alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### NATIONAL CREDIT CONTROL, INC. v. FIRST NATIONAL INSURANCE CO. OF AMERICA, d/b/a Safeco Insurance Co., Keith Petrick and Guy Nichols.

No. S-89-0319-CA.

United States District Court, E.D.Texas, Beaumont Division.

Oct. 12, 1990.

David M. Stagner, Stagner & Stagner, Sherman, Tex., for plaintiff.

Joseph W. Stewart, Stewart, Colaneri & Assoc., Arlington, Tex., for defendants.

MEMORANDUM ORDER

COBB, District Judge.

The defendants removed this case from the 336th Judicial District Court, Grayson County, Texas, alleging fraudulent joinder of the two non-diverse defendants, Keith Petrick (Petrick) and Guy Nichols (Nichols). Simultaneous with the removal, the defendants filed a motion to dismiss, seeking the dismissal of the plaintiffs’ suit as to Petrick and Nichols. The plaintiffs have moved this court for remand of the case.

As the plaintiffs correctly point out, the burden is on the defendants to show fraudulent joinder by clear and convincing evidence. *Parks v. New York Times Co.,**155308 F.2d 474 (5th Cir.1962), *cert. denied,*376 U.S. 949, 84 S.Ct. 964, 11 L.Ed.2d 969 (1964). The defendants must show the plaintiffs have no colorable state law claim against the non-diverse defendants. *Tedder v. FMC Corp.,*590 F.2d 115 (5th Cir.1979); *Bobby Jones Garden Apartments, Inc. v. Suleski,*391 F.2d 172 (5th Cir.1975).

In the instant case, plaintiffs allege several state law tort claims against Pe-trick and Nichols. The defendants have failed to show that those tort claims are not even colorable. It is apparent that Petrick and Nichols are “persons” within the meaning of the Texas Insurance Code. TEX.INS.COD. art. 21.21 sec. 16(a). It is certainly colorable that the plaintiffs could maintain a tort action against these persons for conspiracy to breach and breach of the duty of good faith and fair dealing.

Accordingly, the motion to remand is GRANTED, and this case is REMANDED to the 336th Judicial District Court, Gray-son County, Texas.
United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3162

___________

United States of America, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the

Melford Burke, Jr., also known as * District of Minnesota.

Jim Burke, also known as Melford *

Jim Whitefeather, * [UNPUBLISHED]

*

Appellant. *

___________

 Submitted: June 6, 1997

 Filed: June 13, 1997

___________

Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.

___________

PER CURIAM.

Melford Burke pleaded guilty to abusive sexual contact with a minor female, in

violation of 18 U.S.C. § 2244(a)(1), and was sentenced to 120 months imprisonment

and three years supervised release. We remanded for resentencing, because the

government failed to provide evidence at Burke's sentencing hearing in support of

disputed factual statements in his presentence report (PSR) regarding whether Burke

sexually abused the victim. See United States v. Burke, 80 F.3d 314 (8th Cir. 1996).
The HONORABLE JAMES M. ROSENBAUM, United States District Judge 1

for the District of Minnesota.

-2-

On remand, the district court heard evidence on the disputed factual statements and

1

reimposed the 120-month sentence. Burke appeals, and we affirm. 

Burke argues that the district court erred in denying his request for specific

performance of his plea agreement. Reviewing de novo, we conclude the district court

properly denied Burke's request because the government did not breach the plea

agreement. See United States v. Van Thournout, 100 F. 3d 590, 594 (8th Cir. 1996)

(standard of review). Burke agreed that his offense carried a maximum ten-year

sentence, and the agreement contained no promise as to a specific sentence.

Burke also argues that the government's failure to offer evidence in support of

the disputed PSR statements at his original sentencing constituted a waiver of its right

to present such evidence at resentencing. We disagree. We remanded because Burke

had the right to insist that he be sentenced upon an adequate record, and we noted that

certain evidence would likely be admissible and sufficient to establish sexual abuse.

See Burke, 80 F.3d at 317. The district court heard such evidence at resentencing and

found it sufficient; Burke does not challenge this finding. Thus, Burke has now been

afforded his right to be sentenced on an adequate record. Accordingly, we affirm.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
#### STATE OF NORTH CAROLINA v. CLARENCE FRIDAY and LEROY DAVIS

No. 7426SC219

(Filed 20 March 1974)

1. Criminal Law § 98— motion to sequester prosecuting witnesses

In a trial of each of two defendants upon two counts of common law robbery, the trial court did not abuse its discretion in the denial of defendants’ motions to sequester the prosecuting witnesses.

2. Criminal Law § 91— motion to delay trial

The trial court in a robbery case did not abuse its discretion in the denial of defendants’ motions made during the trial that the proceedings be delayed in order for defendants to obtain certain evidence where the court delayed the proceedings for some 40 minutes and then insisted that the trial proceed.

Appeal by defendants from *Friday, Judge,*6 August 1973 Schedule “B” Criminal Session, Mecklenburg Superior Court.

Each defendant was charged in separate bills of indictment with two counts of common law robbery. They pleaded not guilty and a jury found them guilty as charged. In one casé against each defendant, the court entered judgment imposing prison sentence of not less than five nor more than seven years as a committed youthful offender and continued prayer for judgment for five years in the other cases.

Defendants appealed.

*Attorney General Robert Morgan, by Assistant Attorney General Ralf F. Haskell, for the State.*

*Levine & Goodman, by William F. Burns, Jr., for defendant appellants.*

BRITT, Judge.

[1] Defendants assign as error the failure of the court to grant their motions to sequester the prosecuting witnesses. The assignment has no merit. It is clear that a motion to sequester witnesses is directed to the discretion of the trial court and its ruling thereon will not be disturbed absent a showing of abuse of discretion. *State v. Felton,*283 N.C. 368, 196 S.E. 2d 239 (1973); *State v. Cook,*280 N.C. 642, 187 S.E. 2d 104 (1972). There is no showing of abuse of discretion.

[2] Defendants also assign as error the denial of their motions during the trial of the cases that the proceedings be delayed in *155order for defendants to obtain certain evidence and present it at the trial. This assignment has no merit. The record reveals that the court delayed the proceedings for some forty minutes but then insisted that the trial proceed. A motion for continuance or delay of a trial is directed to the discretion of the trial court and its ruling thereon is not reviewable on appeal except for abuse of discretion. *State v. Shue,*16 N.C. App. 696, 193 S.E. 2d 481 (1972). No abuse of discretion is made to appear here.

Defendants received a fair trial, free from prejudicial error.

No error.

Judges Parker and Vaughn concur.
AMENDMENT OF PROMISSORY NOTE

                                December 17, 2001

The promissory  note dated June 6, 2000 and amended March 21, 2001, May 8, 2001,
and  September 30, 2001,  whereby  Hayseed  Stephens  agreed to loan Ness Energy
International,  Inc., up to  $300,000.00 at an interest rate of prime plus 2% to
be repaid,  including  interest,  in one payment by June 6, 2001.  The  interest
payment was amended to be paid on a current basis as requested.  This  amendment
is as follows:

The repayment date is extended to January 1, 2003.

All other conditions remain unchanged.



1)  /s/ Deborah Tillery                         /s/ Hayseed Stephens
    -------------------                         --------------------
    Witness                                     Hayseed Stephens


2)  /s/ Kaye Oakes                              /s/  Bob Lee
    -------------------                         --------------------
    Witness                                     Ness Energy International, Inc.
* 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 27, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-60344

Summary Calendar

SUSAN EKESI TONGE,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

--------------------

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A97 195 896

--------------------

Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit

Judges.

PER CURIAM:*

Susan Ekesi Tonge petitions for review of the decision of the

Board of Immigration Appeals (BIA) summarily affirming the decision

of the immigration judge (IJ) to deny her application for asylum,

withholding of deportation, and relief under the Convention against

Torture. “Credibility determinations are given great deference. .

. . [This court] cannot replace the Board or IJ’s determinations

concerning witness credibility or ultimate factual findings based

on credibility determinations with its own determinations.” Efe v.
2

Ashcroft, 293 F.3d 899, 905 (5th Cir. 2002). In order to prevail,

Tonge must show that the evidence compels a finding contrary to the

one of the IJ. See Chun v. INS, 40 F.3d 76, 79 (5th Cir. 1994).

Tonge does not specifically address all of the inconsistencies

cited by the IJ, and she only offers alternative reasons for them.

She claims, for example, that her misstatements and her tendency to

look away from the IJ during her testimony could have resulted from

her lack of education. Tonge has not shown that the evidence

presented compels a conclusion regarding her credibility contrary

to the one reached by the IJ. Because the IJ had the benefit of

observing Tonge’s demeanor and behavior during her testimony, it

was reasonable for him to make a credibility determination. In

light of these facts, we conclude that the IJ’s finding that Tonge

was not a credible witness is supported by the record, and

moreover, the contrary conclusion, that Tonge was credible, is not

compelled by the record. See id. Therefore, we may not reverse

the IJ’s finding.

Tonge contends that she has established her eligibility for

withholding of removal and relief under the Convention against

Torture. In light of the adverse credibility determination, we

need not consider whether Tonge has established an entitlement to

such relief. See id.

PETITION DENIED.
* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

** The Honorable William F. Downes, District Judge, United States District

Court for the District of Wyoming, sitting by designation. 

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 28 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GEANA J. DUNKIN,

Plaintiff,

v.

LOUISIANA-PACIFIC

CORPORATION; JAMES BELDIN;

DOUGLAS EDDINS,

Defendants-Appellees.

______________________________

DAVID LEE SMITH,

Attorney-Appellant.

No. 96-1411

(D.C. No. 92-N-243)

(D. Colo.)

ORDER AND JUDGMENT*

Before KELLY and HENRY, Circuit Judges, and DOWNES,** District Judge.
-2-

After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The

case is therefore ordered submitted without oral argument.

On receipt of this court’s mandate arising from our affirmance of the

district court’s imposition of sanctions against Mr. Smith, see Dunkin v.

Louisiana-Pacific Corp., No. 95-1087 (10th Cir. June 12, 1996), cert. denied, 117

S. Ct. 435 (1996), the district court entered an order establishing a date certain for

payment of the sanctions. Mr. Smith appeals from that order, but does not raise

any issues relating to that order per se. Instead, he raises arguments against the

imposition of sanctions that he raised in the prior appeal. He also has moved for

this court’s recusal from this matter and for en banc consideration of recusal. 

These motions were denied in orders filed on November 29 and December 27,

1996. Consideration of the remaining issues is barred by law of the case. See

Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995). 

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge
<PAGE>
                                                                   Exhibit 10.48

[CAYMAN CHEMICAL LOGO]                      LEASE EXTENSION - Third Renewal Term


      THIS LEASE EXTENSION is entered into this _21__ day of September, 2002,
between MAXEY, LLC, a Michigan limited liability company, whose address is 1180
East Ellsworth, Ann Arbor, Michigan 48108 ("Landlord"), and ESPERION
THERAPEUTICS, INC., a Delaware corporation, whose address is 3621 South State
Street, 695 KMS Place, Ann Arbor, Michigan 48108 ("Tenant").

                             W I T N E S S E T H:

      WHEREAS, the parties hereto have entered into a certain lease dated
January 4, 1999 for the vivarium annex to the building owned by Landlord at 1180
East Ellsworth Road, Pittsfield Township, Washtenaw County, Michigan, containing
approximately 5,150 square feet of space (the "Lease").

      NOW, THEREFORE, in consideration of the terms, conditions and covenants
hereinafter set forth to be paid, kept and performed by Landlord and Tenant, the
parties hereto agree as follows:

      Pursuant to Section 2, it is mutually agreed that the lease is hereby
extended for an additional one (1) year period (the second "Renewal Term").
Tenant will pay to the Landlord rent at the rate of Sixteen thousand, two
hundred and fifty ($16,250.00) dollars commencing on January 1, 2003 and
continuing on the first day of each and every month thereafter for the next
succeeding twelve (12) months.

      All other terms and conditions of the Lease remain in full force and
effect.

LANDLORD * * *                                  TENANT * * *

MAXEY, LLC                                      ESPERION THERAPEUTICS, INC.



By: /s/ Kirk M. Maxey, M.D.                     By: /s/ Roger S. Newton
   ---------------------------------                ----------------------------
       Kirk M. Maxey, M.D.                            Roger S. Newton, Ph.D.
       Its President                                  Its President


Date:  10-22-02                                 Date:   10-23-02
     -------------------------------                  --------------------------
<TABLE> <S> <C>


<ARTICLE>    5
<CIK>        1067702
<NAME>       R.A.B. HOLDINGS, INC.
<MULTIPLIER> 1000
<CURRENCY>   U.S. DOLLARS

<S>                                               <C>
<PERIOD-TYPE>                                     YEAR
<FISCAL-YEAR-END>                                 MAR-31-1999
<PERIOD-START>                                    APR-01-1998
<PERIOD-END>                                      MAR-31-1999
<EXCHANGE-RATE>                                         1.000
<CASH>                                                  2,088
<SECURITIES>                                            5,805
<RECEIVABLES>                                          56,292
<ALLOWANCES>                                           (3,303)
<INVENTORY>                                            62,061
<CURRENT-ASSETS>                                      134,583
<PP&E>                                                 47,576
<DEPRECIATION>                                         (9,109)
<TOTAL-ASSETS>                                        296,943
<CURRENT-LIABILITIES>                                  83,295
<BONDS>                                               168,000
<PREFERRED-MANDATORY>                                       0
<PREFERRED>                                             9,906
<COMMON>                                                    1
<OTHER-SE>                                             (5,276)
<TOTAL-LIABILITY-AND-EQUITY>                          296,943
<SALES>                                                     0
<TOTAL-REVENUES>                                      510,563
<CGS>                                                 385,536
<TOTAL-COSTS>                                         500,639
<OTHER-EXPENSES>                                      115,103
<LOSS-PROVISION>                                            0
<INTEREST-EXPENSE>                                     20,020
<INCOME-PRETAX>                                       (10,096)
<INCOME-TAX>                                           (3,174)
<INCOME-CONTINUING>                                    (6,922)
<DISCONTINUED>                                              0
<EXTRAORDINARY>                                             0
<CHANGES>                                                   0
<NET-INCOME>                                           (6,922)
<EPS-BASIC>                                               0
<EPS-DILUTED>                                               0



</TABLE>
**EXHIBIT 31.2**

**CERTIFICATION**

I, Ted Sanders,****certify that:

1.         I have reviewed this quarterlyreport on Form 10-Q of eCOST.com, Inc.;

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

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

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

a)        designed such disclosure controls and procedures, or caused such disclosurecontrols and procedures to be designed under our supervision,to ensure that material information relating to the registrant, including itsconsolidated 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 effectivenessof the registrant's disclosure controls and procedures and presented in thisreport our conclusions about the effectiveness of the disclosure controls andprocedures, as of the end of the period covered by this report based on suchevaluation; and

c)         disclosed in this report anychange in the registrant's internal control over financial reporting thatoccurred during the registrant's most recent fiscal quarter (the registrant'sfourth fiscal quarter in the case of an annual report) that has materiallyaffected, or is reasonably likely to materially affect, the registrant'sinternal control over financial reporting; and

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

a)         allsignificant deficiencies and material weaknesses in the design or operation ofinternal control over financial reporting which are reasonably likely toadversely affect the registrant's ability to record, process, summarize andreport financial information; and

b)         any fraud, whether or not material, that involvesmanagement or other employees who have a significant role in the registrant'sinternal control over financial reporting.
**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 HPILHOLDING (the “Company”) on Form 10-Q for the quarterly period ended June 30,2013, as filed with the Securities and Exchange Commission on the date hereof(the “Report”), I, Nitin Amersey, hereby certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that,to 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 results of operations of the Company as  of the date and for the periods expressed in the Report. |
|--------|-----|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|

 

| */s/ Nitin Amersey*     |
|-------------------------|
| Nitin Amersey           |
| Chief Financial Officer |
|                    |
| August 19, 2013         |

 

 

 

The foregoing certification is being furnished solelypursuant to 18 U.S.C. Section 1350 and is not being filed as part of the Reportor as a separate disclosure document.
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




The
undersigned executive officer of the registrant hereby certifies that this Form
10-K fully complies with the requirements of Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 and that the information contained herein fairly
presents, in all material respects, the financial condition and results of
operations of the registrant.




/s/ David W. GiffordDavid
      W. GiffordChief
      Financial Officer




Date:
September 14, 2009
Exhibit 32.2

CERTIFICATION PURSUANT TO

SECTION 1350, CHAPTER 63 OF TITLE 18, UNITED STATES CODE,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

Pursuant to Section 1350, Chapter 63 of Title 18, United States Code, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, the undersigned, as principal financial officer of Xerium Technologies, Inc. (the Company), does hereby certify that, to his knowledge:

1) the Companys Form 10-Q for the period ended March 31, 2006, 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 Companys Form 10-Q for the period ended March 31, 2006, fairly presents, in all material
respects, the financial condition and results of operations of the Company.



/s/ Michael P. ODonnellMichael P. ODonnellExecutive Vice President and Chief Financial Officer(Principal Financial Officer)


May 12, 2006