xref/out/r2/recall_gold.json

Source: xref/out/r2/recall_gold.json

Exact source text

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"url": "https://www.neochart.com/catalog/cases/ad/volume_21/0604_01/index.html",
"court": "New York Supreme Court, Appellate Division",
"decade": "1890s",
"start": 8158,
"end": 8712,
"text": "The refusal on the part of the trial court to permit an amendment of the complaint was proper. The action had been brought against the defendants to charge the estate, because they were to be charged as trustees. .The effect of the amendment would be to charge them personally. This was in effect the substitution of an entirely new 'cause of action, and the court at Trial Term had no power to permit such an amendment, but if it was to be granted at all it must be done at the Special Term. The judgment must be affirmed, with costs to the respondents.",
"context": " grows out of his official situation. It is to be noticed in this form of action the defendants would be liable to be arrested in a proper case, and if judgment, went 'against them, a body execution might be issued against them. All of that shows that the violation of the duty insisted upon is one which is personal to them and not official.\nThe case of an action against an assignee in bankruptcy or a receiver or other trustee to foreclose his interest in the property is not analogous, because. in that case the thing attacked is. .only his property right which is sought to be taken away, and for that reason it is necessary that he should be made a party in his official capacity. But in such a case as this no remedy is sought against the property. It is against the individual for his personal neglect. The rule is similar to that one which is applied in actions against executors for acts done by them in regard to the management of the property which they held in their official capacity. They have-the legal title to this property, and having that they are personally responsible, by reason of the legal title, to third parties dealing with them with relation to the property, precisely as though no one else had any . . beneficial interest in it.\nFor these reasons the action of the trial court was proper in hold-. ing that the defendants were not liable in their official capacity so as to charge the estate with the negligence complained of, and the complaint was properly dismissed..\nThe refusal on the part of the trial court to permit an amendment of the complaint was proper. The action had been brought against the defendants to charge the estate, because they were to be charged as trustees. .The effect of the amendment would be to charge them personally. This was in effect the substitution of an entirely new 'cause of action, and the court at Trial Term had no power to permit such an amendment, but if it was to be granted at all it must be done at the Special Term. The judgment must be affirmed, with costs to the respondents.\nVan Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.\nJudgment affirmed, with-costs.\n",
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"court": "New York Supreme Court, Appellate Division",
"decade": "1890s",
"start": 7001,
"end": 7916,
"text": "The case of an action against an assignee in bankruptcy or a receiver or other trustee to foreclose his interest in the property is not analogous, because. in that case the thing attacked is. .only his property right which is sought to be taken away, and for that reason it is necessary that he should be made a party in his official capacity. But in such a case as this no remedy is sought against the property. It is against the individual for his personal neglect. The rule is similar to that one which is applied in actions against executors for acts done by them in regard to the management of the property which they held in their official capacity. They have-the legal title to this property, and having that they are personally responsible, by reason of the legal title, to third parties dealing with them with relation to the property, precisely as though no one else had any . . beneficial interest in it.",
"context": "glect of the receiver, he is not liable personally for the neglect of his servants. (Meara's Admr. v. Holbrook, 20 Ohio St. 137; Cardot v. Barney, 63 N. Y. 281; Barton v. Barbour, 104 U. S. 128.)\nIt is different in a case where the receiver is guilty of personal negligence, or where he has entered into some contract relation with the particular piece of property which was the subject of the negligence, so that he is personally responsible for its proper condition. In such a case he would be held liable for any neglect in the management of the property upon the-sole ground of his legal relation . to it as owner. (Kain v. Smith, 80 N. Y. 458.) The duty- of the care of the property seems to be one that is inherent in the ownership of it, and the distinction seems to be that the person who is legally the owner of the property has imposed upon him, by reason ' of .that ownership, the duty of keeping it in proper repair, and that for a violation of that duty he is personally liable;' whereas, if he has no title to the property, but simply performs certain duties which are imposed upon him with reference to it, his' liability is not personal, but grows out of his official situation. It is to be noticed in this form of action the defendants would be liable to be arrested in a proper case, and if judgment, went 'against them, a body execution might be issued against them. All of that shows that the violation of the duty insisted upon is one which is personal to them and not official.\nThe case of an action against an assignee in bankruptcy or a receiver or other trustee to foreclose his interest in the property is not analogous, because. in that case the thing attacked is. .only his property right which is sought to be taken away, and for that reason it is necessary that he should be made a party in his official capacity. But in such a case as this no remedy is sought against the property. It is against the individual for his personal neglect. The rule is similar to that one which is applied in actions against executors for acts done by them in regard to the management of the property which they held in their official capacity. They have-the legal title to this property, and having that they are personally responsible, by reason of the legal title, to third parties dealing with them with relation to the property, precisely as though no one else had any . . beneficial interest in it.\nFor these reasons the action of the trial court was proper in hold-. ing that the defendants were not liable in their official capacity so as to charge the estate with the negligence complained of, and the complaint was properly dismissed..\nThe refusal on the part of the trial court to permit an amendment of the complaint was proper. The action had been brought against the defendants to charge the estate, because they were to be charged as trustees. .The effect of the amendment would be to charge them personally. This was in effect the substitution of an entirely new 'cause of action, and the court at Trial Term had no power to permit such an amendment, but if it was to be granted at all it must be done at the Special Term. The judgment must be affirmed, with costs to the respondents.\nVan Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.\nJudgment affirmed, with-costs.\n",
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"url": "https://www.neochart.com/catalog/cases/ohio-app-3d/volume_23/0130_01/index.html",
"court": "Ohio Court of Appeals",
"decade": "1980s",
"start": 12085,
"end": 12531,
"text": "Defendant’s second assignment of error focuses upon the statements made by defendant to the officers concerning the identification of his coat and of the cocaine found in it. He alleges that the statements were made without benefit of Miranda warnings, and were made while he was subject to unlawful arrest and interrogation. An evaluation of this claim requires analysis of exactly the level of police-citizen interaction in the facts before us.",
"context": "f the trunk of the car, Ross does contain the following significant language:\n“A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. * * * When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, * * * must give way to the interest in the prompt and efficient completion of the task at hand.” Id. at 820-821.\nThe warrant to search the apartment clearly extended to a search of the closets therein, which would necessarily involve searching the garments contained within them for the contraband which was the object of the warrant. The federal case of United States v. Johnson (C.A.D.C. 1973), 475 F. 2d 977, held that a pre-arrest search of a defendant’s purse, which was not being worn at the time, was not a search of her person and was within the scope of a warrant to search the apartment in which she was found.\nDefendant’s detention, and his restraint for safety reasons, at the apartment did not amount to an illegal arrest, nor was the search of his belongings during his detention beyond the scope of the warrant issued. For the above reasons, the trial court did not err in refusing to suppress the evidence obtained from this search. The first assignment of error is overruled.\nDefendant’s second assignment of error focuses upon the statements made by defendant to the officers concerning the identification of his coat and of the cocaine found in it. He alleges that the statements were made without benefit of Miranda warnings, and were made while he was subject to unlawful arrest and interrogation. An evaluation of this claim requires analysis of exactly the level of police-citizen interaction in the facts before us.\nThe most intrusive level of interaction between the police and a defendant is that of the full-fledged “custodial interrogation.” Miranda v. Arizona (1966), 384 U.S. 436 [36 O.O.2d 237], provided that, once an individual is taken into custody, he must be given certain warnings before being subjected to police interrogation. It is clear that the defendant in the case before us was questioned by police officers, but for this questioning to be a violation of his rights, he must also show that he was in custody at the time of the questioning. In Miranda and later cases, the atmosphere and location of the questioning is critical to its custodial nature. Miranda is specifically concerned with a defendant who is “swept from familiar surroundings * * * into police custody.”\nDunaway v. New York (1979), 442 U.S. 200, a case which defendant appears to rely heavily upon, explained the rationale of the protective warnings, holding that:\n“* * * [Detention for custodial interrogation — regardless of its label — intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest. * * *” Id. at 216.\nThe facts of Dunaway are very different from those in the case before us, however, and the court in Dunaway makes clear that those facts are crucial to its decision. In Dunaway:\n“* * * Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor’s home to a police car, transported to a p",
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"url": "https://www.neochart.com/catalog/cases/ohio-app-3d/volume_23/0130_01/index.html",
"court": "Ohio Court of Appeals",
"decade": "1980s",
"start": 13309,
"end": 13469,
"text": "Dunaway v. New York (1979), 442 U.S. 200, a case which defendant appears to rely heavily upon, explained the rationale of the protective warnings, holding that:",
"context": "an illegal arrest, nor was the search of his belongings during his detention beyond the scope of the warrant issued. For the above reasons, the trial court did not err in refusing to suppress the evidence obtained from this search. The first assignment of error is overruled.\nDefendant’s second assignment of error focuses upon the statements made by defendant to the officers concerning the identification of his coat and of the cocaine found in it. He alleges that the statements were made without benefit of Miranda warnings, and were made while he was subject to unlawful arrest and interrogation. An evaluation of this claim requires analysis of exactly the level of police-citizen interaction in the facts before us.\nThe most intrusive level of interaction between the police and a defendant is that of the full-fledged “custodial interrogation.” Miranda v. Arizona (1966), 384 U.S. 436 [36 O.O.2d 237], provided that, once an individual is taken into custody, he must be given certain warnings before being subjected to police interrogation. It is clear that the defendant in the case before us was questioned by police officers, but for this questioning to be a violation of his rights, he must also show that he was in custody at the time of the questioning. In Miranda and later cases, the atmosphere and location of the questioning is critical to its custodial nature. Miranda is specifically concerned with a defendant who is “swept from familiar surroundings * * * into police custody.”\nDunaway v. New York (1979), 442 U.S. 200, a case which defendant appears to rely heavily upon, explained the rationale of the protective warnings, holding that:\n“* * * [Detention for custodial interrogation — regardless of its label — intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest. * * *” Id. at 216.\nThe facts of Dunaway are very different from those in the case before us, however, and the court in Dunaway makes clear that those facts are crucial to its decision. In Dunaway:\n“* * * Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor’s home to a police car, transported to a police station, and placed in an interrogation room. * * *” Id. at 212.\nIt is obvious that defendant, who was asked two brief questions in a friend’s home, despite being under temporary security restraint during the execution of a search warrant, was undergoing a far less intrusive and time-consuming process of interrogation than those described in Dunaway and Miran da. Indeed, the court in Miranda specifically stated that its holding was not intended to hamper the traditional function of police officers in investigating crime. The description in footnote 46, of such traditional and appropriate “on-scene questioning,” which is quoted herein, is particularly apt in light of the facts before us:\n“The distinction and its significance has been aptly described in the opinion of a Scottish court:\n“ ‘In former times such questioning, if undertaken, would be conducted by police officers visiting the house or place of business of the ",
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"url": "https://www.neochart.com/catalog/cases/f-supp-2d/volume_526/0968_01/index.html",
"court": "United States District Court for the District of Arizona",
"decade": "2000s",
"start": 8804,
"end": 9407,
"text": "If the submitted information and SSA data are consistent for noncitizens but the SSA database does not permit confirmation of work-authorization, the submitted information is next compared to the DHS’s data, usually at the U.S. Citizenship and Immigration Services (CIS). If the CIS automated match is adequate to establish work-authorization, the employee is verified immediately. If not, a CIS field office records expert checks other DHS information. If the field worker is able to verify work-authorization, the employer is typically notified within one day of case submission. (Facts, Ex. 11 at 2.)",
"context": " flow of undocumented workers into the U.S.” (Facts, Ex 22J at 3.)\nC. E-Verify\nBuilding on the 1-9 system, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, § § 401-404, 110 Stat. 3009, 3009-655 to 3009-666, directed the Attorney General to conduct three pilot programs for employment eligibility confirmation, one of which is still in operation, formerly known as the Basic Pilot and now known as E-Verify. (Facts, Ex. 8 at 1.) Originally limited to five states, it was expanded nationwide in 2004. Federal law does not mandate E-Verify participation except for some government contractors and violators of immigration laws. (Facts, Ex. 9 at 1.) E-Verify is an Internet-based system that electronically compares information submitted by the employee on Form 1-9 with the records maintained by the Social Security Administration (SSA) and the Department of Homeland Security (DHS).\nEmployers participating in E-Verify sign a Memorandum of Understanding (MOU) with SSA and DHS that sets out terms of use. (Facts, Ex. 7.) After hiring a new employee the employer queries E-Verify, which then compares the information to SSA’s primary database. If the information matches, the employer is immediately notified that the employee is verified. If the submitted information is inconsistent with SSA data, the employer is notified of a tentative nonconfirmation within three federal work days, but usually immediately. (Facts, Ex. 7, Art. II § A ¶ 4; Ex. 11 at 2.)\nIf the submitted information and SSA data are consistent for noncitizens but the SSA database does not permit confirmation of work-authorization, the submitted information is next compared to the DHS’s data, usually at the U.S. Citizenship and Immigration Services (CIS). If the CIS automated match is adequate to establish work-authorization, the employee is verified immediately. If not, a CIS field office records expert checks other DHS information. If the field worker is able to verify work-authorization, the employer is typically notified within one day of case submission. (Facts, Ex. 11 at 2.)\nWhen neither the automated SSA and DHS checks nor the check by the immigration status verifier can confirm an employee’s work status, the system issues the employer a tentative nonconfirmation. The employer must notify the employee, who has eight days to contest the finding by contacting SSA or CIS to resolve any inaccuracies in their records. (Facts, Ex. 13, App. C at C-2.) The MOU gives detailed steps to assist the employee in contesting a tentative nonconfirmation. (Facts, Ex. 7, Art. Ill § B.) The contesting process is normally limited to ten federal work days, but may be extended. No adverse action may be taken against the employee in the meantime. Employees who do not contest the tentative nonconfir-mation receive a final nonconfirmation finding. If contested, CIS informs the employer of the employee’s final work-authorization status. After ten days, employers must either immediately terminate employment or notify DHS of the continued employment of workers who have not successfully contested the tentative non-confirmation and who E-Verify has found not to be work-authorized. (Facts Ex. 7, Art. II § C ¶ 6; Ex. 10 at 7; Ex. 11 at 2-3.)\nAbout 92% of queries confirm work authorization within seconds. About 7% cannot be confirmed immediately by SSA, and about 1% cannot be confirmed immediately by DHS. Resolving the nonconfirmations can take several days, or in a few cases even weeks. (Facts, Ex. 22B at 3.)\nOther provisions are aimed at protecting privacy and preventing misu",
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"url": "https://www.neochart.com/catalog/cases/f-supp-2d/volume_526/0968_01/index.html",
"court": "United States District Court for the District of Arizona",
"decade": "2000s",
"start": 43174,
"end": 44262,
"text": "The Act allows only county attorneys to bring enforcement actions against employers for noncompliance. A.R.S. § 23-212(C). The Director has carried out his duty to send notice to Arizona employers explaining the Act’s requirements and providing instructions on how to register for E-Verify. 2007 Ariz. Sess. Laws, ch. 279 § 3. (Facts, Ex. 6.) An injunction to send a curative notice would be empty, for Plaintiffs have advice from their counsel in this litigation and need no further notice about the Act from the Director. The Act does not charge the Governor with any specific duty, and her general duty to ensure that the laws are faithfully executed is not sufficient to make her a party to this challenge. Shell Oil Co. v. Noel, 608 F.2d 208, 212-13 (1st Cir.1979). Cf. L.A. County Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir.1992) (“[A] generalized duty to enforce state law ... will not subject an official to suit.”) (citations omitted). An injunction against either of these officials would not prevent enforcement actions under the Act or otherwise diminish its coercive effect.",
"context": "Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 782, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004)). Therefore, even if Plaintiffs have sued a proper defendant, their economic injury allows them to challenge only those aspects of the Act that logically compel them to use E-Verify.\nVI. Suit Against the Governor, Attorney General, and Director Does Not Satisfy Constitutional Causation and Redressability Requirements\nA. In General a Proper Defendant Must Have Authority to Enforce the Challenged Law or Have Threatened to Do So\nThe Governor, the Attorney General, and the Director contend that they are not proper defendants to this action. Before addressing the precise question of whether Plaintiffs may properly sue them for coerced participation in E-Verify, it is helpful to understand how the principles of causation and redressability apply in suits against state officers. “It is well-established that when a plaintiff brings a pre-enforcement challenge to the constitutionality of a particular statutory provision, the causation element of standing requires the named defendants to possess authority to enforce the complained-of provision.” Bronson v. Swensen, 500 F.3d 1099, 1110 (10th Cir.2007) (citations omitted). There must be “the requisite causal connection between their responsibilities and any injury that the plaintiffs might suffer, such that relief against the defendants would provide redress.” Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 919 (9th Cir.2004) (citations omitted).\nThe Act allows only county attorneys to bring enforcement actions against employers for noncompliance. A.R.S. § 23-212(C). The Director has carried out his duty to send notice to Arizona employers explaining the Act’s requirements and providing instructions on how to register for E-Verify. 2007 Ariz. Sess. Laws, ch. 279 § 3. (Facts, Ex. 6.) An injunction to send a curative notice would be empty, for Plaintiffs have advice from their counsel in this litigation and need no further notice about the Act from the Director. The Act does not charge the Governor with any specific duty, and her general duty to ensure that the laws are faithfully executed is not sufficient to make her a party to this challenge. Shell Oil Co. v. Noel, 608 F.2d 208, 212-13 (1st Cir.1979). Cf. L.A. County Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir.1992) (“[A] generalized duty to enforce state law ... will not subject an official to suit.”) (citations omitted). An injunction against either of these officials would not prevent enforcement actions under the Act or otherwise diminish its coercive effect.\nThe Attorney General has the authority to investigate and refer complaints to county attorneys for enforcement. A.R.S. § 23-212(B), (C). No language in the Act deprives a county attorney of the normal discretion to decide whether to proceed with an enforcement action, even where the Attorney General has referred a complaint to the county attorney. Therefore, even if a county attorney directly threatened enforcement proceedings against Plaintiffs, this case would fall under the rule that “[wjhere an attorney general cannot direct, in a binding fashion, the prosecutorial activities of the officers who actually enforce the law or bring his own prosecution, he may not be a proper defendant.” Wasden, 376 F.3d at 919 (citations omitted).\nPlaintiffs would have standing to sue the Attorney General if he specifically threatened to refer a complaint against Plaintiffs to a county attorney for enforcement, or if he specifically threatened to bring enforcement proceedings himself, even though he lacks the power to do so. Culinary Workers Union v. Del Papa, 200 F.3d 614, 617-18 (9th Cir.1999) (distinguishing Southern Pacific Transportation Co. v. Brown, 651 F.2d 613 (9th Cir.1980), and Snoeck v. Brussa, 153 F.3d 984 (9th Cir.1998), where the attorneys general could not be sued because they had no authority and made no threats). The Attorney General has not, however, made any specific threat against the Plaintiffs. The court must therefore determine whether the Attorney General’s powers a",
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"review_note": "Full opinion explicitly defines the Arizona enactment; gold is not restricted to resolver same-paragraph policy."
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"review_note": "Exact session-law identity; no USC section is inferred."
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"canonical": null,
"review_note": "Nested section symbol belongs to the session-law citation; no unique hosted USC identity is established."
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"review_note": "Full opinion explicitly defines the Arizona enactment; gold is not restricted to resolver same-paragraph policy."
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"review_note": "Full opinion explicitly defines the Arizona enactment; gold is not restricted to resolver same-paragraph policy."
},
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"url": "https://www.neochart.com/catalog/cases/f-supp/volume_19/0340_01/index.html",
"court": "United States District Court for the Northern District of Texas",
"decade": "1930s",
"start": 1864,
"end": 2441,
"text": "He further alleges that his employees Cox and McLamore have expressed their intention to discontinue all activities and performances in compliance with the demand of the judge and in violation of their contract with the complainant. That if that is done, he will suffer irreparable loss and damage. He prays for a temporary restraining order and that a three-judge statutory (Judicial Code § 266, 28 U.S.C.A. § 380) court be assembled to determine whether an interlocutory injunction shall is.sufe against all of the defendants, claiming the mentioned statute unconstitutional.",
"context": "ndred First judicial district court of Texas a bill to restrain W. T. Cox, Ed McLamore, complainant, and Sportatorium, Inc., from operating or continuing the marathon, on the ground that it was a physical contest in violation of article 614b of the Vernon’s Annotated Penal Code of the state of Texas — acts of the 43d Legislature— Second Called Sess. p. 131, c. 62. Section 1 of that act (Vernon’s Ann.P.C.Tex. art. 614b, §§ 1, 8) provides, “It shall hereafter be unlawful for any person to conduct in public competition for prizes, awards or admission fees, any personal, physical or mental endurance contest that continues longer than twenty-four (24) hours.” It excepts from its provisions athletic contests by schools, colleges, or universities, as well as trial contests for the testing of the strength and capacity of materials and machinery. It makes it the duty of the Attorney General, the district and county attorneys, “Whenever [either of them] has reliable information that such a nuisance exists” (section 8), to file, in the. name of the state, in the county where the nuisance is alleged to exist, proceedings to abate and enjoin the same.\n. That in pursuance to the application of the district attorney, the judge granted restraining orders and that, thereafter, he announced that “he would hold the defendants in that action in contempt of his order and confine them in the Dallas county jail if they did not close and discontinue performances and activities at the Sportatorium.”\nHe further alleges that his employees Cox and McLamore have expressed their intention to discontinue all activities and performances in compliance with the demand of the judge and in violation of their contract with the complainant. That if that is done, he will suffer irreparable loss and damage. He prays for a temporary restraining order and that a three-judge statutory (Judicial Code § 266, 28 U.S.C.A. § 380) court be assembled to determine whether an interlocutory injunction shall is.sufe against all of the defendants, claiming the mentioned statute unconstitutional.\nUpon presentment of the bill, notice to all respondents was ordered, except the judge, to show cause why restraint should not issue as prayed.\nAn attack being made upon the constitutionality of a state statute, a statutory court is required, but a district judge is authorized to determine, before going to the expense and trouble of assembling such court, whether the relief sought could be granted.\nIt is already apparent from what has been said that the complainant seeks to stop the proceedings in the state court. If there is an insuperable impediment to such remedy, the district judge need go no further. Ex parte Hobbs, 280 U.S. 168, 50 S.Ct. 83, 74 L.Ed. 353; Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. The district judge has authority to dismiss for the want of jurisdiction when the question involved in the complaint lacks the necessary substance. Ex parte Poresky, supra; see, also, Stratton v. St. Louis Southwestern Ry. Co., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135, for full program for three-judge courts.\nThe remedy sought is the enjoining of state court officers and court, who are acting under a state statute against! the complainant here. The basis for the request is that the state statute under which the state officers are operating is unconstitutional. Even if it be conceded that that be true, no sufficient ground is furnished for the restraint. Bradford v. Hurt (C.C.A.) 84 F.(2d) 722, 724; Spielman Motor Co. v. Dodge, 295 U.S. 89, 95, 55 S.Ct. 678, 680, 79 ",
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"url": "https://www.neochart.com/catalog/cases/f-supp/volume_19/0340_01/index.html",
"court": "United States District Court for the Northern District of Texas",
"decade": "1930s",
"start": 3476,
"end": 3952,
"text": "The remedy sought is the enjoining of state court officers and court, who are acting under a state statute against! the complainant here. The basis for the request is that the state statute under which the state officers are operating is unconstitutional. Even if it be conceded that that be true, no sufficient ground is furnished for the restraint. Bradford v. Hurt (C.C.A.) 84 F.(2d) 722, 724; Spielman Motor Co. v. Dodge, 295 U.S. 89, 95, 55 S.Ct. 678, 680, 79 L.Ed. 1322.",
"context": "ies and performances in compliance with the demand of the judge and in violation of their contract with the complainant. That if that is done, he will suffer irreparable loss and damage. He prays for a temporary restraining order and that a three-judge statutory (Judicial Code § 266, 28 U.S.C.A. § 380) court be assembled to determine whether an interlocutory injunction shall is.sufe against all of the defendants, claiming the mentioned statute unconstitutional.\nUpon presentment of the bill, notice to all respondents was ordered, except the judge, to show cause why restraint should not issue as prayed.\nAn attack being made upon the constitutionality of a state statute, a statutory court is required, but a district judge is authorized to determine, before going to the expense and trouble of assembling such court, whether the relief sought could be granted.\nIt is already apparent from what has been said that the complainant seeks to stop the proceedings in the state court. If there is an insuperable impediment to such remedy, the district judge need go no further. Ex parte Hobbs, 280 U.S. 168, 50 S.Ct. 83, 74 L.Ed. 353; Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. The district judge has authority to dismiss for the want of jurisdiction when the question involved in the complaint lacks the necessary substance. Ex parte Poresky, supra; see, also, Stratton v. St. Louis Southwestern Ry. Co., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135, for full program for three-judge courts.\nThe remedy sought is the enjoining of state court officers and court, who are acting under a state statute against! the complainant here. The basis for the request is that the state statute under which the state officers are operating is unconstitutional. Even if it be conceded that that be true, no sufficient ground is furnished for the restraint. Bradford v. Hurt (C.C.A.) 84 F.(2d) 722, 724; Spielman Motor Co. v. Dodge, 295 U.S. 89, 95, 55 S.Ct. 678, 680, 79 L.Ed. 1322.\nThe national court may enjoin local peace officers from enforcing an illegal statute and making unfounded arrests or destroying property, when the acts are so exceptional and clear that it is necessary to afford adequate protection of constitutional rights. Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Packard v. Banton, 264 U.S. 140, 44 S.Ct. 257, 68 L.Ed. 596; Tyson & Bro. United Offices v. Banton, 273 U.S. 418, 47 S.Ct. 426, 71 L.Ed. 718, 58 A.L.R. 1236; Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146.\nUnless this danger of irreparable loss is both great and immediate, the accused should set up his defense -in the state court. By doing this, he has the opportunity for ultimate review in the Supreme Court of the nation. Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927; Essman v. Hood (D.C.) 45 F.(2d) 881.\nAgain, section 265 of the Judicial Code, section 379, title 28 U.S.C.A., denies the right to stay a state court except in cases where injunction is authorized in bankruptcy proceedings. Frequently attention has been called to the fact that this is a crystallization of the doctrine of comity that prevents unseemly conflict between courts of the two jurisdictions. It does not deprive the national court of the right to protect its own jurisdiction, nor to inquire when there is no jurisdiction in the state court, nor to undo a final decree there which has been secured by fraud. Equity has a long arm, but a careful one. The Code se",
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"url": "https://www.neochart.com/catalog/cases/so3d/volume_198/1147_01/index.html",
"court": "Florida District Court of Appeal",
"decade": "2010s",
"start": 42,
"end": 53,
"text": "PER CURIAM.",
"context": "\nON REMAND FROM THE FLORIDA SUPREME COURT\nPER CURIAM.\nOur original opinion in this case reversed appellant’s convictions for attempted second-degree murder and shooting at, within, .or into an occupied vehicle based on this court’s decision in Floyd v. State, 151. So.3d 452 (Fla. 1st DCA 2014) (Floyd /). The Florida Supreme Court quashed Floyd I in State v. Floyd, 186 So.3d 1013 (Fla.2016) (Floyd II), and also quashed our original opinion in this case and remanded “for reconsideration upon the application of [the] decision in [Floyd II ].”\nApplying Floyd II, we find that the jury instructions in this case on the duty to retreat were not fundamentally erroneous. Moreover, we find that the remaining issues raised by appellant are without merit. As such, we affirm appellant’s judgment and sentence.\nAFFIRMED.\nWOLF, ROWE, and OSTERHAUS, JJ., concur.\n",
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"url": "https://www.neochart.com/catalog/cases/so3d/volume_198/1147_01/index.html",
"court": "Florida District Court of Appeal",
"decade": "2010s",
"start": 807,
"end": 816,
"text": "AFFIRMED.",
"context": "\nON REMAND FROM THE FLORIDA SUPREME COURT\nPER CURIAM.\nOur original opinion in this case reversed appellant’s convictions for attempted second-degree murder and shooting at, within, .or into an occupied vehicle based on this court’s decision in Floyd v. State, 151. So.3d 452 (Fla. 1st DCA 2014) (Floyd /). The Florida Supreme Court quashed Floyd I in State v. Floyd, 186 So.3d 1013 (Fla.2016) (Floyd II), and also quashed our original opinion in this case and remanded “for reconsideration upon the application of [the] decision in [Floyd II ].”\nApplying Floyd II, we find that the jury instructions in this case on the duty to retreat were not fundamentally erroneous. Moreover, we find that the remaining issues raised by appellant are without merit. As such, we affirm appellant’s judgment and sentence.\nAFFIRMED.\nWOLF, ROWE, and OSTERHAUS, JJ., concur.\n",
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{
"url": "https://www.neochart.com/catalog/cases/f3d/volume_688/0751_01/index.html",
"court": "United States Court of Appeals for the Federal Circuit",
"decade": "2010s",
"start": 12975,
"end": 13710,
"text": "In September of 2008, Commerce formally adopted the methodology set forth in the preliminary results. Final Results; Final Results Memo. In doing so, Commerce rejected Avisma’s assertion that magnesium should be treated as a byproduct of the titanium process. Final Results Memo at 5-10. Commerce also rejected Avisma’s contention that the NRV of chlorine should be based upon the sale price of titanium products, stating that “it is illogical to create a value for chlorine using an NRV method that -does not result in a value that reflects a real world-market price of chlorine.... ” Id. at 13-16. On the basis of its constructed value methodology, Commerce imposed an antidumping margin of 15.77 percent on Avisma’s magnesium metal.",
"context": "he Preliminary Results failed to “incorporate] the economic reality of AVISMA’s entire production facility.” Id. at 11. Importantly, Avisma’s approach resulted in a lower constructed value for magnesium and thus a lower antidumping margin because its approach increased the NRV of chlorine and thus reduced the amount of costs allocated to magnesium through OPU-2.\nAvisma and U.S. Magnesium each submitted case briefs addressing changes they believed should be made in the preliminary results. Avisma I, 2009 WL 3423021, at *2. Commerce, however, rejected Avisma’s first brief and a portion of its second on the ground that both contained new factual information in the form of the attached Foster Affidavit, in which Dr. Foster advocated Avisma’s approach for determining constructed value. Commerce took the position that because the affidavit constituted an expert opinion submitted to provide further evidentiary support for Avisma’s arguments, it was new factual information and was therefore untimely pursuant to 19 C.F.R. § 351.301(b)(2). Under that regulation, the deadline for the submission of factual information is 140 days after the last day of the anniversary month of the publication of the Antidumping Order. In this case, the deadline for the submission of factual information was September 17, 2007. Avisma did not submit the Foster Affidavit until June 11, 2008, however. Letter from Laurie Parkhill, Dep’t of Commerce, to John M. Gurley (June 20, 2008) at 1 (“Parkhill Letter ”).\nIn September of 2008, Commerce formally adopted the methodology set forth in the preliminary results. Final Results; Final Results Memo. In doing so, Commerce rejected Avisma’s assertion that magnesium should be treated as a byproduct of the titanium process. Final Results Memo at 5-10. Commerce also rejected Avisma’s contention that the NRV of chlorine should be based upon the sale price of titanium products, stating that “it is illogical to create a value for chlorine using an NRV method that -does not result in a value that reflects a real world-market price of chlorine.... ” Id. at 13-16. On the basis of its constructed value methodology, Commerce imposed an antidumping margin of 15.77 percent on Avisma’s magnesium metal.\nIV.\nAvisma appealed Commerce’s determination to the Trade Court. Avisma I, 2009 WL 3423021. Thereafter, in due course, Avisma and U.S. Magnesium each moved for judgment on the agency record. Addressing the motions, the court turned first to the issue of the Foster Affidavit. The court noted that “[l]ong-established principles of administrative law imbue agencies with ample discretion to craft their own rules and procedures, including the authority to establish and enforce time limits concerning the submission of written information and data.” Id. at *5 (internal quotations omitted). Next, the court held that the Foster Affidavit “unambiguously” fell into the category of factual information. Id. at *6. The court found, however, that the circumstances of the case were not typical because the question of constructed value in the case presented an issue of first impression, and because a leading accounting expert (Dr. Foster) deemed Commerce’s approach inappropriate. Id. Based on these circumstances and “the mandate for accuracy in antidumping determinations,” the Trade Court remanded the case for further proceedings with the instructions that Commerce admit and consider the Foster Affidavit. Id. The court reserved for future proceedings the question of whether Commerce’s or Avis-ma’s methodology was proper. Id. at *6-*7.\nPursuant to the Trade Court’s order, Commerce undertook a redetermination in light of the Foster Affidavit, submitting the results in the First Remand Determin",
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"review_note": "Id. refers to the administrative Final Results Memo, not a deterministically identified case."
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{
"url": "https://www.neochart.com/catalog/cases/f3d/volume_688/0751_01/index.html",
"court": "United States Court of Appeals for the Federal Circuit",
"decade": "2010s",
"start": 18733,
"end": 18736,
"text": "II.",
"context": "1.1, should form the basis for Commerce’s calculations. Id. at 8-12.\nBoth Avisma and U.S. Magnesium appealed aspects of the Second Remand Determination. Avisma III, 2011 WL 769998. Avisma appealed Commerce’s determination that COP-1.2 was the proper cost database, while U.S. Magnesium sought reconsideration of the legal conclusions in Avisma II. Id. at *1. Despite the parties’ arguments, the Trade Court sustained the Second Remand Determination. Id. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).\nDiscussion\nI.\n“In reviewing a decision by the Court of International Trade, this court applies anew the statutory standard of review applied by that court to the agency’s decision.” Thai Pineapple Pub. Co. v. United States, 187 F.3d 1362, 1365 (Fed. Cir.1999) (citing PPG Indus., Inc. v. United States, 978 F.2d 1232, 1236 (Fed.Cir.1992)). “In doing so, we uphold Commerce’s determination unless it is ‘unsupported by substantial evidence on the record, or otherwise not in accordance with law.’ ” Micron Tech., Inc. v. United States, 117 F.3d 1386, 1393 (Fed.Cir.1997) (quoting 19 U.S.C. § 1516a(b)(1)(B)(i)).\nUS Magnesium appeals to this court on the grounds that the Foster Affidavit was properly excluded and that the Final Results were in accordance with law. Avis-ma cross-appeals on the ground that Commerce’s reliance on the COP-1.2 database was improper. Commerce urges affirmance of Avisma III. We begin our analysis with the issue of the Foster Affidavit.\nII.\nA.\nUS Magnesium contends that the Trade Court erred first in requiring Commerce to admit and consider the Foster Affidavit. It argues that, pursuant to 19 C.F.R. § 351.102(b)(21), the affidavit constituted new factual information, a conclusion with which the Trade Court agreed. Def.’s Reply Br. at 20. Because the record was closed to new factual information at the time the Foster Affidavit was submitted, U.S. Magnesium claims that Commerce was within its discretion in rejecting it. Def.’s Br. at 33-34. US Magnesium states that none of the grounds identified by the Trade Court merited reversing Commerce’s discretion to enforce its deadlines. Id. at 34-35.\nAvisma responds by arguing that Commerce’s exclusion of the Foster Affidavit was improper. Avisma contends that the affidavit was not new factual information, but simply corroboration of claims and data previously submitted. Pis.’ Br. at 26-28. Alternatively, Avisma argues that the Trade Court did not err in requiring Commerce to consider the affidavit because the matter before Commerce was one of first impression that would have significant impact on future antidumping determinations. Id. at 22-23. Lastly, Avisma contends that it submitted the Foster Affidavit when it first learned that Commerce had decided to use an accounting methodology different from the one Avis-ma had proposed and that therefore refusal to accept the affidavit constituted a denial of due process. Id. at 26-29.\nB.\nWe start from the premise that, “[ajbs",
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{
"url": "https://www.neochart.com/catalog/cases/f-supp/volume_353/1235_01/index.html",
"court": "United States District Court for the District of Columbia",
"decade": "1970s",
"start": 9860,
"end": 10012,
"text": "Immediately after this case was remanded to this Court on November 28, 1972, the various defendants filed motions to dismiss for lack of a speedy trial.",
"context": "ppellate Sections.\nAny delay in the Trial and Appellate Courts is fairly attributable to an overcrowded calendar.\nBut in Barker v. Wingo, supra, the Supreme Court said that in weighing delay in trial, overcrowded Courts should be weighed less heavily (than Government’s deliberate attempt to delay) “but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.” The same reasoning applies to a shortage of personnel in the United States Attorney’s Office.\nThe delay of one month attributable to defendants is minimal.\nTo attempt to apportion the blame for delay between the Appellate Court, the Trial Court and the United States Attorney’s Office is footless. In a 3-year delay in trial there is ample blame to share between the three of them.\nThis Court is not prepared to draw a hard and fast line as to just where shortages in United States Attorney personnel and overcrowded dockets cease to be a justification for delay, but the Court does hold that it falls short of 3 years in a street-type crime.\n3. DEFENDANTS’ ASSERTION OF THEIR RIGHTS\nFirst assertion by a defendant of his rigth to a speedy trial came on January 11, 1971, when defendant Jackson filed in the District Court a Motion to Strike Notice of Appeal and to Resume Trial. A similar motion was filed in the Court of Appeals on May 12, 1971. On May 5, 1972, defendants opposed further extensions of time to file petition for rehearing.\nImmediately after this case was remanded to this Court on November 28, 1972, the various defendants filed motions to dismiss for lack of a speedy trial.\nIn Barker v. Wingo, supra, the Supreme Court discussed at length the question of a defendant’s assertion, of his right to a speedy trial and his waiver of the right. The Supreme Court rejected the demand-waiver doctrine which would provide that a defendant waives any consideration of his right to speedy trial for any period to which he has not demanded a trial. In this connection the Supreme Court said:\n“A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, for the reasons earlier expressed, society has a particular interest in bringing swift prosecutions and society’s representatives are the ones who should protect that interest.”\nThe Supreme Court, while placing the duty for a speedy trial on the Government, recognized that if delay is attributable to the defendant, then his waiver may be given effect under the standard waiver doctrine, the demand rule aside.\nThe only delay in this case which can be attributed to any of the defendants is the period from May 25, 1971, to July 28, 1971, a period of a little over 2 months, when their briefs were filed. The time limit for the filing of their briefs was 30 days and they required a little over 60. This delay on defendant’s part of slightly over a month is inconsequential when compared with the whole 3-year delay.\nUnder the rulings of the Supreme Court and of the United States Court of Appeals for the District of Columbia",
"weight": 311.5,
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{
"url": "https://www.neochart.com/catalog/cases/f-supp/volume_353/1235_01/index.html",
"court": "United States District Court for the District of Columbia",
"decade": "1970s",
"start": 2781,
"end": 2892,
"text": "October 20, 1972 Judgment vacating Judgment of February 10, 1972, and remanding case for further consideration.",
"context": "denied. Motion to Suppress identification of Middleton granted.\nNovember 23, 1970 Trial date set December 1,1970\nDecember 1, 1970 Trial date continued when Government announced it would take interlocutory appeal from ruling on Middleton.\nDecember 2, 1970 Order Suppressing all testimony by the witness Carlin P. Middleton signed.\nJanuary 4, 1971 Government filed Notice of Appeal.\nFebruary 12, 1970 Record received in Court of Appeals.\nMarch 16, 1971 Government’s Motion to Extend Time to File Brief (granted).\nApril 13, 1971 Government’s Motion to Extend Time to File Brief (granted).\nMay 11, 1971 Government’s Motion for Leave to File Brief, Time Having Expired (granted).\nMay 12,1971 Defendant Jackson filed Motion to Dismiss Appeal (denied).\nMay 25, 1971 Government’s Brief filed.\nJuly 1-28, 1971 Various briefs for defendants filed.\nSeptember 17, 1971 Government’s Motion for Leave to File Appendix, Time Having Expired (granted).\nOctober 26, 1971 Government’s Motion for Leave to File Reply Brief, Time Having Expired (granted).\nFebruary 10, 1972 Judgment of Court of Appeals, affirming Judgment of District Court (no opinion).\nFebruary 24, 1972 Government’s Motion to Extend Time for Filing Petition for Re-Hearing (granted).\nMarch 29, 1972 Government’s Motion to Extend Time for Filing Petition for Re-Hearing, Time Having Expired (granted).\nApril 5, 1972 Defendants’ Opposition to Extension of Time to File Petition for Re-Hearing.\nApril 12, 1972 Government’s Petition for Re-Hearing Filed.\nOctober 20, 1972 Judgment vacating Judgment of February 10, 1972, and remanding case for further consideration.\nNovember 28, 1972 Certified copy of Judgment to District Court.\nIn the case of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court identifies four factors which the Court should assess in determining whether a defendant has been deprived of his right to a speedy trial under the Sixth Amendment of the Constitution. These factors are:\n1. Length of delay.\n2. Reasons for delay.\n3. Defendant’s assertion of his right.\n4. Prejudice to the defendant.\nWe will consider then the factors laid down by the Supreme Court as they apply to the ease at bar.\n1. LENGTH OF DELAY\nThe beginning of the period of delay is triggered by either arrest or indictment, whichever is first in point of time. In the ease at bar we are dealing with six defendants. Various factors to be considered will vary to some extent with each defendant but since it is not deemed to be either practical or in the interest of justice to consider each defendant individually throughout each step of this opinion and, since generally the factors applicable to each will be applicable to all, they will be considered as a unit.\nThe first arrest occurred in this case on January 29, 1970. Other arrests followed until Febuary 11, 1970. The indictment was returned May 12, 1970.\nThe delay to date from arrests is just short of 3 years. Further, immediate trial at this time is not possible. Extensive discovery by way of interrogatories and depositions will be required under the mandate of the Court of Ap",
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"url": "https://www.neochart.com/catalog/cases/f2d/volume_810/0795_01/index.html",
"court": "United States Court of Appeals for the Eighth Circuit",
"decade": "1980s",
"start": 46049,
"end": 46509,
"text": ". Hartz contends that its actions were justified because GI was not treating it on an equal footing with other distributors in that GI was paying all other distributors but Hartz within thirty days. GI, however, notes in its brief that Hartz could not have been motivated by this information in 1977 and 1978 because it did not know the details of GI’s payment record with other suppliers until three years after the fact, during discovery for this litigation.",
"context": "he basis for antitrust compensation unless the injury is directly related to the harm the antitrust laws were designed to protect.” Id. at 1374.\nUnlike GI, RDN did not buy and sell pet products but instead earned commissions by promoting direct sales to retailers of certain products which Hartz marketed only through brokers. RDN also served as a broker for GI itself. Although the Neib-ergers owned both GI and RDN, it is not claimed nor was there any evidence at trial to show that GI had any financial interest in RDN. Under the facts of this case, even if RDN’s injury was a necessary step for the defendant to take in achieving the overall suppression of the market, cf. McDonald, 722 F.2d at 1377, RDN was not a consumer of goods or services subject to restraint or an injured competitor of Hartz, the party engaging in the claimed restraint. Since there was no evidence in the record from which a jury could reasonably infer that any market injury or consumer injury flowed from RDN’s termination as a broker of Hartz products, the district court correctly granted Hartz’s motion for judgment notwithstanding the verdict.\nFor the reasons set forth above, the judgment of the district court is affirmed.\n. This area included Minnesota, western Wisconsin, northern Iowa, and eastern North and South Dakota.\n. The record and the parties’ briefs differ as to the spelling of this brand name, variously using \"4-Pet\", “4-Pets\", and “Four Pets.” For purposes of this opinion, we will use “4-Pets.”\n. Hartz contends that its actions were justified because GI was not treating it on an equal footing with other distributors in that GI was paying all other distributors but Hartz within thirty days. GI, however, notes in its brief that Hartz could not have been motivated by this information in 1977 and 1978 because it did not know the details of GI’s payment record with other suppliers until three years after the fact, during discovery for this litigation.\n. Hartz did counter this evidence with testimony that an accountant had determined that a portion of the “lost\" orders were in fact can-celled by GI employees. However, other testimony, including that of Target executives, supported GI’s contention that during this time GI was unable to obtain adequate supplies of many Hartz products.\n. The district court correctly granted GI leave to file its amended complaint, holding that GI’s covenant not to sue Hartz, which grew out of an earlier antitrust action against GI and Hartz, does not preclude GI’s present suit. The covenant not to sue was executed in April, 1976, after Hartz and GI were sued by another Hartz distributor. Although an earlier version of this suit was dismissed based on the covenant not to sue, that dismissal related only to GI’s promise not to sue for acts occurring before June 15, 1977. The present suit arises out of GI's amendment of its complaint and focuses on events occurring after June, 1977.\n. The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota, presiding.\n. \"An attempt charge properly lies against conduct (1) which is totally unrelated to competition on the merits — that is, lacking any plausible claim to redeeming virtue; (2) which clearly implies the presence or prospect of some degree of durable market power — as, for example, conduct not likely to be rationally undertaken by a firm without such power or the hope of attaining it through the challenged conduct; an",
"weight": 176.0,
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{
"url": "https://www.neochart.com/catalog/cases/f2d/volume_810/0795_01/index.html",
"court": "United States Court of Appeals for the Eighth Circuit",
"decade": "1980s",
"start": 47486,
"end": 47590,
"text": ". The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota, presiding.",
"context": "our Pets.” For purposes of this opinion, we will use “4-Pets.”\n. Hartz contends that its actions were justified because GI was not treating it on an equal footing with other distributors in that GI was paying all other distributors but Hartz within thirty days. GI, however, notes in its brief that Hartz could not have been motivated by this information in 1977 and 1978 because it did not know the details of GI’s payment record with other suppliers until three years after the fact, during discovery for this litigation.\n. Hartz did counter this evidence with testimony that an accountant had determined that a portion of the “lost\" orders were in fact can-celled by GI employees. However, other testimony, including that of Target executives, supported GI’s contention that during this time GI was unable to obtain adequate supplies of many Hartz products.\n. The district court correctly granted GI leave to file its amended complaint, holding that GI’s covenant not to sue Hartz, which grew out of an earlier antitrust action against GI and Hartz, does not preclude GI’s present suit. The covenant not to sue was executed in April, 1976, after Hartz and GI were sued by another Hartz distributor. Although an earlier version of this suit was dismissed based on the covenant not to sue, that dismissal related only to GI’s promise not to sue for acts occurring before June 15, 1977. The present suit arises out of GI's amendment of its complaint and focuses on events occurring after June, 1977.\n. The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota, presiding.\n. \"An attempt charge properly lies against conduct (1) which is totally unrelated to competition on the merits — that is, lacking any plausible claim to redeeming virtue; (2) which clearly implies the presence or prospect of some degree of durable market power — as, for example, conduct not likely to be rationally undertaken by a firm without such power or the hope of attaining it through the challenged conduct; and (3) which has potentially significant exclusionary effects in the generality of cases — in that there is a clear and direct causal connection between the conduct and the power.” P. Areeda & D. Turner, Antitrust Law 1f 820 at 313 (1978).\n. We also find it relevant, although not conclusive, that the FTC in its consent decree with Hartz, which was admitted at trial for limited purposes, used the phrase \"pet supplies\" to describe the market in which Hartz competed.\n. Because we affirm the jury’s verdict on GI’s § 2 claim on the basis of attempted monopolization, we need not also review the evidence supporting the jury’s finding of actual monopolization here. See, e.g., Woods Exploration & Producing Co. v. Aluminum Co. of America, 438 F.2d 1286, 1304 (5th Cir.1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972).\n. The limiting instruction given to the jury more than once during the course of trial read:\nNow, ladies and gentlemen of the jury, you are going to hear evidence of a consent decree entered into by Hartz Mountain and the FTC. The consent de",
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"url": "https://www.neochart.com/catalog/cases/f-supp/volume_811/0164_01/index.html",
"court": "United States District Court for the District of Delaware",
"decade": "1990s",
"start": 21085,
"end": 21661,
"text": "The Court’s determination that the stop of the black Camaro exceeded the scope of a limited Terry stop does not end the inquiry. The Court must consider whether the police, nonetheless, possessed the requisite probable cause to seize Lamp-kins and to search the black Camaro. For the reasons stated more fully below the Court holds that the police possessed the requisite probable cause to seize Lampkins and to search the black Camaro. Since the Court holds that probable cause existed the Court need not consider whether Lampkins consented to the search of the black Camaro.",
"context": "ufficient for the resolution of the case sub judice that defendant Lampkins was seized for the purposes of the Fourth Amendment when the police cornered him at the gas station, drew their weapons, and removed him from the black Camaro. At that point the seizure was no longer a limited Terry and Prouse type stop. In order to be constitutionally valid that seizure required probable cause. A seizure of an individual requires probable cause under the Fourth Amendment when “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he' was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). In the case sub judice, any reasonable person when surrounded by between five and ten police officers, with their weapons fixed on him, would not feel free to leave. The fact that the police did not formally arrest Lampkins until after the search of the black Camaro is irrelevant to the inquiry. “The application of the Fourth Amendment requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an ‘arrest’ under state law ... Indeed, any ‘exception’ [to the probable cause requirement] that could cover a seizure as intrusive as this case would threaten to swallow the general rule that Fourth Amendment seizures are ‘reasonable’ only if based upon probable cause.” Dunaway v. New York, 442 U.S. 200, 212-13, 99 S.Ct. 2248, 2256-57, 60 L.Ed.2d 824 (1979).\nThe Court’s determination that the stop of the black Camaro exceeded the scope of a limited Terry stop does not end the inquiry. The Court must consider whether the police, nonetheless, possessed the requisite probable cause to seize Lamp-kins and to search the black Camaro. For the reasons stated more fully below the Court holds that the police possessed the requisite probable cause to seize Lampkins and to search the black Camaro. Since the Court holds that probable cause existed the Court need not consider whether Lampkins consented to the search of the black Camaro.\nProbable cause, like the standard for a Terry stop, is a fluid concept dependent upon the attending facts and circumstances of a given case. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court per then Justice Rehnquist held that in determining whether an informant’s tip establishes probable cause courts should consider the totality of the circumstances. Id. at 230, 103 S.Ct. at 2328. Among the factors to be considered under the totality of the circumstances test are: (1) the veracity of the informant; (2) the reliability of the informant; (3) the informant’s basis of knowledge; (4) the extent of any independent verification of the informant’s tip; (5) the quantity and quality of the information given to the police by the informant; (6) the quantity and quality of independent information possessed by the police. Id.; see also Alabama v. White, 496 U.S. 325, 328-32, 110 S.Ct. 2412, 2415-17, 110 L.Ed.2d 301 (1990); United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981). Although these factors do not constitute an exhaustive list, they are nonetheless salient and especially relevant in determining the existence of probable cause.\nApplying the totality of the circumstances test to the case sub judice, the Court concludes that the police had probable cause to seize Lampkins and to search the black Camaro. The veracity and reliability of the complainant’s tip is established by virtue of the fact the complainan",
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"url": "https://www.neochart.com/catalog/cases/f-supp/volume_811/0164_01/index.html",
"court": "United States District Court for the District of Delaware",
"decade": "1990s",
"start": 11372,
"end": 12813,
"text": "Id. As the foregoing passage from Prouse makes clear, an individual’s right to be free from unreasonable governmental stops and detentions in his automobile travel is distinct from his right to contest an unreasonable search of his automobile. Governmental stops of' the driver of the vehicle constitute a seizure of the person under the Fourth Amendment. An individual has standing to object to the seizure because he has a legitimate expectation of privacy in his person. By contrast, governmental searches of an automobile constitute a search of property. An individual only has standing to contest a search of property when he has a legitimate expectation of privacy in the property searched. Under established Supreme Court precedent an individual has a legitimate expectation of privacy in the property searched only when he is in rightful possession of it. Rakas v. Illinois, 439 U.S. at 141 n. 9, 99 S.Ct. at 429 n. 9. Therefore, Lampkins’ standing to contest the stop exists independent of whether or not he possesses standing to contest the search of the vehicle. If the Court finds that the stop of the black Cámaro constitutes an unconstitutional seizure, then the fruits of that seizure, to wit the .38 caliber Amedio Rossi revolver, are excluded under the exclusionary rule. See generally Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).",
"context": "er Memorandum”), D.I. 17 at 5-11. Even assuming arguendo that Lampkins lacks standing to contest the search of the black Camaro, that does not preclude him from challenging the stop of the black Camaro. The test promulgated by the United States Supreme Court in Rakas v. Illinois for determining whether an individual possesses standing to contest a search or seizure is whether that person “has a legitimate expectation of privacy in the invaded place.” 439 U.S. at 143, 99 S.Ct. at 430. In the subsequent case of Delaware v. Prouse, 440 U.S. 648, 662-63, 99 S.Ct. 1391, 1400-01, 59 L.Ed.2d 660 (1979), the Supreme Court held that persons have a legitimate expectation of privacy when traveling in automobiles. The Court stated:\nAn individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to governmental regulation. 'Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed.\nId. As the foregoing passage from Prouse makes clear, an individual’s right to be free from unreasonable governmental stops and detentions in his automobile travel is distinct from his right to contest an unreasonable search of his automobile. Governmental stops of' the driver of the vehicle constitute a seizure of the person under the Fourth Amendment. An individual has standing to object to the seizure because he has a legitimate expectation of privacy in his person. By contrast, governmental searches of an automobile constitute a search of property. An individual only has standing to contest a search of property when he has a legitimate expectation of privacy in the property searched. Under established Supreme Court precedent an individual has a legitimate expectation of privacy in the property searched only when he is in rightful possession of it. Rakas v. Illinois, 439 U.S. at 141 n. 9, 99 S.Ct. at 429 n. 9. Therefore, Lampkins’ standing to contest the stop exists independent of whether or not he possesses standing to contest the search of the vehicle. If the Court finds that the stop of the black Cámaro constitutes an unconstitutional seizure, then the fruits of that seizure, to wit the .38 caliber Amedio Rossi revolver, are excluded under the exclusionary rule. See generally Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).\nSecond, the record does not support the government’s contention that Lampkins lacks standing to challenge the search of the black Camaro. There is no evidence in the record to suggest that Lampkins stole or was in wrongful possession of the black Camaro that was the subject of the police search. Lampkins testified at the suppression hearing that the black Camaro belonged to Ronnie Mathis who had entrusted the car to him with instructions to repair the clutch rod. Trans., D.I. 15 at 77-78. The United States did not offer any evidence to contradict Lampkins’ testimony, and there is no evidence in the record that the black Camaro was reported stolen. Furthermore, Patrolman Rhoades’ testimony that Officer Craig Mayo radioed him and informed him that Acay Lampkins had driven the black Camaro in the past, is also further evidence that Lampkins was in rightful possession of the car. See Trans., D.I. 15, at 62. Although Lampkins testified that he was not given permission to drive the car, Id. at 77, this alone is not a sufficient basis upon which to conclude that Lampkins did not possess a legitimate expectation of privacy in the automobile. The Court is not prepared to extend the Supreme Court’s decision in Rakas to deny standing to an agent who exceeds the scope of his agency and engages in a frolic. For it cannot be said that an agent loses his legitimate expectation of privacy in the automobile merely because the agent exceeds the scope of his agency in his use of the automobile",
"weight": 66.0,
"events": [
{
"start": 11372,
"end": 11375,
"pattern": "case_id",
"canonical": "440 U.S. 648",
"review_note": "Root verified parallel Prouse citations in full source: 440 US648,99SCt1391,59LEd2d660; equivalent keys accepted.",
"alternatives": [
"59 L. Ed. 2d 660",
"99 S. Ct. 1391"
]
},
{
"start": 11406,
"end": 11412,
"quote": "Prouse",
"pattern": "case_short",
"canonical": "440 U.S. 648",
"review_note": "Root verified parallel Prouse citations in full source: 440 US648,99SCt1391,59LEd2d660; equivalent keys accepted.",
"alternatives": [
"59 L. Ed. 2d 660",
"99 S. Ct. 1391"
]
},
{
"start": 12255,
"end": 12275,
"pattern": "case_short",
"canonical": "439 U.S. 128",
"review_note": "Root full-source inspection found Rakas v Illinois, 439 U.S.128 earlier in this opinion."
},
{
"start": 12277,
"end": 12297,
"pattern": "case_short",
"canonical": "99 S. Ct. 421",
"review_note": "Root full-source inspection found parallel Rakas citation 99 S.Ct.421 earlier in opinion."
}
]
},
{
"url": "https://www.neochart.com/catalog/cases/ohio-st/volume_101/0019_01/index.html",
"court": "Supreme Court of Ohio",
"decade": "1920s",
"start": 2736,
"end": 2754,
"text": "Judgment affirmed.",
"context": "e court of appeals on this question in conflict was that it had been resolved by the trial court in favor of the plaintiff below, and the court held that the evidence upon that question was sufficient to support the judgment. The record also discloses that the plaintiff in error, in anticipation of erecting an extension to his own building, and in pursuance of his desire to make use of the wall in question for the support thereof, directed those engaged in the erection of said wall to leave joist holes, which was done.\nUnder such state of facts the claim of the plaintiff below cannot be defeated upon the ground that the agreement under which such wall was erected is within the statute of frauds and therefore invalid. If the plaintiff and defendant had entered into a contract jointly with a third person to erect a wall upon the line, for whatsoever purpose it might have been desired or contemplated to be used, there could be no question as to the right of such third party to recover the consideration agreed upon for the construction of such wall. There is no less valid obligation upon the part of the plaintiff in error to pay the defendant in error the half of the cost of the construction of such wall, assuming that it has been established by the evidence that such contract was made, which must be conceded, for that question of fact has been determined in favor of the defendant in error and adversely to the plaintiff in error.\nThe judgment of the court of appeals is affirmed.\nJudgment affirmed.\nJones, Matthias, Johnson and Robinson, JJ., concur.\nMerrell, J., not participating.\n",
"weight": 40.5,
"events": []
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{
"url": "https://www.neochart.com/catalog/cases/ohio-st/volume_101/0019_01/index.html",
"court": "Supreme Court of Ohio",
"decade": "1920s",
"start": 2755,
"end": 2806,
"text": "Jones, Matthias, Johnson and Robinson, JJ., concur.",
"context": "on this question in conflict was that it had been resolved by the trial court in favor of the plaintiff below, and the court held that the evidence upon that question was sufficient to support the judgment. The record also discloses that the plaintiff in error, in anticipation of erecting an extension to his own building, and in pursuance of his desire to make use of the wall in question for the support thereof, directed those engaged in the erection of said wall to leave joist holes, which was done.\nUnder such state of facts the claim of the plaintiff below cannot be defeated upon the ground that the agreement under which such wall was erected is within the statute of frauds and therefore invalid. If the plaintiff and defendant had entered into a contract jointly with a third person to erect a wall upon the line, for whatsoever purpose it might have been desired or contemplated to be used, there could be no question as to the right of such third party to recover the consideration agreed upon for the construction of such wall. There is no less valid obligation upon the part of the plaintiff in error to pay the defendant in error the half of the cost of the construction of such wall, assuming that it has been established by the evidence that such contract was made, which must be conceded, for that question of fact has been determined in favor of the defendant in error and adversely to the plaintiff in error.\nThe judgment of the court of appeals is affirmed.\nJudgment affirmed.\nJones, Matthias, Johnson and Robinson, JJ., concur.\nMerrell, J., not participating.\n",
"weight": 40.5,
"events": []
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{
"url": "https://www.neochart.com/catalog/cases/sw3d/volume_259/0860_01/index.html",
"court": "Texas Courts of Appeals",
"decade": "2000s",
"start": 22385,
"end": 24511,
"text": "Regarding the causal relationship between Dr. Ivey’s and the nursing staffs breach of the standards of care and Railsback’s injury, Dr. Ghadially’s report had to “explain the bases of the statements and link his . .•. conclusions to the facts” by showing “causation beyond mere conjecture.” Longino v. Crosswhite, 183 S.W.3d 913, 918 (Tex.App.-Texarkana 2006, no pet.). Dr. Ghadially’s report only had to provide a “fair summary” of his expert opinion. See Tex. Civ. Prac. & Rem.Code Ann. 74.351(Ɩ), (r)(6). Although not ideally included under proximate causation in his report, Dr. Ghadially references medical records which state that, at some point before or after the surgery, Dr. Ivey discussed with Railsback the possibility of “neurovascular damage during her surgery and possible damage when the tourniquet was put in place.” Dr. Ghadially also references Dr. Christopher Wey’s post-operative medical records which revealed that Railsback suffered a “partial sciatic nerve palsy on the left related to surgery.” Dr. Ghadially further references Dr. Chad S. Conner’s and Dr. Ivey’s postoperative medical records, which stated that Railsback suffered “tibial and pero-neal nerve neuropathy.” Dr. Ghadially additionally references the nursing staffs notes, which opined, “R foot numb.” Dr. Ghadially links his conclusion regarding Dr. Ivey’s and the nursing staffs alleged breach of the standards of care with his conclusion that Railsback’s injury would not have occurred but for Dr. Ivey’s and the nursing staffs failure to maintain and properly pad the tourniquet. See Konen v. Bass, 231 S.W.3d 554, 559 (Tex.App.-Dallas 2007, no pet.) (finding that trial court did not abuse its discretion in concluding that causation element was satisfied when expert report stated that, but for physician’s improper placement of battery pack, plaintiff would not have suffered nerve damage). Specifically, Dr. Ghadially, by referencing the physicians’ medical records and the nursing staffs notes, properly sets out the manner in which the alleged failure to properly maintain and pad the tourniquet resulted in Railsback’s injury.",
"context": "culate how ... the doctors, nurses[,] or staff breached a standard of care applicable to them.” UTMB further argues that Dr. Ghadially’s expert report is inadequate because the report “does not [specifically] detail what Dr. Ivey did to assess Railsback and what he should have done but failed to do.”\nRegarding Dr. Ivey’s and the nursing staffs standards of care and breach of these standards, Dr. Ghadially, in his report, had to provide not just that Dr. Ivey and the nursing staff breached their applicable standard of care during Railsback’s surgery, but “what care was expected, but not given.” Palacios, 46 S.W.3d at 880. Dr. Ghadially stated that Dr. Ivey and the nursing staff should have carefully maintained the tourniquet during surgery, carefully protected the peroneal nerve during surgery at all times, and taken care that the tourniquet be properly padded and maintained during surgery. See Tex. Civ. Prac. & Rem.Cobe Ann. § 74.351(Ɩ). Specifically, Dr. Ghadially, in his report, provides a fair summary of how Dr. Ivey and the nursing staff should have prevented Rails-back’s injury with proper padding and maintenance of the tourniquet. See Tovar, 185 S.W.3d at 68 (concluding that expert report sufficiently stated what “nurses should have, but did not, do” when nurses’ applicable standard of care was to transfer patient to appropriate setting and inform physician of status and report noted that nurses breached that standard by “failing] to perform these critical functions”).\nRegarding the causal relationship between Dr. Ivey’s and the nursing staffs breach of the standards of care and Railsback’s injury, Dr. Ghadially’s report had to “explain the bases of the statements and link his . .•. conclusions to the facts” by showing “causation beyond mere conjecture.” Longino v. Crosswhite, 183 S.W.3d 913, 918 (Tex.App.-Texarkana 2006, no pet.). Dr. Ghadially’s report only had to provide a “fair summary” of his expert opinion. See Tex. Civ. Prac. & Rem.Code Ann. 74.351(Ɩ), (r)(6). Although not ideally included under proximate causation in his report, Dr. Ghadially references medical records which state that, at some point before or after the surgery, Dr. Ivey discussed with Railsback the possibility of “neurovascular damage during her surgery and possible damage when the tourniquet was put in place.” Dr. Ghadially also references Dr. Christopher Wey’s post-operative medical records which revealed that Railsback suffered a “partial sciatic nerve palsy on the left related to surgery.” Dr. Ghadially further references Dr. Chad S. Conner’s and Dr. Ivey’s postoperative medical records, which stated that Railsback suffered “tibial and pero-neal nerve neuropathy.” Dr. Ghadially additionally references the nursing staffs notes, which opined, “R foot numb.” Dr. Ghadially links his conclusion regarding Dr. Ivey’s and the nursing staffs alleged breach of the standards of care with his conclusion that Railsback’s injury would not have occurred but for Dr. Ivey’s and the nursing staffs failure to maintain and properly pad the tourniquet. See Konen v. Bass, 231 S.W.3d 554, 559 (Tex.App.-Dallas 2007, no pet.) (finding that trial court did not abuse its discretion in concluding that causation element was satisfied when expert report stated that, but for physician’s improper placement of battery pack, plaintiff would not have suffered nerve damage). Specifically, Dr. Ghadially, by referencing the physicians’ medical records and the nursing staffs notes, properly sets out the manner in which the alleged failure to properly maintain and pad the tourniquet resulted in Railsback’s injury.\nIn Gray, we held that, given “the conclu-sory, and at times inconsistent, statements with [a doctor’s] expert report, we [could not] conclude that the trial court abused its discretion in granting [a hospital’s and doctor’s] motion[s] for dismissal.” 189 S.W.3d at 860. We noted that the report, which contained “only a general statement that [the defendants] failed to monitor [the plaintiffs] left knee properly,” did not contain “specific information about what the defendants] should have done differently.” Id. at 859. Also, we opined that, although “it is possible that an identical standard of care regarding limb monitoring during and after surgery attaches to an anesthesiologist ... and a perioperative nursing staff ..., such generic statements, without more, can reasonably be deemed concluso-ry.” Id. This, of course, is not always so.\nIn the instant case, Dr. Ghadially notes in his report that both Dr. Ivey and the nursing staff had a duty to make sure that the tourniquet in question “be properly padded and maintained during the surgical procedure” and that Railsback’s “peroneal nerve be carefully padded and protected at all times.” He also notes that both Dr. Ivey and the nursing staff deviated from these standards of care, resulting in Rails-back’s injury.\nUnlike the expert report in Gray, Dr. Ghadially, as to UTMB’s vicarious liability based on the acts and omissions of Dr. Ivey and the nursing staff, provides in his expert report an objective good faith effort to satis",
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{
"url": "https://www.neochart.com/catalog/cases/sw3d/volume_259/0860_01/index.html",
"court": "Texas Courts of Appeals",
"decade": "2000s",
"start": 26996,
"end": 27054,
"text": "We sustain in part and overrule in part UTMB’s sole issue.",
"context": "quet in question “be properly padded and maintained during the surgical procedure” and that Railsback’s “peroneal nerve be carefully padded and protected at all times.” He also notes that both Dr. Ivey and the nursing staff deviated from these standards of care, resulting in Rails-back’s injury.\nUnlike the expert report in Gray, Dr. Ghadially, as to UTMB’s vicarious liability based on the acts and omissions of Dr. Ivey and the nursing staff, provides in his expert report an objective good faith effort to satisfy the two purposes of section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon Supp.2007). Dr. Ghadially informed UTMB of its vicarious liability by the failure of both Dr. Ivey and the nursing staff to properly maintain and pad the tourniquet and make sure that Railsback’s peroneal nerve was carefully padded and protected. See Palacios, 46 S.W.3d at 879. Dr. Ghadially also provided a basis for the trial court to have concluded that Railsback’s claims may have merit, especially in light of the doctors’ records and nursing staffs notes, which stated that Railsback suffered the possibility of damaged nerves, paralysis, degeneration or inflammation of her peripheral nerve, and which alluded to a numb right foot. See id.\nAccordingly, we hold that the trial court did not err in denying UTMB’s motion to dismiss Railsback’s health care liability claims as to UTMB’s potential vicarious liability based on the acts and omissions of Dr. Ivey and UTMB’s nursing staff.\nWe sustain in part and overrule in part UTMB’s sole issue.\nConclusion\nWe affirm the portion of the trial court’s order denying UTMB’s motion to dismiss Railsback’s health care liability claims as to UTMB’s vicarious liability based on the acts and omissions of Dr. Ivey and UTMB’s nursing staff. We reverse the portion of the trial court’s order denying UTMB’s motion to dismiss Railsback’s health care liability claims as to UTMB’s vicarious liability based on both the acts and omissions of Dr. Maxwell and UTMB’s direct liability, and we render judgment dismissing with prejudice those claims against UTMB.\n. See Tex Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (Vernon Supp.2007).\n. See id. § 74.351 (Vernon Supp.2007). Before September 1, 2005, section 74.351(a) required that a plaintiff, within 120 days of filing a health care liability claim, serve on each defendant an expert report, along with the expert’s curriculum vitae. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875, amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1-3, 2005 Tex. Gen. Laws 1590, 1590. Section 74.351(a) has been amended since Rails-back’s health care liability claim accrued. See id. (providing that amendment took effect September 1, 2005). However, which version of the statute applies does not affect our analysis, and we therefore cite to the current version of the statute.\n. See Tex. Civ. Prac. & Rem.Code Ann. § 74.315(b), ©, (r)(6).\n. Drs. Ivey and Maxwell are not parties to this appeal.\n. See id. § 74.351(a).\n. S",
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"url": "https://www.neochart.com/catalog/cases/ill-app/volume_87/0594_01/index.html",
"court": "Illinois Appellate Court",
"decade": "1900s",
"start": 13494,
"end": 14601,
"text": "The material averments of the declaration which are well pleaded must be assumed to be true for the purpose of passing on the demurrer. From these averments it appears that the damage to the plaintiff’s property complained of, was for a public improvement; that the railway, as constructed, greatly impairs the access of light to the plaintiff’s building, causing it to be dark; that the access.of air thereto is greatly impaired; that access .to its premises is materially obstructed; that large quantities of smoke, dust, cinders and ashes have been, are and will continue to be thrown on the building and premises, etc., and thereby the rental and salable value of the premises has been, is and will continue to be lessened and reduced. These and other averments in the declaration bring the plaintiff’s case within the constitutional provision requiring compensation, as construed by the Supreme Court. City of Pekin v. Winkel, 77 Ill. 56; City of Shawneetown v. Mason, 82 Ib. 337; City of Elgin v. Eaton, 83 Ib. 535; Stack v. City of E. St. Louis, 85 Ib. 377; Rigney v. City of Chicago, 102 Ib. 64, 82.",
"context": "right to damages, and ascertained the measure in an action at law, if any reason exists why he can not have execution of the same, equity will assist him, but not before.”\nIn Penn. Mut. L. Ins. Co. v. Heiss, supra, the court say:\n“ The land owner is remitted to his action at law to recover his damages. The right to recover damages for injury to private property occasioned by the occupation of a public street by a railroad, or the taking of other property for the public use, is secured to the property owner by the provision of the constitution quoted,” referring to the provision quoted in the opinion.\nIn Doane v. Lake St. El. R. R. Co., 165 Ill. 510, counsel for the defendant here was counsel for the railroad company, and one of the points he made was that there was an adequate remedy at law, and the court so held. Ib. 514, 518.\nIn City of Olney v. Wharf, 115 Ill. 519, relied on by counsel for defendant, the court, while holding that there could be no recovery against the city for damages occasioned to property abutting on the street, by reason of the construction of a railroad in the street by authority of the city, say :\n“ If appellee or any other lot owner on the street has been damaged by the construction or operation of the railroad, the city is in no manner liable, but the.liability for all damages sustained must fall upon the railroad company.”\nThe cases cited illustrate the proposition that the absence of the element of additional servitude does not preclude recovery.\nThe material averments of the declaration which are well pleaded must be assumed to be true for the purpose of passing on the demurrer. From these averments it appears that the damage to the plaintiff’s property complained of, was for a public improvement; that the railway, as constructed, greatly impairs the access of light to the plaintiff’s building, causing it to be dark; that the access.of air thereto is greatly impaired; that access .to its premises is materially obstructed; that large quantities of smoke, dust, cinders and ashes have been, are and will continue to be thrown on the building and premises, etc., and thereby the rental and salable value of the premises has been, is and will continue to be lessened and reduced. These and other averments in the declaration bring the plaintiff’s case within the constitutional provision requiring compensation, as construed by the Supreme Court. City of Pekin v. Winkel, 77 Ill. 56; City of Shawneetown v. Mason, 82 Ib. 337; City of Elgin v. Eaton, 83 Ib. 535; Stack v. City of E. St. Louis, 85 Ib. 377; Rigney v. City of Chicago, 102 Ib. 64, 82.\nThe judgment will be reversed and the cause remanded, with directions to the trial court to overrule the demurrer. Eeversed and remanded, with directions.\n",
"weight": 93.5,
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"url": "https://www.neochart.com/catalog/cases/ill-app/volume_87/0594_01/index.html",
"court": "Illinois Appellate Court",
"decade": "1900s",
"start": 7239,
"end": 7270,
"text": "The court further say, Ib. 78 :",
"context": " that ‘ private property shall not be taken or damaged for public use without just compensation.’ It will not be denied this provision rests upon a great principle of right and justice which would doubtless be applied in every proper case without constitutional sanction. With this clause of the constitution before us we can not entertain a doubt of appellees’ right to recover to the extent of the damage they have sustained. The case of Moses v. Pittsburgh, Ft. Wayne & Chicago Railroad Co., 21 Ill. 516, and that of Murphy v. City of Chicago, 29 Ib. 279, were decided long anterior to the adoption of the present constitution, and are essentially modified by Indianapolis, etc., Railroad Co. v. Hartley, 67 Ill. 439.”\nIn Stack v. City of East St. Louis, 85 Ill. 377, 381, the court reiterated the view that the Moses and Murphy-cases had been “ essentially modified.”\nIn Rigney v. City of Chicago, 102 Ill. 64, the court, commenting on the constitutional provision quoted supra, say:\n“ The addition of the words ‘ or damaged ’ can hardly be regarded as accidental, or as having been used without any definite purpose. On the contrary, we regard them as significant and expressive of a deliberate purpose to change the organic law of the State. Eor were they used simply to conserve existing rights, as has been suggested by counsel, but on the contrary, in our judgment, they declare a new .rule of civil conduct, from which spring new rights which did not exist under the constitution of 1848.”\nThe court further say, Ib. 78 :\n“ Under the constitution of 1848, it was essential to a right of recovery, as Ave have already seen, that there should be a direct physical injury to the corpus or subject of the property, such as overfloAving it, casting sparks or cinders upon it, and the like, but under the present constitution it is sufficient if there is a direct physical obstruction or injury to the right of user or enjoyment, by which the oAvner sustains some special pecuniary damage in excess of that sustained by the public generally, which, by the common law, would, in the absence of any constitutional or statutory provisions, give a right of action.”\nIn the same case the court, after citing a number of cases, decided since the adoption of the present constitution, say :\n“ The conclusion reached in all these cases is distinctly placed upon the ground that the new constitution has enlarged the right of recovery, by extending its provisions to a class of cases not provided for under the old constitution,” etc. Ib. 80.\nIn C. & E. I. R. R. Co. v. Loeb, 118 Ill. 203, 212, the distinction betAveen the law as it was under the old, and as it is under the present constitution, is pointed out.\nC. & W. Ind. R. R. Co. v. Ayres, 106 Ill. 511, was an action by the owner of property abutting on a public street to recover damages alleged to have been occasioned to the property by the construction and operation of a railroad in the street. The court say:\n“ numerous cases have been referred to on each side to sustain ",
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"url": "https://www.neochart.com/catalog/cases/f-supp/volume_88/0337_01/index.html",
"court": "United States District Court for the Northern District of Illinois",
"decade": "1940s",
"start": 3035,
"end": 3195,
"text": "Government’s motion to dismiss the complaint insofar as the recovery of damages in excess of $1,000 is sought is granted, and the same is accordingly dismissed.",
"context": "me of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.”\nPlaintiff could not, of her own volition, attach conditions to her claim which would vary the express language of the statute. Since the statute constitutes a limited waiver of sovereign immunity, it must be construed strictly, and no power is given to claimants to alter their substantive or procedural rights thereunder. The increased amount sought here is certainly not based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim. Nor is the Court of the opinion that reduction of the claim before the Post Office Department constituted an “intervening fact” within the contemplation of the statute.\nIt might be contended, although it was not asserted by the plaintiff, that the limitation on the amount applies only where the claim is withdrawn from consideration by the federal agency and has no application where the claim has been disposed of by the agency. However, the old section 931(b), upon which 2675(b) is based, states: “Provided further, That as to any_ claim so disposed of or so withdrawn * * * ” amount may not be increased in a court action. There is no indication in the Reviser’s Notes that any substantive change was intended in the amended section. Since a claimant may not vary his claim after withdrawing it, it would appear, a fortiori, that he cannot vary it after disposition by the agency.\nGovernment’s motion to dismiss the complaint insofar as the recovery of damages in excess of $1,000 is sought is granted, and the same is accordingly dismissed.\n",
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"court": "United States District Court for the Northern District of Illinois",
"decade": "1940s",
"start": 2318,
"end": 3034,
"text": "It might be contended, although it was not asserted by the plaintiff, that the limitation on the amount applies only where the claim is withdrawn from consideration by the federal agency and has no application where the claim has been disposed of by the agency. However, the old section 931(b), upon which 2675(b) is based, states: “Provided further, That as to any_ claim so disposed of or so withdrawn * * * ” amount may not be increased in a court action. There is no indication in the Reviser’s Notes that any substantive change was intended in the amended section. Since a claimant may not vary his claim after withdrawing it, it would appear, a fortiori, that he cannot vary it after disposition by the agency.",
"context": "he sum of $20,-000. Throughout the course of the transactions with the Post Office Department, plaintiff was represented by counsel. The Government moves to dismiss the claim insofar as the recovery of damages in excess of $1,000 is sought.\nThe Government’s motion must be granted. Section 2675(b) of Title 28 states: “The claimant, however, may, upon fifteen days written notice, withdraw such claim from consideration of the federal agency and commence action thereon. Action under this subsection shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.”\nPlaintiff could not, of her own volition, attach conditions to her claim which would vary the express language of the statute. Since the statute constitutes a limited waiver of sovereign immunity, it must be construed strictly, and no power is given to claimants to alter their substantive or procedural rights thereunder. The increased amount sought here is certainly not based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim. Nor is the Court of the opinion that reduction of the claim before the Post Office Department constituted an “intervening fact” within the contemplation of the statute.\nIt might be contended, although it was not asserted by the plaintiff, that the limitation on the amount applies only where the claim is withdrawn from consideration by the federal agency and has no application where the claim has been disposed of by the agency. However, the old section 931(b), upon which 2675(b) is based, states: “Provided further, That as to any_ claim so disposed of or so withdrawn * * * ” amount may not be increased in a court action. There is no indication in the Reviser’s Notes that any substantive change was intended in the amended section. Since a claimant may not vary his claim after withdrawing it, it would appear, a fortiori, that he cannot vary it after disposition by the agency.\nGovernment’s motion to dismiss the complaint insofar as the recovery of damages in excess of $1,000 is sought is granted, and the same is accordingly dismissed.\n",
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{
"url": "https://www.neochart.com/catalog/cases/ad2d/volume_226/1116_01/index.html",
"court": "New York Supreme Court, Appellate Division",
"decade": "1990s",
"start": 1,
"end": 256,
"text": "Judgment unanimously affirmed. Same Memorandum as in People v Cooper, 226 AD2d 1115 [decided herewith]). (Appeal from Judgment of Erie County Court, D’Amico, J.—Criminal Facilitation, 2nd Degree.) Present—Green, J. P., Lawton, Wesley, Doerr and Boehm, JJ.",
"context": "\nJudgment unanimously affirmed. Same Memorandum as in People v Cooper, 226 AD2d 1115 [decided herewith]). (Appeal from Judgment of Erie County Court, D’Amico, J.—Criminal Facilitation, 2nd Degree.) Present—Green, J. P., Lawton, Wesley, Doerr and Boehm, JJ.\n",
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"url": "https://www.neochart.com/catalog/cases/so3d/volume_97/0265_01/index.html",
"court": "Florida District Court of Appeal",
"decade": "2010s",
"start": 1814,
"end": 2540,
"text": "Foreclosures are equitable proceedings under Florida law and settlements between litigants are favored. Wells Fargo Bank, N.A. v. Lupica, 36 So.3d 875, 876 (Fla. 5th DCA 2010). Because the Josecites do not assert inadequacy of the bid price as a ground for vacation of the sale, we do not believe the test established in Arlt applies. Accord Arsali v. Chase Home Fin., LLC, 79 So.3d 845 (Fla. 4th DCA), review granted, 86 So.3d 1112 (Fla.2012); Ingorvaia v. Horton, 816 So.2d 1256 (Fla. 2d DCA 2002). Rather, we conclude this case is controlled by Moran-Alleen Co. v. Brown, 98 Fla. 203, 123 So. 561 (1929). In that case, which involved a suit to vacate and set aside a judicial sale of real property, the supreme court wrote:",
"context": ", entered into a forbearance agreement. That agreement required the Jo-secites to make a series of payments to Wachovia’s agent, the first of which was due on Friday, July 1, 2011. The agreement further provided that “upon receipt of the signed agreement and the down payment, the foreclosure will be placed on hold for the term of the forbearance.” The Josecites timely submitted the signed agreement and the first payment. However, the foreclosure sale was not cancelled and Underwood & Underwood, LLC, in-tervenors in this appeal, purchased the property at a price that the Josecites concede is not grossly inadequate.\nThe Josecites promptly filed a motion to vacate the sale. Following a hearing, the trial judge denied their motion, ruling:\nFollowing the test set forth by the Supreme Court of Florida in Arlt v. Buchanan, 190 So.2d 575 (Fla.1966), [the Josecites] have failed to establish a 1) grossly inadequate sales price as a result from 2) any mistake, accident, surprise, fraud, misconduct or irregularity upon the part of either the purchaser or other person connected with the sale.\nThere is no dispute that Wachovia and the Josecites settled, at least temporarily, the foreclosure action and that the forbearance agreement required Wachovia to place the foreclosure proceedings “on hold.” Because the sale was the only remaining step in the foreclosure process, we interpret the obligation to place the case “on hold” as requiring the lender to cancel the sale, which it failed to do.\nForeclosures are equitable proceedings under Florida law and settlements between litigants are favored. Wells Fargo Bank, N.A. v. Lupica, 36 So.3d 875, 876 (Fla. 5th DCA 2010). Because the Josecites do not assert inadequacy of the bid price as a ground for vacation of the sale, we do not believe the test established in Arlt applies. Accord Arsali v. Chase Home Fin., LLC, 79 So.3d 845 (Fla. 4th DCA), review granted, 86 So.3d 1112 (Fla.2012); Ingorvaia v. Horton, 816 So.2d 1256 (Fla. 2d DCA 2002). Rather, we conclude this case is controlled by Moran-Alleen Co. v. Brown, 98 Fla. 203, 123 So. 561 (1929). In that case, which involved a suit to vacate and set aside a judicial sale of real property, the supreme court wrote:\nOn the question of gross inadequacy of consideration, surprise, accident, or mistake imposed on complainant, and irregularity in the conduct of the sale, this court is committed to the doctrine that a judicial sale may on a proper showing made, be vacated and set aside on any or all of these grounds.\nId. at 561 (emphasis added). We agree with the Fourth District’s holding in Arsa-li that “surprise, accident, or mistake imposed on [a] complainant, and irregularity in the conduct of the sale” are four independent grounds that would support the setting aside of a foreclosure sale, irrespective of the sale price’s inadequacy. 79 So.3d at 847. The trial court’s conclusion that a foreclosure sale may only be vacated for a grossly inadequate bid price or other sale irregularity deprives the courts of their equitable powers and their duty to protect and preserve the integrity of the judicial sale process. See Ingorvaia, 816 So.2d at 1259; see also Macfarlane v. Macfarlane, 50 Fla. 570, 39 So. 995 (1905).\nIn general, we review orders on motions to set aside foreclosure sales for an abuse of discretion. See, e.g., Long Beach Mortg. Corp. v. Bebble, 985 So.2d 611, 613 (Fla. 4th DCA 2008). However, the trial court did not base its order on the exercise of discretion, and therefore, our review is not deferential. Instead, the trial court applied the wrong legal standard in determining whether the sale should be vacated, which is a question of law that we review de novo. See Paul v. Wells",
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"url": "https://www.neochart.com/catalog/cases/so3d/volume_97/0265_01/index.html",
"court": "Florida District Court of Appeal",
"decade": "2010s",
"start": 2843,
"end": 3552,
"text": "Id. at 561 (emphasis added). We agree with the Fourth District’s holding in Arsa-li that “surprise, accident, or mistake imposed on [a] complainant, and irregularity in the conduct of the sale” are four independent grounds that would support the setting aside of a foreclosure sale, irrespective of the sale price’s inadequacy. 79 So.3d at 847. The trial court’s conclusion that a foreclosure sale may only be vacated for a grossly inadequate bid price or other sale irregularity deprives the courts of their equitable powers and their duty to protect and preserve the integrity of the judicial sale process. See Ingorvaia, 816 So.2d at 1259; see also Macfarlane v. Macfarlane, 50 Fla. 570, 39 So. 995 (1905).",
"context": "rt of either the purchaser or other person connected with the sale.\nThere is no dispute that Wachovia and the Josecites settled, at least temporarily, the foreclosure action and that the forbearance agreement required Wachovia to place the foreclosure proceedings “on hold.” Because the sale was the only remaining step in the foreclosure process, we interpret the obligation to place the case “on hold” as requiring the lender to cancel the sale, which it failed to do.\nForeclosures are equitable proceedings under Florida law and settlements between litigants are favored. Wells Fargo Bank, N.A. v. Lupica, 36 So.3d 875, 876 (Fla. 5th DCA 2010). Because the Josecites do not assert inadequacy of the bid price as a ground for vacation of the sale, we do not believe the test established in Arlt applies. Accord Arsali v. Chase Home Fin., LLC, 79 So.3d 845 (Fla. 4th DCA), review granted, 86 So.3d 1112 (Fla.2012); Ingorvaia v. Horton, 816 So.2d 1256 (Fla. 2d DCA 2002). Rather, we conclude this case is controlled by Moran-Alleen Co. v. Brown, 98 Fla. 203, 123 So. 561 (1929). In that case, which involved a suit to vacate and set aside a judicial sale of real property, the supreme court wrote:\nOn the question of gross inadequacy of consideration, surprise, accident, or mistake imposed on complainant, and irregularity in the conduct of the sale, this court is committed to the doctrine that a judicial sale may on a proper showing made, be vacated and set aside on any or all of these grounds.\nId. at 561 (emphasis added). We agree with the Fourth District’s holding in Arsa-li that “surprise, accident, or mistake imposed on [a] complainant, and irregularity in the conduct of the sale” are four independent grounds that would support the setting aside of a foreclosure sale, irrespective of the sale price’s inadequacy. 79 So.3d at 847. The trial court’s conclusion that a foreclosure sale may only be vacated for a grossly inadequate bid price or other sale irregularity deprives the courts of their equitable powers and their duty to protect and preserve the integrity of the judicial sale process. See Ingorvaia, 816 So.2d at 1259; see also Macfarlane v. Macfarlane, 50 Fla. 570, 39 So. 995 (1905).\nIn general, we review orders on motions to set aside foreclosure sales for an abuse of discretion. See, e.g., Long Beach Mortg. Corp. v. Bebble, 985 So.2d 611, 613 (Fla. 4th DCA 2008). However, the trial court did not base its order on the exercise of discretion, and therefore, our review is not deferential. Instead, the trial court applied the wrong legal standard in determining whether the sale should be vacated, which is a question of law that we review de novo. See Paul v. Wells Fargo Bank, N.A., 68 So.3d 979, 986 (Fla. 2d DCA 2011). After applying the correct test, we conclude that the sale should be vacated and reverse the trial court’s order. We remand this matter with directions to take further actions consistent with this opinion.\nREVERSED and REMANDED.\nEVANDER and JACOBUS, JJ., concur.\n",
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{
"url": "https://www.neochart.com/catalog/cases/f-supp-3d/volume_219/0962_01/index.html",
"court": "United States District Court for the Northern District of California",
"decade": "2010s",
"start": 12933,
"end": 12968,
"text": "1. Tort Liability Between Merchants",
"context": "ourt of Appeal has explained that “[wjhere a claim is unenforceable[,] the burden is on the defense to demonstrate unenforceability .... [C]laims of unenforceability must be raised by affirmative defense, such as a claim a contract is barred by the statute of frauds[.]” Ladd v. Warner Bros. Entm’t, 184 Cal.App.4th 1298, 1309, n.8, 110 Cal.Rptr.3d 74 (2010) (quoting Walton v. City of Red Bluff, 2 Cal.App.4th 117, 131, 3 Cal.Rptr.2d 275 (1991)). In short, a plaintiff is not required to plead that its claim is not barred by the statute of frauds. Of course, a plaintiff can allege facts that show that its claim is barred on its face, see Weisbuch, 119 F.3d at 783 n.1, but that is not the case here, as Plaintiff has not alleged any facts implying that the warranty Defendants provided was oral,\nAccordingly, the Court denies Defendants’ motion to dismiss Plaintiffs breach of express warranty claim for failing to allege the existence of a written instrument. The Court need not and does not reach the question of whether the contract was predominantly for the sale of goods,\nB. Negligent Misrepresentation\nDefendants next contend that Plaintiff cannot state a claim for negligent misrepresentation because:- (1) the parties are “merchants” and therefore cannot seek tort remedies in connection with a breach of contract; and (2) the economic loss rule bars the claim because Plaintiff did not allege it suffered harm to anything other than the allegedly defective product itself. Mot. at 9-14.\n1. Tort Liability Between Merchants\nAssuming (without deciding) that the contract involved here is one for the sale of goods governed by the California Commercial Code, Defendants’ argument that Plaintiff is a “merchant” fails. See Mot. at 6-7, 9. The California Commercial Code defines a “merchant” as:\na person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skills peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.\nCal. Com. Code § 2104(1). Plaintiff alleges that it is a private middle school and high school that investigated whether it should buy a single artificial turf field and then purchased one. Compl. ¶¶3, 9-10, 13. Nothing about those facts in any way plausibly suggests that Plaintiff is a merchant that “deals in” turf fields. Accordingly, the Court denies Defendants’ motion to dismiss Plaintiffs negligent misrepresentation claim on the ground that the parties were acting as merchants.\n2. Economic Loss Rule\nDefendants’ final argument is that Plaintiffs negligent misrepresentation claim is barred by the economic loss rule. Mot. at 7-10. Because Plaintiff does not allege any injury apart from economic injury to the product itself, Defendant argues that it cannot seek a tort remedy.\nThe California Supreme Court generally has explained the economic loss ",
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"court": "United States District Court for the Northern District of California",
"decade": "2010s",
"start": 7194,
"end": 8229,
"text": "Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” A defendant may move to dismiss a complaint for failing to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is hable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).",
"context": " the same time they installed Plaintiffs turf field, they considered the Duraspine fiber to be defective, but were installing new fields anyway without telling their customers. Id. ¶20 & Ex. A (CEO trial testimony excerpts).\nOn this basis, Plaintiff alleges that the representations and warranties that Defendants made in their marketing materials and the warranty were knowingly false, or at least reckless. Id. ¶ 16. Furthermore, Defendants never disclosed to Plaintiff that its products were defective. Id. ¶ 21. In early 2015, Plaintiff noticed that its turf field was failing despite the fact that the field got substantially less use than many of Defendants’ other artificial turf fields. Id. ¶ 23. When Plaintiff complained to Defendants, they attempted to perform routine maintenance work on the field and refused to replace it. Id. ¶ 24. The field has continued to deteriorate. Id. ¶ 25.\nB. Procedural History\nPlaintiff filed this action on March 18, 2016, asserting claims for breach of warranty, fraud, negligent misrepresentation, and unfair competition.' Id. ¶¶ 27-55. Plaintiff seeks damages, pre-judgment interest, punitive and exemplary damages, restitution, and attorneys’ fees and costs. Id. Plaintiffs also seek a permanent injunction requiring that Defendants respond to any warranty claim made on any field installed before July 1, 2011, with a full replacement of that field at no cost to the customer, but Plaintiff does not assert any class claims. See id.\nII. LEGAL STANDARD\nFederal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” A defendant may move to dismiss a complaint for failing to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that the defendant is hable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).\nIn reviewing the plausibility of a complaint, courts “accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless, Courts do not “accept as true allegations that are merely conclusory, . unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). And even where facts are accepted as true, “a plaintiff may plead [hinfjself out of court” if he “plead[s] facts which establish that he cannot prevail on his ... claim.” Weisbuch v. Cty. of Los Angeles, 119 F.3d 778, 783 n.1 (9th Cir. 1997) (quotation marks and citation omitted).\nIf dismissal is appropriate under Rule 12(b)(6), a court “should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quotation marks and citation omitted).\nIII. DISCUSSION\nA. Breach of Warranty\nDefendants, contend that Plaintiff has failed to state a claim for breach of express warranty because it has not alleged that the warranty was set forth in a written instrument. Mot. at 4-10.\nTo state a claim for breach of express warranty under California law, a plaintiff must prove that the seller: (1) made an affirmation of fact or promise or provided a descr",
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"url": "https://www.neochart.com/catalog/cases/so3d/volume_163/0582_01/index.html",
"court": "Florida District Court of Appeal",
"decade": "2010s",
"start": 3632,
"end": 3683,
"text": "(d) An arbitrator exceeded the arbitrator’s powers;",
"context": "rties could not agree on who was responsible to make the payments to Ward. In particular, they disagreed whether Nestor, in her individual capacity, was included in the term “V.P. Entities.” The matter went before the trial court on a motion to enforce the arbitration award. The trial court entered an order that included Nestor in her individual capacity among the entities required to make the payments to Ward. Nestor timely appealed.\nANALYSIS\nThe issue presented is whether the trial court could hold Nestor personally liable for the outstanding payments of the ten million dollars originally owed to Ward where the arbitration award, which interpreted the settlement agreement, limited the obligation to “VP Entities.” We hold that the trial court was without authority to do so.\nA party may move the trial court to vacate an arbitration award. But the grounds for doing so are limited to the following:\n(a) The award was procured by corruption, fraud, or other undue means;\n(b) There was:\n1. Evident partiality by an arbitrator appointed as a neutral arbitrator;\n2. Corruption by an arbitrator; or\n3. Misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;\n(c) An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to hear evidence material to the controversy, or otherwise conducted the hearing contrary to s. 682.06, so as to prejudice substantially the rights of a party to the arbitration proceeding;\n(d) An arbitrator exceeded the arbitrator’s powers;\n(e) There was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection under s. 682.06(3) not later than the beginning of the arbitration hearing; or\n(f) The arbitration was conducted without proper notice of the initiation of an arbitration as required in s. 682.032 so as to prejudice substantially the rights of a party to the arbitration proceeding.\n§ 682.13(1), Fla. Stat. (2014); see also Schnurmacher Holding, Inc. v. Nonega, 542 So.2d 1327, 1328 (Fla.1989) (holding, absent a statutory basis for doing so under section 682.13(1), “neither a trial court nor a district court of appeal has the authority to overturn the [arbitration] award”).\nA party may also move the trial court to modify or correct an arbitration award. Like a motion to vacate, the grounds for modifying or correcting an award are statutorily enumerated:\n(a) There is an evident miscalculation of figures or an evident mistake in the description of any person, thing, or property referred to in the award.\n(b) The arbitrators have awarded upon a matter not submitted in the arbitration and the award may be corrected without affecting the merits of the decision upon the issues submitted.\n(c) The award is imperfect as a matter of form, not affecting the merits of the controversy.\n§ 682.14(1), Fla. Stat. (2014).\nIn the absence of a motion to vacate, modify, or correct the arbitration award, the trial court must confirm the award:\nAfter a party to an arbitra",
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"url": "https://www.neochart.com/catalog/cases/so3d/volume_163/0582_01/index.html",
"court": "Florida District Court of Appeal",
"decade": "2010s",
"start": 1606,
"end": 2085,
"text": "The arbitrator quoted this sentence from the handwritten settlement agreement, but she did not define the term “VP entities” that appears in the quote. She expressly noted, however, that “VP entities are defined and each one listed in paragraph 20 [of the settlement agreement].” Paragraph 20 of the settlement agreement reads, “ ‘V.P. Entities’ shall mean SMC, EAM, Asset Manager, Trust 6, the Estate of V.P, and any other entity formerly owned and controlled by Victor Posner.”",
"context": "ue to Tracy Posner Ward pursuant to a settlement agreement. Nestor contends the final judgment improperly altered an arbitration award that interpreted the agreement. We reverse in part and affirm in part.\nFACTS AND PROCEDURAL HISTORY\nVictor Posner died in 2002. His will made Nestor, a friend and business associate, his chief beneficiary and the personal representative of his estate. Ward, Pos-ner’s daughter, on behalf of herself and her daughter, filed lawsuits challenging the will and the allocation of property to a trust. The parties to these lawsuits included Nestor in her individual and representative capacity and numerous corporate entities related to the estate and trust. The lawsuits, with all of the parties, were ultimately settled in a global mediation.\nIn the hand-written settlement agreement reached at the mediation, Ward relinquished various claims in return for ten million dollars paid over the course of five years. The payments began, but then stopped. When no further payments were forthcoming, Ward sued to enforce the settlement. The dispute over the settlement was sent to binding arbitration, as provided in the settlement.\nFollowing a hearing, the arbitrator entered an award. Quoting the settlement agreement, the arbitrator found that the “VP Entities” were responsible for the remaining payments due Ward: “VP entities pay Tracy Posner net of taxes, estate or gift ... 5 annual payments of $2 million each for a total of $10 million after estate or gift taxes.”\nThe arbitrator quoted this sentence from the handwritten settlement agreement, but she did not define the term “VP entities” that appears in the quote. She expressly noted, however, that “VP entities are defined and each one listed in paragraph 20 [of the settlement agreement].” Paragraph 20 of the settlement agreement reads, “ ‘V.P. Entities’ shall mean SMC, EAM, Asset Manager, Trust 6, the Estate of V.P, and any other entity formerly owned and controlled by Victor Posner.”\nAfter the arbitrator entered her award, the parties could not agree on who was responsible to make the payments to Ward. In particular, they disagreed whether Nestor, in her individual capacity, was included in the term “V.P. Entities.” The matter went before the trial court on a motion to enforce the arbitration award. The trial court entered an order that included Nestor in her individual capacity among the entities required to make the payments to Ward. Nestor timely appealed.\nANALYSIS\nThe issue presented is whether the trial court could hold Nestor personally liable for the outstanding payments of the ten million dollars originally owed to Ward where the arbitration award, which interpreted the settlement agreement, limited the obligation to “VP Entities.” We hold that the trial court was without authority to do so.\nA party may move the trial court to vacate an arbitration award. But the grounds for doing so are limited to the following:\n(a) The award was procured by corruption, fraud, or other undue means;\n(b) There was:\n1. Evident partiality by an arbitrator appointed as a neutral arbitrator;\n2. Corruption by an arbitrator; or\n3. Misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding;\n(c) An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to hear evidence material to the controversy, or otherwise conducted the hearing contrary to s. 682.06, so as to prejudice substantially the ri",
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"court": "United States District Court for the Middle District of Tennessee",
"decade": "1980s",
"start": 10658,
"end": 11629,
"text": ". It is not insignificant to postulate on plaintiffs likelihood for a favorable verdict in the two courts-martial had he received independent counsel. The evidence connecting him to the crimes is overwhelming. In the first court-martial, plaintiffs confession coupled with those of his co-defendants clearly inferred guilt. In the second trial, eyewitness accounts of plaintiffs acts, as well as the scattered trail of physical evidence plaintiff left in his wake, is sufficient to prove plaintiffs willing participation in each of the crimes. In United States v. Jones, 436 F.2d 971 (6th Cir.1971), the Sixth Circuit surmised the defendant’s predicament as having nothing to do with ineffective representation. On the contrary, his problems arose from the prosecution's possession of clear and admissible proof of his guilt. Id. at 972. The court noted that defendant’s confession and the testimony of two accomplices was more than sufficient to establish his guilt. Id.",
"context": "35 (6th Cir.1975), cert. denied, 424 U.S. 972, 96 S.Ct. 1473, 47 L.Ed.2d 741, reh ’g denied, 425 U.S. 966, 96 S.Ct. 1752, 48 L.Ed.2d 211 (1976); Sanford v. United States, 399 F.2d 693, 694 (9th Cir.1968). The record in the present case does not reflect such a finding.\nIt is the opinion of this Court, upon careful consideration of the actions of the AFBCMR in regards to plaintiffs claim of ineffective assistance of counsel, that its determination was neither arbitrary nor capricious and furthermore, that its decision is supported by substantial evidence in the record. Moreover, it is questionable at best that plaintiffs claim was revived by Holloway v. Arkansas in 1978. Without this, plaintiffs ineffective assistance of counsel claim would be barred by the six-year statute of limitations because, as previously observed, mere review by the AFBCMR does not create a new date of accrual. In any event, it is not evident from the record that plaintiff has demonstrated “that an actual [and not merely possible] conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). See United States v. LaRiche, 549 F.2d 1088, 1095 (6th Cir.), cert. denied, 430 U.S. 987, 97 S.Ct. 1687, 52 L.Ed.2d 383 (1977) (defendant alleging conflict of interest must show that conflict as well as prejudice thereby; a mere possibility of prejudice is insufficient).\nFor the foregoing reasons, this case is ORDERED dismissed.\n. It is not insignificant to postulate on plaintiffs likelihood for a favorable verdict in the two courts-martial had he received independent counsel. The evidence connecting him to the crimes is overwhelming. In the first court-martial, plaintiffs confession coupled with those of his co-defendants clearly inferred guilt. In the second trial, eyewitness accounts of plaintiffs acts, as well as the scattered trail of physical evidence plaintiff left in his wake, is sufficient to prove plaintiffs willing participation in each of the crimes. In United States v. Jones, 436 F.2d 971 (6th Cir.1971), the Sixth Circuit surmised the defendant’s predicament as having nothing to do with ineffective representation. On the contrary, his problems arose from the prosecution's possession of clear and admissible proof of his guilt. Id. at 972. The court noted that defendant’s confession and the testimony of two accomplices was more than sufficient to establish his guilt. Id.\n",
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},
{
"url": "https://www.neochart.com/catalog/cases/f-supp/volume_580/1111_01/index.html",
"court": "United States District Court for the Middle District of Tennessee",
"decade": "1980s",
"start": 10599,
"end": 10657,
"text": "For the foregoing reasons, this case is ORDERED dismissed.",
"context": "bstantial evidence. Baker v. Schlesinger, 523 F.2d 1031, 1035 (6th Cir.1975), cert. denied, 424 U.S. 972, 96 S.Ct. 1473, 47 L.Ed.2d 741, reh ’g denied, 425 U.S. 966, 96 S.Ct. 1752, 48 L.Ed.2d 211 (1976); Sanford v. United States, 399 F.2d 693, 694 (9th Cir.1968). The record in the present case does not reflect such a finding.\nIt is the opinion of this Court, upon careful consideration of the actions of the AFBCMR in regards to plaintiffs claim of ineffective assistance of counsel, that its determination was neither arbitrary nor capricious and furthermore, that its decision is supported by substantial evidence in the record. Moreover, it is questionable at best that plaintiffs claim was revived by Holloway v. Arkansas in 1978. Without this, plaintiffs ineffective assistance of counsel claim would be barred by the six-year statute of limitations because, as previously observed, mere review by the AFBCMR does not create a new date of accrual. In any event, it is not evident from the record that plaintiff has demonstrated “that an actual [and not merely possible] conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). See United States v. LaRiche, 549 F.2d 1088, 1095 (6th Cir.), cert. denied, 430 U.S. 987, 97 S.Ct. 1687, 52 L.Ed.2d 383 (1977) (defendant alleging conflict of interest must show that conflict as well as prejudice thereby; a mere possibility of prejudice is insufficient).\nFor the foregoing reasons, this case is ORDERED dismissed.\n. It is not insignificant to postulate on plaintiffs likelihood for a favorable verdict in the two courts-martial had he received independent counsel. The evidence connecting him to the crimes is overwhelming. In the first court-martial, plaintiffs confession coupled with those of his co-defendants clearly inferred guilt. In the second trial, eyewitness accounts of plaintiffs acts, as well as the scattered trail of physical evidence plaintiff left in his wake, is sufficient to prove plaintiffs willing participation in each of the crimes. In United States v. Jones, 436 F.2d 971 (6th Cir.1971), the Sixth Circuit surmised the defendant’s predicament as having nothing to do with ineffective representation. On the contrary, his problems arose from the prosecution's possession of clear and admissible proof of his guilt. Id. at 972. The court noted that defendant’s confession and the testimony of two accomplices was more than sufficient to establish his guilt. Id.\n",
"weight": 16.0,
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{
"url": "https://www.neochart.com/catalog/cases/so3d/volume_198/0698_01/index.html",
"court": "Florida District Court of Appeal",
"decade": "2010s",
"start": 6072,
"end": 6110,
"text": "Reversed and remanded for a new trial.",
"context": "nvolved in the degree of the homicide for which the defendant is convicted,” id., unless the defendant expressly concedes the issue of intent, the supreme court concludes that the issue is in dispute arid that an error regarding intent in the instruction for the next lesser offense is fundamental .error that requires reversal. The court summarized its holding at the end of Griffin:,\nBecause Griffin was convicted of second-degree'murder, an offense only one step removed from manslaughter, and because he did not concede the intent by which the homicide was committed, proof of that issue remained on the State, and remained in dispute notwithstanding Griffin’s defense of misidentifi-cation. ■ Thus, fundamental error occurred which requires a new trial.\nId. at 70.\nThere is no question that the State met its burden of proof in this case. But the preceding sentences can be repeated in this case with merely a change of the word, “Griffin” to “Bérube.” Mr. Berube did not concede that the murderer acted with the intent necessary for second-degree murder. Of course, his lawyer did not argue that the murderer acted without that intent because the jury would have found that argument incredible.\nWe conclude that the holding in Griffin requires this court to treat the jury instruction error as essentially per se error in the absence of an express concession by the defendant. Accordingly, unless we have misinterpreted the holding in Griffin, we are compelled to award Mr. Berube a new trial.\nReversed and remanded for a new trial.\nSILBERMAN and WALLACE, JJ., Concur.\n. Williams v. State, 110 So.2d 654 (Fla.1959).\n. In Berube IV, this court inaccurately summarized Mr. Berube’s argument in Bérube II as. arguing that the instruction concerning intent given on the next,lesser offense of manslaughter was fundamentally erroneous for the reasons discussed in the First District’s opinion in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009). In fact, Mr. Berube argued that the instruction was fundamental error under the reasoning of the First. District’s opinion in Pryor v. State, 48 So.3d 159 (Fla. 1st DCA 2010); which applied the supreme court's decision in Montgomery to the instruction as amended in 2008.\n",
"weight": 49.97826086956522,
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"url": "https://www.neochart.com/catalog/cases/so3d/volume_198/0698_01/index.html",
"court": "Florida District Court of Appeal",
"decade": "2010s",
"start": 4513,
"end": 4957,
"text": "Because “the burden is on the State to prove all elements involved in the degree of the homicide for which the defendant is convicted,” id., unless the defendant expressly concedes the issue of intent, the supreme court concludes that the issue is in dispute arid that an error regarding intent in the instruction for the next lesser offense is fundamental .error that requires reversal. The court summarized its holding at the end of Griffin:,",
"context": "r this significant difference between Griffin and this case would allow this court, once again, to declare that the error in the next lesser instruction was harmless. •'\nBut the opinion in Griffin emphasizes that a “defendant is entitled to an accurate instruction on the charged offenses and all lesser included offenses.” Griffin, 160 So.3d at 69 (emphasis added). The supreme court repeats the holding in Reed v. State, 837 So.2d 366, 369 (Fla.2002), that “whether evidence of guilt is overwhelming ... [is] not germane to whether the error is fundamental.” Griffin, 160 So.3d at 69 (quoting Williams v. State, 123 So.3d 23, 29 (Fla.2013) (quoting Reed, 837 So.2d at 369)).' Thus, the supreme court has unequivocally extended the holding in Reed that overwhelming evidence could not render harmless an error in the instruction for the offense for which the defendant was convicted. (Griffin makes it clear that the supreme court intends this same principle to apply when the error occurs in the instruction for the next lesser offense — at least when the charged offense and the lesser are merely two versions of a core offense, i.e. “unlawful homicide.” Griffin, 160 So.3d at 68. Accordingly, the fact that the evidence in this case was overwhelming that whoever killed this woman did so by an act that was imminently dangerous to another and demonstrated a depraved mind without regard for human life is not a factor we are allowed to consider in determining whether this- error is fundamental.\nBecause “the burden is on the State to prove all elements involved in the degree of the homicide for which the defendant is convicted,” id., unless the defendant expressly concedes the issue of intent, the supreme court concludes that the issue is in dispute arid that an error regarding intent in the instruction for the next lesser offense is fundamental .error that requires reversal. The court summarized its holding at the end of Griffin:,\nBecause Griffin was convicted of second-degree'murder, an offense only one step removed from manslaughter, and because he did not concede the intent by which the homicide was committed, proof of that issue remained on the State, and remained in dispute notwithstanding Griffin’s defense of misidentifi-cation. ■ Thus, fundamental error occurred which requires a new trial.\nId. at 70.\nThere is no question that the State met its burden of proof in this case. But the preceding sentences can be repeated in this case with merely a change of the word, “Griffin” to “Bérube.” Mr. Berube did not concede that the murderer acted with the intent necessary for second-degree murder. Of course, his lawyer did not argue that the murderer acted without that intent because the jury would have found that argument incredible.\nWe conclude that the holding in Griffin requires this court to treat the jury instruction error as essentially per se error in the absence of an express concession by the defendant. Accordingly, unless we have misinterpreted the holding in Griffin, we are compelled to award Mr. Berube a new trial.\nReversed and remanded for a new trial.\nSILBERMAN and WALLACE, JJ., Concur.\n. Williams v. State, 110 So.2d 654 (Fla.1959).\n. In Berube IV, this court inaccurately summarized Mr. Berube’s argument in Bérube II as. arguing that the instruction concerning intent given on the next,lesser offense of manslaughter was fundamentally erroneous for the reasons discussed in the First District’s",
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{
"url": "https://www.neochart.com/catalog/cases/f-supp/volume_47/0806_01/index.html",
"court": "United States Court of Claims",
"decade": "1940s",
"start": 3501,
"end": 4643,
"text": "The constitution and by-laws of the parent Mantle Club, under which plaintiff functioned, are set out in Finding 2. In these club tax cases the stated purpose of an organization does not determine its taxable status, if its actual operations are different from the stated ones. Here, paragraph 2 of the by-laws states as one purpose of the club: “To foster and cultivate the social, educational and business relations of the members; to improve their standards of honor, ethics, efficiency and productivity; to broaden their interests in the pursuit of their occupations; and to encourage among the members a true feeling of friendship and a friendly spirit of mutual cooperation.” Also, paragraph 5 states its purpose: “To erect, equip and maintain social club houses and other appropriate buildings for the use and enjoyment of all the members of the Club upon and under such terms and conditions, and subject to such rules, regulations and'restrictions as are for the best interests of the members.” We shall see that these “social” purposes were not in fact carried out to an extent sufficient to bring the club within the taxing statute.",
"context": " social intercourse, is a ‘social * * * club or organization’ within the meaning of the Act, unless its social features are not a material purpose of the organization but are subordinate and merely incidental to the active furtherance of a different and predominant purpose, such as, for example, religion, the arts, or business. The tax does not attach to dues or fees of a religious organization, chamber of commerce, commercial club, trade organization, or the like, merely because it has incidental social features, but, if the social features are a material purpose of the organization, then it is a ‘social * * * club or organization,’ within the meaning of the Act. An organization that has for its exclusive or predominant purpose religion or philanthropic social service (or the advancement of the business or commercial interests of a city or community) is clearly not a ‘social * * * club or organization.-’ Most fraternal organizations are in effect social clubs, but if they are operating under the lodge system, or are local fraternal organizations among the students of a college or university, payments to them are expressly exempt,”\nOur question is, then, whether plaintiff’s social features were “a material purpose of the organization”, or whether they were, as plaintiff claims, “subordinate and merely incidental to the active furtherance of a different and predominant purpose * * * We think they were the latter, and that plaintiff may recover the tax it was compelled to pay.\nThe constitution and by-laws of the parent Mantle Club, under which plaintiff functioned, are set out in Finding 2. In these club tax cases the stated purpose of an organization does not determine its taxable status, if its actual operations are different from the stated ones. Here, paragraph 2 of the by-laws states as one purpose of the club: “To foster and cultivate the social, educational and business relations of the members; to improve their standards of honor, ethics, efficiency and productivity; to broaden their interests in the pursuit of their occupations; and to encourage among the members a true feeling of friendship and a friendly spirit of mutual cooperation.” Also, paragraph 5 states its purpose: “To erect, equip and maintain social club houses and other appropriate buildings for the use and enjoyment of all the members of the Club upon and under such terms and conditions, and subject to such rules, regulations and'restrictions as are for the best interests of the members.” We shall see that these “social” purposes were not in fact carried out to an extent sufficient to bring the club within the taxing statute.\nIn securing members of plaintiff club, a lengthy prospectus, which is, reproduced in Finding 12, was used. It makes no mention of social activities or advantages as such. It speaks of “Fraternal association such as other fraternal organizations of high standing furnish to their members * * * ”, and again of “the usual benefits and privilege of a fraternal organization”, and these statements were probably meant to connote sociability. But the other items mentioned in the prospectus “to improve his [the member’s] ethical standards, his business standing, and his financial status” were the ones that, in fact, received the attention of the club. The member’s ethical being was exposed to improvement by an almost unbelievably heavy and constant dosage of the writings of the national founder of the club, H. J. Monjar. These writings, or “messages”, took up, one by one, qualities such an honor, loyalty, common sense, courage, justice, ambition and pride, self control, confidence, etc. They were long, platitudinous,- repetitious, and hence dull. They seem, however, to have been well tuned to the membership, and to have given it substantially what it expected and paid for.\nThe monthly message was read at the monthly meeting of the whole Seattle Club, which comprised some 3,000 members in 1936. They met in the municipal auditorium which was hired for the meetings. Some former members testified that they were bored, or even put to sleep, by the reading of the message. Such reactions are",
"weight": 107.5,
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"url": "https://www.neochart.com/catalog/cases/f-supp/volume_47/0806_01/index.html",
"court": "United States Court of Claims",
"decade": "1940s",
"start": 9577,
"end": 9712,
"text": "It should be observed that this message came soon after the question of plaintiff’s liability for taxes was broached by the Government.",
"context": "ber of evenings taken up by the meetings, and some members grew weary and dropped out.\nBy faithful attendance at meetings, and performance of other acts approved by the club, co-points were amassed, which, when sufficient, entitled the member to be made a “full member” by a somewhat elaborate ritual.\nPlaintiff had no club house. Its permanent quarters were mere business offices and no sociability occurred there.\nOne of plaintiff’s standing committees was a welfare committee, appointed by the Local Board of Governors, whose function was to have charge of the so-called “unofficial activities” of the club. Under this committee were several subcommittees, including a recreation committee and an entertainment committee. .The Local Board of Governors tended to deemphasize the development of the recreational activities of the members. In 1934 the Board instructed the welfare committee as follows :\n“Do not make a dance or a game a major activity. Welfare work is to be a help in time of need. Would it not be more laudable to help some one who needs it than spend money on basketball or something of that sort.”\nIn 1936 the National Board reminded the Local Board that the chairmanship of the welfare committee was not an excuse for non-attendance at a captain’s meeting, with the following admonition: •\n“This is something that should never have happened. On no account should an unofficial activity be ever allowed to interfere with the official functions of the official Contact Structure.”\nIt should be observed that this message came soon after the question of plaintiff’s liability for taxes was broached by the Government.\nThere were, in the three years in question here, some twenty-nine picnics and parties, including swimming, skating, fishing, and card parties, dances, and a minstrel show, held under club auspices. To these the wives and families of the members were welcome. The club had no equipment or quarters for these affairs. There was no regularity about their occurrence. They were arranged for the occasion, just as a church or bar association or labor union might arrange an outing. None of these activities were financed from club funds, the welfare committee being required to support its own activities. The welfare committee had expenditures of $1,536.30 and a deficit of $128.13 in 1935, and a balance of $1,733.28 after expenditures of $1,826.18, including those for the Sick Committee and the Christmas Fund, in 1936.\nAt the beginning of the monthly meetings there was, sometimes, music by the band, orchestra or glee club. There were announcements of impending parties and athletic contests. The length of time consumed by these announcements varied with the speakers, but was small in comparison with the hours devoted to the hearing and discussion of the message.\nWhen the meetings of “divisions” of 100 members were held, in the neighborhoods where the members lived, the members frequently ate dinner together in a restaurant or a church, and then held their serious discussion in the same room. They had no regular place for such meetings, and by this method they obtained a meeting place, by",
"weight": 107.5,
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{
"url": "https://www.neochart.com/catalog/cases/f-supp/volume_385/0831_01/index.html",
"court": "United States District Court for the Middle District of Louisiana",
"decade": "1970s",
"start": 36046,
"end": 36061,
"text": ". See Appendix.",
"context": "le there are commercial abstract companies doing business in Baton Rouge and the surrounding parishes, their services are limited to the preparation of abstract to be furnished to attorneys who are handling the real estate transactions.\n(3) Attorneys either prepare their own abstracts from the public records of the offices of the Clerk and Recorder of Mortgages for the Parish, or obtain abstracts from such commercial abstract companies whose services are available, and examine titles and certify title to the property.\n(4) In the usual real estate transaction the purchaser and lender rely upon an attorney’s certification of title, and title insurance, though available, is not customarily required or obtained. This custom is followed by all the defendant associations except Guaranty, which now requires title insurance.\nEach of the parties to this stipulation suggests that there are other facts about which there is no material dispute but which could not be agreed upon or which were not considered for inclusion in this stipulation and reserves the right to individually file a statement of such facts or affidavits relating thereto. Further, it is understood by the parties hereto that as to matters contained herein which are the subject of testimony of the parties or their officers in depositions previously taken, the item of stipulation constitutes a summary and should not be construed as limiting such sworn testimony.\nSigned at Baton Rouge, Louisiana, this 25th day of May 1973.\n. See Appendix.\n. See Appendix.\n",
"weight": 57.0,
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"url": "https://www.neochart.com/catalog/cases/f-supp/volume_385/0831_01/index.html",
"court": "United States District Court for the Middle District of Louisiana",
"decade": "1970s",
"start": 1,
"end": 22,
"text": "MEMORANDUM OF REASONS",
"context": "\nMEMORANDUM OF REASONS\nCOMISKEY, District Judge.\nThis is an anti-trust action in which jurisdiction is based on 15 U.S.C. §§ 1, 2, 15, 26 with an amount in controversy in excess of $10,000 pursuant to 28 U.S.C. § 1831.\nPlaintiffs are attorneys engaged in the practice of law in East Baton Rouge Parish. The defendants are building and loan associations, (referred to as homesteads in Louisiana) who are chartered under the laws of Louisiana and of the United States, whose principal activity is the making of home and commercial mortgage loans to secure financing on real property. They are also in the savings industry wherein their depositors are paid a return on investments deposited with them. Plaintiffs allege that the homesteads have conspired to dominate the legal, notarial and title insurance business by making a condition of any loan the use of attorneys selected by the defendants which results in a systematic exclusion of plaintiffs as attorneys from this market place.\nThe parties have filed cross motions for summary judgment. In addition to the statements of uncontroverted material facts offered to support their respective motions, the parties have stipulated eighteen paragraphs of facts. Thus these motions involve only issues of law. Commercial Metals Company v. Walker, 5 Cir. 1971, 439 F.2d 1103, 1104; Cole v. Chevron Chemical Division, Oronite Division, 5 Cir. 1970, 427 F.2d 390, 393.\nI. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT\nPlaintiffs’ motion is based on 15 U.S.C. § 1 and § 2 and goes onl",
"weight": 57.0,
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{
"url": "https://www.neochart.com/catalog/cases/ill/volume_43/0018_01/index.html",
"court": "Illinois Supreme Court",
"decade": "1860s",
"start": 22,
"end": 57,
"text": "delivered the opinion of the Court:",
"context": "\nMr. Justice Lawrence\ndelivered the opinion of the Court:\nThis is a writ of error, prosecuted hy Elizabeth Campbell, upon a decree of the Circuit Court of Adams county, rendered in 1851, on the petition of her guardian for leave to sell certain real estate for her support and education. Waiving the question as to whether a writ of error will lie to a proceeding of this kind, we will dispose of the case on the errors assigned, as this will save parties future litigation and expense.\nThe first error assigned is, that it does not appear that Amy Harmon ever qualified as guardian. There was an exhibit filed with the bill showing the order of the .prohate court appointing her as guardian, and reciting that she had filed her bond. It is objected that the record should further show the bond was in proper form, and for the proper amount, but the Circuit Court may properly presume, in an application of this kind, that the bond mentioned in the order of the probate court was such as the law requires.\nThe second error assigned is, that sufficient notice of the application for leave to sell was not given. A notice signed in the name of the guardian, by her attorney, is in the record, together with an affidavit of the attorney showing that he posted it in the manner required by law, and the court, in the order of sale, recites that the notice had been given. The -attorney was undoubtedly a competent person to post the notice and a competent person to prove it, and the notice itself was in due form.\nThe. third assignment of errors is, that there",
"weight": 32.5,
"events": [],
"manual_mentions": null
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{
"url": "https://www.neochart.com/catalog/cases/ill/volume_43/0018_01/index.html",
"court": "Illinois Supreme Court",
"decade": "1860s",
"start": 3709,
"end": 4088,
"text": "technical defects. The fourth error assigned is, that the answer of the guardian ad litem, was improper. This was wholly immaterial, as the decree was not pronounced upon any admissions contained in his answer. In proceedings of this character, it was held in Smith v. Race, 27 Ill. 390, that the infants need not be made- parties, and that the appointment of a guardian ad litem",
"context": "at that time, was six years of age. These facts, appearing by the report of the master, justified the court in making the order of sale. It was not necessary that he should report the evidence. It was sufficient to report the facts proven by the evidence produced before him. McClay v. Norris, 4 Gilm. 370 ; Brockman v. Aulger, 12 Ill. 277. It is true, it would have been the better practice if he had specifically reported the facts proven, instead of reporting that the facts stated in the petition had been proven to be true, but in proceedings of this character, at that day, such a mode of making a master’s report was not uncommon, and as the objection goes rather to the form than the substance, we are not inclined to reverse decrees on this ground, many years after they have been rendered, and thereby jeopardize titles acquired in good faith under the sanction of judicial sales. While courts will be very ready to furnish ample redress to infants who have been injured by fraudulent practices on the part of their guar- dian, yet, where no indications of fraud appear, and the objec- tions taken to the proceedings are of a technical and formal character, the importance of protecting titles acquired under the decrees of court is entitled to much consideration. This has been recognized by all courts, and it is more especially true in this State, where the rapid rise in the value of real estate furnishes a constant inducement to explore ancient records for the purpose of discovering\ntechnical defects. The fourth error assigned is, that the answer of the guardian ad litem, was improper. This was wholly immaterial, as the decree was not pronounced upon any admissions contained in his answer. In proceedings of this character, it was held in Smith v. Race, 27 Ill. 390, that the infants need not be made- parties, and that the appointment of a guardian ad litem\nwas- unnecessary. The fifth and sixth errors assigned are substantially like\nthe third. The seventh is, that the decree fixed no day for the sale. The statute was not intended to require the court to fix the precise day or hour of sale. It is sufficient if the court in its order fixes certain reasonable limits, both a&to the day and the hour, within which the sale shall be held',, requiring the guar- dian to give due notice. The guardian may thus exercise some discretion in a mode favorable to the-ward’s- interests. In the present ease, the time fixed was between the date of the decree and the next term of the court, and between the hours of nine in the forenoon and four in the afternoon, the guardian first giving three weeks’ notice by publication in a newspaper of the time, place and terms of said sale. This we think sufficient. The other assignments of error- are not referred'to in the argu- ment, and we find in the foregoing no ground for reversing\nthe decree.\n",
"weight": 32.5,
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{
"url": "https://www.neochart.com/catalog/cases/f-supp/volume_985/0899_01/index.html",
"court": "United States District Court for the Southern District of Iowa",
"decade": "1990s",
"start": 10301,
"end": 11184,
"text": "The Finley court outlined a five-factor test to evaluate the reasonableness of an administrator’s decision in interpreting and applying plan provisions: (1) whether the administrator’s interpretation is consistent with the goals of the plan; (2) whether the interpretation renders any language in the plan meaningless or internally inconsistent; (3) whether the administrator’s interpretation conflicts with the substantive or procedural requirements of the ERISA statute; (4) whether the administrator has interpreted the relevant terms consistently; and (5) whether the interpretation is contrary to the clear language of the plan. Finley, 957 F.2d at 621; see Cask, 107 F.3d at 641; Buttram v. Central States Southeast and Southwest Areas Health & Welfare Fund, 76 F.3d 896, 901 (8th Cir.1996); Lickteig v. Business Men’s Assur. Co. of America, 61 F.3d 579, 583-84 (8th Cir.1995).",
"context": "ing whether the administrator had discretionary authority to determine eligibility for benefits or construe the plan’s terms. As stated above, the Court holds the amended plan gave the administrator discretionary authority. Consequently, the Court will review the administrator’s decision for abuse of discretion.\na. Abuse of Discretion Standard\nUnder the abuse-of-discretion standard, a court applies a deferential standard of review to an administrator’s plan interpretation and fact-based eligibility determinations. See Donaho, 74 F.3d at 898. The deferential standard does not allow a reviewing court to reject an administrator’s discretionary decision simply because the court disagrees. Id. The proper inquiry is “whether the plan administrator’s decision was reasonable; i.e., supported by substantial evidence.” Cash v. Wal-Mart Group Health Plan, 107 F.3d 637, 641 (8th Cir.1997). A court will affirm an administrator’s reasonable interpretation of a plan. Cox v. Mid-America Dairymen, Inc., 13 F.3d 272, 274 (8th Cir.1993); Finley v. Special Agents Mut. Benefit Ass’n, Inc., 957 F.2d 617, 621 (8th Cir.1992).\nA court will deem an administrator’s decision reasonable, if a reasonable person could have reached a similar decision, given the evidence before him, not that a reasonable person would have reached that decision. Cash, 107 F.3d at 641. The court cannot substitute its own weighing of the conflicting evidence for that of the plan administrator. Id. at 641. Cox, 965 F.2d at 573.\nThe Finley court outlined a five-factor test to evaluate the reasonableness of an administrator’s decision in interpreting and applying plan provisions: (1) whether the administrator’s interpretation is consistent with the goals of the plan; (2) whether the interpretation renders any language in the plan meaningless or internally inconsistent; (3) whether the administrator’s interpretation conflicts with the substantive or procedural requirements of the ERISA statute; (4) whether the administrator has interpreted the relevant terms consistently; and (5) whether the interpretation is contrary to the clear language of the plan. Finley, 957 F.2d at 621; see Cask, 107 F.3d at 641; Buttram v. Central States Southeast and Southwest Areas Health & Welfare Fund, 76 F.3d 896, 901 (8th Cir.1996); Lickteig v. Business Men’s Assur. Co. of America, 61 F.3d 579, 583-84 (8th Cir.1995).\nB. Administrator’s Decision\nERISA’s main object is to protect plan participants and their spouses. Boggs v. Boggs, — U.S. -,-, 117 S.Ct. 1754, 1762, 138 L.Ed.2d 45 (1997). The surviving-spouse annuity is part of ERISA’s mandatory participation and vesting requirements and protects spouses and plan participants. Id., — U.S. at -, 117 S.Ct. at 1760.\nTo waive the joint-and-survivor annuity requirement, a participant must get his spouse’s written consent, or alternatively, the participant may establish to the plan administrator’s satisfaction that he could not get the consent, either because he had no wife or could not locate her. See 29 U.S.C. § 1055(c)(2); Hearn v. Western Conference of Teamsters Pension Trust Fund, 68 F.3d 301, 303 (9th Cir.1995).\nTaylor died on May 22, 1988. If the administrator determined Blessing and Taylor had a valid common-law marriage one year prior to Taylor’s death, Blessing would be entitled to benefits as a surviving spouse under ERISA’s joint and survivor annuity requirement. See Hearn, 68 F.3d at 305-06 (pension plan was discharged from liability to an unknown but otherwise qualified, surviving spouse only to the extent it made payments under the plan to the deceased spouse; the plan remained liable to the surviving spouse to the extent its debt to the surviving spouse exceeded its overpayments to the deceased).\n1. Commortr-Law Marriage— Applicable Law and Test\nDesignation of ERISA plan beneficiaries and determination of who is entitled to ERISA ",
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"url": "https://www.neochart.com/catalog/cases/f-supp/volume_985/0899_01/index.html",
"court": "United States District Court for the Southern District of Iowa",
"decade": "1990s",
"start": 14668,
"end": 14720,
"text": "2. Administrator’s Finding of No Common-Law Marriage",
"context": "nderlying policies.” Id. at 948-49 (quoting Mohamed v. Kerr, 53 F.3d 911 (8th Cir.), cert. denied, 516 U.S. 868, 116 S.Ct. 185, 133 L.Ed.2d 123 (1995)).\nThe issue of what constitutes a valid common-law marriage is not expressly governed by ERISA; the Court therefore applies federal common law. In applying federal common law, the Court looks to Iowa law for guidance on this issue.\nIn Iowa, three elements must be proved to establish a common-law marriage: (1) present intent and agreement to be married; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife. In re Marriage of Gebhardt, 426 N.W.2d 651, 652 (Iowa App.1988); In re Marriage of Winegard, 278 N.W.2d 505, 510 (Iowa 1979); Conklin v. MacMillan Oil Co., 557 N.W.2d 102, 104 (Iowa.Ct.App.1996).\nWhen one party is deceased, the party asserting the marriage must prove the elements of a common-law marriage by a preponderance of clear, consistent, and convincing evidence. Conklin, 557 N.W.2d at 105. Continuous cohabitation of the parties and the declaration or holding out to the public that they were husband and wife is circumstantial evidence that tends to create a fair presumption that a common-law marriage existed. Id. A general and substantial holding out or open declaration to the public has been said to be the “acid test” of a common-law marriage. Id.\nThe Court may appropriately apply Iowa’s state law on this issue, because it does not conflict with ERISA or its underlying policies.\n2. Administrator’s Finding of No Common-Law Marriage\nIn this case, evidence concerning the critical issue of the validity of the common-law marriage is conflicting. Deere asserts the administrator did not abuse her discretion in determining Blessing failed to establish a valid marriage. Deere asserts that abundant evidence in the record, in the form of Taylor’s representations to the plan and Deere, supports the administrator’s finding.\nBlessing’s evidence to support her claim of a valid common-law marriage included affidavits from family and non-family members and a decision by the Social Security Administration holding the common-law marriage was valid.\nAmongst her evidence, Blessing submitted five new affidavits for the administrator’s reconsideration of her claim. The administrator first excluded these new affidavits from the record, because Blessing did not explain why she could not have presented the affidavits when she made her original claim. However, in accordance with the remand, the administrator nevertheless then analyzed the affidavits, and she stated the evidence would not alter her decision to deny benefits.\nThe administrator noted that from the time Taylor divorced his third wife, Ann, in October 1981, until his death in May 1988, he consistently presented himself in his employment records as an unmarried person. Specifically, the administrator considered the following: In April 1986, Taylor indicated he was single and marked “N/A” in the area for spousal name and information on an early retirement application,",
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"url": "https://www.neochart.com/catalog/cases/so3d/volume_198/0668_01/index.html",
"court": "Florida District Court of Appeal",
"decade": "2010s",
"start": 3147,
"end": 3169,
"text": "Reversed and remanded.",
"context": " Florida Rule of Civil Procedure 1.500(e) allows a final judgment to be entered after a party has been defaulted and-that the Harmenings had not been defaulted at the time the final judgment was entered. She explained that a motion for judicial default was pending and therefore she expected the motion to be ruled on before any other action would be taken in the case. Not having received BAC’s filings in preparation for trial, she was unaware that the trial was going forward.\nWe agree with the Harmenings’ argument on appeal that the trial court should have vacated the final judgment because neither the Harmenings nor their counsel were properly noticed of trial. The pending motion for judicial default and the lack of communication from BAC led Ms. Sharpe, the attorney of record, to reasonably believe that the case was not yet at issue. S.ee Fla. R. Civ. P. 1.440(a) (“An action is at issue after any motions .directed to the last pleading served have been disposed of.”); Ocean Bank v. Garcia-Villalta, 141 So.3d 256, 257-58 (Fla. 3d DCA 2014) (holding that the case was not properly at issue' because the trial court had not ruled on a pending motion for default). Because the lack of proper notice deprived the Harmenings of due process, we vacate the final judgment and remand the cause for a new trial. See Brown v. Reynolds, 872 So.2d 290, 297 (Fla. 2d DCA 2004) (holding that the failure to comply with the notice requirements of rule 1.440 denied the party procedural due process).\nReversed and remanded.\nWALLACE and KHOUZAM, JJ„ Concur.\n",
"weight": 18.41304347826087,
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"url": "https://www.neochart.com/catalog/cases/so3d/volume_198/0668_01/index.html",
"court": "Florida District Court of Appeal",
"decade": "2010s",
"start": 1,
"end": 14,
"text": "KELLY, Judge.",
"context": "\nKELLY, Judge.\n.Thomas and Karen Harmening appeal from the final judgment of foreclosure rendered in favor of BAC Home Loans Servicing (BAC) and from the orders denying their motions for rehearing and to vacate the final judgment. Because the Harmen-ings were not properly noticed in this proceeding, we reverse and remand for a new trial.\nThe Harmenings were originally represented by Douglas E. Polk in this foreclosure action. Mr. Polk was served with a September 10, 2012, order setting a case management conference for November 26, 2012, and a December 5,' 2012, order setting the date for trial on January 7, 2013. Attorney Kimberly L. Sharpe appeared at the case management conference on November 26 and informed BAC and the court that she was taking over representation of the Harmenings. The trial court approved a stipulation for substitution of counsel on December 6, 2012.\" However, even after the substitution of counsel, BAC continued to serve Mr. Polk with documents in preparation for trial, including the plaintiffs witness list, the plaintiffs exhibit list, and an amended affidavit of costs.\nNeither the Harmenings nor Ms. Sharpe appeared for trial on January 7, 2013. Consequently, the trial court entered final judgment in favor of BAC.' The final judgment of foreclosure was served upon Mr. Polk, which he apparently did not receive because he had left the law firm where it was delivered. Shortly thereafter, Mr. Harmening learned of the pending foreclosure sale of his home and notified Ms.",
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"url": "https://www.neochart.com/catalog/cases/f3d/volume_520/0912_01/index.html",
"court": "United States Court of Appeals for the Eighth Circuit",
"decade": "2000s",
"start": 11552,
"end": 12403,
"text": "Even if we were to look beyond the text of the statute, we would not agree with the conclusion reached by the D.C. Circuit. As the dissent in Villanueva-Sotelo points out, Congress clearly intended identity theft to be read generically. Id. at 1253 (Henderson, J., dissenting). Further, “[a] primary purpose of the statute was to increase the punishment for a defendant who ‘wrongfully obtains and uses another person’s personal data,’ ” which is clearly what occurred here. See id. at 1254 (Henderson, J., dissenting) (quoting H.R.Rep. No. 108-528 at 4, U.S.Code Cong. & Admin.News 2004, p. 779). Therefore, even if we were to look at legislative history and congressional intent, we would still conclude that § 1028A(a)(l) does not require the Government to prove that the defendant knew that the means of identity belonged to another actual person.",
"context": "owingly’ requirement with Hines’s admission that he provided another person’s name to police”. Id. at 1039. In support of that proposition, the court cited United States v. Crounsset, 403 F.Supp.2d 475, 483 (E.D.Va.2005), in which the Eastern District of Virginia held that § 1028A(a)(l) “does not require that the government prove ... that defendant knew that the identifying information contained in the fraudulent passport belonged to an actual individual.” Id. at 1040. Thus, our precedent strongly supports, if not compels, the conclusions we reach.\nWe acknowledge that we have reached a different conclusion than the D.C. Circuit which held that the statutory language of § 1028A(a)(l) was ambiguous and the court could therefore use the statutory structure, relevant legislative history and congressional purposes to interpret it. See Villanueva-Sotelo, 515 F.3d at 1243. Using legislative history, the court stated that the House Judiciary Committee Report accompanying the Identity Theft Penalty Enhancement Act contained multiple examples of identity theft which all involved defendants who knew the identification they used belonged to another and concluded that Congress intended the increased sentence provided for in § 1028A(a)(l) to apply only to those defendants who knew the means of identification belonged to an actual person. Id. at 1243-44. However, as noted above, we will not look beyond the text of the statute if its plain language is unambiguous, as we conclude it is here.\nEven if we were to look beyond the text of the statute, we would not agree with the conclusion reached by the D.C. Circuit. As the dissent in Villanueva-Sotelo points out, Congress clearly intended identity theft to be read generically. Id. at 1253 (Henderson, J., dissenting). Further, “[a] primary purpose of the statute was to increase the punishment for a defendant who ‘wrongfully obtains and uses another person’s personal data,’ ” which is clearly what occurred here. See id. at 1254 (Henderson, J., dissenting) (quoting H.R.Rep. No. 108-528 at 4, U.S.Code Cong. & Admin.News 2004, p. 779). Therefore, even if we were to look at legislative history and congressional intent, we would still conclude that § 1028A(a)(l) does not require the Government to prove that the defendant knew that the means of identity belonged to another actual person.\nWe recognize that the Supreme Court has in some circumstances interpreted the term “knowingly” in similarly worded criminal statutes to modify terms in addition to the verbs directly adjacent to “knowingly.” See, e.g., Arthur Andersen LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005); United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985). However, in those instances the Supreme Court was concerned about criminalizing unwitting, innocent and perhaps even constitutionally protected conduct. In X-Citement Video, for example, the Court held that the term “knowingly” extended not only to the verbs that followed the term but also to the sexually explicit nature of the materials and the age of the children depicted because to hold otherwise would have allowed the Government to hold individuals who innocently received or sent packages not knowing they contained sexually explicit pictures of minors criminally liable. X-Citement Video, 513 U.S. at 69, 115 S.Ct. 464.\nHere, there is no such concern that the statute could criminalize otherwise unwitting, innocent conduct. In fact, a defendant can only be convicted for violating § 1028A(a)(1) when he commits the offense “during and in relation to any felony violation enumerated in [§ 1028A(c)].” Mendoza-Gonzalez used Gurrola’s documents while committing another felony, making a false representatio",
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"review_note": "Root manual scan identified an independent named short reference with a full antecedent in the opinion."
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{
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"end": 11800,
"quote": "Id. at 1253",
"pattern": "case_id",
"canonical": "515 F.3d 1234",
"review_note": "antecedent Villanueva-Sotelo, 515 F.3d 1234, explicit in preceding paragraph"
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"pattern": "case_id",
"canonical": "515 F.3d 1234",
"review_note": "antecedent Villanueva-Sotelo, 515 F.3d 1234, explicit in preceding paragraph"
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"end": 12276,
"quote": "§ 1028A(a)(l)",
"pattern": "statute_short",
"canonical": "18 U.S.C. § 1028A",
"review_note": "18 U.S.C. § 1028A identity explicit elsewhere in same opinion"
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{
"url": "https://www.neochart.com/catalog/cases/f3d/volume_520/0912_01/index.html",
"court": "United States Court of Appeals for the Eighth Circuit",
"decade": "2000s",
"start": 4716,
"end": 5717,
"text": "Mendoza-Gonzalez argues that the term “knowingly” modifies not only “transfers, possesses, or uses,” but also the phrase “of another person.” This interpretation would require the Government to prove that a defendant knew the means of identification belonged to an actual person. United States v. Villanueva-Sotelo, 515 F.3d 1234 (D.C.Cir.2008). The Government, alternatively, argues that “knowingly” only modifies “transfers, possesses, or uses” which would not require the Government to prove that the defendant knew the means of identification belonged to a real person. The Government contends that § 1028A(a)(l) requires only that the means of identification in fact belonged to a real person, not that the defendant knew that it did. See United States v. Hurtado, 508 F.3d 603 (11th Cir.2007) (per curiam), petition for cert. filed, — U.S.L.W. - (U.S. Feb. 13, 2008) (No. 07-9429); United States v. Montejo, 442 F.3d 213 (4th Cir.), cert. denied, — U.S. -, 127 S.Ct. 366, 166 L.Ed.2d 138 (2006).",
"context": "an actual person and that Gurrola was still a living person at the time Mendoza-Gonzalez fraudulently used his identification.\nII. DISCUSSION\nWe review the district court’s statutory interpretation de novo. See United States v. Kirchoff, 387 F.3d 748, 750 (8th Cir.2004). In interpreting a statute we first “determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” See Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). If so, we apply the plain language of the statute. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). Only if the language is ambiguous may we look beyond the text. See Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). However, “[a] mere disagreement among litigants over the meaning of a statute does not prove ambiguity; it usually means that one of the litigants is simply wrong.” Bank of Am. Nat’l Trust & Sav. Ass’n v. 203 N. LaSalle St. P’ship, 526 U.S. 434, 461, 119 S.Ct. 1411, 143 L.Ed.2d 607 (1999).\nThe aggravated identity theft statute, 18 U.S.C. § 1028A(a)(l), provides that\n[w]hoever, during and in relation to any felony violation enumerated in [§ 1028A(c) ], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.\nMendoza-Gonzalez argues that the term “knowingly” modifies not only “transfers, possesses, or uses,” but also the phrase “of another person.” This interpretation would require the Government to prove that a defendant knew the means of identification belonged to an actual person. United States v. Villanueva-Sotelo, 515 F.3d 1234 (D.C.Cir.2008). The Government, alternatively, argues that “knowingly” only modifies “transfers, possesses, or uses” which would not require the Government to prove that the defendant knew the means of identification belonged to a real person. The Government contends that § 1028A(a)(l) requires only that the means of identification in fact belonged to a real person, not that the defendant knew that it did. See United States v. Hurtado, 508 F.3d 603 (11th Cir.2007) (per curiam), petition for cert. filed, — U.S.L.W. - (U.S. Feb. 13, 2008) (No. 07-9429); United States v. Montejo, 442 F.3d 213 (4th Cir.), cert. denied, — U.S. -, 127 S.Ct. 366, 166 L.Ed.2d 138 (2006).\nWe begin our analysis by determining whether the language of § 1028A(a)(1) has a plain and unambiguous meaning with regard to the dispute in this case. See Hurtado, 508 F.3d at 609; Montejo, 442 F.3d at 215. “Knowingly” is an adverb, and “[g]ood usage requires that the limiting modifier, the adverb ‘knowingly,’ be as close as possible to the words which it modifies.” Montejo, 442 F.3d at 215. “The fact that the word ‘knowingly’ — an adverb — is placed before the verbs ‘transfers, possesses, or uses’ indicates that ‘knowingly’ modifies those verbs, not the later language in the statute.” Hurtado, 508 F.3d at 609 (citing United States v. Jones, 471 F.3d 535, 539 (4th Cir.2006) (“[a]dverbs generally modify verbs”)). The last antecedent rule holds that qualifying words and phrases usually apply only to the words or phrases immediately preceding or following them, not to others that are more remote. See 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 47:33 (7th ed.2007). “While [the last antecedent rule] is not an absolute and can assuredly be overcome by other indicia of meaning ... construing a statute in accord with the rule is quite sensible as a matter of grammar.” Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) (internal quotation omitted). Therefore, we find that the plain language of § 1028A(a)(l) limits “knowingly” to modifying “transfers, possesses, or uses” and not “of another person.” Thus, we conclude that § 1",
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"url": "https://www.neochart.com/catalog/cases/cal/volume_8/0058_01/index.html",
"court": "Supreme Court of California",
"decade": "1850s",
"start": 2894,
"end": 3431,
"text": "The word “ supervisors,” when applied to county officers, has a legal signification. The duties of the officer are various and manifold; sometimes judicial, and at others, legislative and executive. From the necessity of the case, it would be impossible to reconcile them to any particular head, and, therefore, in matters relating to the police and fiscal regulations of counties, they are allowed to perform such duties as may be enjoined upon them by law, without any nice examination into the exact character of the powers conferred.",
"context": "ce of county supervisors, and that the legitimate result of the decision would be to place the inferior or subordinate agents of the people beyond the reach and control of all supervisory power.\nThe decision in the case of The People v. Hester, proceeded on the ground, that the third article of the Constitution of this State had so distributed the powers of government, as to forbid those charged with duties belonging to one, from exercising functions appertaining to another department. That by law, a writ of certiorari could only issue to an inferior board or officer exercising judicial functions, and that it was inconsistent with the theory of the distribution of powers by the third arliele, for the supervisors to exercise judicial functions. This would equally apply to the writ of prohibition, but it is not perceived on what ground the Court below, in the present case, refused to interpose by injunction.\nThe error in the case of The People v. Hester, consisted in overlooking the fifth section of the ninth article of the Constitution, which provides, that “ The Legislature shall have power to provide for the election of a board of supervisors in each county, and these supervisors shall jointly and individually perform such duties as may be prescribed by law.” This section must be regarded as a limitation on the third article. In using the word “ supervisors,” the Constitution intended to adopt it with its known meaning, and in the sense in which it was generally understood.\nThe word “ supervisors,” when applied to county officers, has a legal signification. The duties of the officer are various and manifold; sometimes judicial, and at others, legislative and executive. From the necessity of the case, it would be impossible to reconcile them to any particular head, and, therefore, in matters relating to the police and fiscal regulations of counties, they are allowed to perform such duties as may be enjoined upon them by law, without any nice examination into the exact character of the powers conferred.\nThis rule will preserve the utility of these officers, while it is, at the same time, in harmony with the spirit of the Constitution itself. It remains but to add, that the decision of this Court, in the case of The People v. Hester, is erroneous, and that we are happy that so early an opportunity has been presented to us for correcting the same.\nJudgment reversed, and cause remanded.\n",
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"court": "Supreme Court of California",
"decade": "1850s",
"start": 2314,
"end": 2893,
"text": "The error in the case of The People v. Hester, consisted in overlooking the fifth section of the ninth article of the Constitution, which provides, that “ The Legislature shall have power to provide for the election of a board of supervisors in each county, and these supervisors shall jointly and individually perform such duties as may be prescribed by law.” This section must be regarded as a limitation on the third article. In using the word “ supervisors,” the Constitution intended to adopt it with its known meaning, and in the sense in which it was generally understood.",
"context": "tained. The case of The People v. Hester was submitted to us without argument; after its decision, we ordered the case to be argued for our own information, and invited the bar generally to participate in the discussion. Ho one feeling sufficiently interested in the Court, or the correctness of its decisions, to appear in the case, the former opinion was allowed to stand. Subsequent cases, however, showed that the rule thus established would have to be abandoned, or the most important rights of parties would be left to rest entirely upon the uncontrolled discretion or caprice of county supervisors, and that the legitimate result of the decision would be to place the inferior or subordinate agents of the people beyond the reach and control of all supervisory power.\nThe decision in the case of The People v. Hester, proceeded on the ground, that the third article of the Constitution of this State had so distributed the powers of government, as to forbid those charged with duties belonging to one, from exercising functions appertaining to another department. That by law, a writ of certiorari could only issue to an inferior board or officer exercising judicial functions, and that it was inconsistent with the theory of the distribution of powers by the third arliele, for the supervisors to exercise judicial functions. This would equally apply to the writ of prohibition, but it is not perceived on what ground the Court below, in the present case, refused to interpose by injunction.\nThe error in the case of The People v. Hester, consisted in overlooking the fifth section of the ninth article of the Constitution, which provides, that “ The Legislature shall have power to provide for the election of a board of supervisors in each county, and these supervisors shall jointly and individually perform such duties as may be prescribed by law.” This section must be regarded as a limitation on the third article. In using the word “ supervisors,” the Constitution intended to adopt it with its known meaning, and in the sense in which it was generally understood.\nThe word “ supervisors,” when applied to county officers, has a legal signification. The duties of the officer are various and manifold; sometimes judicial, and at others, legislative and executive. From the necessity of the case, it would be impossible to reconcile them to any particular head, and, therefore, in matters relating to the police and fiscal regulations of counties, they are allowed to perform such duties as may be enjoined upon them by law, without any nice examination into the exact character of the powers conferred.\nThis rule will preserve the utility of these officers, while it is, at the same time, in harmony with the spirit of the Constitution itself. It remains but to add, that the decision of this Court, in the case of The People v. Hester, is erroneous, and that we are happy that so early an opportunity has been presented to us for correcting the same.\nJudgment reversed, and cause remanded.\n",
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"court": "New York Supreme Court, Appellate Division",
"decade": "1990s",
"start": 5632,
"end": 5994,
"text": ". The interior door to plaintiff’s room was a solid wood door and was equipped with a deadbolt lock, which was engaged at the time Schneider entered the room. The record and photographs provided to the court indicate that Schneider hit the door with sufficient force to splinter the door, bend the lock and move the door frame one quarter to one half of an inch.",
"context": "wever, that Cornell fulfilled its duty to plaintiff in this regard. Although Schneider initially entered the building via the exterior fire gate door as other people were exiting, it is undisputed that upon his return trip, Schneider found the exterior fire gate door to be locked and was only able to enter the dormitory by scaling some 2 V-i stories of exterior metal grating, at which point he climbed over the grating and accessed an exterior stairwell. Additionally, while Schneider apparently then entered the building’s interior through an unlocked or open fire door, Schneider still had to overcome the solid wood door to plaintiff’s room which, by all indications, was equipped with a working deadbolt lock. Cornell was only required to provide reasonable security measures (see, Tarter v Schildkraut, 151 AD2d 414, 415, supra), and we are of the view that by placing two locked doors between plaintiff and Schneider, one of which Schneider was able to circumvent only by extraordinary and unforeseeable means, Cornell met and discharged its duty to plaintiff. Accordingly, Cornell’s motion for summary judgment dismissing the complaint against it was properly granted. We have examined plaintiff’s remaining contentions and find them to be lacking in merit.\nMikoll, J. P., Yesawich Jr., Mahoney and Harvey, JJ., concur. Ordered that the order is affirmed, without costs.\n. Cornell concedes that the second floor fire door leading to the interior of the building was unlocked at this point.\n. The interior door to plaintiff’s room was a solid wood door and was equipped with a deadbolt lock, which was engaged at the time Schneider entered the room. The record and photographs provided to the court indicate that Schneider hit the door with sufficient force to splinter the door, bend the lock and move the door frame one quarter to one half of an inch.\n",
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"url": "https://www.neochart.com/catalog/cases/ad2d/volume_194/0916_01/index.html",
"court": "New York Supreme Court, Appellate Division",
"decade": "1990s",
"start": 1076,
"end": 1619,
"text": "Sometime later, Schneider returned to the dormitory and, finding the exterior fire gate door locked, scaled the steel grating covering the fire escape stairwell (approximately 2V¿ to 3 stories high) until he was able to climb over the grating into the exterior stairwell. It appears that Schneider then searched until he found an unlocked fire door, entered the building and returned to plaintiff’s room. Schneider again knocked on the door and, when he did not receive an answer, broke down the door, entered the room and assaulted plaintiff.",
"context": "\nCrew III, J.\nAppeal from an order of the Supreme Court (Monserrate, J.), entered March 6, 1992 in Tompkins County, which granted defendant Cornell University’s motion for summary judgment dismissing the complaint against it.\nDuring the summer of 1989, plaintiff was employed by defendant Cornell University in a maintenance capacity and, in connection therewith, was provided with the use of a campus dormitory room. On the evening of July 26, 1989, plaintiff attended a concert with Tammy Haskins, who was apparently the former girlfriend of defendant David Schneider. Following the concert, plaintiff and Haskins returned to his dormitory room. Schneider thereafter discovered Haskins’ vehicle parked outside plaintiff’s dormitory and, after removing certain wires and cables from the vehicle’s engine, entered the dormitory via a locked steel fire gate door as other people were exiting the building. Schneider then walked upstairs to the second floor, where plaintiff’s room was located, and knocked on plaintiff’s door; receiving no answer, Schneider left the building.\nSometime later, Schneider returned to the dormitory and, finding the exterior fire gate door locked, scaled the steel grating covering the fire escape stairwell (approximately 2V¿ to 3 stories high) until he was able to climb over the grating into the exterior stairwell. It appears that Schneider then searched until he found an unlocked fire door, entered the building and returned to plaintiff’s room. Schneider again knocked on the door and, when he did not receive an answer, broke down the door, entered the room and assaulted plaintiff.\nPlaintiff thereafter commenced separate actions against Schneider and Cornell, alleging that the latter failed to provide adequate security and/or keep its premises in proper repair. The actions were subsequently consolidated and, following service of a supplementary answer, Cornell moved for summary judgment dismissing the complaint against it. Supreme Court granted Cornell’s motion, finding that Cornell fulfilled its duty to provide minimal security measures to protect plaintiff from foreseeable criminal intrusion. Plaintiff now appeals.\nThere must be an affirmance. In order to establish a prima facie case of negligence against Cornell, plaintiff had to demonstrate that (1) Cornell owed him a duty, (2) Cornell breached that duty, and (3) plaintiff suffered injuries as a result of that breach (see generally, Iannelli v Powers, 114 AD2d 157, 161, lv denied 68 NY2d 604). To that end, it is well settled that \"[a] [party] who possesses realty, either as an owner or as a tenant, is under a duty to exercise reasonable care under the circumstances to maintain the property in a safe condition, including the undertaking of minimal precautions to protect members of the public from the reasonably foreseeable criminal acts of third persons” (Provenzano v Roslyn Gardens Tenants Corp., 190 AD2d 718, 720; see, Miller v State of New York, 62 NY2d 506, 513; Newell v Swiss Reassurance Co., 181 AD2d 505, 506; Tarter v Schildkraut, 151 AD2d 414, 415, lv denied 74 NY2d 616; Iannelli v Powers, s",
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"court": "United States District Court for the Southern District of Iowa",
"decade": "2000s",
"start": 24733,
"end": 24971,
"text": "Iowa law governs the determination of the substantive issues of fraudulent conveyance. Iowa enacted the Uniform Fraudulent Transfer Act (UFTA) in 1995. The relevant section of Iowa’s (UFTA) is Iowa Code Section 684.4 (1998), which states:",
"context": "ary judgment is granted on count I.\nB. Fraudulent Conveyance\nCount II of Northwest’s claim asserts a claim for post-closing fraudulent conduct and fraudulent conveyance. In none of its complaints or briefs, however, does Plaintiff ever identify the fraudulent transfers or conduct. Although this is not a motion for judgment on the pleadings, the Court believes the federal rules of pleading are of relevance here. Federal Rule of Civil Procedure 9(b) in pertinent part, states: “In all averments of fraud ... the circumstances constituting fraud ... shall be stated with particularity.” One of the main purposes of Federal Rule 9(b) is to “facilitate a defendant’s ability to respond and to prepare a defense to charges of fraud.” Commercial Property Investments, Inc. v. Quality Inns Intern., Inc., 61 F.3d 639, 644 (8th Cir.1995) (citing Greenwood v. Dittmer, 776 F.2d 785, 789 (8th Cir.1985)). Thus, mere “conclusory allegations that a defendant’s conduct was fraudulent and deceptive are not sufficient to satisfy the rule.” Id. (citing In re Flight Transp. Corp. Sec. Litig., 593 F.Supp. 612, 620 (D.Minn.1984)). At a minimum, a Plaintiff must assert the time, place, and contents of false representations, as well as the identity of the person making the misrepresentation, and what was obtained or given up thereby. Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir.1982), adhered to on reh’g, 710 F.2d 1361 (8th Cir.) (en banc), cert denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983);\nIowa law governs the determination of the substantive issues of fraudulent conveyance. Iowa enacted the Uniform Fraudulent Transfer Act (UFTA) in 1995. The relevant section of Iowa’s (UFTA) is Iowa Code Section 684.4 (1998), which states:\n1. A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation under any of the following circumstances:\na. With actual intent to hinder, delay, or defraud any creditor of the debtor.\nb. Without receiving a reasonably equivalent value in exchange for the transfer or obligation, if either of the following applies:\n(1) The debtor was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction.\n(2) The debtor intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor’s ability to pay as they became due.\nIn Plaintiffs Second Revised Amended and Substituted Complaint, it asserts, without elaboration, that substantial revenues and/or assets were diverted from the debtor to defendant FNIB and done under circumstances “involving inadequacy of consideration, secrecy and concealment, financial difficulty of the transferor, threat of third party litigation, departure from usual business methods, and reservation of benefits to the transferor.” Nowhere in its complaint does Plaintiff refer to § 684.4 of the Iowa Code nor attempt to satisfy any of the elements contained therein. In fact, it is not until the Plaintiffs brief in resista",
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"court": "United States District Court for the Southern District of Iowa",
"decade": "2000s",
"start": 21898,
"end": 23268,
"text": "A number of courts in other jurisdictions, have upheld exceedingly similar warranty disclaimers to the one at issue here against claims of justifiable reliance. See Bank of Montreal v. Signet Bank, 193 F.3d 818, 829-30 (4th Cir.1999), Banque Arabe et Int’l D’Investissement v. Maryland Nat’l Bank, 57 F.3d 146, 155 (2nd Cir.1995), Bank of the West v. Valley Nat’l Bank of Arizona, 41 F.3d 471, 477 (9th Cir.1994); First Financial Fed. Sav. & Loan Ass’n v. E.F. Hutton Mortgage Corp., 834 F.2d 685, 687 (8th Cir.1987), Banco Totta e Acores v. Fleet Nat’l Bank, 768 F.Supp. 943, 948-49 (D.R.I.1991), First State Bank of Wheatland v. American National Bank, 808 P.2d 804, 806 (Wy.1991). The Court finds these authorities highly instructive. This Court holds that where two sophisticated lenders enter into a contract where one party specifically disclaims reliance upon a representation in a contract, that party cannot, in a subsequent action for fraud, assert it was fraudulently induced to enter into the contract by the very representation it has disclaimed. Banque Arabe et Int’l D’Investissement, 57 F.3d at 155. Because Northwest disclaimed reliance on any representation or warranty by Defendants, Northwest can not now assert it was fraudulently induced to enter into the loan participation agreement. Defendants’ motion for summary judgment is granted on count I.",
"context": " 306 (Iowa 1979)). Paragraph 17 of the loan participation agreement states:\nLIABILITY AND DISCLAIMER OF WARRANTIES.... Purchaser acknowledges that it is not relying upon Seller’s judgment, and that Seller has made no warranty of any kind, express or implied, in connection with the Loan or any of the foregoing. Unless otherwise agreed, Seller makes no warranties or representations regarding the legality, perfection, enforceability, or priority of any security interests, mortgages, guaranties, or similar documents issued in connection with the Loan ...\nThe terms of paragraph 17 clearly and unambiguously express that Northwest is not relying on any of FINB’s information and that FINB has made no warranty with regards to any information provided.\nIowa courts have upheld warranty clauses as bars to certain claims. See Clinton Federal Savings & Loan Assn. 391 N.W.2d at 717, Owen Constr. Co. 274 N.W.2d at 306. In its defense, Northwest cites First National Bank in Lenox v. Brown, 181 N.W.2d 178, 182 (Iowa 1970), for the general rule that “misrepresentations amounting to fraud in the inducement of a contract, whether innocent or not, give rise to a right of avoidance on the part of the defrauded party.” In that case, however, the party claiming fraud was not a sophisticated lending institution. Perhaps even more relevant, the complainant had not expressly waived his right to rely on information provided by the lender. Accordingly, the general rule does not apply in the present case.\nA number of courts in other jurisdictions, have upheld exceedingly similar warranty disclaimers to the one at issue here against claims of justifiable reliance. See Bank of Montreal v. Signet Bank, 193 F.3d 818, 829-30 (4th Cir.1999), Banque Arabe et Int’l D’Investissement v. Maryland Nat’l Bank, 57 F.3d 146, 155 (2nd Cir.1995), Bank of the West v. Valley Nat’l Bank of Arizona, 41 F.3d 471, 477 (9th Cir.1994); First Financial Fed. Sav. & Loan Ass’n v. E.F. Hutton Mortgage Corp., 834 F.2d 685, 687 (8th Cir.1987), Banco Totta e Acores v. Fleet Nat’l Bank, 768 F.Supp. 943, 948-49 (D.R.I.1991), First State Bank of Wheatland v. American National Bank, 808 P.2d 804, 806 (Wy.1991). The Court finds these authorities highly instructive. This Court holds that where two sophisticated lenders enter into a contract where one party specifically disclaims reliance upon a representation in a contract, that party cannot, in a subsequent action for fraud, assert it was fraudulently induced to enter into the contract by the very representation it has disclaimed. Banque Arabe et Int’l D’Investissement, 57 F.3d at 155. Because Northwest disclaimed reliance on any representation or warranty by Defendants, Northwest can not now assert it was fraudulently induced to enter into the loan participation agreement. Defendants’ motion for summary judgment is granted on count I.\nB. Fraudulent Conveyance\nCount II of Northwest’s claim asserts a claim for post-closing fraudulent conduct and fraudulent conveyance. In none of its complaints or briefs, however, does Plaintiff ever identify the fraudulent transfers or conduct. Although this is not a motion for judgment on the pleadings, the Court believes the federal rules of pleading are of relevance here. Federal Rule of Civil Procedure 9(b) in pertinent part, states: “In all averments of fraud ... the circumstances constituting fraud ... shall be stated with particularity.” One of the main purposes of Federal Rule 9(b) is to “facilitate a defendant’s ability to respond and to prepare a defense to charges of fraud.” Commercial Property Investments, Inc. v. Quality Inns Intern., Inc., 61 F.3d 639, 644 (8th Cir.1995) (citing Greenwood v. Dittmer, 776 F.2d 785, 789 (8th Cir.1985)). Thus, mere “conclusory allegations that a defendant’s conduct was fraudulent and deceptive are not sufficient to satisfy the rule.” Id. (citing In re Flight Transp. Corp. Sec. Litig., 593 F.Supp. 612, 620 (D.Minn.1984)). At a minimum, a Plaintiff must assert the time, place, and contents of false representations, as well as the identity of the person making the misrepresentation, and what was obtained or given up thereby. Bennett v. Berg, 685 F.2d 1053, 1062 (8th Cir.1982), adhered to on reh’g, 710 F.2d 1361 (8th Cir.) (en banc), cert denied, 464 U.S. 1008, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983);\nIowa law governs the determination ",
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"url": "https://www.neochart.com/catalog/cases/f2d/volume_539/0663_01/index.html",
"court": "United States Court of Appeals for the Eighth Circuit",
"decade": "1970s",
"start": 7750,
"end": 8169,
"text": "We find such prejudice here. See, e. g. Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974); United States v. Butler, 164 U.S.App.D.C. 151, 504 F.2d 220, 224 (1974); Canal Zone v. C, 479 F.2d 1253, 1254-55 (5th Cir. 1974); United States v. Marshall, 488 F.2d 1169 (9th Cir. 1973); ABA Standards For Criminal Justice, Standards Relating To The Prosecution Function And The Defense Function, § 4.1 and commentary.",
"context": "hen he fails in the performance of this duty the proceedings may be said to have been reduced to a “farce” and “mockery of justice.” See McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974). A defendant can hardly be faulted in his claim of ineffective assistance of counsel when his appointed attorney has little working knowledge of criminal law. However, this fact alone will not avail a defendant of a claim for ineffective assistance of counsel. Although there is an acknowledged difference between the trials of civil and criminal cases, “civil attorneys” prepare themselves for trial in a vast range of diversified subjects and a competent civil trial lawyer should be able to properly prepare and defend a criminal case.\nIn the present ease adequate representation required that counsel contest a police intrusion into the privacy of the defendant’s home allegedly brought about by a contrived ruse of an acquaintance. It is fundamental, we think to afford a defendant a fair trial on a criminal charge, that his counsel assert that which may be his only defense. This is particularly true when that defense has a factual basis and there is a recognized and obvious means to suppress evidence which has allegedly been illegally seized. As we said in Crismon, supra at 358:\n[Jjudges must still make a legal judgment as to whether, in face of the allegations made and the proof adduced, the defendant was materially prejudiced in the defense of his case by the actions or inactions of his counsel.\nWe find such prejudice here. See, e. g. Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974); United States v. Butler, 164 U.S.App.D.C. 151, 504 F.2d 220, 224 (1974); Canal Zone v. C, 479 F.2d 1253, 1254-55 (5th Cir. 1974); United States v. Marshall, 488 F.2d 1169 (9th Cir. 1973); ABA Standards For Criminal Justice, Standards Relating To The Prosecution Function And The Defense Function, § 4.1 and commentary.\nThe judgment of conviction is vacated and the cause remanded to the district court for appointment of competent trial counsel and for a new trial. The mandate shall issue forthwith and the defendant shall be given the right to apply for immediate bond before the district court.\n. According to the defendant the lock on his house door requires a key to open on both the inside and the outside.\n. The Supreme Court in discussing “the right to effective assistance of counsel” indicates that this means simply representation “within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).\nHENLEY, Circuit Judge\n(concurring):\nThe right to counsel has historically been an evolving concept, Argersinger v. Hamlin, 407 U.S. 25, 44, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). My dissent in Thomas v. Wyrick, 535 F.2d 407 (8th Cir. 1976), called attention to some earlier opinions of this circuit pertinent to development of an acceptable standard by which constitutional adequacy of representation by counsel might be gauged and voiced approval of the standard laid down in Cardarella v. United States, 375 F.2d 222 (8th Cir.), cert. denied, 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176 (1967), as amplified in Scalf v. Bennett, 408 F.2d 325 (8th Cir.), cert. denied, 396 U.S. 887, 90 S.Ct. 175, 24 L.Ed.2d 161 (1969).\nToday the court has announced that the standard established in our prior decisions is that trial c",
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"url": "https://www.neochart.com/catalog/cases/f2d/volume_539/0663_01/index.html",
"court": "United States Court of Appeals for the Eighth Circuit",
"decade": "1970s",
"start": 21,
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"text": "On October 16, 1975, a grand jury indictment was returned against Joseph Ward Easter charging him with possession of a firearm without filing an application in violation of 26 U.S.C. §§ 5861(c) and 5871 and possession of a firearm not registered with the Department of the Treasury in violation of 26 U.S.C. §§ 5861(d) and 5871.",
"context": "\nLAY, Circuit Judge.\nOn October 16, 1975, a grand jury indictment was returned against Joseph Ward Easter charging him with possession of a firearm without filing an application in violation of 26 U.S.C. §§ 5861(c) and 5871 and possession of a firearm not registered with the Department of the Treasury in violation of 26 U.S.C. §§ 5861(d) and 5871.\nThe defendant waived a jury trial and was tried before the United States District Court for the Eastern District of Missouri, the Honorable H. Kenneth Wangelin, presiding. Judge Wangelin, after hearing all of the evidence found defendant guilty and sentenced him to five years on each count to run concurrently. Easter now appeals asserting (1) that his conviction was based on evidence obtained by illegal search and seizure, and (2) that he was deprived of a fair trial because of the ineffective assistance of counsel. We reverse and remand for new trial.\nThe record shows that in the late afternoon of June 16, 1975, the defendant was returning to his home at 4706 Lee Street in St. Louis, Missouri, where he resided with his wife, child, brother and parents. He testified that as he neared his home he approached and spoke to a man known as “Victor” but that the latter did not respond. According to the defendant he knew Victor and had had some disagreements with him in the past. The defendant further testified that while he was outside his home he saw Victor enter a police car that stopped nearby. He stated that he then entered his house.\nAccording to the government’s evidence, on the afternoon in question a man identifying himself only as Victor telephoned the St. Louis, Missouri, Police Department to report that he had been held up by two men with a sawed-off shotgun and revolver, and that afterward he observed them entering 4706 Lee Street. The police, responding to this informa",
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"url": "https://www.neochart.com/catalog/cases/f2d/volume_31/0128_01/index.html",
"court": "United States District Court for the Eastern District of New York",
"decade": "1920s",
"start": 10090,
"end": 10646,
"text": "“The skins are subjected to the action of the bleaching or decolorizing agent until they have been sufficiently decolorized. The bleached or decolorized skins are then rinsed and can, if desired, be dyed directly in accordance with any of the well known or desirable processes employed for dyeing furs or the like. We may, however, subject the bleached or decolorized skins to the usual dyeing operations of washing and mordanting, and then dyeing the washed and mordanted skins in accordance with the practice hitherto generally employed for dyeing furs.”",
"context": "in considerable limits, we prefer to use an aqueous solution of ferrous sulphate of a strength of from about 0.5 to about 5.0 per cent, of the solid crystallized ferrous sulphate, by weight.\n’ “Such a solution may or may not contain the stabilizing agent. If a stabilizing agent, such as ammonium chloride, is used, we prefer to use it in an amount approximately equal to the amount of ferrous sulphate used and equaling from about 0.5 to about 5.0 per cent, of ammonium chloride by weight.\n“The fur skins or the like, after having been soaked for from about 8 to about 12 hours in the solution of the protective agent, with or without the addition of the stabilizing agent, are then rinsed and hydro-extracted. The treatment apparently impregnates or fills the voids and interstices of the fibres with the solution ■ of protective agent. The fur skins thus treated are now immersed in a solution of hydrogen peroxide or equivalent bleaching agent. However, in place of hydrogen peroxide, we may use other bleaching agents, particularly sodium peroxide .or sodium perborate, which yield hydrogen peroxide in solution in the presence of certain liberating agents, generally of an acid character. The amount of hydrogen peroxide used may .vary from about five (5.0) to about one hundred (100.0) per cent, by volume .of a three (3.0) per cent, solution of hydrogen peroxide. We prefer that the temperature at which the bleaching or decolorizing operation is carried out shall be between 60° and 100° P.\n“The skins are subjected to the action of the bleaching or decolorizing agent until they have been sufficiently decolorized. The bleached or decolorized skins are then rinsed and can, if desired, be dyed directly in accordance with any of the well known or desirable processes employed for dyeing furs or the like. We may, however, subject the bleached or decolorized skins to the usual dyeing operations of washing and mordanting, and then dyeing the washed and mordanted skins in accordance with the practice hitherto generally employed for dyeing furs.”\nThe process is described and claimed in three stages: (1) The preliminary treatment with the reducing compound, which is to serve as a protection and accelerating agent in the subsequent bleaching operation; (2) the bleaching operation in the presence of the accelerating and protective agent; and (3) the bleaching operation in the presence of the accelerating and protective agent, and the subsequent dyeing operation.\nClaims 1 to 5, inclusive, eover the preliminary treatment, and the following claims may be taken as specimens:\n“1. The method of bleaching fur skins and the like, which comprises treating the fibres with an oxidizing agent in the presenee of a protecting agent comprising a reducing compound.\n“2. The method of bleaching fur skins and the like, which comprises treating the same with an oxidizing agent in the presence of an accelerator comprising a mineral reducing compound.”\nClaims 6 to 14, inclusive, cover the bleaching operation) and the following claims may be taken as specimens:\n“11. The method of bleaching fur skins and the like, which comprises treating the same with a solution of a protecting agent to which has been added ammonium chloride, and ¡thereafter subjecting the articles so treated to the action of a solution of hydrogen peroxide.”\n“14. The method of bleaching fur skins and the like, which comprises treating the same with a solution of a protecting agent to which has been added ammonium chloride, and thereafter subjecting the articles so treated to",
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"court": "United States District Court for the Eastern District of New York",
"decade": "1920s",
"start": 2078,
"end": 2188,
"text": "After that, wood dyes, the range of colors being very limited, were used to give the skins a particular color.",
"context": "tiff, has had a wide experience in Hie fur dressing, dyeing, and bleaching arts, and is the author of “Principles and Practice of Fur Dressing and Fur Dyeing,” published in 1922, by D. Yan Nostrand Company, of New York, and I cannot better express the problem generally than in his words when on the stand:\n“The dyeing of furs is probably one of the most difficult and most complicated applications of dyestuffs to any materials. Not only have you in a skin two entirely different consistencies of material, you have the leather and the hair part, which are entirely different in their nature, but even on the same skin, on the hair, there are great variations, the top hair, the upper part of the hair, has a different characteristic, and the under hair has a different characteristic. As far as the color of the hair is concerned, different parts of the skin have different colors. On the hack of the skin where the spine was there are usually darker parts, shading to lighter color until, on the under part, the belly, it is practically white. Furthermore, in order to preserve the characteristics of a fur such dyestuffs have to be used which can be applied at comparatively low temperatures, for elevated temperatures, such as are used on textile materials would be very injurious to the skin, and to the hair, too.”\nOriginally the skins were used in their natural condition after a dressing operation, serving to make the hide soft and flexible and to give the hair as much luster as possible.\nAfter that, wood dyes, the range of colors being very limited, were used to give the skins a particular color.\nIn 1888, a German chemist discovered that certain coal tar products, known as intermediates, which were practically colorless, could by the use of mordants be successfully used and made fast in the form of lakes, to develop colors on the fibers of hair and furs.\nLight shades could undoubtedly be produced by this method on light or white furs, but what it is contended the process of the process patent in suit accomplishes is the applying of light shades on dark furs.\nBleaching in general was old, but the old methods resulted in weakening the texture of the leather portion and also in weakening the texture añd destroying the luster of the hair portions.\nThe problem presented, which the patentees of the patent in suit contend they solved, therefore, was to bleach naturally dark skins without impairing the strength or texture of the hair, or ■ in any way affecting the condition of the leather.\nThe defendants have interposed the defenses of invalidity and noninfringement.\nThe defense of invalidity alone requires consideration, because if valid all claims of both patents were infringed.\nThere are 24 claims in each of the patents in suit, and plaintiffs base this suit on all of the claims of each of the patents in suit.\nThe first (the product) patent in suit, No. 1,564,378, for improvement in bleached and dyed furs and the like, outlines the process described in the second (the process) patent in suit, No. 1,573,200, and then proceeds to describe the properties and superiorities of",
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"court": "Florida District Court of Appeal",
"decade": "1960s",
"start": 182,
"end": 915,
"text": "After the last mandate of this court issued and the cause was before the trial court, the defendant Knowles again moved for summary judgment on the question of punitive damages. The trial judge granted his motion for summary judgment on punitive damages and transferred the cause to the Civil Court of Record, in and for Dade County, Florida, for trial on the issue of compensatory damages only. There were no affidavits or counter affidavits submitted in support of the motion for summary judgment. The trial court based its summary judgment solely on a review of the record of the trial mentioned in our last opinion. This action of the trial court judge was contrary to our mandate and opinion in Levine v. Knowles, 218 So.2d 217.",
"context": "\nSWANN, Judge.\nThe allegations and facts necessary to this appeal are set forth in Levine v. Knowles, Fla.App.1967, 197 So.2d 329 and Levine v. Knowles, Fla.App.1969, 218 So.2d 217.\nAfter the last mandate of this court issued and the cause was before the trial court, the defendant Knowles again moved for summary judgment on the question of punitive damages. The trial judge granted his motion for summary judgment on punitive damages and transferred the cause to the Civil Court of Record, in and for Dade County, Florida, for trial on the issue of compensatory damages only. There were no affidavits or counter affidavits submitted in support of the motion for summary judgment. The trial court based its summary judgment solely on a review of the record of the trial mentioned in our last opinion. This action of the trial court judge was contrary to our mandate and opinion in Levine v. Knowles, 218 So.2d 217.\nIn that opinion, we affirmed the trial court’s order of a new trial. The opinion held, on rehearing, that punitive damages, in addition to compensatory damages, could be recovered if a proper evi-dentiary basis were established and that “the trial judge’s order, in providing for a new trial ‘on the issue of damages only arising from the negligent disposal of the dog’s body following death’ did not exclude the element of punitive damages.”\nThe plaintiff, therefore, should be allowed his day in court to prove, if possible, compensatory and punitive damages. It would appear unfair that plaintiff be denied this right because of a summary judgment based only on evidence submitted during a prior trial which the trial court itself considered so improper as to constitute grounds for a new trial.\nIf, during the trial of this case, the plaintiff does not present sufficient or proper evidence to establish punitive damages, the trial court may properly withdraw this issue from consideration by the jury and direct a verdict on this point.\nThe petition for writ of cer-tiorari is, therefore, granted and the order of June 2, 1969, eliminating punitive damages before the ordered new trial and transferring the case to the Civil Court of Record (with jurisdiction not exceeding $5,000) is quashed, and the cause is remanded to the Circuit Court for further proceedings not inconsistent with our prior opinions in the case and this opinion. However, inasmuch as the value of the dog while alive, to ",
"weight": 23.0,
"events": [],
"manual_mentions": null
},
{
"url": "https://www.neochart.com/catalog/cases/so2d/volume_228/0308_01/index.html",
"court": "Florida District Court of Appeal",
"decade": "1960s",
"start": 1958,
"end": 3056,
"text": "The petition for writ of cer-tiorari is, therefore, granted and the order of June 2, 1969, eliminating punitive damages before the ordered new trial and transferring the case to the Civil Court of Record (with jurisdiction not exceeding $5,000) is quashed, and the cause is remanded to the Circuit Court for further proceedings not inconsistent with our prior opinions in the case and this opinion. However, inasmuch as the value of the dog while alive, to the extent disclosed in the cause, was in the neighborhood of $100, and punitive damages, if found and allowed by a jury, should not be for more than an amount which would bear reasonable relation to the compensatory damages, if the Circuit Court, upon remand of the cause, should conclude from the foregoing that the complaint does not present a good faith claim of damages (compensatory and punitive) for an amount in excess of $5,000, then, instead of retrial in the Circuit Court, that court properly may transfer the case to the Civil Court of Record, to be retried there on the plaintiff’s claims for compensatory and punitive damages.",
"context": "use to the Civil Court of Record, in and for Dade County, Florida, for trial on the issue of compensatory damages only. There were no affidavits or counter affidavits submitted in support of the motion for summary judgment. The trial court based its summary judgment solely on a review of the record of the trial mentioned in our last opinion. This action of the trial court judge was contrary to our mandate and opinion in Levine v. Knowles, 218 So.2d 217.\nIn that opinion, we affirmed the trial court’s order of a new trial. The opinion held, on rehearing, that punitive damages, in addition to compensatory damages, could be recovered if a proper evi-dentiary basis were established and that “the trial judge’s order, in providing for a new trial ‘on the issue of damages only arising from the negligent disposal of the dog’s body following death’ did not exclude the element of punitive damages.”\nThe plaintiff, therefore, should be allowed his day in court to prove, if possible, compensatory and punitive damages. It would appear unfair that plaintiff be denied this right because of a summary judgment based only on evidence submitted during a prior trial which the trial court itself considered so improper as to constitute grounds for a new trial.\nIf, during the trial of this case, the plaintiff does not present sufficient or proper evidence to establish punitive damages, the trial court may properly withdraw this issue from consideration by the jury and direct a verdict on this point.\nThe petition for writ of cer-tiorari is, therefore, granted and the order of June 2, 1969, eliminating punitive damages before the ordered new trial and transferring the case to the Civil Court of Record (with jurisdiction not exceeding $5,000) is quashed, and the cause is remanded to the Circuit Court for further proceedings not inconsistent with our prior opinions in the case and this opinion. However, inasmuch as the value of the dog while alive, to the extent disclosed in the cause, was in the neighborhood of $100, and punitive damages, if found and allowed by a jury, should not be for more than an amount which would bear reasonable relation to the compensatory damages, if the Circuit Court, upon remand of the cause, should conclude from the foregoing that the complaint does not present a good faith claim of damages (compensatory and punitive) for an amount in excess of $5,000, then, instead of retrial in the Circuit Court, that court properly may transfer the case to the Civil Court of Record, to be retried there on the plaintiff’s claims for compensatory and punitive damages.\nIt is so ordered.\n",
"weight": 23.0,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
},
{
"url": "https://www.neochart.com/catalog/cases/f-supp-3d/volume_304/0992_01/index.html",
"court": "United States District Court for the District of Oregon",
"decade": "2010s",
"start": 6784,
"end": 7301,
"text": "Here, plaintiff seeks an award of pre-removal attorney fees based on Rule 11 of the Federal Rules of Civil Procedure. While preserving arguments as to the reasonableness of plaintiff's fee expenditures or the merit of any of plaintiff's claims, defendants do not dispute the inclusion of pre-removal attorneys' fees in assessing the amount in controversy requirement. Therefore, pre-removal attorneys' fees, $28,470 as estimated by plaintiff, may be included in the amount in controversy. Galt G/S , 142 F.3d at 1156.",
"context": " punitive damages when determining the amount in controversy. Gibson , 261 F.3d at 946 ; See also Culpepper v. Wells Fargo Bank, N.A. , 2012 WL 3779038 (D. Or. 2012).\nIn reviewing awards for punitive damages for unlawful trade practices, Oregon courts have approved ratios of 3.9:1 between the punitive damage award and the economic damage award. See Allen v. Morgan Drive Away, Inc. , 273 Or. 614, 615-16, 542 P.2d 896 (1975). I find that applying a ratio of 3.9:1 is appropriate here though Oregon Courts have approved awards involving much higher ratios. See Parrott v. Carr Chevrolet, Inc. , 331 Or. 537, 564-65, 17 P.3d 473 (2001) (upholding a punitive damage award that exceeded economic damages by a ratio of 87:1); Lithia Medford LM, Inc. v. Yovan , 254 Or. App. 307, 328-29, 295 P.3d 642 (2012). (upholding a punitive damages award that exceeded the economic damages by a 200:1 ratio)\nTherefore, plaintiff's compensatory and statutory damages applied to the ratio of 3.9:1 yields $40,800 in potential punitive damages (total of compensatory and statutory damages multiplied by 3.9).\nNext, I consider the amount of plaintiff's attorney fees. When an underlying statute authorizes an award of attorneys' fees, either with mandatory or discretionary language, such fees may be included in the amount in controversy. Missouri State Life Insurance Company et al. v. Jones , 290 U.S. 199, 202, 54 S.Ct. 133, 78 L.Ed. 267 (1933) ; Galt G/S v. JSS Scandinavia , 142 F.3d 1150, 1156 (9th Cir. 1998).\nHere, plaintiff seeks an award of pre-removal attorney fees based on Rule 11 of the Federal Rules of Civil Procedure. While preserving arguments as to the reasonableness of plaintiff's fee expenditures or the merit of any of plaintiff's claims, defendants do not dispute the inclusion of pre-removal attorneys' fees in assessing the amount in controversy requirement. Therefore, pre-removal attorneys' fees, $28,470 as estimated by plaintiff, may be included in the amount in controversy. Galt G/S , 142 F.3d at 1156.\nThe parties dispute whether potential future attorneys' fees should be considered in calculating the amount in controversy. Initially, I note that \"[i]t remains an open question whether attorney's fees that are anticipated but unaccrued at the time of removal or filing in federal court ... may be included in the amount-in-controversy. Other circuits and the district courts in this circuit are divided on the issue.\" Gonzales , at 649 n.2.\nThe Third, Fourth, Fifth, and Tenth Circuits all allow potential attorneys' fees to be calculated as part of the amount in controversy, so long as recovery of fees is authorized by statute or contract. The Tenth Circuit offers the most thorough reasoning regarding the issue. See Miera v. Dairyland Ins. Co. , 143 F.3d 1337, 1340 (10th Cir. 1998) (emphasis added) (citing Missouri State , 290 U.S. at 202, 54 S.Ct. 133 ). (\"The Supreme Court has long held that when a statute permits recovery of attorney's fees a reasonable estimate may be used in calculating the necessary jurisdictional amount in a removal proceeding based upon diversity of citizenship.\")\nIn contrast, the Seventh Circuit allows only those attorneys' fees (as long as fee recovery is authorized by statute or contract) incurred up to the time of removal to be included in the amount in controversy. Gardynski-Leschuck v. Ford Motor Co. , 142 F.3d 955, 959 (7th Cir. 1998). (Reasoning that \"legal expenses that lie in the future and can be avoided by the defendant's prompt satisfaction ",
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{
"start": 7284,
"end": 7300,
"quote": "142 F.3d at 1156",
"pattern": "case_short",
"canonical": "142 F.3d 1150",
"alternatives": []
}
],
"review_note": "Full source opinion inspected for antecedent: Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155-56."
},
{
"url": "https://www.neochart.com/catalog/cases/f-supp-3d/volume_304/0992_01/index.html",
"court": "United States District Court for the District of Oregon",
"decade": "2010s",
"start": 13995,
"end": 14059,
"text": "II. Defendants' Motion to Dismiss or Stay and Compel Arbitration",
"context": "uit courts interpreting the phrase \"in which it has been incorporated\" to mean \"in which it is incorporated.\" Hogan v. Consol. Rail Corp. , 961 F.2d 1021, 1027 (2d Cir. 1992).\nIt is established that \"a corporation is typically a citizen of two states for determining the existence of diversity jurisdiction: the state of incorporation and the state in which it has its principal place of business.\" Montrose Chem. Corp. of Cal. v. Am. Motorists Ins. Co. , 117 F.3d 1128, 1234 (9th Cir.1997) (quoting Breitman v. May Co. , 37 F.3d 562, 564 (9th Cir.1994) ). Here, the record shows that defendant is a Nevada corporation with its principal place of business in Arizona. Thus, I conclude that defendant is not an Oregon citizen. This is supported by the fact that U-Haul International in Arizona is the surviving entity of the past merger, which renders defendant a citizen of Arizona. See , Mireles v. Wells Fargo Bank, N.A. , 845 F.Supp.2d 1034, 1046 n. 75 (C.D.Cal.2012) (\"[a] company that merges into another company adopts the citizenship of the merged company for diversity purposes.\"); citing to Meadows , 785 F.2d at 672. Because plaintiff is a citizen of Oregon and defendant is a citizen of Nevada and Arizona, diversity of citizenship is met.\nTaking the amount in controversy and diversity of citizenship into consideration, this case satisfies the requirements for diversity jurisdiction under 28 U.S.C. § 1332(a). Defendant's removal was proper, and plaintiff's motion to remand is DENIED.\nII. Defendants' Motion to Dismiss or Stay and Compel Arbitration\nDefendant maintains that a valid and binding arbitration agreement was signed by plaintiff as part of the rental agreement on May 29. In response, plaintiff argues that the arbitration agreements were either revoked or inapplicable to the instant action or equitable claims. Plaintiff further alleges that the agreements are procedurally and substantively unconscionable.\nUnder the Federal Arbitration Act, arbitration agreements are \"valid, irrevocable, and enforceable, save upon such grounds as exist at law or equity for the revocation of any contract.\" 9 U.S.C. § 2. In determining the validity of an arbitration agreement, federal courts \"apply ordinary state-law principles that govern the formation of contracts.\" Circuit City Stores, Inc. v. Adams , 279 F.3d 889, 892 (9th Cir. 2002) (internal quotation marks and citation omitted); see also Motsinger v. Lithia Rose-FT, Inc. , 211 Or. App. 610, 613-14, 156 P.3d 156 (2007). Accordingly, \"generally applicable contract defenses, such as fraud, duress or unconscionability, may be applied to invalidate arbitration agreements without contravening federal law.\" Al-Safin v. Circuit City Stores, Inc. , 394 F.3d 1254, 1257 (9th Cir. 2005) (internal quotations and citation omitted).\nA. Scope of the Agreement\nFirst, plaintiff alleges that the May 26 agreement was revoked, rendering the arbitration provision therein void. Defendant responds that this dispute is still subject to subsequent May 29 agreement. Plaintiff further contends that th",
"weight": 97.5,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
},
{
"url": "https://www.neochart.com/catalog/cases/f-supp/volume_821/0655_01/index.html",
"court": "United States District Court for the Western District of Oklahoma",
"decade": "1990s",
"start": 38433,
"end": 38726,
"text": "[w]hen supplementing a Rule 59(e) motion with additional evidence, the movant must show either that the evidence is newly discovered [and] if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence.",
"context": "ved in the Complaint is in Count V, which lists other grounds for noncoverage under the policy. That matter and the previously unmeritorious issue on the “Insured v. Insured” exclusion are now moot. Due to the determination in this Memorandum Opinion, the Court finds that no justiciable issue remains left pending in this action. Therefore, a judgment consistent with this Memorandum Opinion has been filed separately.\nIT IS SO ORDERED.\nJUDGMENT\nThis action was decided on summary judgment for plaintiff American Casualty Company and against defendants Federal Deposit Insurance Corporation, as receiver and liquidator for First State Bank of Blanchard, Oklahoma, and in' its corporate capacity; John Hudson; Janet Hudson; Randall Hill; Jack Marshall; Alford L. Robertson; and Jack B. Rackley.\nIT IS ORDERED AND ADJUDGED that judgment is hereby entered for American Casualty Company and against defendants Federal Deposit Insurance Corporation, as receiver and liquidator for First State Bank of Blanchard, Oklahoma, and in its corporate capacity; John Hudson; Janet Hudson; Randall Hill; Jack Marshall; Alford L. Robertson; and Jack B. Rackley.\nORDER\nMay 12, 1993\nThe Court has received and reviewed defendant FDIC’s Motion for Reconsideration and to Alter or Amend Judgment, citing Fed.R.Civ.P. 59. Plaintiff has responded in objection to the relief sought, and defendant has filed a reply brief. The Tenth Circuit has defined the standard for a Rule 59 motion alleging newly discovered evidence:\n[w]hen supplementing a Rule 59(e) motion with additional evidence, the movant must show either that the evidence is newly discovered [and] if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence.\nBuell v. Security General Life Ins. Co., 987 F.2d 1467, 1472 (10th Cir.1993), quoting Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1523 (10th Cir. 1992), which in turn quoted Chery v. Bowman, 901 F.2d 1053, 1057-58 n. 6 (11th Cir. 1990). The evidence at issue here was not newly discovered and was available to counsel at the time of the challenged decision. Thus, the proffered evidence meets neither prong of the test announced by this Circuit. Were this evidence to be considered, however, the Court finds it is completely irrelevant to the issues, as the written contract is not ambiguous and extrinsic evidence cannot be, under Oklahoma law, used to interpret the contract. FDIC’s remaining arguments simply assert once again its position in this case and its disagreement with the Court’s earlier ruling. FDIC is certainly free to make these arguments, but the appropriate forum is the Circuit Court of Appeals, not this Court which has heard the arguments, considered them, and rejected them after full discussion.\nAccordingly, FDIC’s Motion for Reconsideration and to Alter or Amend Judgment is denied.\nIT IS SO ORDERED.\n",
"weight": 89.0,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
},
{
"url": "https://www.neochart.com/catalog/cases/f-supp/volume_821/0655_01/index.html",
"court": "United States District Court for the Western District of Oklahoma",
"decade": "1990s",
"start": 12908,
"end": 13264,
"text": "18. Endorsement No. 7 provides for the termination of all coverage under the policy, including termination of the limited coverage provided pursuant to the policy’s discovery clause, immediately upon the appointment of a liquidator for the bank. Specifically, the policy’s Reorganization/Cessation of Business Endorsement provides, in pertinent part, that:",
"context": "clause coverage purchased by the bank’s directors and officers provided coverage only for any claim or claims actually made during the period that the limited coverage remained in effect.\nE.The Failure of the Bank\n16. In March 1987, the state and federal regulators once again examined the bank. Conditions at the bank had continued to deteriorate. During the examination, the regulators discovered, among other things, that additional loans totalling approximately $200,000 were made to Hudson since the date of the last examination. These loans allegedly were made despite the fact that Hudson also had been permitted to continue to renew a $240,000 note with the bank without making any payments to reduce the principal due on that note. The regulators also learned that the bank’s problem loans had grown to $6.3 million—an amount equal to nearly 410% of the bank’s capital. Still, no claim was made against Hudson or any of the bank’s directors or officers.\n17. Eventually, the regulators prepared an accounting of the bank’s financial condition and, not surprisingly, concluded that the bank was insolvent. Thus, on August 13, 1987, the Banking Commissioner of the State of Oklahoma ordered the bank closed and took possession and control of the bank’s assets. That same day, the FDIC accepted appointment by the Banking Commissioner as liquidator of the bank. A claim still had not been made against any of the bank’s directors or officers.\nF. The Termination of All Coverage Under the Policy\n18. Endorsement No. 7 provides for the termination of all coverage under the policy, including termination of the limited coverage provided pursuant to the policy’s discovery clause, immediately upon the appointment of a liquidator for the bank. Specifically, the policy’s Reorganization/Cessation of Business Endorsement provides, in pertinent part, that:\nif the Bank has ceased to engage in an active banking business or to accept deposits, coverage shall cease as of the date of the ... cessation of such business, and the Bank shall not be entitled to obtain the extended coverage provided for in Clause 2(b). For the purposes of this clause, the cessation of the business of banking shall include, but not be limited to, the appointment by any federal or state banking regulators of a receiver, liquidator or person in a similar capacity.\nThus, as of August 13, 1987—the date the FDIC was appointed as liquidator of the bank—all coverage under the policy ceased. As noted above, as of that date, no claim had been made against any director or officer of the bank.\n19. It was not until August 4, 1988—the day FDIC v. Hudson, No. CJ-88-8115 (Okla.County Dist.Ct.1988) was filed—that a claim was made against any of the bank’s former directors and/or officers. Thus, the claim was made more than 19 months after the expiration of the full coverage afforded by the policy, and nearly one year after all coverage ceased pursuant to policy Endorsement No. 7. The claim was not made for 227 days after the limited discovery clause coverage was scheduled to expire by its own terms.\n20. On August 20, 1987, Robert A. Patrick, an attorney for the FDIC, sent a form letter to J. Ruth Sottong (who was incorrectly addressed as an employee of CNA Insurance Company). The form letter, which was sent one week after all coverage under the policy expired pursuant to",
"weight": 89.0,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
},
{
"url": "https://www.neochart.com/catalog/cases/f-supp/volume_97/0695_01/index.html",
"court": "United States District Court for the Western District of Missouri",
"decade": "1950s",
"start": 6674,
"end": 6676,
"text": "V.",
"context": " compositions covered by the patent, are inconsequential and do not avoid the claims of the patent in suit.\nXV.\nPrior to the filing date of plaintiff’s application of December 8, 1942 which was consolidated with the application for the patent finally granted to the patentees, there was no successful known remedy for coccidiosis in poultry, and apparently the discovery of the inventors was the first successful remedy for that disease, and such product enjoyed extensive and successful use among poultry growers.\nXVI.\nThere has been no misuse of the patent in suit by plaintiff, since in the enforcement of its patent rights the plaintiff has attempted only to control the chemical composition within the percentage ranges defined by the claims and when used as a medication for the treatment of poultry.\nConclusions of Law.\nThe Court concludes that:\nI.\nThe court has jurisdiction of the parties and of the subject matter.\nII.\nThe Mayfield-Morehouse patent in suit, 2,450,866, was regularly issued by the United States Patent Office, and defendants in assailing it have a heavy burden of proof.\nIII.\nDr. Salsbury’s Laboratories, the plaintiff, is the owner of Letters Patent No. 2,450,-866.\nIV\nTo anticipate the Mayfield-Morehouse patent in suit, or to show that the claims in issue are lacking in novelty, prior art patents or prior publications relied upon must show that composition or its substantial equivalent doing the same work in substantially the same manner as the patented composition.\nV.\nPrior art patents and publications are to be measured as anticipations \"by what is clearly and definitely expressed in them; they may not be reconstructed in the light of later acquired knowledge and-then used as a part of the prior art.\nVI.\nThe concept and production of the composition defined by the claims in suit required the exercise of inventive faculties, and the presence of invention is persuasively demonstrated by the evidence.\nVII.\nThe patent in suit covers and claims a novel composition which was inventive and achieves a new and beneficial result and it is, therefore, good and valid in law.\nVIII.\nDefendants’ products, “Korum” and “Zuco” herein accused as infringements when used according to defendants’ instructions, are substantially the same as the compositions claimed in the Mayfield-Morehouse patent; and, therefore, literally and in substance respond to the language of the claims in suit and infringe each of said claims.\nIX.\nThe defendant partnership, composed of I. D. Russell and Bertha V. Russell, is guilty both of indirect and contributory infringement of claims 1, 2, 3, 4, 12, 14, 15, and 16 of the Mayfield-Morehouse patent No. 2,450,866, by manufacturing and selling “Korum” and “Zuco” within the jurisdiction of this court.\nX.\nPlaintiff does not come into court or this case with unclean hands.\nXI.\nPlaintiff has not made any improper or illegal use of the patent in suit, or violated the Sherman or Clayton Anti-Trust Acts, 15 U.S.C.A. §§ 1-7, 15 note, 12 et se",
"weight": 105.0,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
},
{
"url": "https://www.neochart.com/catalog/cases/f-supp/volume_97/0695_01/index.html",
"court": "United States District Court for the Western District of Missouri",
"decade": "1950s",
"start": 2868,
"end": 2870,
"text": "V.",
"context": "e filed a counterclaim alleging unfair trade practices on the part of the plaintiff.\nFindings of Fact.\nThe facts are:\nI.\nThat defendants are engaged in the manufacture and sale of “Korum” and “Zuco” at their place of business in Kansas City, Missouri, within the jurisdiction of this court.\nII.\nClaims 1 to 4 of the Mayfield-Morehouse patent No. 2,450,866, in suit, cover a medicinal preparation for the treatment of poultry, and consists essentially of a mixture or composition for oral ingestion to stimulate growth, said mixture containing a chemical compound known as 3-nitro-4-hydroxy-phenyl-arsonic acid in combination with a vehicle such as water, wherein the chemical compound is present within approximately the concentration range of 0.0005% to 0.035%.\nIII.\nClaims 12, 14, 15 and 16 of the Mayfield-Morehouse patent No. 2,450,866, in suit, cover a medicinal preparation for the treatment of poultry and consists essentially of a mixture or composition for oral ingestion; to control coccidiosis, said mixture containing a chemical compound known as 3-nitro-4-hydroxy-phenyl-arsonic acid in combination with a vehicle such as water, wherein, the chemical compound is present within approximately the concentration ranges of.' 0.0079% to 0.035% and 0.0079% to 0.0158%,.\nIV.\nThe inventive concept concerned in the-patent in suit is the adaptation of the composition claimed within the specific concentration range to the treatment of poultry for growth stimulation and control of coccidiosis.\nV.\nPrior to the advent of the composition claimed in the Mayfield-Morehouse patent in suit, treatment of coccidiosis in poultry was relatively ineffective and the discovery of the composition of the patent, therefore* required the exercise of inventive faculties.\nVI.\nThe invention covered by the claims of the Mayfield-Morehouse patent in suit is; adequately supported by the disclosure ini the specification.\nVII.\nThe composition covered by the claims of the patent in suit was discovered after a long period of research and was not the result of any logical procedure or knowledge which would indicate or dictate the use of the composition for the purposes discovered.\nVIII.\nThe compositions described and claimed in the Mayfield-Morehouse patent in suit .are unique, and constitute a genuine departure from anything employed for the purpose contemplated by the patent in the prior art, either disclosed, described, manufactured or patented, in this country or abroad.\nIX.\nThe discovery of the invention was not the result of knowledge obtained from the prior art.\nX.\nThe defendant partnership derived its information for the production of the accused products, “Korum” and “Zuco,” from Dr. Mayfield, one of the inventors, and the compositions of the accused products as well as the obtaining of new drug applications for said products from the Federal Security Agency, were founded upon information given to defendants by Dr. May-field.\nXL\nThe compositions of the accused products, “Korum” and “Zuc",
"weight": 105.0,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
},
{
"url": "https://www.neochart.com/catalog/cases/ad3d/volume_107/0700_01/index.html",
"court": "New York Supreme Court, Appellate Division",
"decade": "2010s",
"start": 3368,
"end": 3815,
"text": "Here, the trial court properly determined that the verdict on the issue of liability was supported by legally sufficient evidence since, on the basis of the evidence presented at trial, there was a valid line of reasoning by which the jury could conclude that the defendant was negligent but that her negligence was not the proximate cause of the accident (see Cohen v Hallmark Cards, 45 NY2d at 499; Rubino v Scherrer, 68 AD3d 1090, 1092 [2009]).",
"context": "neared the subject intersection, and that it made a right turn onto Osborn Avenue, at which point she lost sight of it. She then stated that, as she was passing through the intersection, the front of Ford’s vehicle struck the right side of her vehicle.\nThe jury found that the defendant was negligent, but that her negligence was not a substantial factor in the happening of the accident. The plaintiffs moved pursuant to CPLR 4404 (a) to set aside the jury verdict and for judgment as a matter of law, or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence and for a new trial on the issue of liability. The trial court denied the motion.\n“A motion pursuant to CPLR 4404 (a) to set aside a jury verdict and for judgment as a matter of law will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial” (Vittiglio v Gaurino, 100 AD3d 987, 987-988 [2012]; see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). “In considering such a motion, ‘the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant’ ” (Hand v Field, 15 AD3d 542, 543 [2005], quoting Szczerbiak v Pilot, 90 NY2d 553, 556 [1997]; see Leonard v New York City Tr. Auth., 90 AD3d 858, 859 [2011]).\nHere, the trial court properly determined that the verdict on the issue of liability was supported by legally sufficient evidence since, on the basis of the evidence presented at trial, there was a valid line of reasoning by which the jury could conclude that the defendant was negligent but that her negligence was not the proximate cause of the accident (see Cohen v Hallmark Cards, 45 NY2d at 499; Rubino v Scherrer, 68 AD3d 1090, 1092 [2009]).\nMoreover, “a jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” (Vittiglio v Gaurino, 100 AD3d at 988; see Lolik v Big V Supermarkets, 86 NY2d 744, 745-746 [1995]; Nicastro v Park, 113 AD2d 129, 130 [1985]). “A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” (Garrett v Manaser, 8 AD3d 616, 617 [2004]; see Schaefer v Guddemi, 182 AD2d 808, 809 [1992]). Moreover, “[a] contention that a verdict is inconsistent and irreconcilable must be reviewed in the context of the court’s charge, and where it can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” (Rivera v MTA Long Is. Bus, 45 AD3d 557, 558 [2007]).\nHere, the jury verdict was neither contrary to the weight of the evidence nor inconsistent. Pursuant to the trial court’s charge regarding the general duties and obligations of a driver, including the applicable provisions of the Vehicle and Traffic Law, it was reasonable for the jury to find that the defendant was negligent in the operation of her vehicle. However, it was also reasonable for the jury to conclude that such ",
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"start": 3753,
"end": 3767,
"quote": "45 NY2d at 499",
"pattern": "case_short",
"canonical": "45 N.Y.2d 493",
"alternatives": []
}
],
"review_note": "Full source opinion inspected for antecedent: Cohen v Hallmark Cards, 45 NY2d 493, 499."
},
{
"url": "https://www.neochart.com/catalog/cases/ad3d/volume_107/0700_01/index.html",
"court": "New York Supreme Court, Appellate Division",
"decade": "2010s",
"start": 2549,
"end": 3367,
"text": "“A motion pursuant to CPLR 4404 (a) to set aside a jury verdict and for judgment as a matter of law will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial” (Vittiglio v Gaurino, 100 AD3d 987, 987-988 [2012]; see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). “In considering such a motion, ‘the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant’ ” (Hand v Field, 15 AD3d 542, 543 [2005], quoting Szczerbiak v Pilot, 90 NY2d 553, 556 [1997]; see Leonard v New York City Tr. Auth., 90 AD3d 858, 859 [2011]).",
"context": "f liability, Ford testified that, as he was looking for the courthouse, he saw it over his left shoulder and, upon recognizing that he had inadvertently passed by it, intended to go around the block to return to it. He stated that, as he looked over his left shoulder, his vehicle veered to the right four to five feet near the subject intersection before he suddenly, without activating his left turn signal, made a left turn towards Osborn Avenue, and thereafter came into contact with the vehicle driven by the defendant.\nThe injured plaintiff testified at trial that Ford made a sudden left turn at the subject intersection, without signaling, after Ford’s vehicle veered to the right as it approached Osborn Avenue. The defendant testified that she observed the right-turn signal activated on Ford’s vehicle as it neared the subject intersection, and that it made a right turn onto Osborn Avenue, at which point she lost sight of it. She then stated that, as she was passing through the intersection, the front of Ford’s vehicle struck the right side of her vehicle.\nThe jury found that the defendant was negligent, but that her negligence was not a substantial factor in the happening of the accident. The plaintiffs moved pursuant to CPLR 4404 (a) to set aside the jury verdict and for judgment as a matter of law, or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence and for a new trial on the issue of liability. The trial court denied the motion.\n“A motion pursuant to CPLR 4404 (a) to set aside a jury verdict and for judgment as a matter of law will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial” (Vittiglio v Gaurino, 100 AD3d 987, 987-988 [2012]; see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). “In considering such a motion, ‘the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant’ ” (Hand v Field, 15 AD3d 542, 543 [2005], quoting Szczerbiak v Pilot, 90 NY2d 553, 556 [1997]; see Leonard v New York City Tr. Auth., 90 AD3d 858, 859 [2011]).\nHere, the trial court properly determined that the verdict on the issue of liability was supported by legally sufficient evidence since, on the basis of the evidence presented at trial, there was a valid line of reasoning by which the jury could conclude that the defendant was negligent but that her negligence was not the proximate cause of the accident (see Cohen v Hallmark Cards, 45 NY2d at 499; Rubino v Scherrer, 68 AD3d 1090, 1092 [2009]).\nMoreover, “a jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence” (Vittiglio v Gaurino, 100 AD3d at 988; see Lolik v Big V Supermarkets, 86 NY2d 744, 745-746 [1995]; Nicastro v Park, 113 AD2d 129, 130 [1985]). “A jury’s finding that a party was at fault but that such fault was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” (Garrett v Manaser, 8 AD3d 616, 617 [2004]; see Schaefer v Guddemi, 182 AD2d 808, 809 [1992]). Moreover, “[a] contention that a verdict is inconsistent and irreconcilable must be reviewed in the context of the court’s charge, and where it can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view” (Rivera v MTA Long Is. Bus, 45 AD",
"weight": 25.396825396825395,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
},
{
"url": "https://www.neochart.com/catalog/cases/cal-app-2d/volume_225/0676_01/index.html",
"court": "District Court of Appeal of the State of California",
"decade": "1960s",
"start": 3262,
"end": 3798,
"text": "The new arrangement was essentially different. Appellant had leased the two pits. It gained title to the dirt by paying royalties to the owners. It passed title to Ball and Simpson, at some point, which was not so before. The parol evidence rule does not invalidate a new oral agreement made after a written contract has been orally abrogated. (McKeon v. Giusto, 44 Cal.2d 152, 156 [280 P.2d 782].) The change in subject matter described above is sufficient to have caused the court to conclude that the parties intended a new contract.",
"context": "ta Clara County. In this transaction, there was no prior contract such as the Swenson contract in the Ball and Simpson transaction.\n1. The Ball and Simpson Contract\nThe question is whether title passed at the pits or plant-site, so that sales tax would be charged on a price at the pits, as claimed by appellant, or at the jobsite, where the price would be about 15 times as great, as claimed by respondent. It must be considered at the beginning whether the contract of appellant with Ball and Simpson relating to borrow taken from the Swenson pit was superseded by an oral contract between the parties. Appellant claims that the contract remained and could not be varied by oral negotiations, and that since it is described by its own terms to be a subcontract to perform work, namely, loading, weighing, hauling and dumping contractor’s (Ball and Simpson’s) material, title would pass at the plantsite throughout the whole supplying of borrow to Ball and Simpson for the job.\nThe court found that upon acceptance of the offer of appellant to supply its own borrow instead of the unsatisfactory Swenson borrow, the contract “was changed from a hauling contract to a contract to sell plaintiff’s personal property.” This we find to be the reasonable conclusion. Under the Swenson arrangement, title never passed from appellant to Ball and Simpson. Appellant never owned the Swenson borrow. The contract had to be one of hauling and not of sale. When title left Swenson, it went to Ball and Simpson.\nThe new arrangement was essentially different. Appellant had leased the two pits. It gained title to the dirt by paying royalties to the owners. It passed title to Ball and Simpson, at some point, which was not so before. The parol evidence rule does not invalidate a new oral agreement made after a written contract has been orally abrogated. (McKeon v. Giusto, 44 Cal.2d 152, 156 [280 P.2d 782].) The change in subject matter described above is sufficient to have caused the court to conclude that the parties intended a new contract.\nIf, as the court found, title did not pass until delivery, the full delivered price is the basis of the tax. (Rev. & Tax. Code, § 6006, subd. (a); Select Base Materials v. Board of Equalization, 51 Cal.2d 640, 646-648 [335 P.2d 672].)\nEvidence supporting this finding is: (1) The seller was obliged to make delivery to the place designated by the buyer. Rule 5 of section 1739 of the Civil Code (§ 19 of the Uniform Sales Act) applies, which provides that unless a contrary intention appears, if the contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon. (O’Kelley-Eccles Co. v. State of California, 160 Cal.App.2d 60, 64 [324 P.2d 683].) Payment for borrow was based on the amount that was delivered to the jobsite, not on a designated amount as loaded at plantsite. The borrow had to meet state specifications, the determination of quality being made at the jobsite. (2) A single payment of 60 cents per ton for qualified borrow was made, not a separate payment for hauling, as had been the case with Swenson’s contract, where separate checks were drawn by Ball and Simpson. (3) A deduction was made for moisture in the borrow delivered at the jobsite. (4) There was no designation of pits from which borrow was to be obtained. The cost of obtaining the material which appellant obtained by paying royalties to owners of two pits, and the cost ",
"weight": 83.57142857142857,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
},
{
"url": "https://www.neochart.com/catalog/cases/cal-app-2d/volume_225/0676_01/index.html",
"court": "District Court of Appeal of the State of California",
"decade": "1960s",
"start": 12761,
"end": 13872,
"text": "Raiseh Company did nothing by way of “taking” the material. Taking is of the essence of what is called a profit á prendre. The memorandum does not contain such a description of the land as is proper to a profit d prendre. It refers to the “Tennant Avenue Gravel Deposit,” but nothing is said about the amount that may be taken nor about duration of a right conveyed. A profit d prendre is an interest in the land itself and it creates a covenant running with the land as distinguished from a mere personal obligation of the owner of the property. (Richfield Oil Co. v. Hercules Gasoline Co., 112 Cal.App. 431, 434 [297 P. 73].) The substances which may be taken are., part, of the realty until severed and brought under control, and when this is done, they are personal property and subject to sale as such (id., p. 435). No part of this transaction brought Raisch into the operation of severing anything from the land. It simply bought personal property which had been severed by appellant. The quantity for which payment was to be made was measured by the amount delivered by the trucks selected by appellant.",
"context": "porarily exhausted or overburdened, and the source for the materials delivered was changed to appellant’s Puppo pit Because the hauling cost to appellant was greater from the Puppo pit than from the Tennant Avenue pit, the total charge to Raiseh was 90 cents per ton “f.o.b. jobsite.” The board assessed sales tax on the 90 cents per ton gross receipts shown on those invoices. Later, the supply at the Tennant Avenue pit again became available and the overburden removed. The deliveries were again made to Raiseh from that pit at a price of 85 cents per ton. The board then assessed sales tax on the 85 cents per ton gross receipts shown on the invoices prepared by appellant and paid by Raiseh.\nAppellant’s first claim is that this transaction was one having to do with real property; that there was not a sale, but the creation of a profit á prenclre from appellant to Raiseh and a transportation contract; that, therefore, no sales tax is chargeable.\nAlthough the memorandum refers to “royalty” for materials removed, the nomenclature does not bind the Board of Equalization as a third person, not party to the contract. (Budd v. Hughes, 176 Cal. 687, 689-690 [171 P. 287]; Broder v. Epstein, 101 Cal.App.2d 197 [225 P.2d 10]; People v. Chait, 69 Cal.App.2d 503, 519 [159 P.2d 445] ; Witkin, Cal. Evidence, § 377, p. 421.) The true nature of the contract must be looked to. The trial judge found that the sale was not of real property but of tangible personal property. The finding is supported.\nRaiseh Company did nothing by way of “taking” the material. Taking is of the essence of what is called a profit á prendre. The memorandum does not contain such a description of the land as is proper to a profit d prendre. It refers to the “Tennant Avenue Gravel Deposit,” but nothing is said about the amount that may be taken nor about duration of a right conveyed. A profit d prendre is an interest in the land itself and it creates a covenant running with the land as distinguished from a mere personal obligation of the owner of the property. (Richfield Oil Co. v. Hercules Gasoline Co., 112 Cal.App. 431, 434 [297 P. 73].) The substances which may be taken are., part, of the realty until severed and brought under control, and when this is done, they are personal property and subject to sale as such (id., p. 435). No part of this transaction brought Raisch into the operation of severing anything from the land. It simply bought personal property which had been severed by appellant. The quantity for which payment was to be made was measured by the amount delivered by the trucks selected by appellant.\nAppellant takes a second position about the Raisch contract. It says that in event the court rejects the profit á prendre theory, then only the charge for materials, 30 cents out of 85 cents, is taxable.\nAs in the Ball and Simpson contract, the trial judge found that title did not pass until delivery was made, that cost of delivery constituted part of the sales price, and that the buyer was interested only in a delivery price. This is supported by several items of direct evidence and fair inferences from them. (1) The fact that an illusory real property element was given to the transaction makes it difficult for appellant to say that there was a true sale of severed personal property at the pits and to insist that a particular portion, 30 cents per ton, of the whole amount paid, 85 cents per ton, is to be allocated to sale of material for tax purposes. (2) No testimony was presented to show the point at which Raisch considered title to pass. In fact, there is no direct evidence as to the point when appellant intended title to pass. Here, as in the Ball and Simpson contract, it seems that Raisch was going to pay for what it got at the place of delivery, and was not concerned with amount of product at plantsite nor of acquiring title before transportation by appellant’s allied company. (3) The invoices were “jobsite,” as in the Ball and Simpson contract, and the same reasoning applies here as there.\nAppellant argues that the fact that Raisch paid an extra five cents per ton wh",
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{
"start": 13569,
"end": 13580,
"quote": "id., p. 435",
"pattern": "case_id",
"canonical": "112 Cal. App. 431",
"alternatives": [
"297 P. 73"
]
}
],
"review_note": "Full source opinion inspected for antecedent: Richfield Oil v Hercules Gasoline, 112 Cal.App. 431, parallel 297 P.73; Id. pin 435."
},
{
"url": "https://www.neochart.com/catalog/cases/f-supp-3d/volume_266/0215_01/index.html",
"court": "United States District Court for the District of Columbia",
"decade": "2010s",
"start": 3841,
"end": 4471,
"text": "While this Court has no views about the merits of this case, it is certainly possible that there could be much merit to Ms. Arias’ case. Consequently, the Court has asked a. prominent District of Columbia law firm, which does a great deal of work on complex class action cases, to examine the ECF record in this case to determine whether it would be interested in taking a major role in furthering Ms. Arias’ position. The Court hopes that the fern’s preliminary examination can be completed by August 15, 2017. In any. event, on or before September 1, when this Judge will be retiring, the case will be assigned to another Judge.",
"context": "ntarily dismissed three claims before the Court considered Marriott’s Motion to Dismiss Plaintiffs Second Amended Complaint [Dkt. No. 33]. In a Memorandum Opinion [Dkt, No.- 53] addressing Ms. Alias’ five remaining claims, the Gourt granted in part and denied in part Marriott’s Motion to Dismiss. The Court dismissed Ms. Arias’ racial- discrimination claim, wrongful termination claim, and aggravated assault claim. As a result, three of Ms. Arias’ claims have survived: (1) retaliation under Title VII, (2) breach of contract, and (3) breach of implied covenant of good faith and fair dealing.\nOn December 4, 2016, Defendant filed its Opposition to the Motion for Class Certification [Dkt. No. 57]. Ms. Arias filed her Reply in Support of the Motion on January 3,2017.\nII. WHERE WE STAND NOW\nAs noted, Plaintiffs Motion for Class Certification became ripe on January 3, 2017. Thereafter, the lawyer who had been representing Ms. Arias; had a 'medical problem and- asked for a lengthy continuance.\nThe Court has read the briefs for the Motion for Class Certification and has concluded that Plaintiffs original counsel is indeed in need of a great deal of additional help in moving forward with the Motion for Class Certification. See Dkt. No. 53 at 17 n. 6. ' '' ’ ’\nThe Court inquired from appropriate individuals at the District of Columbia Bar about the need for additional help for Plaintiffs counsel, but they indicated that they would not be able to provide such help for the current counsel.\nWhile this Court has no views about the merits of this case, it is certainly possible that there could be much merit to Ms. Arias’ case. Consequently, the Court has asked a. prominent District of Columbia law firm, which does a great deal of work on complex class action cases, to examine the ECF record in this case to determine whether it would be interested in taking a major role in furthering Ms. Arias’ position. The Court hopes that the fern’s preliminary examination can be completed by August 15, 2017. In any. event, on or before September 1, when this Judge will be retiring, the case will be assigned to another Judge.\nFor these reasons, the Court is denying without prejudice Plaintiffs Motion for Class Certification. The Court will advise all Parties beforé September 1, 2017, as to what, if any, decision has been made by the firm to which the case was sent for examination.\n",
"weight": 48.875,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
},
{
"url": "https://www.neochart.com/catalog/cases/f-supp-3d/volume_266/0215_01/index.html",
"court": "United States District Court for the District of Columbia",
"decade": "2010s",
"start": 3340,
"end": 3608,
"text": "The Court has read the briefs for the Motion for Class Certification and has concluded that Plaintiffs original counsel is indeed in need of a great deal of additional help in moving forward with the Motion for Class Certification. See Dkt. No. 53 at 17 n. 6. ' '' ’ ’",
"context": "e District of Columbia. See Corrected Notice of Removal at 1 [Dkt, No. 2]. On August 8, 2015, Marriott filed a Notice of Removal from D.C. Superior Court . [Dkt. No. 1]. On September 10, 2015, Ms. Arias filed her Motion for Class Certification [Dkt. No. 11]. With leave of the Court, on April 21, 2016, -Ms. Arias filed a Second Amended Complaint [Dkt. No. 30], which is now the operative Complaint in this matter. Although the Second Amended Complaint initially set forth eight claims, Ms. Arias voluntarily dismissed three claims before the Court considered Marriott’s Motion to Dismiss Plaintiffs Second Amended Complaint [Dkt. No. 33]. In a Memorandum Opinion [Dkt, No.- 53] addressing Ms. Alias’ five remaining claims, the Gourt granted in part and denied in part Marriott’s Motion to Dismiss. The Court dismissed Ms. Arias’ racial- discrimination claim, wrongful termination claim, and aggravated assault claim. As a result, three of Ms. Arias’ claims have survived: (1) retaliation under Title VII, (2) breach of contract, and (3) breach of implied covenant of good faith and fair dealing.\nOn December 4, 2016, Defendant filed its Opposition to the Motion for Class Certification [Dkt. No. 57]. Ms. Arias filed her Reply in Support of the Motion on January 3,2017.\nII. WHERE WE STAND NOW\nAs noted, Plaintiffs Motion for Class Certification became ripe on January 3, 2017. Thereafter, the lawyer who had been representing Ms. Arias; had a 'medical problem and- asked for a lengthy continuance.\nThe Court has read the briefs for the Motion for Class Certification and has concluded that Plaintiffs original counsel is indeed in need of a great deal of additional help in moving forward with the Motion for Class Certification. See Dkt. No. 53 at 17 n. 6. ' '' ’ ’\nThe Court inquired from appropriate individuals at the District of Columbia Bar about the need for additional help for Plaintiffs counsel, but they indicated that they would not be able to provide such help for the current counsel.\nWhile this Court has no views about the merits of this case, it is certainly possible that there could be much merit to Ms. Arias’ case. Consequently, the Court has asked a. prominent District of Columbia law firm, which does a great deal of work on complex class action cases, to examine the ECF record in this case to determine whether it would be interested in taking a major role in furthering Ms. Arias’ position. The Court hopes that the fern’s preliminary examination can be completed by August 15, 2017. In any. event, on or before September 1, when this Judge will be retiring, the case will be assigned to another Judge.\nFor these reasons, the Court is denying without prejudice Plaintiffs Motion for Class Certification. The Court will advise all Parties beforé September 1, 2017, as to what, if any, decision has been made by the firm to which the case was sent for examination.\n",
"weight": 48.875,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
},
{
"url": "https://www.neochart.com/catalog/cases/f2d/volume_303/0076_01/index.html",
"court": "United States Court of Appeals for the Ninth Circuit",
"decade": "1960s",
"start": 607,
"end": 1130,
"text": "Appellant filed his action in a Washington Superior Court. The action was, on petition of appellee, removed to the Federal District Court. The cause was tried to a jury which returned a verdict in favor of appellant. Appellee moved for judgment in its favor notwithstanding the verdict. The motion was granted, one ground for such action being that there was no evidence to show a breach of any duty owing to appellant by appellee. In reviewing this ground, we examine the evidence in the light most favorable to appellant.",
"context": "\nORR, Circuit Judge.\nAppellant (hereinafter also referred to as Jines) developed tuberculosis. Immediately preceding the discovery that he was afflicted with tuberculosis appellant had been employed by appellee (hereinafter also referred to as GE). Appellant asked for damages upon the grounds that appellee breached its duty to him: (1) in failing to exercise due care in discovering the tubercular condition, and (2) in a failure to disclose the existence of the condition to Jines and'to refrain from assigning him to work which would aggravate the condition after it was or should have been discovered.\nAppellant filed his action in a Washington Superior Court. The action was, on petition of appellee, removed to the Federal District Court. The cause was tried to a jury which returned a verdict in favor of appellant. Appellee moved for judgment in its favor notwithstanding the verdict. The motion was granted, one ground for such action being that there was no evidence to show a breach of any duty owing to appellant by appellee. In reviewing this ground, we examine the evidence in the light most favorable to appellant.\nAppellant went to work for appellee as a clerk at its Hanford Atomic Plant near Richland, Washington, in the fall of 1955. Prior to his employment, on October 24, 1955, appellant underwent a physical examination and furnished GE with a complete personal medical history as was required of all prospective employees. Part of this entrance physical examination included the taking and interpretation of a chest x-ray. These x-rays are read by independent radiologists under contract to appellee. Appellant’s initial x-ray was interpreted negative—lung fields clear—no disease apparent.\nAs part of its continuing medical and “health counselling” program for its employees, appellee maintained, without charge or payroll deduction, a medical center in the City of Richland and field first aid stations at the Hanford Plant. These were staffed by a corps of doctors and nurses. Periodic physical examinations were provided for appellee’s employees and they were invited to consult with appellee’s medical staff about their health problems.\nOn May 23, 1957, appellant reported at appellee’s facilities for an interim physical examination. Prior to that date, on April 17 and May 20, he had reported to the medical staff symptoms of headache and vomiting, attributed on the first occasion to recurrent nervous tension and on the second to circumstances unequivocally indicating “hangover.” As was its practice, GE reported the results of the May 23rd physical examination to Jines by form letter as follows",
"weight": 84.33333333333333,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
},
{
"url": "https://www.neochart.com/catalog/cases/f2d/volume_303/0076_01/index.html",
"court": "United States Court of Appeals for the Ninth Circuit",
"decade": "1960s",
"start": 6442,
"end": 7097,
"text": "The foregoing is a summary of the evidence produced at the trial. Appellant produced expert testimony. One of his expert witnesses, a Dr. Williamson, connected with the Veteran’s Administration, testified that examining serially the x-rays taken in September, 1958, and later, and looking backward at the disputed x-ray of April 3, 1958, he was able to detect a minute fluffiness or incipient tubercular condition in the portion of the right lung where the disease subsequently developed. There is no testimony by anyone who had not previously viewed the later x-rays that the one of April 3, 1958, exhibited evidence of a developing tubercular condition.",
"context": " work due to flu. In May he reported a strain of his back in the right scapular region, due to slipping from a carry-all.\nOn June 25, 1958, Jines reported that he had been coughing some recently and inquired about when he was due for another x-ray. The record shows that he was advised by a member of the staff to call on a Dr. Seely or a Dr. Crook at GE’s Richland medical facility for follow-up treatment. Jines admits that he did not follow this advice. During the remainder of June, July and August Jines variously reported a headache, nausea due to inhalation of an insecticide, stomach upset and a temporary inability to eat or sleep. These latter conditions were discussed with the medical staff and were attributed to Jines’ recurrent emotional problems and nervous tension.\nAlthough Jines testified that beginning late in 1957 he had reported troubles in his right shoulder to the GE medical staff, the first such complaint that appears in the medical record is dated September 11, 1958. At this time Jines stated that a chiropractor whom he had been visiting for back pains due to an old injury suggested that his lungs were the source of his latest pain in his shoulder. Jines was referred to a private physician, a Dr. Mills, who a week later took further x-rays and diagnosed the condition as pneumonic tuberculosis. Hospitalization with bed rest was ordered immediately, chemotherapy was begun, and in March, 1959, surgery was undertaken and a portion of Jines’ right lung was removed.\nThe foregoing is a summary of the evidence produced at the trial. Appellant produced expert testimony. One of his expert witnesses, a Dr. Williamson, connected with the Veteran’s Administration, testified that examining serially the x-rays taken in September, 1958, and later, and looking backward at the disputed x-ray of April 3, 1958, he was able to detect a minute fluffiness or incipient tubercular condition in the portion of the right lung where the disease subsequently developed. There is no testimony by anyone who had not previously viewed the later x-rays that the one of April 3, 1958, exhibited evidence of a developing tubercular condition.\nTo Dr. Williamson, and to Dr. Crook of the GE staff, whom appellant called as an adverse witness, appellant’s attorney propounded a hypothetical question based upon appellant’s entire medical record as outlined above plus the additional but unrecorded complaints of pain in the right shoulder, and inquired of the doctors what action, if any, they personally would have taken if confronted by a patient with this record. Both replied to the effect that they would make a referral of the patient for further studies.\nIn reviewing the trial court’s action in granting the motion for judgment notwithstanding the verdict we keep in mind that this is not an action for malpractice. Indeed, such an action could not be successful against GE. The Washington courts have refused to entertain such actions against a defendant who provides medical services gratuitously. They have done so by invoking the theory of charitable immunity, and have imposed upon such a defendant only the duty of exercising reasonable care in the selection and retention of its medical personnel. See, e. g., Richardson v. Carbon Hill Coal Co., 10 Wash. 648, 39 P. 95 (1895), Wells v. Ferry-Baker Lumber Co., 57 Wash. 658, 107 P. 869, 29 L.R.A..N.S., 426 (1910), Simon v. Hamilton Logging Co., 76 Wash. 370, 136 P. 361 (1913), and Engirbritson v. Tri-State Cedar Co., 91 Wash. 279, 157 P. 677 (1916). But compare Sawdey v. Spokane Falls & N. Ry. Co., 30 Wash. 349, 70 P. 972 (1902). It appeared for a time that such an action cou",
"weight": 84.33333333333333,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
},
{
"url": "https://www.neochart.com/catalog/cases/tex/volume_50/0555_01/index.html",
"court": "Supreme Court of Texas",
"decade": "1870s",
"start": 1,
"end": 22,
"text": "Moore, Chief Justice.",
"context": "\nMoore, Chief Justice.\nThe legal effect of a judgment upon which suit is brought, whether it be a domestic or foreign judgment, is to be determined by the court, and not the jury. In the absence of an averment in the petition, of a law, custom, or procedure in the courts of the State where the judgment was rendered requiring a different construction to be given it, a foreign judgment must be interpreted and held to have the same legal effect as if it had been rendered by our own courts. (Bradshaw v. Mayfield, 18 Tex., 21.) If by the law or usage of the State from which the judgment comes it has a different force and effect from that which a similar judgment by our courts would have, like force and credit will be given to it here as it has where rendered; but, to enable the court to see that it is entitled to the credit claimed for it, the law or usage entitling it to this effect, must be averred. (Taylor, v. Runyan, 3 Clark, (Iowa,) 474.) If there is no averment of a law or usage of the State where the judgment is rendered entitling it to the legal effect asked to be given it, the petition is defective, and should be so held by the court, if excepted to. It is no answer to the demurrer to say that the existence of the law or usage which entitles the judgment to the effect claimed for it, is a question of fact, even if the evidence to prove the law should be submitted to the jury instead of to the judge, contrary to what Mr. Greenleaf says seems to be the better opinion. (1 Greenl. Ev., sec. 486; S",
"weight": 27.5,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
},
{
"url": "https://www.neochart.com/catalog/cases/tex/volume_50/0555_01/index.html",
"court": "Supreme Court of Texas",
"decade": "1870s",
"start": 1836,
"end": 3657,
"text": "The judgment upon which appellant’s action is brought is not for the recovery of money of appellee’s intestate, but for the foreclosure of a mortgage. In other words, it is not a personal judgment, but for the enforcement of a lien, for the satisfaction of an amount recovered in the judgment, by the sale of the property therein described. Admit that the judgment bound the defendant in his individual as well as his representative character, plainly -it does so merely to the extent of his interest in the property condemned to sale; and if it be also conceded that the facts alleged in the petition entitled the plaintiff to a personal judgment against the defendant for the debt named in the mortgage, still, beyond question, the petition contains no prayer for such a judgment. It is not, therefore, to be presumed, although the facts alleged would have warranted it, and when to do so would conflict with the plain language of the judgment entry. (United States v. Hawkins, 4 Mart., (N. S.,) 317.) Appellant, to parry the effect of this obvious defect in his petition, insists that this is not the ground upon which the court below sustained the demurrer. This may be true; and it may be, as he also insists, that this is not the precise objection to the petition presented by appellee’s special exception. But, be this as it may, unquestionably the defect in the petition, is such as may be taken advantage of by general demurrer. The judgment of the court is a general one, and sustains the general demurrer as well as the special exception. The judgment being correct, it cannot be reversed merely because the judge, if such is the fact, assigned a wrong reason for his judgment. It is the judgment of the court below which we are called upon to revise, and not the reasons given by the court in support of them.",
"context": "nt construction to be given it, a foreign judgment must be interpreted and held to have the same legal effect as if it had been rendered by our own courts. (Bradshaw v. Mayfield, 18 Tex., 21.) If by the law or usage of the State from which the judgment comes it has a different force and effect from that which a similar judgment by our courts would have, like force and credit will be given to it here as it has where rendered; but, to enable the court to see that it is entitled to the credit claimed for it, the law or usage entitling it to this effect, must be averred. (Taylor, v. Runyan, 3 Clark, (Iowa,) 474.) If there is no averment of a law or usage of the State where the judgment is rendered entitling it to the legal effect asked to be given it, the petition is defective, and should be so held by the court, if excepted to. It is no answer to the demurrer to say that the existence of the law or usage which entitles the judgment to the effect claimed for it, is a question of fact, even if the evidence to prove the law should be submitted to the jury instead of to the judge, contrary to what Mr. Greenleaf says seems to be the better opinion. (1 Greenl. Ev., sec. 486; Story’s Confl. of Laws., sec. 683.) Eor as the evidence is not admissible unless its existence is averred in the petition, this concession, if made, is no answer to a demurrer to a petition seeking to give an effect to the judgment to which, in the absence of the particular law or usage, it would not be entitled.\nThe judgment upon which appellant’s action is brought is not for the recovery of money of appellee’s intestate, but for the foreclosure of a mortgage. In other words, it is not a personal judgment, but for the enforcement of a lien, for the satisfaction of an amount recovered in the judgment, by the sale of the property therein described. Admit that the judgment bound the defendant in his individual as well as his representative character, plainly -it does so merely to the extent of his interest in the property condemned to sale; and if it be also conceded that the facts alleged in the petition entitled the plaintiff to a personal judgment against the defendant for the debt named in the mortgage, still, beyond question, the petition contains no prayer for such a judgment. It is not, therefore, to be presumed, although the facts alleged would have warranted it, and when to do so would conflict with the plain language of the judgment entry. (United States v. Hawkins, 4 Mart., (N. S.,) 317.) Appellant, to parry the effect of this obvious defect in his petition, insists that this is not the ground upon which the court below sustained the demurrer. This may be true; and it may be, as he also insists, that this is not the precise objection to the petition presented by appellee’s special exception. But, be this as it may, unquestionably the defect in the petition, is such as may be taken advantage of by general demurrer. The judgment of the court is a general one, and sustains the general demurrer as well as the special exception. The judgment being correct, it cannot be reversed merely because the judge, if such is the fact, assigned a wrong reason for his judgment. It is the judgment of the court below which we are called upon to revise, and not the reasons given by the court in support of them.\nThe judgment is affirmed.\nAeeirmed.\n",
"weight": 27.5,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
},
{
"url": "https://www.neochart.com/catalog/cases/fla-supp-2d/volume_1/0144_02/index.html",
"court": "Broward County Circuit Court",
"decade": "1980s",
"start": 35,
"end": 1508,
"text": "This action was heard December 30, 1981 to determine the status of Recall Political Action Committee and William G. Glynn, as its chairman, as intervening defendants and on these intervenors’ motion to dismiss. The motion to dismiss challenges the standing of Bi-Partisan Coalition For A Stable Government and Leonora J. Giacobbe. The Recall Political Action Committee and William G. Glynn, as its chairman, were allowed to intervene as defendants by the oral order entered at the hearing held December 21, 1981, at which time the Court reserved ruling on the status of the intervention — that is, whether it was to be in subordination to and in recognition of the propriety of the main proceeding, as provided by Rule 1.230 of the Florida Rules of Civil Procedure, or whether the Court should exercise its discretion under said Rule to allow the intervention without limitation. At issue was the right of Recall Political Action Committee, and William G. Glynn, its chairman, as intervenors, to argue their motion to dismiss, and the possible resulting delay of the final hearing scheduled on Count I for December 30, 1981. By the same oral order, the Court reserved ruling on the motion to dismiss, to enable all counsel to brief and argue the points of law involved. These oral orders were memorialized by the Court’s Order on Hearing of December 21, 1981, entered December 28, 1981, and Amended Order, entered December 30, 1981, both nunc pro tunc to December 21, 1981.",
"context": "\nSTEPHEN R. BOOHER, Circuit Judge.\nThis action was heard December 30, 1981 to determine the status of Recall Political Action Committee and William G. Glynn, as its chairman, as intervening defendants and on these intervenors’ motion to dismiss. The motion to dismiss challenges the standing of Bi-Partisan Coalition For A Stable Government and Leonora J. Giacobbe. The Recall Political Action Committee and William G. Glynn, as its chairman, were allowed to intervene as defendants by the oral order entered at the hearing held December 21, 1981, at which time the Court reserved ruling on the status of the intervention — that is, whether it was to be in subordination to and in recognition of the propriety of the main proceeding, as provided by Rule 1.230 of the Florida Rules of Civil Procedure, or whether the Court should exercise its discretion under said Rule to allow the intervention without limitation. At issue was the right of Recall Political Action Committee, and William G. Glynn, its chairman, as intervenors, to argue their motion to dismiss, and the possible resulting delay of the final hearing scheduled on Count I for December 30, 1981. By the same oral order, the Court reserved ruling on the motion to dismiss, to enable all counsel to brief and argue the points of law involved. These oral orders were memorialized by the Court’s Order on Hearing of December 21, 1981, entered December 28, 1981, and Amended Order, entered December 30, 1981, both nunc pro tunc to December 21, 1981.\nThe court has considered the memoranda submitted by the parties and heard argument of counsel and,\nIT IS ADJUGED:\n1. Recall Political Action Committee and William G. Glynn, as its chairman, as intervenors, have the same substantive rights as all other parties to this action and are not subordinate to any other party in this respect. However, their procedural rights, as intervenors, are limited to the extent that they do not have the right to raise any procedural issue which might have the effect of delaying the ultimate resolution of this case.\n2. The motion of Recall Political Action Committee and William G. Glynn, as its chairman, to dismiss the complaint or dismiss Bi-Partisan Coalition For A Stable Government and Leonora J. Giacobbee as parties for lack of standing is, on the merits, denied. Tacker v. Board of Com’rs of Polk County, 170 So. 458, 459 (Fla. 1936); State ex rel. Landis v. Tedder, 143 So. 148, 149 (Fla. 1932). Cf., City of Miami Beach v. Herman, 346 So.2d 122, 123 (Fla. 3d DCA 1977). Compare: Riviera Club v. Belle Mead Dev. Corp., 194 So. 783, 784 (Fla. 1939).\n",
"weight": 3.0,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
},
{
"url": "https://www.neochart.com/catalog/cases/fla-supp-2d/volume_1/0144_02/index.html",
"court": "Broward County Circuit Court",
"decade": "1980s",
"start": 2060,
"end": 2602,
"text": "2. The motion of Recall Political Action Committee and William G. Glynn, as its chairman, to dismiss the complaint or dismiss Bi-Partisan Coalition For A Stable Government and Leonora J. Giacobbee as parties for lack of standing is, on the merits, denied. Tacker v. Board of Com’rs of Polk County, 170 So. 458, 459 (Fla. 1936); State ex rel. Landis v. Tedder, 143 So. 148, 149 (Fla. 1932). Cf., City of Miami Beach v. Herman, 346 So.2d 122, 123 (Fla. 3d DCA 1977). Compare: Riviera Club v. Belle Mead Dev. Corp., 194 So. 783, 784 (Fla. 1939).",
"context": "e the Court reserved ruling on the status of the intervention — that is, whether it was to be in subordination to and in recognition of the propriety of the main proceeding, as provided by Rule 1.230 of the Florida Rules of Civil Procedure, or whether the Court should exercise its discretion under said Rule to allow the intervention without limitation. At issue was the right of Recall Political Action Committee, and William G. Glynn, its chairman, as intervenors, to argue their motion to dismiss, and the possible resulting delay of the final hearing scheduled on Count I for December 30, 1981. By the same oral order, the Court reserved ruling on the motion to dismiss, to enable all counsel to brief and argue the points of law involved. These oral orders were memorialized by the Court’s Order on Hearing of December 21, 1981, entered December 28, 1981, and Amended Order, entered December 30, 1981, both nunc pro tunc to December 21, 1981.\nThe court has considered the memoranda submitted by the parties and heard argument of counsel and,\nIT IS ADJUGED:\n1. Recall Political Action Committee and William G. Glynn, as its chairman, as intervenors, have the same substantive rights as all other parties to this action and are not subordinate to any other party in this respect. However, their procedural rights, as intervenors, are limited to the extent that they do not have the right to raise any procedural issue which might have the effect of delaying the ultimate resolution of this case.\n2. The motion of Recall Political Action Committee and William G. Glynn, as its chairman, to dismiss the complaint or dismiss Bi-Partisan Coalition For A Stable Government and Leonora J. Giacobbee as parties for lack of standing is, on the merits, denied. Tacker v. Board of Com’rs of Polk County, 170 So. 458, 459 (Fla. 1936); State ex rel. Landis v. Tedder, 143 So. 148, 149 (Fla. 1932). Cf., City of Miami Beach v. Herman, 346 So.2d 122, 123 (Fla. 3d DCA 1977). Compare: Riviera Club v. Belle Mead Dev. Corp., 194 So. 783, 784 (Fla. 1939).\n",
"weight": 3.0,
"events": [],
"review_note": "Read entire selected paragraph independently; no target-family mentions except the events explicitly listed. Full case citations and procedural Rules are outside the new-family recall scope."
}
]
}