Emphasis added. The Court has found that the Brusers violated the CCD by not paying the Trustee Fee as determined by the state court. Under the CCD, therefore, BOH, as Lessor, is entitled to attorneys’ fees and costs.10 BOH may also be entitled to prejudgment and postjudgment interest. “The general rule is that ‘[i]n diversity actions, state law determines the rate of prejudgment interest, and postjudgment interest is governed by 10 Given the 7/21/15 Order and the Stipulation, the instant decision addresses a claim brought only by BOH. To the extent that any other parties to this action believe that they are entitled to attorneys’ fees and costs, each must file a motion pursuant to Federal Rule of Civil Procedure 54(d) and Rule 54.3 of the Local Rules of Practice of the United States District Court for the District of Hawai`i (“Local Rules”). federal law.’” Xxx x. Adalian, Civil No. 09-00226 JMS-BMK, 2015 WL 477268, at *7 n.7 (D. Hawai`i Feb. 5, 2015) (alteration in Jou) (quoting Am. Tel. & Tel. Co. v. United Computer Sys., Inc., 98 F.3d 1206, 1209 (9th Cir. 1996)). The Court, however, need not address these issues, or the specific amount of attorneys’ fees, until BOH files the appropriate motion, pursuant to Federal Rule of Civil Procedure 54(d) and Local Rule 54.3. Likewise, the Court need not address any taxable costs unless and until BOH files the appropriate motion pursuant to Federal Rule of Civil Procedure 54(d)(1) and Local Rule 54.2.
Emphasis added. The SME notes that the three aforementioned BSS documents contain helpful information, consistent with the Agreement, to increase BSS workers’ awareness of the shift from residential, and how to access the HCBS to support that redirection. The SME notes one error in the Pathway to Children’s Mental Health document, specific to CMCR in the sub header 3.2 Children’s Crisis and Referral Line and Mobile Mental Health Crisis:
Emphasis added. [89] It is evident that at the time payment was made to LCaribbean GOSL was fully seized of the assignment of the receivables payable from the Project and such these receivables could only have been categorized as a payable to KCL. [90] In First Vancouver Finance v. M.N.R the question for the court was whether a factor was entitled to recover monies paid to the Minister of National Revenue from receivables which were purchased prior to the Minister issuing a request for statutory garnishment, in connection with these receivables. The court ruled that monies owing on accounts factored prior to the date of the request for garnishment were not subject to the garnishment, however accounts factored after that date were effectively intercepted by it. In other words once the receivables were factored before the Minister issued a request to garnish, the National Revenue was prevented from asserting an interest in these invoices. Consequently, a declaration was made confirming the factor’s entitlement to the funds already paid to the Minister. [91] On this point I conclude that the funds paid to LCaribbean were indeed the property of KCL, which ought not to have been utilized as if it were the property of AMSL. Therefore GOSL is liable to pay to KCL the remaining sums under the Notices.
Emphasis added. It is the parties’ joint understanding that the words “separate from” and “not related in any way to” in the two clauses italicized above mean “separate from and not physically related to.”
2. Paragraph 2.7 of the Settlement Agreement defines the term “Claim” to include a claim for “contribution” or “indemnity.” Such a Claim is released only to the extent that it is within the definition of “Release” or “Released Claims” in Paragraph 12.1 of the Settlement Agreement. Accordingly, a Claim for contribution or indemnity that relates to matters that are excluded from the definition of Release or Released Claims (e.g., a Claim that falls within the exceptions in Paragraph 12.1.2 of the Settlement Agreement) is not released.
3. Paragraph 2.55(c) of the Settlement Agreement defines the term “Releasing Parties” to include, among others, “any past, present, or future administrators, agents, attorneys,
Emphasis added. The Court of Appeals then continued its analysis: Our starting point is that the MSA [Master Services Agreement] is a lease and a contract for services. We have only applied the economic-loss doctrine to contracts for goods, and we have specifically declined to apply the doctrine to service contracts. See Xxxxxxx v Xxxxxxxxx, 209 Mich App 266; 530 NW2d 171 (1995) (reversing summary disposition on basis that the economic-loss doctrine was wrongly applied to a contract for services); Quest Diagnostics, Inc, 254 Mich App at 379 (“This Court has declined to apply the economic[- ]loss doctrine where the claim emanates from a contract for services.”). Because the MSA was a services contract, the economic-loss doctrine does not apply. See Xxxxxxxxx, 439 Mich at 527-528. The arbitrator reached the correct conclusion (that the economic-loss doctrine does not apply), even if it did so for the wrong reason (that the parties could not have contemplated the conversion at the time of the MSA's execution). His refusal to apply the economic-loss doctrine—albeit for the wrong reason—was not in contravention of controlling law. The doctrine has only been applied to the sale of goods, and never to a contract for services. Accordingly, this Court agrees with Precision that the economic loss doctrine does not apply to the service agreement between Precision and ADP; therefore, the economic loss doctrine does not bar Precision’s claims for breach of fiduciary duty and conversion. This, however, does not end this Court’s analysis. The Court must conduct a “separate-and distinct analysis.” In Bathtub, the Court of Appeals found that the conversion claim was nevertheless barred because it did not impose duties separate and distinct from the duties existing under the contract. Bathtub, supra citing Xxxxxxx'x Constr Corp v Mich Bell Tel Co, 454 Mich 65, (1997). In doing so, the Bathtub Court detailed the law relating to the separate-and-distinct analysis set forth in Xxxx v Xxxxxx, 347 Mich 550 (1956), that was followed up by the Michigan Supreme Court in Xxxxxxx'x Constr Corp v Mich Bell Tel Co, 454 Mich 65, 83-85 (1997). The Bathtub Court explained: In Xxxx v Xxxxxx, 347 Mich at 559, our Supreme Court first addressed whether a plaintiff could maintain an action in tort arising out of a breach of contract. There, an orchard worker (the promisor) agreed to care for an orchard under an oral contract, but failed to perform certain care and maintenance that would otherwise amount to ne...
Emphasis added. Xx. Xxxx’x final report dated December 31, 1999
Emphasis added. That demand is acceded to by point 3 of Section C. The period allowed for the transmission of reasoned opinions is increased, in this instance, from the eight weeks provided for by Article 6 of Protocol (No 2) to 12 weeks. Under the procedure, where reasoned opinions on the non-compliance of a draft legislative act with the principle of subsidiarity represent more than 55 per cent of the votes allocated to national Parliaments,6 the item will be included on the Council agenda for a comprehensive discussion; following which “the representatives of the Member States acting in their capacity as members of the Council will discontinue their consideration of the draft legislative act in question unless the draft is amended to accommodate the concerns expressed in the reasoned opinions”. The implementation technique, therefore, entails a Council conduct agreement: the members of the Council would, in the prescribed circumstances, discontinue discussion of the proposal and refrain from voting on it. The envisaged obligation appears to me to be fully compatible with EU law, and hence legally binding, since there is nothing in the Treaties that requires the Council to proceed to the adoption of a given proposal, supposing that the requisite majority is available. In my opinion, it is arguable that once the HSG Decision is in force, the adoption of a legislative measure in defiance of the red card procedure will constitute an infringement of an essential procedural requirement, and hence grounds for the annulment of the measure under Article 263 TFEU.
Emphasis added. The contract documents affirmatively indicate that shore protection structures consisting of rubble and riprap would be present near the Oxy-Chemical Dock. By employing the very dredging practice that the Specifications advised against—“[e]xcessive[ly] cutting outside the side slope lines and grades,” JX 2 (Specs) at 118, ¶ 3.5.2—plaintiff did not act as a reasonably prudent contractor. Further, when preparing the bid estimate for the Upper Bayou Project, Xx. Xxxxxx anticipated that the Millennium would encounter “rock, . . . ri[p]ra[p] from shore protection projects,” and other “common types” of obstructions. JX 98A (Xxxxxx Dep.), at 222:22–24. Thus, the conditions encountered by the dredge at the Oxy-Chemical Dock, were not reasonably unforeseeable. Accordingly, plaintiff has failed to establish that the conditions at the Oxy-Chemical Dock constitute a differing site condition.
Emphasis added. As compared to the former Article 133 EC (post Nice), Article 207 TFEU differs by specifically including ‘the commercial aspects of intellectual property’ among the subject-matters in respect of which ‘[t]he common commercial policy shall be based on uniform principles’, whereas Article 133(5) EC, simply provided that Paragraphs 1 to 4 were also to apply ‘to the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, in so far as those agreements [we] re not covered by the said paragraphs’, the first of which required that the common commercial policy was to be based on uniform principles. Article 113 EC therefore already covered, in that field and as a matter of principle, the external dimension of the commercial aspects of intellectual property. Article 207 TFEU simply includes them in a direct and comprehensive manner, beyond the mere external dimension. In line with this, Advocate General Xxxxxx considered, in point 63 of her Opinion in Case C-13/07 Commission v Council, that pursuant to Article 133(5) EC the Community had not acquired ‘exclusive competence … in the field of trade in services and the commercial aspects of intellectual property’, but rather that ‘that step [was] completed only in the Treaty of Lisbon: Article 207(1) TFEU henceforward expressly places the “new” fields of commercial policy on the same footing as the conventional fields, and the common commercial policy as a whole is expressly assigned to the exclusive competence of the Union (Article 3(1)(e) TFEU)’. This does not mean, however, that Article 207 TFEU has conferred on the European Union exclusive competence for intellectual property law. 11 –See, inter xxxx, Xxxxxxxx, P, EU External Relations Law, cited above, p. 285; Xxxxxxxxxx, A., ‘The Common Commercial Policy after Lisbon: Establishing parallelism between internal and external economic relations?’, in Croatian Yearbook of European Law and Policy, vol. 4 (2008), pp. 108 and 109; Xxxx, M., ‘Art. 207’, in: Xxxxxxx, C and Xxxxxxx, M., EUV/AEUV, 4th ed., X. X. Xxxx, Munich, 2011, marginal note 2 and 16. 12 – Opinion 1/94 [1994] ECR I-5267.
Emphasis added books make a more explicitly anti-economic and civic-minded argument. In Not For Profit: Why Democracy Needs the Humanities, Xxxxxx Xxxxxxxx challenges the notion that higher learning can best be understood in terms of technical job training and the growth of national economies. Xxxxxxxx sees higher learning as a form of “human development,” a creative pursuit that must be protected on its own terms. “From early on,” Xxxxxxxx writes, “leading U.S. educators connected the liberal arts to the preparation of informed, independent, and sympathetic democratic citizens. The liberal arts model is still relatively strong, but it is under severe stress now in this time of economic hardship.”46 In Not For Profit Xxxxxxxx highlights “another aspect of the U.S. educational tradition that stubbornly refuses assimilation into the [economic] growth-directed model.” The tradition of “active learning,” which implies “participation of the child in inquiry and questioning,” according to Xxxxxxxx, refuses to conceive education solely in terms of markets and money. Active learning is part of “a long Western philosophical tradition of education theory, ranging from Xxxx-Xxxxxxx Xxxxxxxx in the eighteenth century to Xxxx Xxxxx in the twentieth.” The tradition of active learning “includes such eminent educators as Xxxxxxxxx Xxxxxxx in Germany, Xxxxxx Xxxxxxxxxx in Switzerland, Xxxxxxx Xxxxxx in the United States, and Xxxxx Xxxxxxxxxx in Italy.” The Concord writers approach to education comes out of the same philosophical context. Xxxxxxxx does not mention Xxxxxxx and Xxxxxxx, but she does discuss Xxxxxx’x innovations at the Temple School, and Xxxxxxxxxx — though Xxxxxxxx does not make the connection — deeply influenced the thinking of both Xxxxxxx and Xxxxxxxxx Xxxxxx Xxxxxxx. Active learning
