alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
#### Rapid Demolition Company, Inc., Respondent-Appellant, v State of New York, Appellant-Respondent.

[856 NYS2d 151]

*845After contracting with the defendant to demolish a bridge, the claimant brought this claim to recover damages for breach of contract. The claimant sought to recover additional costs allegedly incurred because the thickness of the concrete deck overlay on the subject bridge differed substantially from that represented by the defendant in the plans provided to bidders on the project. In a construction contract between the State of New York and an individual, “[t]he ultimate guide in determining whether or not the contractor is to be paid for extra work is the contract itself’ *(Savin Bros. v State of New York,*62 AD2d 511, 515 [1978], *affd*47 NY2d 934 [1979]). “[I]f the parties intended the contractor to rely upon its own investigation, no recovery for extra work may be had, absent a showing of fraud or misrepresentation as to existing conditions” *(id.; see Bilotta Constr. Corp. v Village of Mamaroneck,*199 AD2d 230, 231 [1993]).

Here, the contract documents contain numerous clauses relieving the defendant of liability and requiring personal inspection of the contract site by the claimant. The contract states that “[t]he Contractor agrees that . . . his information was secured by personal investigation and research and not from the estimates or records of the Department [of Transportation], and that he will make no claim against the State by reason of estimates, tests, or representations of any officer or agent of the State, except as provided for in this Specification.” In addition, the contract states that “[t]he Contractor agrees that before making his proposal he carefully examined the contract documents, together with the site of the proposed work, as well as its surrounding territory, and is fully informed regarding all of the conditions affecting the work to be done and labor and materials to be furnished for the completion of this contract.” The contract also states that it was not prepared based upon actual field conditions, and that the dimensions shown on the plans may vary from the actual field dimensions.

Despite its contractual obligations to the contrary, the claimant admittedly failed to investigate the thickness of the concrete deck overlay prior to entering into the contract. There was testimony at the trial that even a visual inspection of the concrete overlay would have revealed its true thickness *(see Warren Bros. Co. v New York State Thruway Auth.,*34 AD2d 97, 99 [1970], *affd*34 NY2d 770 [1974]). Accordingly, the claimant *846may not recover additional compensation for allegedly unanticipated costs related to the thickness of the concrete deck overlay *(see All County Paving Corp. v Suffolk County Water Auth.,*20 AD3d 438 [2005]; *Kenaidan Constr. Corp. v County of Erie,*4 AD3d 756, 757 [2004]; *D.A. Elia Constr. Corp. v New York State Thruway Auth.,*289 AD2d 665, 666 [2001]; *Gene Hock Excavating v Town of Hamburg,*227 AD2d 911 [1996]; *Bilotta Constr. Corp. v Village of Mamaroneck,*199 AD2d at 232). Rivera, J.P., Ritter, Carni and Leventhal, JJ., concur.
#### Osborn *v.*Judd and others.

*(Circuit Court, S. D. New York.*

November 20, 1886.)

Patents for Inventions—Infringement—Preliminary Injunctions—Banner Kod.

A preliminary injunction will not be granted to restrain tbe infringement of a “design for a banner rod, consisting of a conventional imitation of a straight twig with the bark, and slantingly cut ends;” the section which relates to design patents demanding, it may be supposed, the exercise of more genius than is exhibited by it.

Motion for a Preliminary Injunction against the infringement of a design patent. Denied.

*Joshua Pusey,*for complainant.

*Briesen &*Steele, for defendants.

Shipman, J.

This is a motion for a preliminary injunction against the infringement of a design patent. The design is sufficiently stated in the claim, which is as follows: “The design for a banner rod. herein shown and described, the same consisting of a conventional imitation of a straight twig with the bark on, and slantingly cut ends. ”

I have great doubt whether there is anything which shows genius, or which indicates the work of an inventive mind, and therefore whether there is anything patentable in merely making a banner rod to imitate measurably a straight twig with the bark on. This natural and simple design for a banner rod would, I. think, readily suggest itself to the upholsterer. There is so much reason to suppose that the section which relates to design patents demands the exercise of more genius than is exhibited in the patented design that the motion should be denied.
I 

108TH CONGRESS 

2D SESSION H. R. 5384 

To amend the Internal Revenue Code of 1986 to make the allowance of 

the deduction of State and local general sales taxes in lieu of State 

and local income taxes permanent. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 18, 2004 

Mr. BRADY of Texas (for himself, Mr. BAIRD, Mr. BARTON of Texas, Mr. 

BELL, Ms. BERKLEY, Mr. BILIRAKIS, Mrs. BLACKBURN, Mr. BONILLA, 

Mr. BOYD, Ms. GINNY BROWN-WAITE of Florida, Mr. BURGESS, Mr. 

CARTER, Mr. COOPER, Mrs. CUBIN, Mr. CULBERSON, Mr. DAVIS of Tennessee, Mr. DELAY, Mr. DICKS, Mr. DUNCAN, Ms. DUNN, Mr. EDWARDS, 

Mr. FORD, Mr. FOLEY, Mr. GIBBONS, Mr. GONZALEZ, Mr. GORDON, Ms. 

GRANGER, Mr. HALL, Ms. HARRIS, Mr. HASTINGS of Washington, Mr. 

HINOJOSA, Mr. INSLEE, Mr. JENKINS, Mr. SAM JOHNSON of Texas, Mr. 

MILLER of Florida, Mr. NEUGEBAUER, Mr. PAUL, Mr. PORTER, Mr. 

PUTNAM, Mr. REYES, Mr. SANDLIN, Mr. SESSIONS, Mr. SHAW, Mr. 

SMITH of Texas, Mr. STEARNS, Mr. THORNBERRY, Mr. WAMP, and Mr. 

WELDON of Florida) introduced the following bill; which was referred to 

the Committee on Ways and Means 

A BILL 

To amend the Internal Revenue Code of 1986 to make 

the allowance of the deduction of State and local general 

sales taxes in lieu of State and local income taxes permanent. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 
2 

•HR 5384 IH 

1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Permanent Sales Tax 

3 Deduction Act of 2004’’. 

4 SEC. 2. DEDUCTION OF STATE AND LOCAL SALES TAXES 

5 MADE PERMANENT. 

6 Paragraph (5) of section 164(b) of the Internal Rev7 enue Code of 1986 is amended by striking subparagraph 

8 (I). 

Æ
This disposition is not appropriate for publication and is not precedent *

except as provided by 9th Cir. R. 36-3.

The panel unanimously concludes this case is suitable for decision **

without oral argument. See Fed. R. App. P. 34(a)(2).

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

CARLOS TORRES VALDOVINOS,

 Petitioner,

 v.

ERIC H. HOLDER, Jr., Attorney General,

 Respondent.

Nos. 07-70509

 07-71522

Agency No. A095-300-425

MEMORANDUM*

On Petitions for Review of Orders of the

Board of Immigration Appeals

Submitted June 29, 2010** 

Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.

In these consolidated petitions for review, Carlos Torres Valdovinos, a

native and citizen of Mexico, petitions for review of the Board of Immigration

Appeals’ (“BIA”) orders denying his motions to reopen and his motion to

reconsider. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of

FILED

JUL 16 2010

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 07-70509

discretion the denial of motions to reopen or reconsider, Cano-Merida v. INS, 311

F.3d 960, 964 (9th Cir. 2002), and we deny in part and dismiss in part the petitions

for review. 

The BIA did not abuse its discretion in denying Torres Valdovinos’

November 24, 2006, motion to reopen because he failed to submit an adjustment of

status application with the motion as required by 8 C.F.R. § 1003.2(c)(1), and the

government affirmatively opposed the motion, in part, because it did not comply

with this regulatory requirement. Cf. Konstantinova v. INS, 195 F.3d 528, 530 (9th

Cir. 1999) (BIA abused its discretion in denying motion to reopen for failure to

submit a Form I-485 with the motion where government did not affirmatively

oppose the motion on this ground).

The BIA was within its discretion in denying Torres Valdovinos’ February

20, 2007, motion to reconsider because the motion failed to identify any error of

fact or law in the BIA’s prior decision denying his motion to reopen. See 8 C.F.R.

§ 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n.2 (9th Cir. 2001)

(en banc). 

In his opening brief, Torres Valdovinos does not raise, and therefore has

waived any challenge to, the BIA’s conclusion that his February 20, 2007, motion
3 07-70509

to reopen was time- and number-barred. See Martinez-Serrano v. INS, 94 F.3d

1256, 1259-60 (9th Cir. 1996).

We lack jurisdiction to review the BIA’s decisions not to invoke its sua

sponte authority to reopen proceedings under 8 C.F.R. § 1003.2(a). See Ekimian v.

INS, 303 F.3d 1153, 1159 (9th Cir. 2002). 

PETITIONS FOR REVIEW DENIED in part; DISMISSED in part.
NOTE: Shaded area represents recession. Data are seasonally adjusted.

SOURCE: Bureau of Labor Statistics

Employment in thousands

13,000

13,500

14,000

14,500

15,000

15,500

16,000

16,500

17,000

17,500

18,000

1999 2000 2001 2002 2003 2004 2005 2006

13,000

13,500

14,000

14,500

15,000

15,500

16,000

16,500

17,000

17,500

18,000

Chart 1-9. Manufacturing employment has edged down since 

2004, following 3 years of sharp declines

• Over the 2001 to 2003 period, manufacturing lost 2.9 million jobs (measured 

December 2000 to December 2003). Over the 2004 to 2006 period, the number 

of factory workers edged down by 165,000. 

• At 41.1 hours per week in 2006, the factory workweek nearly returned to the 

41.3 hour manufacturing workweek that prevailed in 2000 (annual average 

data).

Chart 1-9. Manufacturing employment has edged down since 

2004, following 3 years of sharp declines
IV 

116TH CONGRESS 

2D SESSION H. RES. 930 

Supporting the resiliency of America’s small businesses. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 21, 2020 

Mr. BALDERSON (for himself, Mr. GOSAR, Mr. HAGEDORN, and Mr. TIPTON) 

submitted the following resolution; which was referred to the Committee 

on Small Business 

RESOLUTION 

Supporting the resiliency of America’s small businesses. 

Whereas, on January 21, 2020, the United States confirmed 

the Nation’s first case of the novel coronavirus (which 

presents as the disease COVID–19); 

Whereas, on January 30, 2020, the World Health Organization (WHO) declared a global health emergency; 

Whereas, on February 24, 2020, the Trump administration 

asked Congress for $1,250,000,000 in new emergency 

funds to respond to COVID–19; 

Whereas, on February 29, 2020, the United States announced the first COVID–19-related death of a United 

States citizen; 

Whereas, on March 11, 2020, the WHO declared the 

COVID–19 outbreak a pandemic; 


pamtmann on DSKBC07HB2PROD with BILLS
2 

•HRES 930 IH 

Whereas, on March 13, 2020, the Trump administration declared a national emergency in order to assist States and 

territories with combating COVID–19; 

Whereas, on March 15, 2020, the Centers for Disease Control and Prevention recommended a restriction on gatherings of 50 or more people in the United States; 

Whereas, on March 27, 2020, the Trump administration 

signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, providing much-needed 

emergency loans and other financial support to American 

small businesses; 

Whereas most Governors have executed orders in States 

across the country to close or restrict the operations of 

businesses across various industries temporarily; 

Whereas these closures or operating limitations have caused 

significant strain on America’s small businesses in the interest of public health; 

Whereas small businesses are the engine of the American 

economy, comprising over 99 percent of all business ventures in the United States; 

Whereas prior to the pandemic, small businesses accounted 

for half of the American economy and nearly half of all 

American jobs; 

Whereas America’s small businesses will return and exceed 

pre-COVID–19 production; and 

Whereas the Congress of the United States should recognize 

and encourage American small businesses: Now, therefore, be it 

1 Resolved, That the House of Representatives— 


pamtmann on DSKBC07HB2PROD with BILLS
3 

•HRES 930 IH 

1 (1) commends the innovation and prosperity 

2 that American small businesses provide to the Amer3 ican people and the American economy; 

4 (2) acknowledges the necessity of continued 

5 congressional support for America’s small busi6 nesses, through both regulatory flexibility and direct 

7 financial support, such as sufficient funding of the 

8 programs of the Small Business Administration; and 

9 (3) recognizes the creators, owners, and em10 ployees of, and contributors to, America’s small 

11 businesses. 

Æ 


pamtmann on DSKBC07HB2PROD with BILLS
COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ANDRES TERRAZAS,

Appellant,

v.

BESAI TERRAZAS,

Appellee.

§

§

§

§

§

§

No. 08-15-00159-CV

Appeal from the

65th District Court

of El Paso County, Texas

(TC# 2015DCM2535)

CORRECTED JUDGMENT

The Court has considered this cause on the record and concludes the appeal should be 

dismissed for want of jurisdiction. We therefore dismiss the appeal for want of jurisdiction. We 

further order that this decision be certified below for observance.

IT IS SO ORDERED THIS 22ND DAY OF MAY, 2015.

STEVEN L. HUGHES, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
I 

108TH CONGRESS 

2D SESSION H. R. 5356

To amend title 38, United States Code, to authorize the placement in a 

national cemetery of memorial markers for the purpose of commemorating servicemembers or other persons whose remains are interred in 

an American Battle Monuments Commission cemetery. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 9, 2004

Mr. LANGEVIN (for himself, Mr. MCDERMOTT, Mr. PETERSON of Minnesota, 

Mr. GRIJALVA, and Mr. KENNEDY of Rhode Island) introduced the following bill; which was referred to the Committee on Veterans’ Affairs 

A BILL

To amend title 38, United States Code, to authorize the 

placement in a national cemetery of memorial markers 

for the purpose of commemorating servicemembers or 

other persons whose remains are interred in an American 

Battle Monuments Commission cemetery.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
2

•HR 5356 IH 

1 SECTION 1. TREATMENT OF INTERNMENT OF REMAINS IN 

2 AN AMERICAN BATTLE MONUMENTS COMMIS3 SION CEMETERY AS UNAVAILABLE FOR THE 

4 PURPOSES OF PLACEMENT OF MEMORIAL 

5 MARKERS IN NATIONAL CEMETERIES. 

6 Paragraph (3) of section 2306(b) of title 38, United 

7 States Code, is amended—

8 (1) by striking ‘‘or’’ at the end of subparagraph 

9 (C); 

10 (2) by striking the period at the end of sub11 paragraph (D) and inserting ‘‘; or’’; and 

12 (3) by adding at the end the following new sub13 paragraph: 

14 ‘‘(E) are interred in an American Battle Monu15 ments Commission cemetery.’’.

Æ
* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No.06-40710

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

FELIPE ESPINOSA

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:05-CR-693-1

Before KING, DAVIS, and CLEMENT, Circuit Judges

PER CURIAM:*

Felipe Espinosa pleaded guilty to conspiracy to possess more than 1000

kilograms of marijuana and was sentenced to a 120-month term of

imprisonment. At sentencing, the district court granted the Government’s

motion for a sentence under the safety valve provision of 18 U.S.C. § 3553(e). As

adjusted, Espinosa’s advisory sentencing guidelines range was 87-to-108 months

of imprisonment; however, the district court determined that a non-guidelines

sentence was appropriate because the evidence showed that Espinosa was

United States Court of Appeals

Fifth Circuit

F I L E D

November 9, 2007

Charles R. Fulbruge III

Clerk
No. 06-40710

2

involved in at least two separate conspiracies and that he continued to persist

in drug-trafficking long after his activities were interrupted by authorities. The

district court held that a 120-month was appropriate because Espinosa’s

continued involvement in drug activities was an aggravating factor not taken

into account by the Sentencing Guidelines. 

Espinosa argues that his sentence is the result of an upward departure for

which he did not receive advance notice and that sentencing court departed

upward based on circumstances already considered under the Sentencing

Guidelines. Notwithstanding Espinosa’s argument, it is clear from the record

that his sentence is a non-guidelines sentence rather than an upward departure.

The district court may sua sponte impose a non-guidelines sentence without

advance notice to the defendant. United States v. Mejia-Huerta, 480 F.3d 713,

722-23 (5th Cir. 2007), petition for cert. filed (April 18,2007) (No. 06-1381). 

Espinosa’s sentence is reasonable under 18 U.S.C. § 3553(a) because the district

court used the properly calculated advisory Sentencing Guidelines as a frame of

reference, identified appropriate reasons for the sentencing variance, and made

factualfindings to support its sentencing determination. Mejia-Huerta, 480F.3d

at 721; United States v. Smith, 440 F.3d 704, 710 (5th Cir. 2006). 

AFFIRMED.
I 

108TH CONGRESS 

2D SESSION H. R. 5280

To suspend temporarily the duty on Basic yellow 94. 

IN THE HOUSE OF REPRESENTATIVES 

OCTOBER 7, 2004

Mr. WILSON of South Carolina introduced the following bill; which was 

referred to the Committee on Ways and Means 

A BILL

To suspend temporarily the duty on Basic yellow 94.

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

3 SECTION 1. SUSPENSION OF DUTY ON BASIC YELLOW 94. 

4 (a) IN GENERAL.—Subchapter II of chapter 99 of 

5 the Harmonized Tariff Schedule of the United States is 

6 amended by inserting in numerical sequence the following 

7 new heading:

‘‘ 9902.32.03 Basic yellow 94 (CAS No. 

149982–45–6) (provided for 

in subheading 3204.13.60) .. Free No Change No Change On or before 

12/31/2007 ’’. 

8 (b) EFFECTIVE DATE.—The amendment made by 

9 subsection (a) applies to goods entered, or withdrawn from 
2

•HR 5280 IH 

1 warehouse for consumption, on or after the 15th day after 

2 the date of the enactment of this Act.

Æ
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#### CONWELL *v.*CARITHERS.

It is the duty of the judge of the superior court to entertain and consider all causes which may be pending in that court, and at some time or other to determine and finally adjudicate or otherwise properly dispose of the same; but a mere failure or refusal of the judge of the superior court at a particular time to entertain and consider a pending motion, is not such action or such a final judgment thereon as is the subject of review by writ of error.

March 18,1895.

Brought forward from the last term. Code, §1271(a-c).

Motion for new trial. Before Judge McWhorter. Elbert superior court. March term, 1894.

A trial at the March term, 1893, of the superior court, before Judge Guerry (presiding in lieu of the judge of the circuit), resulted in a verdict for the plaintiff-. During the term defendant moved for a new trial, and took *662an order reciting that the grounds of the motion had been approved by the coui’t; continuing the motion to be heard at chambers on October 26, 1893; and providing, if the motion should not be heard at said time and place, that it be heard at such time and place as the judge might designate, giving counsel notice five days before the hearing, and that movant have until the hearing to present for approval and filing a brief of the evidence. Judge Guerry resigned before the 26th of October; the motion was not heard on that day; and up to the March term, 1894, no time and place for hearing the motion were fixed by the judge of the circuit. At that term said judge passed an order declining to entertain and consider the motion, to which order movant excepted.

A. G. McCurry and P. P. Proffitt, for plaintiff' in error. J. N. Worley and J. P. Shannon, *contra.*

Simmons, Chief Justice.

So far as appears, the motion for a new trial in this case is still pending in the court below. The judge did not dismiss it, but simply declined to entertain or consider it. Whilst it is the duty of the j udge of the superior court to entertain and consider all cases which may be pending in that court, and at some time or other determine and finally adjudicate or otherwise properly dispose of the same, a mere failure or refusal of the judge at a particular time to entertain or consider a pending motion is not such action or such a final judgment thereon as is the subject of review by writ of error. The writ of error must therefore be dismissed. Code, §4250. *Writ of error dismissed.*
#### FIELDING et al. v. ALLEN et al.

United States District Court S. D. New York.

March 21, 1949.

Boehm & Fischman, New York City (Hays, Podell, Algase & Feuer, New York City, Mortimer Hays and Mortimer Feuer, New York City, of counsel), for plaintiff.

Moroney & Ettinger, New York City (Harry L. Ettinger, New York City, of counsel), for applicants for intervention.

Simpson, Thacher & Bartlett, New York City, for defendant.

KAUFMAN, District Judge.

Stockholders of the defendant corporation apply to intervene in a derivative stockholder’s action. The original complaint was filed on December 24, 1948. The proposed complaint of the intervenors adds no new matter; it is for all purposes a verbatim copy of the original complaint. The proposed intervenors urge (a) that they be permitted to intervene as of right pursuant to Rule 24(a) (2) of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the ground that the representation of the interests of the applicants by the existing plaintiff is or may be inadequate and that they will be bound by the judgment, and (b) that as a matter of discretion they should be permitted to intervene under Rule 24(b) (2) on the ground that the claim of the applicants and the main action have common questions of law and fact, and intervention will not unduly de*107lay or prejudice the adjudication of the rights of the original parties.

The papers ■ fail to indicate any facts tending to show that the representation by the existing plaintiff is or may be inadequate. The application to intervene, as a matter of right, is denied. Kind v. Markham, D.C., *7*F.R.D. 265; 2 Moore’s Federal Practice, § 24.07, p. 2333 (1938 Ed.)

Insofar as the application to intervene is addressed to the discretion of the court, it is significant that the proposed complaint of the intervenors asserts no claim in addition to those presented by the original complaint and there is no showing that the corporation would be benefited in any way, or that the action would be more effectively conducted, if this application were granted. In the circumstances, there seems no sufficient reason for allowing applicants to intervene by another attorney. If the applicants agree to bear their ratable proportion of the expenses of the litigation, they may be made co-complainants, appearing by attorney and counsel now representing the original plaintiff. Bowker v. Haight & Freese Co., C.C., 140 F. 794.

The motion to intervene under Rule 24 (b) is denied, without prejudice to renewal upon a showing that the applicants are willing to comply with the conditions herein set forth.

Settle order on notice.