alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### IN RE: Leslie A. PASCASCIO, Debtor. Teena Colebrook, Appellant, v. CIT Bank, Appellee.

No. 16-56445

United States Court of Appeals, Ninth Circuit.

Submitted September 26, 2017 *

Filed October 6, 2017

Robert Stephen Hanna, Attorney, Attorney At Law, Santa Barbara, CA, for Appellant

Yale K. Kim, Attorney, Allen Matkins, Los Angeles, CA, for Appellee

Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.

*

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

MEMORANDUM **

Teena Colebrook appeals from the district court’s order affirming the bankruptcy court’s order denying her motion to vacate under Fed. R. Civ. P. 60(b) its order granting CIT Bank’s motion for relief from the automatic stay in an unrelated bankruptcy case. We have jurisdiction under 28 U.S.C. § 158(d). We review de novo the district court’s decision on appeal from the bankruptcy court and apply the same standards of review applied by the district court. *In re Thorpe Insulation Co.,*677 F.3d 869, 879 (9th Cir. 2012). We affirm.

The bankruptcy court did not err in finding that Colebrook was properly served with the motion for relief from the automatic stay, and Colebrook failed to rebut the presumption of receipt. *See*Fed. R. Bankr. P. 9014(b) (a motion “shall be served in the manner provided for service of a summons and complaint by Rule 7004”); Fed. R. Bankr. P. 7004(b)(1) (service may be made within the United States by first class mail postage prepaid to the individual’s dwelling house or usual place of abode); *In re Bucknum,*951 F.2d 204, 207 (9th Cir. 1991) (proof of mailing creates a rebuttable presumption of its receipt, which “can only be overcome by clear and convincing evidence that the mailing was not, in fact, accomplished.”). Thus, the bankruptcy court did not abuse its discretion by denying Colebrook’s motion to vacate the order granting CIT relief from the automatic stay because Cole-brook was served with CIT’s motion for *530relief from the automatic stay and failed to object. *See Wilson v. City of San Jose,*111 F.3d 688, 691 (9th Cir. 1997) (standard of review).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal, *See Padgett v. Wright,*587 F.3d 983, 985 n.2 (9th Cir. 2009),

Colebrook’s motions to take judicial notice (Docket Entry Nos. 18 and 33) are denied as unnecessary.

AFFIRMED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
<PAGE>

                                                                    Exhibit 31.1

        Rule 13a-14(a)/15d-14(a) Certification of Chief Executive Officer

I, Stephen M. Greenberg, certify that:

1. I have reviewed this annual report on Form 10-K of Net2Phone, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made, not
misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial
information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as
of, and for, the periods presented in this report;

4. The registrant's other certifying officer(s) and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-15(e) and 15d-15(e) for the registrant and we have:

         a) designed such disclosure controls and procedures, or caused such
disclosure controls and procedures to be designed under our supervision, to
ensure that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those entities,
particularly during the period in which this report is being prepared;

         b) evaluated the effectiveness of the registrant's disclosure controls
and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures as of the end of the
period covered by this report based on such evaluation; and

         c) disclosed in this report any change in the registrant's internal
control over financial reporting that occurred during the registrant's most
recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an
annual report) that has materially affected, or is reasonably likely to
materially affect, the registrant's internal control over financial reporting;
and

5. The registrant's other certifying officer(s) and I have disclosed, based on
our most recent evaluation of internal control over financial reporting, to the
registrant's auditors and the audit committee of the registrant's board of
directors (or persons performing the equivalent functions):

         a) all significant deficiencies and material weaknesses in the design
or operation of internal control over financial reporting which are reasonably
likely to adversely affect the registrant's ability to record, process,
summarize and report financial information; and

         b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's internal
control over financial reporting.


Date: October 29, 2003

/s/  Stephen M. Greenberg
----------------------------
Stephen M. Greenberg
Chief Executive Officer
EXHIBIT 23.1
 
 Our ref
    
    DLK\620456\3229634v1Direct tel
    
    +852 2971 3006E-mail
    
    derrick.kan@maplesandcalder.com
 
   Re: Home Inns & Hotels Management Inc.
 Company
    
  Maples and Calder53rd Floor    The Center    99
Queens Road Central     Hong Kong
Tel +852 2522 9333    Fax +852 2537
2955    www.maplesandcalder.comResident Hong Kong
Partners: Christine Chang (England and Wales),
Spencer Privett (England and Wales)
Anne Walker (England and Wales), Anthony Webster  (England and
Wales), Greg Knowles  (England and Wales)
Harriet Unger  (England and Wales), Barry Mitchell (British Virgin
Islands), Matthew Stocker (Cayman Islands)
Cayman Islands and British Virgin Islands Attorneys at Law |
Offices: British Virgin Islands, Cayman Islands, Dubai, Hong Kong,
London
Exhibit 10.3

                                                                      1 May 2001

Dear Bob DiSilvio

I am  pleased  to  confirm  ESC  Medical  System's  offer  for you to  join  our
organization  as Managing  Director  Sales  Americas.  In this capacity you will
report directly to Lou Scafuri,  Chief Operating  Officer.  The compensation and
employee benefits program for this position are outlined as follows:

Base Salary

You will receive a base salary of $ 13,617 per month ($ 163,404 annualized).

Management Bonus Program

As a member of the Executive  Staff you will be eligible to  participate  in the
Executive  Sales  Incentive  plan at a target  of 75% of your  base  salary  for
reaching 100% target.  The bonuses are paid quarterly.  The details of this plan
will be available shortly.

Stock Option Plan

Upon your joining our  organization  we will recommend to the Board of Directors
that you be considered  for a stock option grant of 75,000 shares of Esc Medical
Systems  stock,  at a price as will be at the date of closing.  The options will
vest over a three-year period at a rate of 33.3% each year.

Stay Bonus

A special bonus payment, in addition to any other compensation provided, will be
paid to you on December 31, 2002.  This payment will be made  providing  you are
still a full time employee  with the company on that date.  The bonus will be in
the amount of 50% of your current salary at the time it is paid.

Executive Benefits Program

ESC  Medical  Systems  offers an  attractive  employee  benefits  program  which
includes:  company  medical and dental  insurance  coverage,  life and  accident
insurance, disability coverage, a most generous 401k plan with dollar for dollar
matching up to 6% of your annual contribution to the plan, and flexible spending
accounts.

ESC Medical  Systems will provide you with a special  Executive  Benefit Program
that provides for an additional  five (5) days of vacation  during each calendar
year and deferred  compensation options through a Supplementary  Retirement Plan
and Rabbi Trust arrangement that are designed to complement our 401k plan.

We look forward to your joining our organization. To indicate your acceptance of
this  offer,  please  sign and  return  one copy of this  letter  to me.  In the
meantime, if you have any questions please do not hesitate to call me.

Best regards,

/s/Yossi Gal
-----------------------------
Yossi Gal
Vice President of Human Resources

/s/Robert DiSilvio
-----------------------------
Robert DiSilvio                                   Date


                                       31
#### The People *ex rel.*Thomas Cecil, App’lt, *v.*The Bellevue Hospital Medical College, Resp’t.

*(Supreme Court, General Term, First Department,*

*Filed May 15, 1891.)*

Colleges—Medical—Have no bight to abbitbabilt withhold degrees..

A medical college which by its circular specifies the fees and qualifications necessary to entitle a student to a degree, cannot after the student has complied with such terms arbitratarily refuse him his examination and degree.

Appeal from order of the special term denying motion for a writ of *mandamus.*

*Seaman Miller,*for app’lt; *Allan McCulloh,*for resp’t.

Van Brunt, P. J.

The respondent is a medical college, duly incorporated under the laws of the state of Hew York for the purpose of giving instruction in medicine, and by its circulars issued it specifies the fees which are to be paid by students, their course of study and the qualifications which they must possess in order to entitle them to the degree of doctor of medicine. '

The relator entered said college for the purpose of taking the-regular course of study in that institution and procuring the degree of doctor of medicine. At the end of such course, and having fulfilled all the conditions entitling him to present himself for final examination, he was informed by the secretary of the faculty that he would not be allowed to present himself for final examination, nor would said corporation grant him a degree of doctor of medicina

*419In answer to this application the respondent presents no ground whatever for its action, but insists that it has the right arbitrarily without any cause to refuse the relator his examination and degree.

It seems to us clear that such a position cannot for a moment he entertained. The circulars of the respondent indicate the terms upon which students will be received, and the rights which they were to acquire by reason of their compliance with the rules and regulations of the college in respect to qualifications, conduct, etc. When a student matriculates under such circumstances, it is a contract between the college and himself that if he complies with the terms therein prescribed he shall have the degree, which is the end to be obtained. This corporation cannot take the money of a student, allow him to remain and waste his time (because it would be a waste of time if he cannot get a degree) and then arbitrarily refuse when he has completed his term of study to confer upon him that which they have promised, namely, the degree of doctor of medicine, which authorizes him to practice that so-called science.

It may be true that this court will not review the discretion of the corporation in the refusal for any reason or cause to permit a student to be examined and receive a degree ; but where there is an absolute and arbitrary refusal there is no exercise of discretion.

It is nothing but a willful violation of the duties which they have assumed.

Such a position could never receive the sanction of a court in which even the semblance of justice was attempted to be administered.

" The order appealed from should be reversed, and the motion granted, with ten dollars costs and disbursements.

Daniels, J., concurs.
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-6273

LESTER HARDY,

Plaintiff - Appellant,

v.

BOYD BENNETT; DENNIS ROWLAND,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Louise W. Flanagan, Chief

District Judge. (5:06-ct-03107-FL)

Submitted: July 31, 2008 Decided: August 7, 2008

Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Lester Hardy, Appellant Pro Se. Lisa Yvette Harper, Assistant

Attorney General, Raleigh, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
- 2 -

PER CURIAM:

Lester Hardy appeals the district court’s order denying

relief on his 42 U.S.C. § 1983 (2000) complaint. We have reviewed

the record and find no reversible error. Accordingly, we affirm

for the reasons stated by the district court. Hardy v. Bennett,

No. 5:06-ct-03107-FL (E.D.N.C. Feb. 4, 2008). We dispense with

oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED
I 

118TH CONGRESS 

1ST SESSION H. R. 6360 

To amend title 38, United States Code, to assign the highest priority status 

for hospital care and medical services provided through the Department 

of Veterans Affairs to veterans who are former prisoners of war. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 9, 2023 

Mr. WALBERG (for himself, Mr. KRISHNAMOORTHI, Mr. GUTHRIE, and Mr. 

GOTTHEIMER) introduced the following bill; which was referred to the 

Committee on Veterans’ Affairs 

A BILL 

To amend title 38, United States Code, to assign the highest 

priority status for hospital care and medical services 

provided through the Department of Veterans Affairs 

to veterans who are former prisoners of war. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘POW Priority Care 

5 Act of 2023’’. 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
2 

•HR 6360 IH

1 SEC. 2. HIGHEST PRIORITY STATUS FOR ENROLLMENT OF 

2 FORMER PRISONERS OF WAR IN HEALTH 

3 CARE SYSTEM OF DEPARTMENT OF VET4 ERANS AFFAIRS. 

5 (a) ENROLLMENT.—Section 1705(a) of title 38, 

6 United States Code, is amended— 

7 (1) in paragraph (1)— 

8 (A) by striking ‘‘and veterans’’ and insert9 ing ‘‘, veterans’’; and 

10 (B) by striking the period at the end and 

11 inserting ‘‘, and veterans who are former pris12 oners of war.’’; and 

13 (2) in paragraph (3), by striking ‘‘who are 

14 former prisoners of war or’’. 

15 (b) EXTENDED CARE SERVICES.—Section 

16 1710B(c)(2)(D) of such title is amended by inserting ‘‘a 

17 veteran who is a former prisoner of war or’’ before ‘‘a vet18 eran who’’. 

19 (c) APPLICABILITY.—The amendments made by this 

20 section shall apply with respect to veterans who are former 

21 prisoners of war before, on, or after the date of the enact22 ment of this Act. 

Æ 


kjohnson on DSK7ZCZBW3PROD with $$_JOB
#### UNITED STATES of America, Plaintiff-Appellee v. Jose INFANTE-HERNANDEZ, Defendant-Appellant

No. 15-41045 Summary Calendar

United States Court of Appeals, Fifth Circuit.

Filed July 13, 2017

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

Jose Infante-Hernandez, Pro Se

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM: *

The attorney appointed to represent Jose Infante-Hernandez 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 F.3d 229 (5th Cir. 2011). Infante-Hernan-dez 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 Cíe. 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.
#### William B. Shaw, Appellant, *v.*Home Life Insurance Company, Respondent.

(Argued June 4, 1872;

decided June 11, 1872.)

Plaintiff engaged with defendant as soliciting agent, under a contract by which he was to receive during the time he acted as such agent five per cent commission upon the amount of annual premiums due and payable in each year after the first year of their continuance, upon all policies solicited and secured by him, and in case of his death while so acting as agent, defendant agreed to pay to his wife, if she survived him, the commissions accruing thereafter to which he would have been entitled if he had lived and continued to act. The contract contained a provision that either party might cancel it after giving three months notice of such intent, and if defendant' should cancel it,' it should continue to pay plaintiff or his wjfe the commissions as aforesaid, provided he should perform the necessary service in procuring payment of the premium. After two years the agreement was rescinded by mutual consent and the agency terminated. Plaintiff claimed to recover his commissions upon premiums thereafter received upon policies solicited and secured by him. *Held,*that by the terms of the contract a commission upon the premiums accruing upon the policies secured by plaintiff during each year of the continuance of the agency was a full compensation for the year’s service, save where defendant canceled the contract as provided, and plaintiff having voluntarily surrendered the right to perfora future services and to receive the compensation *682therefor, had no right to greater compensation for past services and could not recover*.

*Joseph R. Flanders*for the appellant.

*A. B. Capwell*for the respondent.

G-boveb, J.,

reads for affirmance.

All concur.

Judgment affirmed with costs.
#### Effort ALEXANDER, Plaintiff-Appellant v. Jerry MCADAMS; Grandview Lakes Homeowners Association, Incorporated, Defendants-Appellees

No. 17-60296 Summary Calendar

United States Court of Appeals, Fifth Circuit.

Filed August 9, 2017

Effort Alexander, Pro Se

Jerry Wesley Hisaw, Holland Law, P.C., Horn Lake, MS, for Defendants-Appellees

*367Before REAVLEY, PRADO, and GRAVES, Circuit Judges.

PER CURIAM: *

The judgment of the district court is affirmed for the reasons given by that court. The order of Judge Mills correctly answers all of Plaintiffs claims and no more need be said.

AFFIRMED.

*

 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.
---

**EXHIBIT 32.1**

**CERTIFICATIONS 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 Annual
  Report of Banyan Corporation (the "Company") on Form 10-KSB for the year ended
  December 31, 2006, as filed with the Securities and Exchange Commission on the
  date hereof (the "Report"), I, Michael Gelmon, Chief Executive Officer, certify,
  pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
  Sarbanes-Oxley Act of 2002, that:

(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, as of, and
  for the periods presented in the Report.

| | /s/ Michael Gelmon     
| | -----------------------
| |                        
| | Michael Gelmon         
| |                        
| | Chief Executive Officer
| |                        
| | April 16, 2007         

---
#### Joseph Hapgood *versus*James M. Wesson.

*Oct. 4th.*

A minor over fourteen years of age having been bound an apprentice by his guardian, unjustifiably left the service of his master, and after the appointment of a new guardian the first one paid the master for necessary expenses incurred by him on account of the minor. It was *held,*that the first guardian could not main tain an action at law against the minor for the money so paid.

This action was brought to recover thirty-six dollars of the defendant, a minor under the guardianship of one Maynard.

At the trial in the Court of Common Pleas, before *Strong*J., it appeared that the defendant, in December, 1825, being of the age of fourteen years and upwards, was bound by indentures executed by the plaintiff, the defendant (who was then under the guardianship of the plaintiff), and one Wilder, as an apprentice to Wilder, until he should arrive at the age of twenty-one years ; which would be in 1830. He remained in the service of Wilder nine months, when he left him without any iustifiable cause. Subsequently to this, and after Maynard had been appointed guardian in the room of the plaintiff, Wildei claimed compensation for the injury he had sustained in consequence of the defendant’s having left his service. The plaintiff, upon Maynard’s promising to satisfy the claim when the amount should be ascertained, agreed with Wilder, in presence of Maynard, to refer the dispute to arbitration. The arbitrators awarded to Wilder the sum of forty dollars. Hapgood paid him thirty-six dollars, and the present action was brought to recover this sum. The sum awarded was exclusively for actual expenses incurred in the support of the defendant, above the value of his services, and not on account of the loss of future services.

Upon the foregoing facts the judge directed a nonsuit; to which direction the plaintiff filed exceptions.

*J. Davis*and *Mien.,*in support of the exceptions,

said the expenses were for necessaries for which the defendant was liable ; that the plaintiff was his guardian and bound to put him out as an apprentice and to covenant for him ; and that Wilder, when the defendant left his service, had a right to considei *51the contract as at an end, and to recover of the plaintiff these expenses.

*Newton*and *Draper, contra,*

contended that the claim ought to have been made in the Probate Court, on the settlement of a guardianship account.

And the *Court*held this to be a good objection to the action ; and that there was no promise by the defendant, either express or implied, to pay the plaintiff’s demand.

*Judgment of C. C. P. affirmed.*
ex10_3.htm









Exhibit 10.3







SCHEDULE IDENTIFYING MATERIAL DIFFERENCES AMONG


 


CHANGE IN CONTROL AND SEVERANCE AGREEMENTS


 


BETWEEN CRACKER BARREL OLD COUNTRY STORE, INC. AND


 


THE INDIVIDUALS LISTED BELOW








	  	
Severance Benefits

	 	
Severance Benefits Upon 


Change of Control


	  	  	 	  
	
Douglas E. Barber,


Executive Vice President and


Chief People Officer

	
18 months base salary

	 	
3.00 times average annual salary plus average bonus during 3 years preceding termination


	 	 	 	 
	
Edward A. Greene,


Senior Vice President,


Strategic Initiatives

	
12 months base salary plus one additional week of severance for each year of service in excess of 15 years*

	 	
2.00 times average annual salary plus average bonus during 3 years preceding termination


	 	 	 	 
	
Lawrence E. Hyatt,


Senior Vice President and


Chief Financial Officer

	
12 months base salary plus one additional week of severance for each year of service in excess of 15 years*

	 	
2.00 times average annual salary plus average bonus during 3 years preceding termination







 


* Not to exceed 18 months total severance.