alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
EXHIBIT 11

                   SPARTECH CORPORATION AND SUBSIDIARIES
              STATEMENT RE COMPUTATION OF PER SHARE EARNINGS
                   (In thousands, except per share data)

                                 QUARTER ENDED      NINE MONTHS ENDED
                                Aug. 2,    Aug. 3,  Aug. 2,   Aug. 3,
                                 2003      2002      2003      2002
                                --------   -------   -------   -------

NET EARNINGS
  Basic net earnings            $  8,147 $  11,486  $ 24,846  $ 25,422
  Add:  Distributions on
   Preferred Securities,
   net of tax                          -     1,614         -         -
                                --------   -------   -------   -------
  Diluted net earnings          $  8,147 $  13,100  $ 24,846  $ 25,422
                                ========  ========   =======   =======
WEIGHTED AVERAGE SHARES
 OUTSTANDING
  Basic weighted average common
   shares outstanding             29,267    28,724    29,250    27,447
  Add:  Shares issuable from
   assumed conversion of
   Preferred Stock                     -     4,578         -         -
  Add:  Shares issuable from
   assumed exercise of options       355       588       280       537
                                --------   -------   -------   -------
  Diluted weighted average
   shares outstanding             29,622    33,890    29,530    27,984
                                ========  ========   =======   =======

NET EARNINGS PER SHARE

  Basic                         $    .28  $    .40  $    .85  $    .93
                                ========  ========   =======   =======
  Diluted                       $    .28  $    .39  $    .84  $    .91
                                ========  ========   =======   =======
#### Ike LA HOOD, Plaintiff-Appellee, v. PEOPLE’S NATIONAL FIRE INSURANCE COMPANY, Defendant-Appellant.

No. 4461.

Court of Appeal of Louisiana. Second Circuit.

Sept. 7, 1934.

Hardin & Coleman, of Shreveport, for appellant.

Pegues & Pegues, of Mansfield, for appel-lee.

DREW, Judge.

This is a companion case of case No. 4458 on the docket of this court, 156 So. 366, decided this day.

For the reasons assigned in case No. 4458, the judgment of the lower court in this case is reversed, and the demands of plaintiff are rejected, at his cost in both courts.
NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

TODD MICHAEL GIFFEN, 

Defendant-Appellant.

No. 19-30174 

D.C. No. 6:18-mj-00236-MK-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Mustafa T. Kasubhai, Magistrate Judge, Presiding

Submitted March 4, 2021**

Portland, Oregon

Before: BOGGS,*** PAEZ, and WATFORD, Circuit Judges.

Todd Michael Giffen was charged with making threats via interstate 

communication and stalking in violation of 18 U.S.C. §§ 875(c) and 2261A. He 

* 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).

*** The Honorable Danny J. Boggs, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

FILED

MAR 8 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Page 2 of 3

appeals from the district court’s order adopting the magistrate judge’s

recommendation that Giffen be found incompetent to stand trial. We affirm.

1. In addition to challenging the district court’s competency determination, 

Giffen alleges that (1) the magistrate judge erred in ordering a competency 

evaluation and delaying the preliminary hearing, and (2) that he received 

ineffective assistance of counsel at his initial appearance. We lack jurisdiction to 

consider these claims as only the competency determination is a collateral order 

subject to interlocutory review. United States v. Friedman, 366 F.3d 975, 978–79 

(9th Cir. 2004). 

2. We review the district court’s determination that Giffen was incompetent 

to stand trial for clear error. Id. at 980. A defendant is incompetent if the court 

finds, by a preponderance of the evidence, that “he is unable to understand the 

nature and consequences of the proceedings against him or to assist properly in his 

defense.” 18 U.S.C. § 4241(d). Dr. Cynthia Low, a forensic psychologist at the 

Bureau of Prisons, interviewed Giffen and conducted a review of his records. She 

diagnosed him with schizophrenia and concluded that he maintains a “bizarre 

delusionary system” in which he is the victim of government mind control and 

torture. She also testified that Giffen believes his victimization would provide a 

complete defense to the charges against him and that judges, prosecutors, and 

attorneys can engage in three-way mental communication with one another. 
Page 3 of 3

Giffen’s own testimony at the competency hearing merely corroborated the 

forensic psychologist’s conclusions. The court acted well within its discretion in 

crediting Dr. Low’s testimony over the contrary opinion of Giffen’s one-time 

therapist, Dr. Seth Farber.

AFFIRMED.
#### John D. Wilson and Wife, Plaintiffs in Error, *v.*William C. Kinney, Defendant in Error.

ERROR TO ST. CLAIR.

Where a material averment in a bill is neither admitted nor denied by the answer, it must be supported by proof.

The facts of this case are sufficiently stated in the opinion of the Chief-Justice. The decree complained of was entered by Catón, Justice, at May term, 1846, of the St. Clair Circuit Court.

G. Koerner, for plaintiffs in error.

G. Trumbull, for defendant in error.

Treat, C. J.

The object of this suit was to obtain from the heir at law of Hempstead, the legal title to a tract of land. *28The bill alleged that William ICinney was the equitable owner of the land, and that he devised the same to the complainant. The answer of the heir to this allegation was as follows: “ True it may be, as stated in the complainant’s bill, that the complainant is the legatee of William Kinney, deceased, and as such is entitled to the estate of said William Kinney, as stated in said bill.” The complainant made a certified copy of the will of William Kinney a part of the bill, and referred to it as filed therewith; but it does not in fact appear ever to have been filed. The cause was submitted on bill, answers, replications, and exhibits; and the decree recited that it appeared to the court that the complainant was the sole devisee of William Kinney.

The answer did not admit that the complainant was the devisee of William Kinney. It neither admitted nor denied that allegation of the bill. It amounted only to the statement, that the complainant might or might not be such devisee. The effect was- precisely the same as if the answer had omitted all reference to the allegation. Where a material averment in a bill is neither admitted nor -denied by the answer, it must be supported by proof. De Wolf *v.*Long, 2 Gilman, 679. It was, therefore, incumbent on the complainant to sustain the allegation by evidence. It constituted the basis of his right to relief. It does not appear that he attempted to prove the truth of the allegation. If he had produced a certified copy of the will at the hearing, it would necessarily have been filed, and thereby made a part of the record of the case. Holdridge *v.*Bailey, 4 Scammon, 124. For this defect in the proof, the decree was unauthorized, and must be reversed. The decree was entered prior to the passage *of*the act of the 12th of February, 1849 ; and the case is consequently not affected by its provisions, even if they are to be so construed as to change the rule in this respect.

The decree is reversed, and the cause remanded.
#### Ole Hanson v. Otto Carlblom.

Opinion filed September 10, 1904.

Mistrial — Right of Jury Trial — Reversal on Appeal.

1. A statement of case which shows that a law action triable to a jury as a matter of strict legal right was tried -to the court without a jury, under section 5630, Rev. Codes 1890, over defendant’s objection, and a jury was not waived, -presents a mistrial, which requires a reversal of the judgment -and a new trial.

Appeal from District Court, Sargent county; Lauder, J.

Action by Ole Hanson against Otto Carlblom. Judgment for defendant and plaintiff appeals.

*362Reversed.

*O. S. Sem,*for appellant.

This is an action in equity to renew and perpetuate a judgment and as there are no facts in .dispute there is nothing for a jury. Woodbridge v. Austin, 47 N. W. 876.

*A. G. Divet,*for respondent.

An action upon a judgment of another, court is an action for a debt and is but one for the recovery of money. Andrus v. Montgomery, 19 John. N. Y. 162; Clark v. Goodwin, 14 Mass. 237; Stearns v. Fisher, 30 Vt. 198; Ames v. Hoy, 12 Cal. 11; Daudio v. Doll, 2 Johns, N. Y. 98; Hole v. Angelí, 20 Johns 341; Townsend v. Carman, 6 Cowan 695.

There is no action known to our law to revive or perpetuate a judgment, and if there were this is not one. Mawhinney v. Doane, 20 Pac. 488; Eldredge v. Aultman, Miller & Co., 53 N. W. 1008.

The defendant being entitled to a jury trial, this court cannot render a judgment against him.

Per Curiam.

The plaintiff brought this action in district court to recover a balance due upon a judgment rendered in justice’s court. Over the defendant’s objection, the case was tried to the court without a jury, under section 5630, Rev. Codes 1899, and resulted in findings against the plaintiff and a judgment dismissing his action. He has appealed from the judgment, and in a statement of case containing all of the evidence offered has demanded a retrial of the entire case in this court, under the provisions of the above section.

We are unable to retry the case, and for reasons which are fundamental. The action is at law for the recovery of money only, and was triable to a jury as a matter of strict legal right. The answer presents no equitable issues whatever. The statement of case shows that the defendant demanded a jury trial. This he was entitled to, and his right thereto was not waived. On the contrary, it was insisted upon in the district court, and is again urged in this court. Upon this state of facts the trial court has no authority of law to try the case without a jury, and for the same reason this court is also without authority to enter upon a retrial. The record presents a mistrial similar to Peckham v. Van Bergen, 8 N. D. 595, 80 N. W. 760.

*363(100 N. W. 1084.)

The district court is directed to vacate the judgment and order a new trial. Neither party will recover costs on this appeal.

All concur.
#### Ex Parte James Duane Smith.

No. 24949.

October 11, 1950.

*Allen & Street,*Dallas, for relator.

*George P. Blackburn,*State’s Attorney, Austin, for the state.

*169GRAVES, Judge.

Relator was charged with the offense of burglary at nighttime and theft in the State of Idaho.

He was held in Dallas, Texas, by virtue of a warrant of arrest issued by the Governor of this state upon the request of the Governor of Idaho, remanding this relator to the custody of an agent of the State of Idaho, to be there returned to answer for such offense.

The burden of showing that relator was not in said State of Idaho at the time of the alleged commission of such offense and therefore not a fugitive therefrom was upon the relator. See Ex parte Hogue, 112 Tex. Cr. R. 495, 17 S.W. (2d) 1047, and many cases cited.

There is no showing in the record regarding the absence of relator in the demanding state at the time alleged in the affidavit relative to the offenses. In the absence of such proof, we hold that the warrant of the Governor of Texas shows the relator to be a fugitive from the State of Idaho.

In the late case of Ex parte Noble, 151 Texas Crim. Rep. 1, 198 S.W. (2d) 893, we held that:

> “It appears now to be well established that in an extradition proceeding the executive warrant of the Governor of the asylum State is prima facie evidence of the existence of every fact which that executive was obliged to determine before issuing it. See Ex parte Nix, 85 Tex. Cr. R. 307, 212 S.W. 508; Ex parte Carroll, 86 Tex. Cr. R. 301, 217 S.W. 382, 8 A.L.R. 901; Hyatt v. New York, 188 U.S. 691, 23 S. Ct. 456, 47 L. Ed. 657; Roberts v. Reilly, 116 U.S. 80, 6 S. Ct. 291, 29 L. Ed. 544; 22 Am. Jur., p. 290, Sec. 52, p. 289, Sec. 61, Note 10."

There are several bills of exception found in the record upon which it is not necessary to write since it is presumed that the Governor’s action, in the absence of a contrary showing, is correct and that he has legally performed his duty. See Ex parte Gordon, 118 Tex. Cr. R. 150, 37 S.W. (2d) 1023; Ex parte Wells, 108 Tex. Cr. R. 57, 298 S.W. 904; Ex parte Haynes, 98 Tex. Cr. R. 609, 267 S.W. 490; Ex parte Roselle, 87 Tex. Cr. R. 267, 222 S.W. 248; Ex parte Carroll, 86 Tex. Cr. R. 301, 217 S. W. 382; Ex parte Bergman, 60 Tex. Cr. R. 8, 130 S.W. 174.

The judgment will therefore be affirmed.
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###### Department of State

          - [Public Notice 6334]

# SUMMARY:

                        Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,                         *et seq.*; 22 U.S.C. 6501 note,                         *et seq.*), Delegation of Authority No. 234 of October 1, 1999, Delegation of Authority No. 236 of October 19, 1999, as                               ( print page 50394)                            amended, and Delegation of Authority No. 257 of April 15, 2003 [68 FR 19875], I hereby determine that the objects to be included in the exhibition “Alfred Kubin,” imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to loan agreements with the foreign owners or custodians. I also determine that the exhibition or display of the exhibit objects at the Neue Galerie New York, Museum for German and Austrian Art, New York, New York, from on or about September 24, 2008, until on or about January 26, 2009, and at possible additional exhibitions or venues yet to be determined, is in the national interest. Public Notice of these Determinations is ordered to be published in the                         **Federal Register**                        .                    

# FOR FURTHER INFORMATION CONTACT:

                        For further information, including a list of the exhibit objects, contact Wolodymyr Sulzynsky, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (                        *telephone:*                         202/453-8050). The address is U.S. Department of State, SA-44, 301 4th Street, SW., Room 700, Washington, DC 20547-0001.                    

Dated: August 19, 2008.

C. Miller Crouch,

Principal Deputy Assistant Secretary for Educational and Cultural Affairs,  Department of State.

 [FR Doc. E8-19768 Filed 8-25-08; 8:45 am]

BILLING CODE 4710-05-P
Exhibit 12.1 REMINGTON ARMS COMPANY AND SUBSIDIARIES 
Statement Re: Computation of Ratio of Earnings to Fixed Charges
(Dollars in Millions) Successor

Predecessor




PredecessorJun
 1-Dec 31
 2007

Jan
 1-May 31
 2007

Combined
 2007

2006

2005

2004

2003Earnings:Net Income (Loss) from
Continuing Operations

$
(10.5
)
$
9.0

$
(1.5
)
$
1.4

$
(16.8
)
$
(17.7
)
$
(4.6
)Add:Income Taxes
(Benefit) on Continuing Operations


(5.8
)

1.3


(4.5
)

0.9


0.4


14.0


(2.9
)Interest
Expense (a)


14.6


10.9


25.5


28.0


26.4


24.6


23.0Portion of
Rents Representative
of Interest
Factor


0.3


0.2


0.5


0.5


0.6


0.6


0.5$
(1.4
)
$
21.4

$
20.0

$
30.8

$
10.6

$
21.5

$
16.0Fixed Charges:Interest
Expense (a)

$
14.6

$
10.9

$
25.5

$
28.0

$
26.4

$
24.6

$
23.0Capitalized
Interest




















Portion of
Rents Representative
of Interest
Factor


0.3


0.2


0.5


0.5


0.6


0.6


0.5$
14.9

$
11.1

$
26.0

$
28.5

$
27.0

$
25.2

$
23.5Ratio of
Earnings to Fixed
Charges


(b)


1.9
x

0.8
x

1.1
x

(c)


(d)


(e)  (a)
Includes amortization of
 discount on indebtedness and excludes capitalized interest.(b)
Due to our net loss in the
 successor period of 2007, this ratio was less than 1:1. Additional earnings
 of $16.3 million would have been required to achieve a ratio of 1:1.(c)
Due to our net loss in
 2005, this ratio was less than 1:1. Additional earnings of $16.4 million
 would have been required to achieve a ratio of 1:1.(d)
Due to our net loss in
 2004, this ratio was less than 1:1. Additional earnings of $3.7 million would
 have been required to achieve a ratio of 1:1.(e)
Due to our
 net loss in 2003, this ratio was less than 1:1. Additional earnings of $7.5
 million would have been required to achieve a ratio of 1:1.
DISMISS and Opinion Filed March 2 0 , 2013

In The



## Court of Appeals

**Fifth District of Texas at Dallas**

No. 05

- 12

- 01041

- CR

MICAL DANTRAL FORD

, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court

Dallas County, Tex as

Trial Court Cause No. F08

- 72750

- M



### MEMORANDUM OPINION

Before Chief Justice Wright and Justices Myers and Evans

Appellant has filed a motion to dismiss the appeal. Appellant’s counsel has approved the

motion. Th e Court GRANTS the motion and ORDERS t h at th e appeal be DISMISSED and

this decision be certified below for observance. See T EX

. R. A PP

. P. 42.2(a).

PER CURIAM

Do Not Publish

T EX

. R. A PP

. P. 47

121041F.U05
#### UNITED STATES of America, Plaintiff-Appellee, v. Brandon Keith COLLIERS, Defendant-Appellant.

No. 02-7160.

United States Court of Appeals, Fourth Circuit.

Submitted Nov. 7, 2002.

Decided Nov. 14, 2002.

Brandon Keith Colliers, Appellant Pro Se. Robert H. McWilliams, Jr., Assistant United States Attorney, Wheeling, West Virginia, for Appellee.

Before WILLIAM D. WILKINS and LUTTIG, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Dismissed by unpublished PER CURIAM opinion.

PER CURIAM.

Brandon Keith Colliers seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his motion filed under 28 U.S.C. § 2255 (2000). We have reviewed the record and conclude for the reasons stated by the district court that Colliers has not made a substantial showing of the denial of a constitutional right. *See United States v. Colliers,*Nos. CR-98-29; CA-01-1-5 (N.D.W.Va. July 5, 2002). Accordingly, we deny a certificate of appealability *635and dismiss the appeal. *See*28 U.S.C. § 2253(c) (2000). 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.*
#### ALOE CREME LABORATORIES, INC., Plaintiff-Appellant, v. ESTEE LAUDER, INCORPORATED and Burdines, a Division of Federated Department Stores Inc., a Delaware Corporation, Defendants-Appellees.

No. 75-2211.

United States Court of Appeals, Fifth Circuit.

June 11, 1976.

Rehearing Denied July 15, 1976.

*257James R. McKnight, Chicago, 111., Robert E. Ziegler, Fort Lauderdale, Fla., James R. Eddy, Pompano Beach, Fla., Herbert Blecker, New York City, for plaintiff-appellant.

S. J. Powers, Jr., James E. Tribble, Miami, Fla., Saul H. Magram, New York City, Baker & McKenzie, Horst H. Werder, Francis D. Morrissey, Martin R. Greenstein, Chicago, 111., for defendants-appellees.

Before DYER, SIMPSON and RONEY, Circuit Judges.

PER CURIAM:

This appeal challenges the district court’s holding that there is no unfair competition or infringement of any rights the plaintiff may have in the term AFTER TAN by the manner in which defendants use the term APRES SUN, that the concurrent use of AFTER TAN and APRES SUN on after sun lotions does not create confusion in the marketplace, and that the term AFTER TAN is not distinctive or entitled to registration when used on after sun lotions so that plaintiff’s registrations of the term as a trademark are invalid.

It is well established that a plaintiff bears the burden of proving both the validity of its trademark and the confusion caused by defendant’s use of a similar mark. The likelihood of confusion is a factual question for the district court which is not to be disturbed unless clearly erroneous. *See e. g., American Foods, Inc.*v. *Golden Flake, Inc.,*312 F.2d 619, 624 (5th Cir. 1963).

We find no error in the district court’s factual holding on the record before us that there is no actual or likely confusion between the products here, and we affirm the consequent legal conclusion that there is no unfair competition or infringement by the defendants of any rights plaintiff may have in the term AFTER TAN.

As to the holding that the registrations are invalid because the term AFT*258ER TAN is descriptive and not distinctive, plaintiff argues that the court failed to find that there was no secondary meaning to the words, a necessary ingredient of invalidity. Secondary meaning entitles the holder of a mark to “the common law right . to be free from the competitive use of these words,” *Armstrong Paint & Varnish Works v. Nu-Enamel Corp.,*305 U.S. 315, 335, 59 S.Ct. 191, 201, 83 L.Ed. 195, 207 (1938), even though the words used are merely descriptive. The district court did not explicitly find a lack of secondary meaning. Nevertheless, we consider the district court to have implicitly found a lack of secondary meaning. From the record in this case, it is clear that such a finding would not be clearly erroneous and the plaintiff failed to carry its burden of proving that the term had the secondary meaning necessary to protect it against the claimed infringement and unfair competition.

Affirmed.
Fourth Court of Appeals

San Antonio, Texas

February 15, 2019

No. 04-19-00028-CV

Kent LINDUFF,

Appellant

v.

Lisa Ann ROBERTS aka Lisa Ann Bays,

Appellees

From the 216th Judicial District Court, Kendall County, Texas

Trial Court No. 13-310

Honorable Bill R. Palmer, Judge Presiding

O R D E R

The District Clerk’s Notification of Late Record is hereby GRANTED. Time is extended 

to March 29, 2019.

_________________________________

Sandee Bryan Marion, Chief Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said 

court on this 15th day of February, 2019.

___________________________________

KEITH E. HOTTLE,

Clerk of Court