evaluate which crimes constitute violent felonies under § '924(e), and Begay, as interpreted by United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.2008), and United States v. Ca... |
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