alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
Order entered October 7, 2022

In t he 

### Court of Appeals Fifth District of Texas at Dallas
No. 05
- 21
- 00378
- CV

IN THE INTEREST OF I.A.F., A CHILD
On Appeal from the 255th Ju dicial District Court

Dal las County, Texas Trial Court Cause No. DF
- 16
- 12222

O RDER Before Justices Molberg, Partida

- Kipness, and Carlyle On the Court’s own motion, we WITHDRAW our October 3, 2022 opinion in this case and VACATE our judgment of that same date. A new opinion and ju dgment will issue in due course.

/s/ CORY L. CARLYLE JUSTICE
#### UNITED STATES of America, Plaintiff-Appellee v. Noe MEDINA, Defendant-Appellant

No. 16-41445 Summary Calendar

United States Court of Appeals, Fifth Circuit.

Filed April 27, 2017

Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee

Noe Medina, Pro Se

Before JOLLY, SMITH, and GRAVES, Circuit Judges.

PER CURIAM: *

The Federal Public Defender appointed to represent Noe Medina has moved for leave to withdraw and has filed a brief in accordance with *Anders v. California,*386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and *United States v. Flores,*632 *271F.3d 229 (5th Cir. 2011). Medina has not filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. *See*5th Cir. R. 42.2.

*

 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4,
#### In the Matter of Norman Peck, Petitioner, v Shirley Werner Kornreich et al., Respondents.

[770 NYS2d 858]

Application for an order pursuant to article 78 of the Civil Practice Law and Rules denied, the cross motion granted and the petition dismissed, without costs or disbursements. Petitioner’s motion for a stay of a hearing withdrawn in accordance with the terms of the stipulation of the parties hereto. No opinion. Concur—Nardelli, J.P., Andrias, Sullivan, Ellerin and Gonzalez, JJ.
<TABLE> <S> <C>


<ARTICLE>                     5
<LEGEND>
FINANCIAL DATA SCHEDULE

This schedule contains summary financial information extracted from the balance
sheet and statement of operations found on pages 3 and 4 of the Company's Form
10-QSB for the quarter ended June 30, 2000 and is qualified in its entirety by
reference to such financial statements.
</LEGEND>

<S>                                             <C>
<PERIOD-TYPE>                                         6-MOS
<FISCAL-YEAR-END>                               DEC-31-2000
<PERIOD-START>                                  JAN-01-2000
<PERIOD-END>                                    JUN-30-2000
<CASH>                                            1,489,517
<SECURITIES>                                              0
<RECEIVABLES>                                             0
<ALLOWANCES>                                              0
<INVENTORY>                                               0
<CURRENT-ASSETS>                                  1,726,496
<PP&E>                                              126,413
<DEPRECIATION>                                      (83,251)
<TOTAL-ASSETS>                                    1,907,312
<CURRENT-LIABILITIES>                               189,231
<BONDS>                                                   0
<PREFERRED-MANDATORY>                                     0
<PREFERRED>                                               0
<COMMON>                                                373
<OTHER-SE>                                        1,717,708
<TOTAL-LIABILITY-AND-EQUITY>                      1,907,312
<SALES>                                                   0
<TOTAL-REVENUES>                                          0
<CGS>                                                     0
<TOTAL-COSTS>                                      (575,765)
<OTHER-EXPENSES>                                          0
<LOSS-PROVISION>                                          0
<INTEREST-EXPENSE>                                        0
<INCOME-PRETAX>                                    (520,298)
<INCOME-TAX>                                              0
<INCOME-CONTINUING>                                (520,298)
<DISCONTINUED>                                            0
<EXTRAORDINARY>                                           0
<CHANGES>                                                 0
<NET-INCOME>                                       (520,298)
<EPS-BASIC>                                            (.14)
<EPS-DILUTED>                                             0


</TABLE>
#### Ahsan MOHIUDDIN, Plaintiff-Appellant, v. Robert J. HIGA, an individual and Judge California Superior Court; State of California, Defendants-Appellees.

No. 15-56018

United States Court of Appeals, Ninth Circuit.

Submitted March 8, 2017 *

Filed March 16, 2017

Ahsan Mohiuddin, Pro Se

Sarah Lee Overton, Attorney, Cummings McClorey Davis Acho and Associates, Riverside, CA, for Defendant-Appel-lee Robert J. Higa

Daniel L. Helfat, Deputy Attorney General, AGCA-Office of the California Attorney General, Los Angeles, CA, for Defendant-Appellee State of California

Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

*

 The panel unanimously concludes this case is suitable for decision without oral argument. *See*Fed. R. App. P. 34(a)(2).

MEMORANDUM **

Ahsan Mohiuddin appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging wrongdoing arising from an earlier state court action. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. *Micomonaco v. Washington,*45 F.3d 316, 319 (9th Cir. 1995) (Eleventh Amendment immunity); *Crooks v. Maynard,*913 F.2d 699, 700 (9th Cir. 1990) (judicial immunity). We affirm.

The district court properly dismissed Mohiuddin’s claims against the State of California on the basis of Eleventh Amendment immunity. *See Porter v. Jones,*319 F.3d 483, 491 (9th Cir. 2003) (“The Eleventh Amendment erects a general bar against federal lawsuits brought against a state.”); *see also Krainski v. Nevada ex rel. Bd. of Regents of Nevada System of Higher Educ.,*616 F.3d 963, 967 (9th Cir. 2010) (Eleventh Amendment immunity applies regardless of the nature of relief sought).

The district court properly dismissed Mohiuddin’s claims against Judge Higa on the basis of judicial immunity because the claims arose out of Judge Higa’s judicial acts. *See Swift v. California,*384 F.3d 1184, 1188 (9th Cir. 2004) (“It is well established that state judges are entitled to absolute immunity for their judicial acts.”); *Ashelman v. Pope,*793 F.2d 1072, 1075 (9th Cir. 1986) (“Judicial immunity applies however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff.” (citation and internal quotation marks omitted)). We reject as without merit Mohiuddin’s contentions that Judge Higa only answered the complaint in his official capacity.

The district court did not abuse its discretion by denying Mohiuddin’s motion to add CMRE Financial Services, Inc., as a defendant to the action because the amendment would not have cured the deficiencies identified in Mohiuddin’s com*611plaint. *See Ashelman,*793 F.2d at 1078 (setting forth standard of review and noting that a motion to amend a complaint is properly denied where the proposed amendment could not overcome deficiencies identified by the court).

Mohiuddin’s request for production of extra-record materials (Docket Entry No. 27) is denied.

AFFIRMED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
#### Gloria E. SWANSON, Plaintiff-Appellant, v. BAKER & MCKENZIE, LLP, and Chanel Johnson-Bell, Defendants-Appellees.

No. 17-1069

United States Court of Appeals, Seventh Circuit.

Submitted March 30, 2017 *

Decided April 3, 2017

Gloria E. Swanson, Pro Se

Susan M. Benton, Attorney, Randi L. Ellias, Attorney, Butler, Rubin, Saltarelli & Boyd LLP, Chicago, IL, for Defendants-Appellees

Before Diane P. Wood, Chief Judge Frank H. Easterbrook, Circuit Judge David F. Hamilton, Circuit Judge

*

 This successive appeal has been submitted to the original panel under Operating Procedure 6(b). We have unanimously agreed to decide the case without argument because the briefs and record adequately present the facts and legal arguments, and argument would not significantly aid the court. See Fed. R. App. P. 34(a)(2)(C).

Order

In 2013 this court held that an ex-employer’s temporary inability to confirm the employment of someone who worked there *491more than a decade ago could not reasonably be understood as defamatory, discriminatory, or retaliatory. *Swanson v. Baker & McKenzie, LLP,*527 Fed.Appx. 572 (7th Cir. 2013) (nonprecedential disposition).

Early in 2016 Swanson again had third parties ask Baker *&*McKenzie to verify her employment, and history repeated itself. The law firm’s representative again could not immediately tell the inquirer whether Swanson had worked for it between 1990 and 1995, but after more searching was able to verify that employment and confirm it, sending Swanson a letter that she can use in future searches for employment. Dissatisfied, Swanson again sued, accusing the law firm of defamation, discrimination, and retaliation. The district court granted summary judgment against her—largely on the basis of our 2013 decision, but for other reasons as well, including the fact that Swanson had not filed a new charge of discrimination with the appropriate state or federal agencies. 2016 U.S. Dist. Lexis 172979 (N.D. Ill. Dec. 14, 2016).

Swanson’s appellate brief contends, as she had in 2013, that a temporary failure to confirm an ex-employee’s years of service must be understood as defamatory, discriminatory, and retaliatory. That contention amounts to disagreement with our 2013 decision and is blocked by principles of issue preclusion. We affirm the district court’s judgment for that reason and the others given by the district judge’s careful opinion.

Swanson has become a frequent litigant, and the district judge observed that many of'her contentions are weak if not frivolous. The judge warned Swanson that continuation of this campaign of litigation will lead to sanctions. Instead of taking that warning to heart, Swanson’s appellate brief accuses the district judge of defamation. Blaming the judge is not a satisfactory response; the judge’s warning was designed to help Swanson avoid sanctions. She must understand that further litigation of this kind will be penalized' by the district court under Fed. R. Civ. P. 11 and by this court under Fed. R. App. P. 38.

AFFIRMED
#### In the Matter of Amanda J. McCartha, Appellant, v Howard M. Williams, Respondent. (And Another Related Proceeding.)

[770 NYS2d 670]

Peters, J.

Appeal from an order of the Family Court of Cortland County (Di Stefano, J.), entered February 21, 2003, which, inter alia, granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 6, for custody of the parties’ child.

Petitioner filed a petition for custody of the parties’ son (born in 1999) alleging that respondent failed to maintain contact with him for 21⁄2 years; the child was only three years old at the time. Petitioner further sought an order permitting her and the child to relocate to North Carolina.

At an initial appearance before Family Court, respondent explained that his failure to maintain contact was due to petitioner’s unexpected relocation with the child without notice to him. Thereafter, respondent filed a petition for custody and visitation, alleging that the child was maltreated by petitioner and that her conduct caused his minimal contact with his son.

At the hearing, the parties stipulated to sole custody and physical placement of the child with petitioner; a graduated visitation schedule was granted to respondent which provided for long-term stays by August 2003. Respondent was also assured phone contact and access to the child’s educational and medical records. Although he was initially resistant to these arrangements, he capitulated upon being assured that the issue of joint custody could be raised in the future if he displayed legitimate contact and interest in the health and well-being of his child. The Law Guardian agreed that the stipulation was in the child’s best interest. Respondent appeals.

We initially reject respondent’s contention that he was coerced into accepting this agreement. Despite his initial hesitation, the record reflects that respondent had ample opportunity to review the terms and conditions of the agreement with both counsel and Family Court and was freely able to object to its entry. As “ ‘[stipulations of settlement are favored by the courts and not lightly cast aside’ ” *(Doppelt v Doppelt,*215 AD2d 715, 715 [1995], quoting *Matter of Galasso,*35 NY2d 319, 321 [1974]), when dealing with matters of custody, it must be shown that *751there was an “unintended mistake of fact ... [in that] the enforcement of the contract would be unconscionable, the mistake is material and was made despite the exercise of ordinary care by the party in error” *(Matter of Goldman v Goldman,*201 AD2d 860, 861 [1994]). No such showing was made here.

As to the issue of the child’s best interests and the failure of Family Court to conduct an evidentiary hearing before awarding custody, we find that sufficient information was available to Family Court for it to determine that the child’s best interests would be served by awarding sole custody to petitioner (see *Matter of Shabazz v Blackmon,*274 AD2d 770, 771 [2000], *lv dismissed*95 NY2d 945 [2000]; *Matter of Hermann v Chakurmanian,*243 AD2d 1003, 1004 [1997]).

Cardona, P.J., Mercure, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed, without costs.
EXHIBIT 32.2

TIBCO SOFTWARE INC.

CERTIFICATION

I, Sydney L. Carey, Executive Vice President, Chief Financial Officer of TIBCO Software Inc. (the Company), do hereby
certify, pursuant to Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act) and 18 U.S.C. Section 1350, that, to my knowledge:



| | (a) | the Annual Report on Form 10-K of the Company for the fiscal year ended November 30, 2009, as filed with the Securities and Exchange Commission (the
Report), fully complies with the requirements of Section 13(a) or 15(d) of the Exchange Act; and
| | --- | -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------



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



|                        |  |  |  |                                                  
|----------------------- |  |  |  | -------------------------------------------------
|Dated: January 29, 2010 |  |  |  | /s/ Sydney L. Carey                              
|                        |  |  |  | Sydney L. Carey                                  
|                        |  |  |  | Executive Vice President, Chief Financial Officer
exhibit41.htm


Exhibit 4.1


 


 





 


 


 


 




  





Page 1 of 2











  






 


 


 





 


 


 


 




  





Page 2 of 2
Exhibit
32.6














CERTIFICATION
OF CHIEF FINANCIAL


OFFICER
REGARDING PERIODIC REPORT CONTAINING


FINANCIAL
STATEMENTS









I,
Jeffrey T. Fisher, the Chief Financial Officer of CCO Holdings, LLC and CCO
Holdings Capital Corp. (the "Company") in compliance with 18 U.S.C. Section
1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002,
hereby certify that, the Company's Annual Report on Form 10-K for the year
ended December 31, 2007 (the "Report") filed with the Securities and Exchange
Commission:




·
            fully
      complies with the requirements of Section 13(a) of the Securities Exchange
      Act of 1934; and




·
            the
      information contained in the Report fairly presents, in all material
      respects, the financial condition and results of operations of the
      Company.











/s/ Jeffrey T.
Fisher


Jeffrey T.
Fisher


Chief Financial
Officer


(Principal Financial
Officer)


March21, 2008
#### Patrice EDWARDS, Plaintiff-Appellant, v. CINELOU FILMS; et al., Defendants-Appellees.

No. 16-56043

United States Court of Appeals, Ninth Circuit.

Submitted August 9, 2017 *

Filed August 17, 2017

Patrice Edwards, Pro Se

David Aronoff, Attorney, Fox Rothschild LLP, Los Angeles, CA, for Defendants-Appellees

Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.

*

**The panel unanimously concludes this case is suitable for decision without oral argument. *See*Fed. R. App. P. 34(a)(2). Edwards’s request for oral argument, set forth in her opening brief, is denied.

MEMORANDUM **

Patrice Edwards appeals pro se from the district court’s judgment dismissing her copyright action. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6), *Hebbe v. Pliler,*627 F.3d 338, 341 (9th Cir. 2010), and we affirm.

The district court properly dismissed Edwards’s copyright infringement action because, as a matter of law, Edwards’s works titled “Witch” and defendants’ film *The Last Witch Hunter*are not substantially similar under the extrinsic test. *See Benay v. Warner Bros. Entm’t, Inc.,*607 F.3d 620, 624 (9th Cir. 2010) (setting forth the extrinsic test to assess substantial similarity between specific expressive elements of copyrighted works, such as plot, sequence of events, themes, mood, setting, pace, and characters); *Funky Films, Inc. v. Time Warner Entm’t Co., L.P.,*462 F.3d 1072, 1076-78 (9th Cir. 2006) (substantial similarity may be decided as a matter of law by applying the extrinsic test).

We do not consider matters not properly raised before the district court. *Smith v. Marsh,*194 F.3d 1045, 1052 (9th Cir. 1999).

Defendants’ request for judicial notice (Docket Entry No. 13) is denied.

AFFIRMED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICKY RIVERA,

Plaintiff

- Appellant,

v.

DAVE DAVEY, Warden; M.

ROBICHEAUX; ED CRIANE; S.M.V.

CHAPOLEUN,

Defendants

- Appellees. No. 21

- 15853

D.C. No. 1:16

- cv

- 01817

- AWI

- BAM

MEMORANDUM *

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Submitted June 15, 2022 * *

Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.

California state prisoner Ricky Rivera appeals pro se from the district court’s

judgment dismissing for failure to exhaust administrative remedies his 42 U.S.C.

§ 1983 action alleging violation of his free

- exercise rights . We have jurisdiction

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

JUN 28 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 21

- 15853

under 28 U.S.C. § 1291. We review de novo

. Albino v. Baca , 747 F.3d 1162,

1171 (9th Cir. 2014) (legal rulings on exhausti on) ; Thompson v. Paul , 547 F.3d

1055, 1058 (9th Cir. 2008) (dismissal under Fed. R. Civ. P. 12(b)(6))

. We affirm.

The district court properly dismissed Rivera’s action because it was clear

from the face of Rivera’s operative complaint that Rivera failed to exhaust

available administrative remedies prior to filing suit. See Woodford v. Ngo , 548

U.S. 81, 90 (2006) (“[P]roper exhaustion of administrative remedies . . . means

using all steps that the agency holds out, and doing so properly (so that the agency

addresses the issues on the merits).” (citation and internal quotation marks

omitted)) ; Albino , 747 F.3d at 1169 ( where a failure to exhaust is clear from the

face of the complaint, a district court may dismiss for failure to state a c laim )

.

The motion to file a late reply brief is denied as unnecessary . The reply

brief has been filed and considered

.

AFFIRMED.
#### FOREST CAPITAL, LLC, Plaintiff-Appellee, v. David PEARSALL, Defendant-Appellant.

No. 16-1707

United States Court of Appeals, Fourth Circuit.

Submitted: April 24, 2017

Decided: May 1, 2017

David Pearsall, Appellant Pro Se.

Jeremy Stuart Friedberg, LEITESS FRIEDBERG PC, Owings Mills, Maryland; Pierce C. Murphy, LEITESS FRIEDBERG PC, Baltimore, Maryland; Jeffrey A. Wurst, RUSKIN MOSCOU FALTISCHEK, PC, Uniondale, New York, for Appellee.

Before GREGORY, Chief Judge, and WILKINSON and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

David Pearsall seeks to appeal the district court’s order granting Forest Capital, LLC’s motion for partial summary judg*299ment. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2012), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2012); Fed. R. Civ. P. 54(b); *Cohen v. Beneficial Indus. Loan Corp.,*337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Because Forest Capital’s claim for tortious interference with contract remains pending in the district court, the order Pearsall seeks to appeal is neither a final order nor an ap-pealable interlocutory or collateral order. Accordingly, we dismiss the appeal for lack of jurisdiction and deny as moot Pearsall’s motion for summary disposition. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

*DISMISSED*
Gary WILLIAMS, Appellant/Petitioner(s), v. Thomas M. KNIGHT, Sheriff, Appellee/Respondent(s).

CASE NO.: 2D18-1125

District Court of Appeal of Florida, Second District.

March 26, 2018

**DECISION WITHOUT PUBLISHED OPINION**

Dismissed.