alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### Mark Anthony VINZANT, Plaintiff-Appellant, v. Warden KENNDY, Orleans Parish Prison; Charles C. Foti, Jr., Sheriff; Marcus Dileo, Dr., Defendants-Appellees.

No. 05-31116

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

June 13, 2007.

Mark Anthony Vinzant, Adelanto, CA, pro se.

Timothy R. Richardson, USRY, Weeks & Matthews, New Orleans, LA, for Defendants-Appellees.

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM: *

Mark Anthony Vinzant, federal prisoner # 27944-034, appeals from the district court’s October 7, 2005, order denying his Fed.R.Civ.P. 60(b) motion, seeking relief from the district court’s dismissal of his action for failure to prosecute. *See*Fed. R.CivP. 41(b). Vinzant argues that the district court abused its discretion in denying his Rule 60(b) motion because the record does not support a finding of a clear record of delay or contumacious conduct but rather suggests mere negligence and reflects that he diligently pursued his claims.

This court reviews the district court’s denial of a Rule 60(b) motion for abuse of discretion. *Warfield v. Byron,*436 F.3d 551, 555 (5th Cir.2006). Under this standard, “[i]t is not enough that the granting of relief might have been permissible, or even warranted — denial must have been so *unwarranted*as to constitute an abuse of discretion.” *Seven Elves, Inc. v. Eskenazi,*635 F.2d 396, 402 (5th Cir.1981). Vinzant has not shown “ ‘unusual or unique circumstances justifying such relief.’ ” *Aucoin v.*
      *135
      *K-Mart Apparel Fashion Corp.,*943 F.2d 6, 8 (5th Cir.1991) (quoting *Pryor v. U.S. Postal Service,*769 F.2d 281, 286 (5th Cir.1985)). Therefore, the judgment of the district court is AFFIRMED. Vinzant’s motion for the appointment of counsel is DENIED. Vinzant also has filed a motion for an extension of time to file a reply brief. Because the proposed reply brief is devoted to arguing the merits of his civil rights claims, an issue not relevant to the issue of the district court’s denial of his Rule 60(b) motion, Vinzant’s motion for an extension of time to file it also is DENIED.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
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EXHIBIT 32.2

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly
Report of ACRO Inc. (the Company) on Form 10-QSB for the period ended March
31, 2007 as filed with the Securities and Exchange Commission on the date hereof (the
Report), I, Jacob Bar-Shalom, the Acting Chief Financial Officer (Principal
Financial Officer and Principal Accounting Officer) of the Company, certify, pursuant to
18 U.S.C. section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002, that to the best of my knowledge:

|(1) | the
Report fully complies with the requirements of section 13(a) or 15(d) of the
                    Securities Exchange Act of 1934; and
|--- | -----------------------------------------------------------------------------------------------------------------------------------------

|(2) | the
information contained in the Report fairly presents, in all material
                    respects, the financial condition and result of operations of the
Company.
|--- | -----------------------------------------------------------------------------------------------------------------------------------------------------------------------

|Signature:  /s/ Jacob Bar-Shalom
Title:     Acting Chief Financial Officer(Principal Financial Officer andPrincipal Accounting Officer)
|-----------------------------------------------------------------------------------------------------------------------------------------------------



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§ 201.421 Commission consideration of determinations by self-regulatory organizations. ( a ) *Commission review other than pursuant to a petition for review.* The Commission may, on its own initiative, order review of any determination by a self-regulatory organization that could be subject to an application for review pursuant to § 201.420(a) within 40 days after notice thereof was filed with the Commission pursuant to Section 19(d)(1) of the Exchange Act, 15 U.S.C. 78s(d)(1).
( b ) *Supplemental briefing.* The Commission may at any time prior to issuance of its decision raise or consider any matter that it deems material, whether or not raised by the parties. Notice to the parties and an opportunity for supplemental briefing with respect to issues not briefed by the parties shall be given where the Commission believes that such briefing would significantly aid the decisional process.
### §14136a. Transferred

#### **Editorial Notes**

#### Codification

Section 14136a was editorially reclassified as section 40723 of Title 34, Crime Control and Law Enforcement.
###### Editorial Note on Part 240

#### Editorial Note:

Nomenclature changes to part 240 appear at 57 FR 36501, Aug. 13, 1992, and 57 FR 47409, Oct. 16, 1992.

#### § 240.15Ca2-4 Registration of fiduciaries.

The registration of a government securities broker or government securities dealer pursuant to section 15C of the Act shall be deemed to be the registration of any executor, administrator, guardian, conservator, assignee for the benefit of creditors, receiver, trustee in insolvency or bankruptcy, or other fiduciary, appointed or qualified by order, judgment, or decree of a court of competent jurisdiction to continue the business of such registered government securities broker or government securities dealer, provided that such fiduciary files with the Commission, no more than 30 days after entering upon the performance of its duties, a statement setting forth as to such fiduciary substantially the information required by Form BD.
### §1592e. Interagency transfers of property; application of rules and regulations

Any Federal agency may, upon request of the Secretary of Housing and Urban Development, transfer to his jurisdiction without reimbursement any lands, improved or unimproved, or other property real or personal, considered by the Secretary of Housing and Urban Development to be needed or useful for housing or community facilities, or both, to be provided under this subchapter, and the Secretary of Housing and Urban Development is authorized to accept any such transfers. The Secretary of Housing and Urban Development may also utilize any other real or personal property under his jurisdiction for the purpose of this subchapter without adjustment of the appropriations or funds involved. Any property so transferred or utilized, and any funds in connection therewith, shall be subject only to the authorizations and limitations of this subchapter. The Secretary of Housing and Urban Development may, in his discretion, upon request of the Secretary of Defense or his designee, transfer to the jurisdiction of the Department of Defense without reimbursement any land, improvements, housing, or community facilities constructed or acquired under the provisions of this subchapter and considered by the Department of Defense to be required for the purposes of the said Department. Upon the transfer of any such property to the jurisdiction of the Department of Defense, the laws, rules, and regulations relating to property of the Department of Defense shall be applicable to the property so transferred, and the provisions of this subchapter and the rules and regulations issued thereunder shall no longer apply.

(Sept. 1, 1951, ch. 378, title III, §306, 65 Stat. 306; Pub. L. 89–174, §5(a), Sept. 9, 1965, 79 Stat. 669.)

#### **Statutory Notes and Related Subsidiaries**

#### Transfer of Functions

For transfer of functions to Secretary of Housing and Urban Development, see note set out under section 1581 of this title.
#### § 171.28 Participation by Commission staff.

The Division of Enforcement, the Market Participants Division, the Division of Clearing and Risk, the Division of Market Oversight, or the Division of Data may participate in any proceeding by filing a notice of appearance. Such a notice shall be filed and served on or before the twentieth day following the date of service of its brief by the National Futures Association. The Commission shall by order establish a supplementary briefing schedule for the Commission staff and other parties to the proceeding. If it concludes that participation of the Commission staff will not serve the public interest, the Commission shall prohibit further participation.

[55 FR 41068, Oct. 9, 1990, as amended at 67 FR 62353, Oct. 7, 2002; 78 FR 22419, Apr. 16, 2013; 89 FR 71821, Sept. 4, 2024]
(December 15, 1953.)

#### Hugh K. Bennett, Appellant, v. Shamuel Shamilzadeh, Respondent and Third-Party Plaintiff-Respondent. Hugh K. Bennett et al., Third-Party Defendants-Appellants.

*Per Curiam.*

The' judgment appealed from awarded respondent, exclusive of interest and costs, a recovery on three of his claims; (1) the sum of $37,501.58 as the balance due to respondent on 500 cases of opium delivered to Merck & Co.; (2) the sum of $12,000 posted by respondent as a guarantee for nondelivery of the 750 case lot, which money was appropriated by appellants; (3) the sum of $37,500 as damages for malicious interference by appellants with the rights of respondent under a contract which he allegedly had with the Iranian Opium Monopoly.

There is no dispute that there is a balance due respondent on the 500 case lot. However, the amount found due appears to have been incorrectly calculated. This item should have been computed in the sum of $36,501.58 and not $37,501.58.

It is our view, too, that the judgment is erroneous insofar as it allows damages of $37,500, to respondent for alleged malicious interference by appellants with the contract rights of respondent under a contract which he allegedly had with the Iranian Opium Monopoly for the sale and delivery to him of the 750 case lot. The judgment in this respect is not warranted because respondent failed to establish that he actually had such a contract with the monopoly. Without satisfactory proof of such agreement, there was no basis for the damages allowed for the alleged interference with it.

Appellants collected and retained $12,000, at the rate of $16 per case on respondent’s guarantee against nondelivery of the 750 cases. The trial court’s determination that appellants were not entitled to appropriate this money as a guarantee against nondelivery of the 750 cases is fully waranted by the evidence. There is ample -proof to support the court’s findings that appellants were acting as the agents of respondent in the transaction and that as such they were remiss in their duty to respondent by depriving respondent of the full time allowed by the buyer for delivery by respondent of the merchandise. Respondent informed appellants of his willingness to deliver and sought additional time and assurance of payment. Although appellants were obligated to make those items available to respondents in the first place, appellants failed to comply with respondent’s request. Hence, the trial court .correctly ruled that appellants should return this money to respondent.

As the judgment is in all other respects proper, it should be, for the foregoing reasons, modified, without costs by reducing the amount thereof to the sum of $48,501.58, plus interest and costs allowed by the trial court.

Settle order on notice.

Peck, P. J., Dore, Cohn, Callahan and Bergan, JJ., concur.

Judgment unanimously modified in accordance with the opinion herein and, as so modified, affirmed. Settle order on notice. [See 283 App. Div. 656, 871.]
### §§1366 to 1371. Repealed. Pub. L. 89–554, §8(a), Sept. 6, 1966, 80 Stat. 658, 660, 661

Section 1366, act Aug. 14, 1935, ch. 531, title XV, §1506, as added Sept. 1, 1954, ch. 1212, §4(a), 68 Stat. 1133, provided for payments to States. See section 8505 of Title 5, Government Organization and Employees.

Section 1367, act Aug. 14, 1935, ch. 531, title XV, §1507, as added Sept. 1, 1954, ch. 1212, §4(a), 68 Stat. 1134; amended Aug. 28, 1958, Pub. L. 85–848, §4, 72 Stat. 1089; Sept. 13, 1960, Pub. L. 86–778, title V, §531(f), 74 Stat. 984, provided for dissemination of information by both Federal and State agencies. See section 8506 of Title 5.

Section 1368, act Aug. 14, 1935, ch. 531, title XV, §1508, as added Sept. 1, 1954, ch. 1212, §4(a), 68 Stat. 1135, related to penalties. See section 8507 of Title 5 and section 1919 of Title 18, Crimes and Criminal Procedure.

Section 1369, act Aug. 14, 1935, ch. 531, title XV, §1509, as added Sept. 1, 1954, ch. 1212, §4(a), 68 Stat. 1135, related to rules and regulations. See section 8508 of Title 5.

Section 1370, act Aug. 14, 1935, ch. 531, title XV, §1510, as added Sept. 1, 1954, ch. 1212, §4(a), 68 Stat. 1135, related to authorization of appropriations. See section 5509 of Title 5.

Section 1371, act Aug. 14, 1935, ch. 531, title XV, §1511, as added Aug. 28, 1958, Pub. L. 85–848, §3, 72 Stat. 1087; amended Sept. 2, 1958, Pub. L. 85–857, §13(i)(3), 72 Stat. 1265; Apr. 22, 1960, Pub. L. 86–442, §2, 74 Stat. 82; Sept. 13, 1960, Pub. L. 86–778, title V, §542(c), 74 Stat. 986, provided an ex-servicemen's unemployment compensation program. See sections 8521 to 8525 of Title 5.
#### Arthur Butler, Respondent-Appellant, v. Isaac Wurman, Appellant-Respondent.

No opinion. Settle order on notice. Present — Peck, P. J., Dore, Callahan, Yan Yoorhis and Shientag, JJ.
§ 254.5 Misrepresentations of enrollment qualifications or limitations. ( a ) It is deceptive for an Industry Member to misrepresent, directly or indirectly, expressly or by implication, the nature or extent of any prerequisites or qualifications for enrollment in a school or program of instruction.
( b ) It is deceptive for an Industry Member to misrepresent, directly or indirectly, expressly or by implication, that the lack of a high school education or prior training or experience is not an impediment to successful completion of a course or program of instruction or obtaining employment in the field for which the course or program of instruction provides training.
( c ) It is deceptive for an Industry Member to misrepresent, directly or indirectly, expressly or by implication, the time required to complete a course or program of instruction.
( d ) It is deceptive for an Industry Member to misrepresent, directly or indirectly, expressly or by implication, a student's likelihood of success in a school or program of instruction, including, but not limited to, misrepresenting the student's score on any admissions test.
[78 FR 68991, Nov. 18, 2013]
#### Hilary Guishard et al., Respondents, v General Security Insurance Company, Appellant.

[820 NYS2d 645]

*529In an action for a judgment declaring, inter alia, that the defendant is obligated to defend and indemnify the plaintiffs in an action entitled *Phillips v Guishard,*pending in the Supreme Court, Bronx County, under index No. 23809/02, the defendant appeals from a judgment of the Supreme Court, Kings County (Vaughan, J.), entered August 16, 2005, which, upon an order of the same court dated May 18, 2005 denying its motion for summary judgment and granting the plaintiffs’ cross motion for summary judgment, declared that the defendant was obligated to defend and indemnify the plaintiffs in the underlying action.

Ordered that the judgment is affirmed, with costs.

In this action, the plaintiffs seek, inter alia, a judgment declaring that the defendant, General Security Insurance Company (hereinafter General Security), is obligated to defend and indemnify them in an underlying personal injury action pursuant to a general liability insurance policy. General Security moved for summary judgment declaring that there was no coverage based on the auto exclusion in its policy because the injured plaintiff in the underlying action was struck by a rivet from a rivet gun while converting a van owned by the plaintiffs into an ice cream vending truck. The Supreme Court denied the motion and granted the plaintiffs’ cross motion for summary judgment declaring that General Security is obligated to defend and indemnify the plaintiffs in the underlying action. We agree.

In an insurance coverage case, the insurer bears the burden of establishing that the claimed policy exclusion defeats the insured’s claim to coverage by demonstrating that the exclusion relied upon is “stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case” *(Continental Cas. Co. v Rapid-American Corp.,*80 NY2d 640, 652 [1993]; *see Seaboard Sur. Co. v Gillette Co.,*64 NY2d 304, 311 [1984]; *Community Hosp. at Glen Cove v American Home Assur. Co.,*171 AD2d 639 [1991]; *AFA Protective Sys. v Atlantic Mut. Ins. Co.,*157 AD2d 683, 685 [1990]). Here, General Security did not submit the policy schedule defining the term “auto” as used in the policy. Accordingly, General Security’s submissions failed to demonstrate its prima facie entitlement to judgment as a matter of law or raise a triable issue of fact in opposition to the plaintiffs’ prima facie showing of entitlement to judgment as a matter of law (see *Alvarez v Prospect Hosp.,*68 NY2d 320, 324 [1986]). Schmidt, J.P., Crane, Spolzino and Covello, JJ., concur.
#### In the Matter of the Estate of Michael P. Brignole, Deceased. Paul Terzulli, Respondent; Attorney General of State of New York, Appellant. (Proceeding No. 1.) In the Matter of the Estate of Marie Brignole, Deceased. Paul Terzulli, Respondent; Attorney General of State of New York, Appellant. (Proceeding No. 2.)

[820 NYS2d 323]

In related proceedings pursuant to SCPA 1420 for the construction of the will of Michael E Brignole, the Attorney General of the State of New York appeals from an order of the Surrogate’s Court, Richmond County (Fusco, S.), dated April 11, 2005, which granted the petition and directed the transfer of title to certain real property to the petitioner.

Ordered that the order is affirmed, with costs.

The Surrogate’s Court, in a prior order, interpreted the will of the petitioner’s decedent Michael E Brignole (hereinafter the decedent) as creating a trust, with the decedent’s wife receiving the income from the trust for life. Pursuant to the residuary clause of the will, upon the death of the decedent’s wife “any remaining funds will be given to such charities” as the decedent’s executors direct. The disputed provision of the decedent’s will provides, “I would like my wife to turn the Farm (Pocono View Farm) in the Poconos to my nephew . . . because after speaking to him, he has business acumen.”

The prime consideration in construction proceedings is the intention of the testator as expressed in the will *(see Matter of Fabbri,*2 NY2d 236, 239). “All rules of interpretation are subordinated to the requirement that the actual purpose of the testator be sought and effectuated as far as is consonant with principles of law and public policy” *(id.*at 239-240). The testator’s intent “must be gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed” *(id.*at 240; *see also Matter of Guide,*302 AD2d 387, 388 [2003]).

*539Upon a sympathetic reading of the entire will, the Surrogate’s Court properly concluded that the decedent intended to give his wife the power to take Pocono View Farm (hereinafter the farm) out of the trust and to transfer it to the petitioner, the decedent’s nephew *(see Matter of Fabbri, supra).*Further, a letter of intent sent to the petitioner by the attorney for the executor of the decedent’s will supports the Surrogate Court’s determination that the decedent’s wife intended to convey the farm to the decedent’s nephew before her death.

Accordingly, the Surrogate’s Court properly construed the decedent’s will and directed the transfer of the farm to his nephew. Prudenti, P.J., Mastro, Spolzino and Dillon, JJ., concur.
#### Adam Croman, Appellant, v County of Oneida, Defendant, and Town of Westmoreland et al., Respondents.

(Appeal No. 1.)

[821 NYS2d 343]

*1187Appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, A.J.), entered January 21, 2005 in a personal injury action. The order, among other things, granted the motion of defendant Town of Westmoreland and the cross motion of defendant Jeffrey J. Schaller for summary judgment dismissing the complaint against them.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: These consolidated appeals arise from actions seeking damages for injuries sustained by plaintiff Adam Croman and the wrongful death and conscious pain and suffering of Bradley P. Golden (Golden) as the result of a fire on property owned by defendant Jeffrey J. Schaller. The fire was set in a vacant house on Schaller’s property as part of a training exercise for volunteer firefighters, including Croman and Golden. Supreme Court properly granted the motions of defendant Town of Westmoreland and the cross motion and motion of Schaller seeking summary judgment dismissing the complaints and cross claims against them and those parts of the motions of the “fire department defendants” (i.e., all of the remaining defendants with the exception of the County of Oneida and Alan Baird, III, individually and as First Assistant Chief of the Lairdsville Fire Department, Inc.) seeking summary judgment dismissing the complaints against them. We reject plaintiffs’ contention that the motions and cross motion were prematurely granted because discovery was not complete. Plaintiffs “failed to show that ‘facts essential to justify opposition may exist but [could not] then be stated’ (CFLR 3212 [f]) and that [plaintiffs] require[d] the discovery of facts that are within the exclusive knowledge of another party” *(Wittkopp v ADF Constr. Corp.,*254 AD2d 775, 776 [1998]). Contrary to plaintiffs’ further contentions, Schaller met his burden of establishing that he owed no duty of care to Croman and Golden under the circumstances *(see generally Morris v Freudenheim,*273 AD2d 885 [2000]) and plaintiffs failed to raise a triable issue of fact *(see generally Zuckerman v City of New York,*49 NY2d 557, 562 [1980]). Present — Pigott, Jr., P.J., Hurlbutt, Martoche and Green, JJ.
### §11712. Rule of construction

Nothing in this chapter shall be construed to restrict the authority of the State of Hawaii to license health practitioners.

(Pub. L. 100–579, §13, as added Pub. L. 102–396, title IX, §9168, Oct. 6, 1992, 106 Stat. 1948.)

#### **Editorial Notes**

#### Codification

Section enacted by section 1 of S. 2681, One Hundred Second Congress, as passed by the Senate on Aug. 7, 1992, which was enacted into law by section 9168 of Pub. L. 102–396. Section 9168, which referred to S. 2681, as passed by the Senate on "September 12, 1992", has been treated as referring to S. 2681, as passed by the Senate on Aug. 7, 1992, to reflect the probable intent of Congress.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

 IN THE DISTRICT COURT OF APPEAL 

 OF FLORIDA 

 SECOND DISTRICT 

AL DEMETRIAN HUGHES, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D14-3717 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

________________________________ ) 

Opinion filed May 27, 2015. 

Appeal from the Circuit Court for 

Hillsborough County; Daniel L. Perry, 

Judge. 

Howard L. Dimmig, II, Public Defender, 

and Judith Ellis, Assistant Public 

Defender, Bartow, for Appellant. 

Al Demetrian Hughes, pro se. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, for Appellee. 

PER CURIAM. 

 We affirm without prejudice to any future claim for postconviction relief. 

See Leonard v. State, 760 So. 2d 114 (Fla. 2000). 

NORTHCUTT, LaROSE, and MORRIS, JJ., Concur.
###### Editorial Note on Part 240

#### Editorial Note:

Nomenclature changes to part 240 appear at 57 FR 36501, Aug. 13, 1992, and 57 FR 47409, Oct. 16, 1992.

#### § 240.13a-21 [Reserved]