alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### Rodney Forbes MITCHELL, Plaintiff—Appellant, v. CITY OF SAN DIEGO POLICE DEPARTMENT; et al., Defendants—Appellees.

No. 03-56753.

United States Court of Appeals, Ninth Circuit.

Submitted March 23, 2005.*

Decided April 11, 2005.

Rodney Forbes Mitchell, Escondido, CA, pro se.

Francis X. Sullivan, Esq., Maria C. Severson, Office of the City Attorney, San Diego, CA, for Defendants-Appellees.

Before: B. FLETCHER, TROTT, and SILVERMAN, Circuit Judges.

*

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

MEMORANDUM **

Rodney Forbes Mitchell appeals pro se the district court’s order denying his motion to retax costs in his 42 U.S.C. § 1983 action against the City of San Diego Police Department and individual officers. We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion, *Miles v. State of California,*320 F.3d 986, 988 (9th Cir.2003), and we affirm.

“[Tjhere is a strong presumption in favor of awarding costs to the prevailing party.” *Id.*The specific costs awarded by the district court were proper. *See*28 U.S.C. §§ 1920(3) and (4); Fed.R.Civ.P. 54(d); S.D. Cal. Local R. 54.1(b)(1). Because Mitchell put his medical condition at issue, the district court properly taxed certain costs incurred by defendants for medical records that were “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). The district court did not abuse its discretion. *See Miles,*320 F.3d at 988-89.

Mitchell’s remaining contentions are also without merit.

AFFIRMED.

**

 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
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Case 1:06-cv-14990-AKH Document 3 Filed 12/08/2006 Page 1 of 1
UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6703

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MARK CLIFTON, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Malcolm J. Howard, Senior District Judge. (7:96-cr-00062-H-2; 7:04-cv-00123-H-1)

Submitted: October 14, 2009 Decided: October 26, 2009

Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Mark Clifton, Appellant Pro Se. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.PER CURIAM: Mark Clifton seeks to appeal the district court’s order denying his Fed. R. Civ. P. 60(b) motion to reconsider the court’s prior denial of his 28 U.S.C.A. § 2255 (West Supp. 2009) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Jones v. Braxton , 392 F.3d 683, 688 (4th Cir. 2004); Reid v. Angelone , 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. MillerEl v. Cockrell , 537 U.S. 322, 336-38 (2003); Slack v. McDaniel , 529 U.S. 473, 484 (2000); Rose v. Lee , 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Clifton has not made the requisite showing. The district court lacked jurisdiction and therefore erred by deciding the Rule 60(b) motion on the merits. The claims raised in Clifton’s Rule 60(b) motion challenge the validity of his convictions. Thus, the district court should have construed the motion as a

23 successive § 2255 motion. See Gonzalez v. Crosby , 545 U.S. 524, 531-32 (2005) (explaining how to differentiate a true Rule 60(b) motion from an unauthorized second or successive habeas corpus petition); United States v. Winestock , 340 F.3d 200, 207 (4th Cir. 2003) (same). In the absence of pre-filing authorization from this court, the district court lacked jurisdiction to hear a successive § 2255 motion. See 28 U.S.C. § 2244(b)(3). Accordingly, we deny a certificate of appealability and dismiss the appeal. 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.

DISMISSED
#### Camden Safe Deposit and Trust Company, trustee under the will of George Holl, deceased, complainant, *v.*John F. Holl et al., defendants.

[Decided November 16, 1931.]

*Mr. George Reynolds,*for the complainant.

*Mr. Francis J. Holl,*for the defendant John F. Holl.

*Mr. J oseph H. Carr,*for the defendant Andrew J. Holl.

*Mr. Raymond L. Siris,*for the defendants Ada C. Eisley, Carrie Pedrick, Louis Neubauer, Frank Neubauer and Viola Standenmaier.

*Messrs. Boyle .& Archer,*for the defendants Frank Burnett, Jr., and Harry S. Burnett.

*Mr. A. Moulton McNutt,*for the defendant Edward *W.*Frey, guardian, &c., of Edward Frey.

*Mr. Harold W. Bennett,*for the defendant Stella May Holl Wilson.

Ingeesold, V. C.

The first question is, have the trustees power to sell and convey certain premises, not specifically mentioned? It is *68apparent from the context of the will that the trustees have an implied power of sale to convey said premises.

Second, in the will, the trustees were directed to distribute, among others, two-elevenths of the estate to one Caroline Yalet, a sister of the deceased; that the said Caroline Yalet survived the testator and died September 30th, 1914, leaving her surviving a daughter, Ada C. Eisley, who is still living and of full age, and descendants of two deceased daughters, Emma Y. Sutherland and Yiolet Neubauer. Emma Y. Sutherland predeceased the testator and died October 30th, 1903, leaving a daughter, Eita S. Erey, who died after the testator on November 15th, 1919, leaving as her only heir a son, Edward Frey. The said Yiolet Neubauer survived the testator and died April 22d, 1913, leaving four children, to wit, Carrie Pedrick, Frank Neubauer, Louis Neubauer and Yiola Standenmaier.

The said two-elevenths should be divided as follows: One-third to Ada C. Eisley, one-third to Edward Frey as the sole representative of Emma V. Sutherland, and one-third in equal parts to Carrie Pedrick, Frank Neubauer, Louis Neubauer and Yiola Standenmaier, as representatives of the said Violet Neubauer.

A decree in accordance with these views will be advised.
Case 1:06-cv-15100-AKH Document 4 Filed 12/08/2006 Page 1 of 1
#### ALEXIOU v. O.R.I.P., LTD.

No. 157 PC.

Case below: 36 N.C. App. 246.

Petition by defendant for discretionary review under G.S. 7A-31 denied 14 July 1978.
#### First National Bank of Millburn, New Jersey, complainant, *v.*Carlisle C. Cahill, administrator *cum testamento annexo*of the estate of Florence E. Cahill, deceased, et al., defendants.

[Decided May 27th, 1932.]

*Mr. Herbert M. TSUend,*for the complainant.

*Mr. Louis Auerbacher, Jr.,*for the defendants.

Backes, Y. C.

The complainant obtained a decree in foreclosure for '$14,996.45 on October 35th, 1931, and, upon execution to “the sheriff of Essex county, the property was advertised for ;sale December 15th, 1931. There were numerous adjourn*694ments upon the promise of the administrator defendant to pay the debt, and, on January 18th, he paid $1,000, securing a four weeks’ adjournment. No further payments were forthcoming, and, after more adjournments and promises of payment, the property was struck off to the complainant for $100.

Objection to confirmation is made by one of the defendants, William J. Trumble, because he was sued by the name of “Walter” Trumble. He was served with process. If he has not had his day in court, he is not barred by the decree. He has no standing to contest the sale on the ground assigned.

Cahill, the administrator defendant, objects to confirmation because the complainant accepted payment of $1,000 on account of the decree and failed to give credit for the amount, and sets up that, “by accepting said sum of one thousand dollars ($1,000) complainant did thereby become trustee for the said defendants, and does now hold said mortgaged premises in trust for the said defendants; and further, the complainant had no legal or equitable right to proceed with the sale of the said mortgaged premises under the said final decree as above set forth, after having accepted from the said Carlisle C. Cahill, .administrator *cum, testamento annexo*of the estate of Florence E. Cahill, deceased, payment of the sum of one thousand dollars, as aforesaid.”

The objection is not understood and its legal significance is not explained. Payment on account of the decretal debt surely does not bar execution for the balance and failure to> endorse the credit on the writ is in the circumstances inconsequential. Let the credit be now endorsed and let the objections be overruled.

If there were merit in the objections, it should have been presented by petition and brought on for hearing by order to-show cause or notice. Under objection, the single issue may be raised, that the property did not bring the highest and best price that could be obtained in cash; all other grounds-must be made by independent action by bill or petition. This has been a long and well established practice. *Dunlop*v. *Chenoweth, 90 N. J. Eq. 85; 105 Atl. Rep. 592; affirmed,. 90 N. J. Eq. 601; 106 Atl. Rep. 890.*

The'sale will be confirmed.
#### STATE v. HICKS

No. 82 PC.

Case below: 19 N.C. App. 587.

Petition for writ of certiorari to North Carolina Court of Appeals denied 4 December 1973.
Case 1:06-cv-15125-AKH Document 2 Filed 12/08/2006 Page 1 of 1
<PAGE>   1
                                                                   EXHIBIT 10(g)

        DESCRIPTION OF CB FINANCIAL SHORT TERM EXECUTIVE INCENTIVE PLAN


The purpose of the Short Term Executive Incentive Plan is to attract, motivate
and retain key employees.  The plan is administered by the Compensation
Committee of the Board of Directors.

Objective:


      -    Promote strong linkage between performance of key employees and 
           Corporation performance.

      -    Reward performance that directly supports the Corporation's annual 
           business objectives.

      -    Reward and recognize innovation and creativity in accomplishing 
           business objectives.

      -    Provide opportunities for significant compensation based on 
           performance that does not increase fixed compensation costs.

      -    Attract, retain and motivate key employees necessary for the 
           Corporation's future success.


Eligible Participants:

     All incumbents in the Executive Salary Structure Levels I through IV are
regularly eligible for the plan.

Corporation Performance Targets:

     Corporation performance targets are set annually by the CEO and/or COO and
concurred by the Compensation Committee.  These goals and objectives are broad
corporate-wide earnings and ratio objectives which are intended to reflect
generally accepted determinants of performance. They may include, but not
necessarily be limited to: return on assets (ROA), return on equity (ROE),
earnings per share (EPS), overhead (efficiency), assets per employee/$1
million, etc.

Award Opportunity:

     Individual award levels vary based on the position each individual
occupies in the organizational hierarchy, as well as performance compared
to earnings and ratio objectives achieved by the Corporation.  The higher
the position the greater the target individual payout.  The Compensation
Committee has discretion and can award up to the highest payout percentage
for that individual.

Establishing Funding:

     Funding for the plan is determined on the basis of a pool.  The pool is
determined by the overall performance achieved by the corporation.  Each of the
ratio and earnings objectives contribute 20% to the pool.  Distribution of
funds to participants of the plan is, nevertheless, subject to the discretion
of the Compensation Committee.  Consequently, strong overall corporate
performance to objectives does not guarantee an individual entitlement to
incentive payout.  Payouts are payable in cash in one lump sum.

Plan Modification:

     The Corporation may modify the plan or eliminate the plan at its sole
discretion.
#### KEY v. WELDING SUPPLIES, INC.

No. 55 PC.

Case below: 5 N.C. App. 654.

Petition for writ of *certiorari*to North Carolina Court of Appeals denied 7 October 1969.
Exhibit 11.1

         FREEPORT-McMoRan INC. AND CONSOLIDATED SUBSIDIARIES

               COMPUTATION OF NET INCOME PER COMMON AND

                       COMMON EQUIVALENT SHARE

                                           Years Ended December 31,
                                     -------------------------------------
                                        1996          1995          1994
                                     ----------    ----------    ----------
                                          (In Thousands,Except Per
                                               Share Amounts)       
Primary:
  Net income applicable to
   common stock                      $   40,708    $  390,541    $   41,443 
                                     ==========    ==========    ==========

  Average common shares outstanding      25,993        25,839        23,106
  Common stock equivalents:
  Stock options                             282           242            98
                                     ----------    ----------    ----------
  Average common and common
   equivalent shares outstanding         26,275        26,081        23,204
                                     ==========    ==========    ==========

  Net income per common and common
   equivalent share                  $     1.55    $    14.97    $     1.79
                                     ==========    ==========    ==========

Fully Diluted:
  Net income applicable to common
   stock                             $   40,708    $  390,541    $   41,443 
  Plus preferred dividends                    -         8,756             -
  Plus interest, net of tax effect,
   on convertible subordinated
   debentures                                 -        15,921             -
                                     ----------    ----------    ----------
  Net income applicable to common
   stock                             $   40,708    $  415,218    $   41,443 
                                     ==========    ==========    ==========

  Average common shares outstanding      25,993        25,839        23,106 





  Common stock equivalents:
    Stock options                           282           271            98
    Convertible securities:
    Convertible subordinated
     debentures                               -         2,347             -
    Preferred stock                           -           783             -

                                       ----------      ----------   --------  
  Average common and common
   equivalent shares outstanding         26,275        29,240        23,204
                                     ==========    ==========    ==========

Net income per common and common
 equivalent share                    $     1.55    $    14.20    $     1.79
                                     ==========    ==========    ==========
##### 



EXHIBIT 21

THORATEC CORPORATION

Subsidiaries of the Registrant as of the date of
this report:

|                                             |  |                               |                |               |  |  |     |  
|-------------------------------------------- |  | ----------------------------- | -------------- | ------------- |  |  | --- | -
|                                             |  | Jurisdiction of Incorporation |                | Percentage of
|Subsidiary                                   |  | or Organization               |                | Ownership    
|                                             |  |                               |                |              
|International Technidyne Corporation         |  |                               | Delaware       |               |  |  | 100 | %
|International Technidyne Corporation Limited |  |                               | United Kingdom |               |  |  | 100 | %
|Thoratec Europe Limited                      |  |                               | United Kingdom |               |  |  | 100 | %
<TABLE> <S> <C>

<ARTICLE>                                          5
       
<S>                                                <C>
<PERIOD-TYPE>                                      9-MOS
<FISCAL-YEAR-END>                                  JUN-30-1999
<PERIOD-START>                                     JUL-01-1998
<PERIOD-END>                                       MAR-31-1999
<CASH>                                             3,152,228
<SECURITIES>                                       0
<RECEIVABLES>                                      2,706,088
<ALLOWANCES>                                       0
<INVENTORY>                                        2,386,389
<CURRENT-ASSETS>                                   8,421,879
<PP&E>                                             3,238,028
<DEPRECIATION>                                     2,873,373
<TOTAL-ASSETS>                                     8,786,534
<CURRENT-LIABILITIES>                              1,586,105
<BONDS>                                            0
<COMMON>                                           242,756
<PREFERRED-MANDATORY>                              0
<PREFERRED>                                        0
<OTHER-SE>                                         6,957,672
<TOTAL-LIABILITY-AND-EQUITY>                       8,786,534
<SALES>                                            10,755,237
<TOTAL-REVENUES>                                   10,755,237
<CGS>                                              8,423,560
<TOTAL-COSTS>                                      8,423,560
<OTHER-EXPENSES>                                   0
<LOSS-PROVISION>                                   0
<INTEREST-EXPENSE>                                 0
<INCOME-PRETAX>                                    1,968,582
<INCOME-TAX>                                       788,702
<INCOME-CONTINUING>                                0
<DISCONTINUED>                                     0
<EXTRAORDINARY>                                    0
<CHANGES>                                          0
<NET-INCOME>                                       1,179,879
<EPS-PRIMARY>                                      0.60
<EPS-DILUTED>                                      0.57
        

</TABLE>
#### WILLETTS v. INSURANCE CORP.

No. 146 PC.

Case below: 45 N.C. App. 424.

Petition by defendant for discretionary review under G.S. 7A-31 denied 15 July 1980.
PROMISSORY NOTE
$5,000,000                                   New York, New York
                                             January 31, 1998


     FOR VALUE RECEIVED, the undersigned, for value hereby
promises to pay to the order of Bank of America NT&SA (the
"Bank"), on demand, or if no demand is made, then on January 31,
2002 at 231 South LaSalle Street, Chicago, Illinois 60604, the
total aggregate unpaid principal amount of all advances that may
be made from time to time by the Bank to the undersigned
hereunder, together with interest thereon at the times and at the
rates as the undersigned and the Bank may from time to time agree
in writing in respect of each advance hereunder. No advance shall
be made under this Note if as a result of such advance, the total
principal amount outstanding under this Note would exceed
$5,000,000. The initial advance, all subsequent advances and all
payments made on account of principal shall be recorded by the
holder in its records or, at its option, on attached schedule to
this Note.

     This Note evidences indebtedness incurred with respect to
overnight advances that may be extended from time to time in the
sole discretion of the Bank to the undersigned but in no event in
excess of $5,000,000. The Bank is under no obligation to make any
advance to the undersigned hereunder.



                                   BAIRNCO CORPORATION


                                   By: /s/ J. Robert Wilkinson
                                   J. Robert Wilkinson
                                   Vice President
Address:
2251 Lucien Way, Suite 300
Maitland, Florida 32751
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-09-00350-CV

Michael Dewvall, Appellant

v.

Kathy D. Wills, Appellee

FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT

NO. 16,733, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

On August 26, 2009, this Court notified appellant that the clerk’s record in the

above cause was overdue. This Court requested that appellant make arrangements for the record

and submit a status report regarding this appeal on or before September 8, 2009. This Court

further informed appellant that failure to do so may result in the dismissal of this appeal for want

of prosecution. The deadline has passed, and we have received no response from appellant.

Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b). 

__________________________________________

Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Dismissed for Want of Prosecution

Filed: October 16, 2009
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