alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### Marvin G. HOLLIS, Plaintiff-Appellant, v. D. HERRICK; et al., Defendants-Appellees.

No. 10-15613.

United States Court of Appeals, Ninth Circuit.

Submitted June 15, 2011.*

Filed July 5, 2011.

Marvin G. Hollis, pro se.

*511Emily L. Brinkman, AGCA-Office of the California Attorney General, San Francisco, CA, Emily L. Brinkman, for Defendants-Appellees.

Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

*

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

MEMORANDUM **

California state prisoner Marvin G. Hollis appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging First Amendment retaliation and due process claims. 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). We review for an abuse of discretion the district court’s dismissal for failure to serve a summons in a timely manner. *Oyama v. Sheehan (In re Sheehan),*253 F.3d 507, 511 (9th Cir.2001). We affirm in part, vacate in part, and remand.

The district court properly dismissed Hollis’s retaliation claims against defendants Selby, Schütz, and Rankin for failure to state a claim because the complaint contained only “labels and conclusions, and a formulaic recitation of the elements of [the] cause of action” and was not “plausible on its face.” *Bell Atl. Corp. v. Twombly,*550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

The district court dismissed Hollis’s claims against defendant Herrick on the ground that the summons that the United States Marshal attempted to serve was returned unexecuted. There is no indication in the record that the district court considered whether there was good cause for the failure to serve, or whether, absent good cause, an extension was warranted. *See*Fed.R.Civ.P. 4(m); *Mann v. Am. Airlines,*324 F.3d 1088, 1090 & n. 2 (9th Cir.2003). Accordingly, we vacate and remand for the district court to consider these issues.

The district court also did not expressly address Hollis’s allegations that he was denied his due process rights. We vacate and remand for the district court to consider this claim in the first instance.

Hollis’s remaining contentions are unavailing.

We treat HolKs’s motion for judicial notice as citation of supplemental authorities pursuant to Fed. R.App. P. 28(j).

Defendants shall bear the costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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| Party A: Tianshi Group Co., Ltd.                        |   | Party D: Tianjin  Tiens Life Resource Co., Ltd. |
|---------------------------------------------------------|--------|-----------------------------------------------------------|
|                                                    |   |                                                      |
| Legal Representative: Jinyuan Li                        |   | Legal Representative: Baolan Li                           |
|                                                    |   |                                                      |
| Signature: /s/ Jinyuan Li                               |   | Signature: /s/ Baolan Li                                  |
|                                                    |   |                                                      |
| Party B: Tianshi International Holdings Group Co., Ltd. |   | Party E: Tianjin Tianshi Biological Development Co., Ltd. |
|                                                    |   |                                                      |
| Legal Representative: Jinyuan Li                        |   | Legal Representative: Baolan Li                           |
|                                                    |   |                                                      |
| Signature: /s/ Jinyuan Li                               |   | Signature: /s/ Baolan Li                                  |

----

| Party C: Tianshi International Investment Group Co., Ltd. |   | Party F: Tianjin Tianshi Biological Engineering Co., Ltd. |
|-----------------------------------------------------------|--------|-----------------------------------------------------------|
|                                                      |   |                                                      |
| Legal Representative: Jinyuan Li                          |   | Legal Representative: Jinyuan Li                          |
|                                                      |   |                                                      |
| Signature: /s/ Jinyuan Li                                 |   | Signature: /s/ Jinyuan Li                                 |

----
<PAGE>

                                  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 annual report of West Bancorporation, Inc. on Form 10-K
for the year ended December 31, 2004 as filed with the Securities and Exchange
Commission on the date hereof (the "Report"), I, Douglas R. Gulling, Executive
Vice President and Chief Financial Officer of West Bancorporation, Inc.,
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 conditions and results of operations of West
Bancorporation, Inc.

March 3, 2005

/s/ Douglas R.Gulling
----------------------
Douglas R.Gulling
Executive Vice President and Chief Financial Officer

                                       41
*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.

United States Court of Appeals

Fifth Circuit

FILED

June 2, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-60897

Summary Calendar

WILLIAMS INSULATION,

Petitioner,

versus

OCCUPATIONAL, SAFETY AND HEALTH REVIEW COMMISSION;

ELAINE CHAO, SECRETARY, DEPARTMENT OF LABOR,

Respondents.

Appeal from the United States 

Occupational Safety and Health Review Commission

(Docket No. 05-0031)

_________________________________________________________

Before REAVLEY, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

Williams Insulation petitions for review of a Final Order of the United States

Occupational Safety and Health Review Commission relating to a citation and penalty for

failure to ensure rooftop laborer Juan Gomez was protected by fall arrest systems in
1 ConAgra Flour Milling Co., 15 BNA OSHC 1817, 1823, 1992 OSHD ¶29,808

(1992).

2

violation of 29 C.F.R. 1926.501(b)(13). Reviewing the record for substantial evidence,

we deny the petition because substantial evidence supports the finding that Gomez was

engaged in construction-related rooftop activities without fall protection. Williams relies

on the exception to the fall protection requirement provided in 29 C.F.R. §

1926.500(a)(1) for employees engaged in inspection, investigation or assessment of

workplace conditions prior to the actual start of construction work. When a standard

contains an exception to its general requirement, the burden of proving that the exception

applies lies with the party claiming the benefit of the exception.1 Williams introduced no

witnesses and adduced no testimony to support its contention that Gomez was engaged in

pre-work inspection and fall anchor installation at the time the inspection occurred. 

Other than the assertions of Williams’s counsel and remarks of one compliance officer as

to what Gomez claimed to be doing, there is nothing in the record to establish that Gomez

was engaged in exempted activities while on the roof without fall protection. 

PETITION DENIED.
**Exhibit 32 (ii)**

 

CERTIFICATION SECTION 1350

 

Inconnection with the Quarterly Report of Penns Woods Bancorp, Inc. (the “Company”)on Form 10-Q for the period ending September 30, 2005, as filed withthe Securities and Exchange Commission on the date hereof (the “Report”), I,Brian L. Knepp, Vice President of Finance, certify, pursuant to 18 U.S.C. Section 1350,as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002,that:

 

(1)           theReport fully complies with the requirements of Section 13(a) or 15(d) ofthe Securities Exchange Act of 1934; and

 

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

 
| /s/ Brian L. Knepp                                        |   |
|-----------------------------------------------------------|--------|
| Brian L. Knepp                                            |
| Vice President of Finance and Principal Financial Officer |
|                                                      |
| November 8, 2005                                     |

 

----
Dismissed and Memorandum Opinion filed March 19, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00649-CV

MARK SAPAUGH, Appellant

V.

MORTGAGE ASSESTS MANAGEMENT LLC, Appellee

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1197744

MEMORANDUM OPINION

The underlying December 12, 2022 justice-court judgment in this 

forcible-detainer case dismissed defendant Loyle Sapaugh, deceased, and rendered 

judgment of possession for plaintiff Mortgage Assests Management LLC against 

defendant Marla Kay Sapaugh. Marla Kay Sapaugh did not appear, but her son, 

who was not a named party, did appear. Marla Kay Sapaugh appealed.1

1 A county court has appellate jurisdiction in civil cases over which the justice courts 

have original jurisdiction, including forcible entry and detainer suits. See Tex. Gov’t Code 
2

In the de novo case in county civil court at law, plaintiff dismissed its claims 

against Loyle, and the county civil court at law signed a March 10, 2023 final 

judgment of possession for plaintiff against defendant, whose name was misspelled 

“Maria Kay Sapaugh.”

2 No notice of appeal was filed. The county civil court at 

law signed an August 18, 2023 judgment nunc pro tunc correcting the spelling of 

defendant’s name, rendering possession for plaintiff against defendant “Marla Kay 

Sapaugh.” Mark Sapaugh filed an August 23, 2023 notice of appeal, suggesting 

that Marla Sapaugh died on May 6, 2023.

No timely notice of appeal regarding the merits of the underlying March 10, 

2023 judgment of possession appears to have been filed, and no one argues that the 

subsequent judgment nunc pro tunc extended the appellate timetables.

Accordingly, this court issued notice on February 21, 2024 that the appeal would 

be dismissed for want of subject-matter jurisdiction unless any party filed a 

response within 10 days showing meritorious grounds for continuing the appeal. 

No response was filed. We dismiss the appeal for want of subject-matter 

jurisdiction. 

PER CURIAM 

Panel Consists of Justices Bourliot, Zimmerer, and Spain. 

§§ 26.042(e), 27.031(a)(2). But in those counties having statutory county courts, the statutory 

county court has jurisdiction over all causes and proceedings, civil and criminal, original and

appellate, prescribed by law for county courts. See Tex. Gov’t Code § 25.0003(a). Harris County 

has county civil courts at law. See Tex. Gov’t Code § 25.1031(a). Thus, in Harris County, the 

county civil court at law has jurisdiction over appeals from justice court. See Tex. R. Civ. P. 

509.8 (appeal from justice court).

2 There is no dispute that defendant was served and was a party to the underlying case.
**Exhibit 32.2**

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

In connection withthe Annual Report of Eon Labs, Inc. (the “Company”) on Form 10-Kfor the year ended December 31, 2004 as filed with the Securities andExchange Commission on the date hereof (the “Report”), I, William F. Holt,Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C.§ 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002,that:

(1)         The Report fully complieswith the requirements of Section 13(a) or 15(d) of theSecurities Exchange Act of 1934; and

(2)         Theinformation contained in the Report fairly presents, in all material respects,the financial condition and results of operations of the Company.
| /s/ WILLIAM  F. HOLT      |   |
|---------------------------|--------|
| William F. Holt           |   |
| *Chief Financial Officer* |   |
| March 16, 2005       |   |

 

----
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JAMES ALLEN, JR. and REBECCA )

ALLEN, )

)

Plaintiffs, )

)

v. ) CAUSE NO: 3:16-cv-306-TLS-MGG

)

HARBOR FREIGHT TOOLS USA, INC. )

d/b/a PITTSBURGH AUTOMOTIVE, )

 )

 Defendant. )

OPINION AND ORDER

This case was removed to this Court on May 17, 2016, from the St. Joseph County

Circuit Court by Defendant based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). The

Notice of Removal alleges, among other things, that “[u]pon information and belief, at the time

of the filing of the Complaint, the Plaintiff was domiciled in St. Joseph County, Indiana, and,

therefore, was a citizen of Indiana.” Doc. No. 1 at 2, ¶ 5. 

As the party seeking to invoke federal diversity jurisdiction, Plaintiff bears the burden of

demonstrating that the requirement of complete diversity has been met. Chase v. Shop’n Save

Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997). Anything less can result in a

dismissal or remand for want of jurisdiction. Mut. Assignment & Indem. Co. v. Lind-Waldock &

Co., LLC, 364 F.3d 858, 861 (7th Cir. 2004). 

To demonstrate citizenship, Defendant must establish the domicile of all parties. See

Dakuras v. Edwards, 312 F.3d 256, 258 (7th Cir. 2002); see Heinen v. Northrop Grumman

Corp., 671 F.3d 669, 670 (7th Cir. 2012) (“[R]esidence may or may not demonstrate citizenship,

which depends on domicile—that is to say, the state in which a person intends to live over the
long run.”); Guar. Nat’l Title Co. v. J.E.G. Assocs., 101 F.3d 57, 58-59 (7th Cir. 1996)

(explaining that statements concerning a party’s “residency” are not proper allegations of

citizenship as required by 28 U.S.C. § 1332). In addition, “[a]llegations of federal subject matter

jurisdiction may not be made on the basis of information and belief, only personal knowledge.” 

Yount v. Shashek, 472 F. Supp. 2d 1055, 1057 n.1 (S.D. Ill. 2006) (citing Am.’s Best Inns, Inc. v.

Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992)); see also Ferolie Corp. v.

Advantage Sales & Mktg., LLC, No. 04 C 5425, 2004 WL 2433114, at *1 (N.D. Ill. Oct. 28,

2004); Hayes v. Bass Pro Outdoor World, LLC, No. 02 C 9106, 2003 WL 187411, at *2 (N.D.

Ill. Jan. 21, 2003). 

Here, Defendant’s jurisdictional statement in its Notice of Removal is deficient for two

reasons. First, Defendant alleges the domicile only of “the Plaintiff,” without any explanation of

which plaintiff is being referenced. Second, Defendant’s allegation of “the Plaintiff’s” domicile

and citizenship are based only upon information and belief. These shortcomings jeopardize

Defendant’s removal. 

Therefore, Defendant is ORDERED to supplement the record on or before September

20, 2016, by filing an amended notice of removal that properly sets forth the citizenship of each

party based on its personal knowledge.

SO ORDERED.

Dated this 6th day of September, 2016.

S/Michael G. Gotsch, Sr. 

Michael G. Gotsch, Sr.

United States Magistrate Judge 

2
IN THE SUPREME COURT OF THE STATE OF MONTANA

DA 19-0604

CITY OF GREAT FALLS,

Plaintiff and Appellee,

v.

JASON BRYAN MARTIN,

Defendant and Appellant.

PILE

SEP 04 2020

Bowen Greenwood

Clerk of Suprerne Court

State of Montana

ORDER

Upon consideration of Appellant's motion for an extension of time, and good

cause appearing,

IT IS HEREBY ORDERED that Appellant is granted an extension of time to and

including October 7, 2020, within which to file his reply brief.

No further extensions will be granted.

DAIED this L04ay of September, 2020.

For the Court,

Chief Justice

09/08/2020

Case Number: DA 19-0604
#### UNITED STATES of America, Plaintiff-Appellee v. Lee Wayne HUCKABEE, Defendant-Appellant.

No. 08-10510

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 14, 2009.

Jeffrey Robert Haag, U.S. Attorney’s Office, Northern District of Texas, Lubbock, TX, for Plaintiff-Appellee.

Michael Paul Sales, for Defendant-Appellant.

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM: *

Lee Wayne Huckabee appeals the sentence imposed following his guilty-plea conviction for maintaining drug-involved premises and aiding and abetting. *See*21 U.S.C. § 856(a)(2), 18 U.S.C. § 2. He argues that the district court erred by denying him an acceptance of responsibility reduction to his offense level under U.S.S.G. § 3E1.1 (2007). The district court denied the downward adjustment because of Huckabee’s use of drugs while on pretrial release. The district court’s determination that Huckabee’s drug use was inconsistent with the acceptance of responsibility is not without foundation and not error, plain or otherwise. *See United States v. Juarez-Duarte,*513 F.3d 204, 211 (5th Cir.), *cert. denied,*-U.S.-, 128 S.Ct. 2452, 171 L.Ed.2d 248 (2008); *United States v. Watkins,*911 F.2d 983, 984-85 (5th Cir.1990).

Huckabee argues that his trial counsel provided him with ineffective assistance because counsel did not object to the presentence investigation report or the lack of a level reduction for acceptance of responsibility. “The general rule in this circuit is that a claim of ineffective assistance of counsel cannot be resolved on direct appeal when the claim has not been raised before the district court since no opportunity existed to develop the record on the merits of the allegations.” *United States v. Higdon,*832 F.2d 312, 313-14 (5th Cir. 1987). Huckabee’s argument is not reviewable on direct appeal in this case because the record is not sufficiently developed on the issue. We decline to address this claim of ineffective assistance on direct appeal without prejudice to Huckabee’s right to bring it in a 28 U.S.C. § 2255 proceeding. *See United States v. Gulley,*526 F.3d 809, 821 (5th Cir.), *cert. denied,*— U.S.—, 129 S.Ct. 159, 172 L.Ed.2d 116 (2008).

*866For these reasons, the judgment of the district court is AFFIRMED. The Government’s motion to supplement the record is GRANTED.

*

 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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