204 Va. 533 (1963)
PENNY VALERIE DUDLEY, AN INFANT, ETC.
v.
FLORENCE DRUG CORPORATION.
Record No. 5605.
Supreme Court of Virginia.
September 11, 1963.
Joseph Teck    and    Paul M. Lipkin (Goldblatt & Lipkin,    on brief), for the plaintiff in error.
Peter W. Rowe (Harry E. McCoy; Seawell, McCoy, Winston & Dalton,    on brief), for the defendant in error.
Present, Eggleston, C.J., and Spratley, Buchanan, Snead, I'Anson and
In plaintiff's action to recover for personal injuries suffered when she fell through a broken glass door at defendant's store summary judgment was entered for defendant.  Writ of error was granted but was later dismissed because the record affirmatively showed that the transcript of the evidence and other incidents of trial was not presented to the trial judge within sixty days after final judgment.  This violation of the mandatory provisions of Rule 5:1, section 3(e) and (f), deprived the Court of jurisdiction.
Error to a judgment of the Circuit Court of the city of Norfolk.  Hon. Clyde H. Jacob, judge presiding. The opinion states the case.
I'ANSON
I'ANSON, J., delivered the opinion of the court.
Penny Valerie Dudley, an infant, plaintiff herein, brought this action by her next friend to recover damages for injuries suffered when she fell through a broken glass door while entering the store of the Florence Drug Corporation, the defendant herein.  The case was tried by a jury, and at the conclusion of all the evidence presented on behalf of the plaintiff the trial court sustained a motion *534 to strike the evidence and entered summary judgment for the defendant.  From this judgment we granted plaintiff a writ of error.
The defendant has moved to dismiss the writ of error upon the ground that the transcript of the evidence and other incidents of trial in the court below was not tendered to the trial judge within 60 days after final judgment, pursuant to Rule 5:1, | 3(e) and (f), Rules of Court.
Final judgment in this case was entered by the trial court on June 25, 1962. On July 25, 1962, plaintiff filed with the clerk of the trial court her notice of appeal and assignments of error.
On August 27, 1962, counsel for defendant accepted service of a notice that the transcript of the evidence and other incidents of trial would be presented to the trial court for certification on August 28, 1962.  This notice was dated August 23, 1962, which was the date plaintiff's counsel gave notice by letter of his intention to present the transcript to the trial court.
The transcript was never presented to counsel for defendant for his signature and was not signed at the end by counsel for all parties.  The certificate appended thereto read that it was tendered and signed within 60 days from the entry of final judgment, but it appears that the trial judge changed the language to read that it was    "tendered and signed    [by him] within 70    days" after final judgment and he signed the certificate as amended on August 30, 1962.  (Emphasis added.)
Rule 5:1, | 3(e), provides in part:
"Oral testimony and other incidents of the trial * * * become part of the record when delivered to the clerk, if the transcript or statement is signed at the end by counsel for all parties and    tendered to the judge within 60 days and signed by the judge within 70 days after final judgment.     * * *" (Emphasis added.)
The relevant part of sub-section (f) of Rule 5:1, | 3, provides:
"Such a transcript or statement not signed by counsel for all parties becomes part of the record when delivered to the clerk, if it is    tendered to the judge within 60 days and signed at the end by him within 70 days after final judgment.  * * * He shall note on it the date it was tendered to him and the date it was signed by him."     (Emphasis added.)
Thus, in plain, simple and concise language the above Rule of Court provides that in order to make the evidence and other incidents of trial a part of the record for purposes of an appeal to this Court, *535 whether or not the transcript is signed by counsel for all parties it must be tendered to the trial judge within 60 days and signed by him within 70 days after the entry of final judgment, and the trial judge shall note thereon the date it was tendered to him and the date he signed it.
Counsel for plaintiff argues that the trial judge's certification that the transcript was tendered to him and signed by him within 70 days after final judgment is in compliance with Rule 5:1, | 3(e) and (f).  We do not agree with his contention.
Under the express language of Rule 5:1, | 3(f), the trial judge is required to note on the transcript of the evidence and other incidents of trial the date on which it was tendered to him as well as the date he signed it.  The trial judge's certificate shows that he signed it on August 30, 1962, but nowhere does it affirmatively appear that it was tendered on a day which was within 60 days after final judgment.  The certificate merely reads that the transcript was tendered and signed by him within 70 days after final judgment.  Moreover, plaintiff's notice to opposing counsel stated that the transcript would be tendered to the trial judge for certification on August 28, 1962, which was the 64th day after the final judgment.  Indeed, the record shows, and counsel conceded before us, that the transcript was not even tendered on that day, but was tendered two days later, on the 66th day after final judgment.  Hence, it clearly appears that the plaintiff, who had the burden of showing that he complied with the Rules of Court did not tender the transcript within 60 days after final judgment, pursuant to the requirements of Rule 5:1, | 3(e) or (f).
We have repeatedly held that Rule 5:1, | 3(e) and (f), is mandatory and jurisdictional and a failure to comply with it is fatal to an appeal.     Snead
Commonwealth,    200 Va. 850, 853, 108 S.E.2d 399, 402;    Bacigalupo Fleming,    199 Va. 827, 835, 102 S.E.2d 321, 326;    Steingold     Seaton, 187 Va. 923, 931, 48 S.E.2d 225, 228.
Here the plaintiff has flagrantly violated the mandatory requirements of Rule 5:1, | 3(e) and (f), in that the transcript of the oral testimony and other incidents of trial was not tendered to the court below within 60 days after final judgment.  Such lack of compliance with the Rule is fatal to the jurisdiction of this Court.
Accordingly, the motion to dismiss the writ of error is sustained, the effect of which is to affirm the judgment of the court below.
Writ dismissed.


562 F.2d 1080
96 L.R.R.M. (BNA) 2149, 82 Lab.Cas.  P 10,107
JUDAH AMC & JEEP, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 76-2097.
United States Court of Appeals,Eighth Circuit.
Submitted Aug. 31, 1977.Decided Aug. 31, 1977.

Lawrence F. Scalise and Keith E. Uhl, Scalise, Scism, Gentry, Brick & Brick, Des Moines, Iowa, for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., for respondent; John D. Burgoyne, Asst. Gen. Counsel, Anne H. Andrews, Atty., John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, N.L.R.B., Washington, D.C., on the briefs.
Before BRIGHT, ROSS and HENLEY, Circuit Judges.
PER CURIAM.

1
Judah AMC & Jeep, Inc., has petitioned this court to review and set aside an order of the National Labor Relations Board filed December 10, 1976.  The Board has cross-petitioned for enforcement.

2
After thoroughly reviewing the record we find sufficient evidence to support the conclusion of the Administrative Law Judge, affirmed by the Board, that petitioner violated §§ 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3), by discriminatorily laying off and refusing to reinstate Stanley Strock because of his union and protected concerted activities.  However, we find that the conclusion that petitioner violated § 8(a)(1) by coercively interrogating Strock concerning a union meeting he attended is not substantiated.  Therefore, we order that the Administrative Law Judge's recommended order, adopted by the Board, with the exception of 1(a), be enforced.  Each party shall pay its own costs.


                                                                            FILED
                              NOT FOR PUBLICATION                           JUN 13 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS

                              FOR THE NINTH CIRCUIT

MAXIMINO MADRIGAL; YONIRA                        No. 12-71334
MADRIGAL-LEON,
                                                 Agency Nos.         A074-823-325
               Petitioners,                                          A074-823-426

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.

                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                              Submitted June 10, 2013 **

Before:        HAWKINS, McKEOWN, and BERZON, Circuit Judges.

       Maximino Madrigal and Yonira Madrigal-Leon, natives and citizens of

Mexico, petition for review of the Board of Immigration Appeals’ order dismissing

their appeal from an immigration judge’s denial of their motion to reopen

          *
             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).
deportation proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review

for abuse of discretion the denial of a motion to reopen, Avagyan v. Holder, 646

F.3d 672, 674 (9th Cir. 2011), and we deny the petition for review.

      The agency did not abuse its discretion in denying petitioners’ motion to

reopen as untimely where the motion was filed more than eleven years after their

deportation order became final, see 8 C.F.R. § 1003.2(c)(2), and petitioners failed

to demonstrate the due diligence required to obtain equitable tolling of the filing

deadline, see Avagyan, 646 F.3d at 679 (equitable tolling is available to a petitioner

who is prevented from filing because of deception, fraud or error, and exercised

due diligence in discovering such circumstances).

      PETITION FOR REVIEW DENIED.

                                           2                                    12-71334


21 So.3d 296 (2009)
STATE of Louisiana
v.
Vincent M. CASTILLO.
No. 2009-KK-1358.
Supreme Court of Louisiana.
November 6, 2009.
Granted.


542 U.S. 920
GRAVES ET AL., AS PERSONAL REPRESENTATIVES OF THE ESTATE OF AMEDURE, DECEASEDv.WARNER BROTHERS ET AL.
No. 03-1508.
Supreme Court of United States.
June 21, 2004

1
Sup. Ct. Mich. Certiorari denied.

2
Reported below: 469 Mich. 853, 666 N. W. 2d 665.


                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 09-2773
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the Western
                                         * District of Missouri.
Santiago Almazan, Jr.,                   *
                                         *     [UNPUBLISHED]
      Defendant - Appellant.             *
                                    ___________

                               Submitted: April 16, 2010
                                  Filed: March 3, 2011
                                   ___________

Before BYE, JOHN R. GIBSON,1 and GRUENDER, Circuit Judges.
                             ___________

PER CURIAM.

      Santiago Almazan, Jr. pleaded guilty to possession with intent to distribute 500
grams or more of cocaine and was sentenced to the statutory mandatory minimum of
sixty months’ imprisonment. See 21 U.S.C. § 841(a)(1), (b)(1)(B). He appeals his

      1
       The Honorable John R. Gibson retired from service on this court on January
26, 2011. This opinion is being filed by the remaining judges of the panel pursuant
to 8th Cir. Rule 47E.
sentence, arguing that the district court2 should have granted him a safety-valve
reduction pursuant to 18 U.S.C. § 3553(f). We affirm.

       A detective working interdiction at a Kansas City bus terminal was watching
as passengers got off a bus that had originated in Texas. The detective had made drug
arrests on this route before. He saw Almazan leave the bus, carrying a gym bag and
talking on a cell phone, and he watched as Almazan walked around the bus and looked
at the luggage compartment under the bus carriage. Almazan retrieved no luggage,
walked through the terminal, and went to a taxi on the other side of the building. The
detective stopped him, asked for his identification and bus ticket, and ultimately
searched Almazan’s person and belongings with his consent. The detective found a
hard packet concealed under Almazan’s pants that contained approximately 1.05
kilograms of cocaine. Almazan admitted that he was transporting cocaine and said he
was expecting to earn $500 for its delivery. Drug Enforcement Administration
officers later attempted to make a controlled delivery of the cocaine Almazan was
carrying, but they were unable to do so.

       Almazan was indicted for possession with intent to distribute 500 grams or
more of cocaine. Following the denial of his motion to suppress, Almazan pleaded
guilty and the district court ordered that a presentence investigation report (“PSR”)
be prepared. The PSR concluded that Almazan did not meet the criteria to receive a
reduction in his offense level pursuant to the safety valve provision because the
government reported that Almazan did not truthfully provide all the information and
evidence he had concerning his offense. Almazan did not object to the PSR.

       At sentencing, despite his failure to object to the denial of safety-valve relief
in the PSR, Almazan argued that he should be eligible for the safety-valve reduction.

      2
        The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.

                                          -2-
Recognizing that he needed support for his request, Almazan offered his Miranda
waiver form and the investigative report from law enforcement as his only evidence.
The district court concluded that Almazan had not made a proper objection to the
determination in the PSR that he was not eligible for the safety valve and imposed the
statutory mandatory minimum prison sentence of sixty months.

        On appeal, Almazan argues that the district court violated his due process right
to a fair sentencing hearing by refusing to consider his eligibility for the safety-valve
reduction, either by entertaining an untimely objection to the presentence report or by
granting a continuance. Rule 32 of the Federal Rules of Criminal Procedure generally
requires each party to inform the probation office of its objections to a PSR within
fourteen days of the party’s receipt of the PSR. See Fed. R. Crim. P. 32(f)(1). There
is no dispute that Almazan did not do so here. Nevertheless, the court at sentencing
“may, for good cause, allow a party to make a new objection at any time before
sentence is imposed.” Fed. R. Crim. P. 32(i)(1)(D); see United States v. Jones, 70
F.3d 1009, 1010 (8th Cir. 1995) (per curiam)). The district court’s decision whether
to entertain such a new objection is reviewed for abuse of discretion. Jones, 70 F.3d
at 1010.

       Almazan’s sole explanation, both before the district court and to us, for the
absence of a timely objection to the denial of safety-valve relief in the PSR is a belief
that the Government somehow objected to the PSR’s recommendation regarding his
eligibility for the safety valve. Almazan relies on a paragraph in the section of the
PSR entitled “Offense Level Computation,” recommending an adjustment in offense
level of “0” for Specific Offense Characteristics. That paragraph states:

      Specific Offense Characteristic(s): None. Consideration was given to
      the application of the safety valve provision, pursuant to § 2D1.1(b)(11),
      which indicates that if the defendant meets the criteria set forth in
      subdivisions (1)-(5) of subsection (a) of § 5C1.2 (Limitation on
      Applicability of Statutory Minimum Sentences in Certain Cases), the

                                          -3-
      offense level is decreased 2 levels. According to the government, the
      defendant did not truthfully provide all information and evidence the
      defendant had concerning his offense. Therefore he did not meet the
      criteria for eligibility for the safety valve with regard to § 5C1.2(a)(5).

The quoted language does not constitute an objection by the Government. See United
States v. Razo-Guerra, 534 F.3d 970, 976 (8th Cir. 2008) (requiring that objections
to a PSR be made “with ‘specificity and clarity.’” (quoting United States v. Wajda,
1 F.3d 731, 732 (8th Cir.1993)). To the contrary, the paragraph reports that the
Government did not believe Almazan had truthfully provided all information in his
possession regarding the offense, as required for safety-valve relief, and accordingly
recommends the denial of such relief, an outcome to which the Government would
have no need to object. Moreover, an addendum to the PSR noted that the PSR had
been disclosed to Almazan, his counsel, and the Government, and that it had been
modified to delete an erroneous prior conviction. The addendum concluded by noting
that, as modified, the parties had no unresolved objections to the PSR. Such a
conclusion is inconsistent with Almazan’s later characterization of the Specific
Offense Characteristic paragraph as a Government objection to the potential
application of the safety valve.

       The district court was well within its discretion to find that the new objection
made by Almazan at sentencing, which the district court likened to a “bushwhacking”
and aptly characterized as “not fair play” because the Government had no notice that
pertinent evidence or witnesses would be required, was not supported by good cause
for purposes of Rule 32. Cf. United States v. Angeles-Mendoza, 407 F.3d 742, 749
(5th Cir. 2005) (finding good cause to permit a new objection by the Government
where “Defendants both had actual knowledge of the government’s position before
the hearing and presented a defense,” indicating there had been “no prejudice to these
defendants’ ability to prepare adequately for sentencing”).

                                         -4-
       In the absence of a timely objection, we review the denial of safety-valve relief
for plain error. United States v. Rios, 171 F.3d 565, 567 (8th Cir. 1999). In response
to the Government’s position that he did not truthfully provide all information and
evidence he had concerning the offense, Almazan speculated that the later controlled
delivery of his cocaine failed because his contact, whom he could not identify in any
way, must have observed the intervention of law enforcement when Almazan arrived
at the bus stop. Despite an opportunity to proffer evidence on the issue, however,
Almazan pointed to no specific facts or evidence that would tend to show he gave
truthful, complete information to law enforcement. Under these circumstances,
Almazan cannot meet his burden to show that it was error, plain or otherwise, for the
district court to deny safety-valve relief. See United States v. Castaneda, 221 F.3d
1058, 1059 (8th Cir. 2000) (per curiam).

       Finally, Almazan argues that, in the alternative, he should have been allowed
to continue the sentencing so that he could have a fair opportunity to litigate the
safety-valve issue. “We will reverse a district court’s decision to deny a motion for
a continuance only if the court abused its discretion and the moving party was
prejudiced by the denial.” United States v. Cotroneo, 89 F.3d 510, 514 (8th Cir.
1996). Almazan’s argument is undermined by the position he took at sentencing,
where he told the district court that he had already presented his only evidence of
eligibility for safety-valve relief. In his brief to this court, Almazan makes no mention
of any additional relevant evidence. Therefore, his argument that a continuance
should have been granted is unavailing.

      We affirm the judgment.

                        ______________________________

                                          -5-


42 F.3d 1400
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Jacqueline JENKINS, Plaintiff-Appellant,v.STATE FARM INSURANCE COS., Defendant-Appellee.
No. 93-16134.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 14, 1994.Decided Dec. 2, 1994.

Before:  CHOY, FARRIS and BRUNETTI, Circuit Judges.

1
MEMORANDUM*

2
Appellant Jacqueline Jenkins ("Jenkins") challenges the district court's grant of summary judgment on her handicap discrimination claim under the California Fair Employment and Housing Act ("CFEHA"), Cal.  Gov't Code Sec. 12900 et seq.   Further, Jenkins appeals several interlocutory orders, including (1) the district court's dismissal of her claim for breach of an implied-in-fact contract not to terminate except for good cause;  (2) the district court's subsequent denial of a motion for leave to amend the complaint;  and (3) the district court's grant of State Farm's motion to strike Jenkins' request for punitive damages under CFEHA.  Having jurisdiction under 28 U.S.C. Sec. 1291, we affirm the district court's grant of summary judgment in favor of State Farm.

I. FACTUAL AND PROCEDURAL BACKGROUND

3
Jacqueline Jenkins worked for State Farm from February, 1972 until May 31, 1990 when she was terminated from her position as a claims specialist.  In September, 1989, Jenkins injured her right shoulder in an auto accident.  As a result of the accident, she could not fully bend her right arm behind her back, and she was in pain.  She was treated with physical therapy initially and underwent right shoulder arthroscopic surgery on February 12, 1990.

4
Following the accident, Jenkins took 200 days of paid sick leave to which she was entitled under State Farm's "paid sick leave" policy.  Under the policy, an employee who takes more than ten consecutive days of paid sick leave is required to provide a medical release by her doctor in order to return to work.  The medical release must indicate any restrictions to the employee's physical activities while at work.  Further, an employee may be required to complete an examination by State Farm's medical department.  An employee will be discharged effective the last day of the granted leave if she fails the physical examination.

5
On April 27, 1990, State Farm sent Jenkins a letter advising her that her sick leave would expire on May 25, 1990 at 2 p.m.  The letter further advised that if she did not return to work by that date, she would be terminated.  On May 17, 1990, Jenkins provided State Farm with a note from her doctor, Dr. Steven Isono, releasing her to return to work with limited conditions.  In the note, Dr. Isono advised against heavy, repetitive lifting greater than five pounds and suggested an adjustment in the work place (desk, chair, etc.) for Jenkins' comfort.

6
Pursuant to State Farm's policies, the Medical Director for State Farm's Northern California Regional Office, Dr. Walter Mills, examined Jenkins on May 22, 1990.  Dr. Mills concluded that further clarification from Dr. Isono was necessary in order to determine Jenkins' ability to return to work full time.  Jenkins then contacted Dr. Isono, who agreed to provide information regarding her condition over the telephone.  Dr. Mills attempted to contact Dr. Isono on May 23, 1990 without success.

7
Upon learning that Dr. Isono would be in surgery and unavailable on May 24 and 25, Jenkins contacted State Farm to request an extension of her leave allowance.  State Farm contends that it extended Jenkins' medical leave until May 30, 1990 in order to allow the two doctors to confer.  Jenkins disputes State Farm's contention, stating that State Farm told her that her medical leave would be extended until the information was obtained from her doctor.

8
In the meantime, on May 22, 1990, Jenkins obtained approval for vacation from May 28 through June 1, 1990.  On May 24, 1990, Jenkins spoke with Steve Sosa in State Farm's Personnel Department.  According to Jenkins, Sosa informed her that she would be placed on medical leave without pay until Dr. Isono provided the necessary medical information.  On May 25, 1990, Jenkins requested that she be placed on vacation rather than on leave without pay.  Jenkins did not ascertain whether she was on "vacation" or "medical leave without pay" status before she left for her vacation on May 26, 1990.

9
Dr. Mills made two more attempts to contact Dr. Isono on May 24 and 29, but failed to reach him.  Likewise, Dr. Isono's attempts to contact Dr. Mills on May 29 and 31 were unsuccessful.  Jenkins was terminated on May 30, 1990.  After termination, Jenkins unsuccessfully pursued State Farm's appeal process in order to recover her job.  In April, 1991, Jenkins obtained employment elsewhere doing similar type of office work that she performed for State Farm.

10
Jenkins filed this action in the Superior Court of Contra Costa County on May 22, 1991.  State Farm removed the case to federal court on the basis of diversity jurisdiction on June 28, 1991.  Jenkins' original complaint included claims for handicap discrimination under CFEHA, common law wrongful termination in violation of public policy, breach of an implied-in-fact employment contract, breach of the implied covenant of good faith and fair dealing, and intentional and negligent infliction of emotional distress.

11
On August 23, 1991, the district court dismissed all claims with leave to amend.  Jenkins filed her first amended complaint on September 9, 1991.  On November 9, 1991, the district court dismissed without prejudice Jenkins' claims for breach of contract, breach of covenant, and wrongful termination in violation of public policy.  The court held that Jenkins had stated a claim under CFEHA, but struck Jenkins' request for punitive damages under CFEHA.  On September 21, 1992, the court denied Jenkins' motion to file a third amended complaint on the grounds of futility and undue delay.  On May 7, 1993, the district court granted State Farm's motion for summary judgment on the CFEHA claim.  Jenkins filed an appeal to this court on June 11, 1993.

II. DISCUSSION

12
Jenkins' first contention of error is that summary judgment was improper because the cause of her termination was State Farm's perception of her as a handicapped individual rather than the expiration of her sick leave.

13
We review de novo the district court's grant of summary judgment.  Williams v. Caterpillar, Inc., 944 F.2d 658, 661 (9th Cir.1991), citing, Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339 (9th Cir.1989).  Under Fed.R.Civ.P. 56(c), summary judgment is appropriate if the pleadings and supporting materials "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."   Jenkins must demonstrate that there are genuine factual issues that properly can be resolved only by a finder of fact because the issues may reasonably be resolved in favor of either party.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

14
We conclude that Jenkins is not a handicapped individual under CFEHA.  CFEHA prohibits employment discrimination based on "physical handicap."   Cal. Gov't Code Sec. 12940(a) (West 1992 & Supp.1994).  In order to establish a claim for physical handicap discrimination, Jenkins must first assert that she is a handicapped individual.  She must then put forth evidence that State Farm terminated her because of her status as a handicapped individual.  Cal.Code Regs. tit. 2, Sec. 7293.7 (1994).

15
"Handicapped individual" is defined as any individual who "(1) [h]as a physical handicap which substantially limits one or more major life activities;  ...  or (3) [i]s regarded as having such a physical handicap."   Cal.Code Regs. tit. 2, Sec. 7293.6(i) (1994) (emphasis added).  Jenkins' claim is a "regarded as" case.

16
An individual is regarded as having a physical handicap if she is treated by an employer as having a physical handicap that substantially limits major life activities, despite the fact that she either (1) does not have a physical handicap (that substantially limits major life activities), Cal.Code Regs. tit. 2, Sec. 7293.6(h)(3) (1994);  or (2) has a physical handicap, but the handicap does not substantially limit one or more major life activities, Cal.Code Regs. tit. 2, Sec. 7293.6(h)(1) (1994).  "Major life activities" are defined as "[f]unctions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."   Cal.Code Regs. tit. 2, Sec. 7293.6(f) (1994).  Thus, Jenkins would be a "handicapped individual" under CFEHA if State Farm perceived her to be incapable of working, even though she was actually able to perform her duties.

17
The undisputed facts establish that State Farm did not regard Jenkins as a handicapped individual.  In fact, State Farm's actions indicated its intent to allow Jenkins to return to work.  Before State Farm approved Jenkins' return to work, however, it attempted to ascertain her ability to perform her essential duties without endangering her health or safety.  State Farm's treatment of Jenkins did not deviate from established company procedures and was consistent with State Farm's contention that it did not regard Jenkins as a handicapped individual.

18
First, State Farm referred Jenkins to its own medical doctor to determine her ability to return to work safely.  Such a referral is routine and is outlined in the company medical manual.  Second, State Farm's reliance on its doctor's decision, which required further clarification from Jenkins' doctor before approving the medical release, did not constitute discriminatory conduct.  See Fuqua v. Unisys Corp., 716 F.Supp. 1201, 1206-07 (D.Minn.1989).  It was solely Dr. Mills' decision to require medical clarification, and his decision was based on medical reasons.  Finally, Dr. Mills' request for a conference with Dr. Isono to determine whether Jenkins was ready to return to work was well within company procedures for an employee who is on sick leave due to a temporary injury.

19
State Farm was diligent in its effort to ascertain Jenkins' ability to return to work.  As State Farm's representative, Dr. Mills made three (unsuccessful) attempts to contact Dr. Isono.  State Farm had granted Jenkins 200 days of sick leave and extended Jenkins' sick leave for five additional days in order to grant her more time to submit clarification of her ability to return to work.  Even after termination, State Farm provided Jenkins with an opportunity to appeal, in which Jenkins again failed to provide the necessary clarification.  At no time did State Farm give an indication that it considered Jenkins to have an impairment which foreclosed the type of employment involved.

20
On appeal, Jenkins has not presented any specific facts to support her contention that State Farm regarded her as a handicapped individual who was unable to perform her job as a claims specialist.  Rather than presenting facts to support her contention of wrongful termination, Jenkins circularly argues that State Farm must have considered her to have a physical handicap because State Farm terminated her.  "A motion for summary judgment cannot be defeated by mere conclusory allegations unsupported by factual data."  Angel v. Seattle-First Nat'l Bank, 653 F.2d 1293, 1299 (9th Cir.1981).  Jenkins has failed to demonstrate a prima facie case of discrimination, and thus, summary judgment was properly granted.

21
In light of Jenkins' failure to demonstrate that State Farm had discriminated against her on the basis of her perceived handicapped status, the district court did not abuse its discretion in striking Jenkins request for punitive damages.

22
We need not address the issue of whether the district court erred in its dismissal of Jenkins' claim for breach of an implied-in-fact contract and in its subsequent denial of a leave to file a third amended complaint.  Even assuming arguendo that there was an implied-in-fact employment contract, Jenkins was terminated for good cause and therefore cannot prove that State Farm breached the contract.

III. CONCLUSION

23
We affirm the district court's grant of summary judgment in favor of State Farm.

24
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


279 F.Supp. 392 (1968)
Thomas J. DOMINGUEZ, Plaintiff,
v.
NATIONAL AIRLINES, INC. and Air Line Employees Association, International, an unincorporated association consisting of seven or more members, Defendants.
No. 66 Civ. 1081.
United States District Court S. D. New York.
February 8, 1968.
*393 Herbert A. Simon, Valley Stream, N. Y., for plaintiff.
Hoffman, Kemper & Johnson, Miami, Fla., for defendant Air Line Employees Association, International; Callahan & Wolkoff, by Parnell J. T. Callahan and Eugene A. Wolkoff, New York City, of counsel.
Herman I. Meltzer, New York City, for defendant National Airlines, Inc.

OPINION
MacMAHON, District Judge.
Plaintiff brings this action for damages for wrongful discharge and for reinstatement of his former employment with defendant National Airlines, Inc. (the airline). Federal question jurisdiction is invoked under 28 U.S.C. § 1337 and the Railway Labor Act, 45 U.S.C. § 151 et seq., based on an allegation that plaintiff was discharged in violation of the Act for engaging in union activity contrary to the airline's instructions, given at the instance of defendant Air Line Employees Association, International (the union).
It appears on the face of the complaint that plaintiff resorted to the usual grievance procedure under the collective bargaining agreement and exhausted all of his administrative remedies, including a hearing and final decision of the System Board of Adjustment which sustained his discharge. Plaintiff alleges that the board denied his request to submit the dispute to arbitration before a neutral third person, as provided in the collective bargaining agreement, and that the "hearing afforded Plaintiff was unfair, in violation of due process, and the decision * * * was arbitrary, capricious and in violation of rights guaranteed Plaintiff under the Railway Labor Act, as amended." Plaintiff does not seek to review the board's decision. Nor does plaintiff allege, or on the motion for summary judgment come forward with, any facts showing hostile discrimination or other violation of the statutory duty of fair representation on the part of the union.[1]
Asserting this court's lack of jurisdiction over the subject matter, defendants move to dismiss the complaint or, in the alternative, for summary judgment. There is no genuine issue as to any material fact.
There can be no question that plaintiff's right to engage in union activity is protected by 45 U.S.C. §§ 151a (4), 152, and 183. There is nothing in the Railway Labor Act, however, which gives plaintiff a private right of action against his employer in the district court for violation of the Act. On the contrary, it has been consistently held that the district court does not have original jurisdiction in an action against an employer under 28 U.S.C. § 1337 for wrongful discharge allegedly in violation of the Railway Labor Act.[2]
*394 It is not disputed that plaintiff's employment was governed by a collective bargaining agreement which incorporated an agreement made under 45 U.S.C. § 153, Second, covering the establishment and maintenance of a System Board of Adjustment, which provides that "decisions of the Board in all cases properly referable to it shall be final and binding upon the parties hereto." In the face of such a provision, having submitted his grievance to the board, plaintiff may not resort to a common law or statutory cause of action to relitigate the issues on the merits in the courts after an adverse determination of his grievance by the board.[3]
This case centers on a minor dispute growing out of a grievance.[4] Several decisions of the Supreme Court make clear that the administrative statutory grievance procedure set forth in the collective bargaining agreement is a mandatory, compulsory, exclusive, and comprehensive system for resolving minor disputes.[5] Time and again, the Supreme Court "has emphasized and reemphasized that Congress intended minor grievances of railroad workers to be decided finally by the Railroad Adjustment Board."[6]
Moreover, under the Act, as amended in 1966, the orders of a System Board of Adjustment set up under a collective bargaining agreement are explicitly "final and binding upon both parties to the dispute."[7] The board's decision is entitled to the same finality that a decision of arbitrators would have.[8] The Act now, therefore, limits the power of the district court in the resolution of minor disputes to review of a board's order and limits the grounds for review to those commonly required for review of arbitration awards. Thus, the right to review is conditioned upon the filing of a petition by the aggrieved party showing failure of the board "to comply with the requirements of this * * * [Act], for failure of the order to conform, or confine itself, to matters within the scope of the * * * [board's] jurisdiction, or for fraud or corruption by a member of the * * * [board] making the order."[9] Unlike earlier versions, the amended Act also gives either party an equal opportunity for judicial review of the orders of the board.
The complaint alleges none of the specified grounds for judicial review of the board's order. Contrary to plaintiff's allegation, the board's denial of his request to submit the dispute to *395 arbitration was not a violation of the Act, 45 U.S.C. § 157, First, nor of the collective bargaining agreement which conditions such submission upon mutual agreement. Plaintiff's remaining allegations that the hearing was unfair, in violation of due process, and the board's decision arbitrary, capricious and in violation of plaintiff's rights under the Railway Labor Act are pure conclusions.[10] Plaintiff, in opposing the motion for summary judgment, has made no showing of any facts supporting these broad conclusions. There is thus nothing before us to raise any issue of fact as to fraud, corruption, or unfairness.[11]
It is not our province to determine whether the board's decision was arbitrary, for that is not one of the specific grounds for review. Moreover, the legislative history of the 1966 Amendment shows that Congress gave consideration to a proposal that the bill be amended to include as a ground for setting aside an award "arbitrariness or capriciousness" on the part of the board. The Committee declined to adopt such an amendment out of concern that such a provision might be regarded as an invitation to the courts to treat any award with which the court disagreed as being arbitrary or capricious.[12]
We, therefore, find it impossible to construe or to treat this complaint as a petition for review of the board's order. Rather, it is a plain attempt to sidestep the board's decision in a collateral and independent proceeding. We hold, therefore, that we have no jurisdiction under the Railway Labor Act or any law regulating commerce over the subject matter of this action.
There remains for consideration the question of whether jurisdiction may be predicated on diversity of citizenship. The complaint fails to allege facts showing diversity, and none are shown on the motion for summary judgment. We find, therefore, that we lack diversity jurisdiction. That pleading defect might be corrected in an amended complaint, but there is no reason to give plaintiff an opportunity to amend, for, even if diversity were alleged, there would still be no jurisdiction. Jurisdiction is wanting because plaintiff has no claim cognizable in the state courts and, therefore, derivative jurisdiction does not exist. In the first place, there is no state common law cause of action so long as plaintiff seeks reinstatement of his employment.[13] In the second place, as we have seen, Congress has conferred exclusive jurisdiction over this matter to the System Board of Adjustment. Congress has thus pre-empted the right of a state court to determine this matter on the merits.[14] Federal courts, therefore, lack diversity jurisdiction.
In so holding, we are mindful that in two separate decisions, the Supreme Court has held that the Railway Labor Act does not bar actions for wrongful discharge predicated on state law for breach of an employment contract.[15] However, as explained in Union Pacific R. R. v. Price, 360 U.S. 601, 620, *396 79 S.Ct. 1351, 3 L.Ed.2d 1460 (1959), those decisions were predicated on the old Railway Labor Act which did not provide for judicial review of a board decision if the employee lost. Whatever judicial remedies were otherwise available were therefore preserved. Since federal law was then thought not to apply to suits for wrongful discharge, one of the remedies was a suit in the state courts for damages for wrongful discharge. Since the decision in those cases, however, the law has changed.[16] It is now clear that collective bargaining agreements under the Railway Labor Act are subject to federal substantive law.[17]
Moreover, as we have seen, provision for arbitration before the board of a discharge grievance, a minor dispute, is not a matter of voluntary agreement, but a compulsory and exclusive remedy under the Railway Labor Act. The doctrine of exhaustion of remedies is clearly a part of both federal and New York state law.[18] This plaintiff, therefore, did not have, and does not now have, a choice of remedies. He was compelled both by federal and applicable New York law to submit his grievance to the board and is bound by the finality of its decision. His only access to any court is the limited right to review the board's decision in the district court, and he has failed to resort to that remedy.
Accordingly, we hold that the decision of the System Board of Adjustment is final and that the court lacks jurisdiction over the subject matter. The motion for summary judgment is granted. There being no just reason for delay, the Clerk of the court is directed to enter judgment dismissing the complaint against defendants National Airlines, Inc. and Air Line Employees Association, International.
So ordered.
NOTES
[1]  See Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Ferro v. Railway Express Agency, Inc., 296 F.2d 847 (2 Cir. 1961).
[2]  Ferro v. Railway Express Agency, Inc., supra, at 851; Stack v. New York Cent. R. R., 258 F.2d 739 (2 Cir. 1958). Cf. Switchmen's Union of No. America v. National Mediation Bd., 320 U.S. 297, 300, 64 S.Ct. 95, 88 L.Ed. 61 (1943).
[3]  Union Pacific R. R. v. Price, 360 U.S. 601, 79 S.Ct. 1351, 3 L.Ed.2d 1460 (1959); Rittle v. R. E. A. Express, 367 F.2d 578 (5 Cir. 1966); Morrissette v. Chicago, B. & Q. R. R., 299 F.2d 502 (7 Cir. 1961), cert. denied, 369 U.S. 874, 82 S.Ct. 1141, 8 L.Ed.2d 277 (1962); Bower v. Eastern Airlines, Inc., 214 F.2d 623 (3 Cir.), cert. denied, 348 U.S. 871, 75 S.Ct. 107, 99 L.Ed. 685 (1954).
[4]  Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 722-728, 65 S.Ct. 1282, 89 L.Ed.2d 1886 (1945).
[5]  Transportation-Communication Employees Union v. Union Pacific R. R., 385 U.S. 157, 87 S.Ct. 369, 17 L.Ed.2d 264 (1966); Brotherhood of Locomotive Eng'rs v. Louisville & N. R. R., 373 U.S. 33, 38, 83 S.Ct. 1059, 10 L.Ed.2d 172 (1963) (and cases there cited); Pennsylvania R. R. v. Day, 360 U.S. 548, 79 S.Ct. 1322, 3 L.Ed.2d 1422 (1959).
[6]  Gunther v. San Diego & A. E. Ry., 382 U.S. 257, 263, 86 S.Ct. 368, 372, 15 L.Ed. 2d 308 (1965).
[7]  45 U.S.C. § 153, Second.
[8]  Gunther v. San Diego & A. E. Ry., supra, at 263, 86 S.Ct. 368; Brotherhood of Railroad Trainmen v. Chicago, R. & I. R. R., 353 U.S. 30, 77 S.Ct. 635, 1 L.Ed.2d 622 (1957). Cf. Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).
[9]  45 U.S.C. § 153, First (p) (q) and Second; S.Rep. No. 1201, 89th Cong., 2d Sess., June 2, 1966, 2 U.S.Cong. & Admin.News (1966), p. 2285.
[10]  Cf. Thompson v. New York Cent. R. R., 361 F.2d 137, 142 (2 Cir. 1966).
[11]  Fed.R.Civ.P. 56(e), (f), (g), 28 U.S.C.
[12]  S.Rep. No. 1201, supra.
[13]  Ferro v. Railway Express Agency, Inc., 183 F.Supp. 417, 422 (S.D.N.Y.1960), aff'd, 296 F.2d 847 (2 Cir. 1961).
[14]  See Slocum v. Delaware, L. & W. R. R., 339 U.S. 239, 70 S.Ct. 577, 94 L.Ed. 795 (1950); Ferro v. Railway Express Agency, Inc., supra. Cf. Vaca v. Sipes, supra, at 179, 87 S.Ct. 903; Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966); Local 100, United Ass'n of Journeymen & Apprentices v. Borden, 373 U.S. 690, 693-694, 83 S. Ct. 1423, 10 L.Ed.2d 638 (1963); San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959); Guss v. Utah Labor Relations Bd., 353 U.S. 1, 77 S.Ct. 598, 1 L. Ed.2d 601 (1957).
[15]  Transcontinental & Western Air, Inc. v. Koppal, 345 U.S. 653, 73 S.Ct. 906, 97 L.Ed. 1325 (1953); Moore v. Illinois Cent. R.R., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941).
[16]  See Walker v. Southern Ry., 385 U.S. 196, 87 S.Ct. 365, 17 L.Ed.2d 294 (1966); Republic Steel Corp. v. Maddox, supra, at 655, 85 S.Ct. 614.
[17]  International Ass'n of Machinists, AFL-CIO v. Central Airlines, Inc., 372 U.S. 682, 83 S.Ct. 956, 10 L.Ed.2d 67 (1963).
[18]  Republic Steel Corp. v. Maddox, supra, at 652, 83 S.Ct. 956, 10 L.Ed.2d 67; Pacilio v. Pennsylvania R.R., 381 F.2d 570 (2 Cir. 1967).


         11-5254-cr
         United States v. Anderson

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 9th day of November, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                DENNY CHIN,
 8                         Circuit Judges,
 9                DAVID G. LARIMER,
10                         District Judge.*
11
12
13
14       UNITED STATES OF AMERICA,
15
16                             Appellee,
17
18                      -v.-                                                11-5254-cr
19
20       TOUSSAINT HUMPHRIES, AKA TOO, LEVON
21       AVINGER, AKA ALLEN LOW, FELIX LABOY,
22       AKA FLIP, RONNIE JAMES, AKA OFFICE
23       CLYDE, KAREEM FRANCIS, AKA RIKO, ROBERT
24       SINGLETON, AKA ROBERT VILLANUEVA, AKA
25       BASE, ERIC LOWE, AKA E-BO, HASSAN GILLEY,
26       BARRY WILLIAMS, AKA BISTRO, DESMOND
27       ROBINSON, AKA PENZ, EMILIANO GORDON,
28       AKA VITO,
29                     Defendants,

                *
                The Honorable David G. Larimer, of the United States
         District Court for the Western District of New York, sitting by
         designation.
 1   TRACY ANDERSON, AKA TRE BAG,
 2
 3                   Defendant-Appellant.
 4
 5
 6   FOR APPELLEE:       Katherine Polk Failla, John J. O’Donnell,
 7                       Jr., Assistant United States Attorneys,
 8                       for Preet Bharara, United States Attorney
 9                       for the Southern District of New York,
10                       New York, NY.
11
12   FOR APPELLANT:      Darrell B. Fields, Assistant Federal
13                       Public Defender, Federal Defenders of New
14                       York, Inc., Appeals Bureau, New York, NY.
15
16        Appeal from the United States District Court for the
17   Southern District of New York (Scheindlin, J.).
18
19       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

20   AND DECREED that the judgment of the United States District

21   Court for the Southern District of New York is AFFIRMED.

22       Defendant-Appellant Tracy Anderson (“Anderson”) appeals

23   from a December 14, 2011 order of the United States District

24   Court for the Southern District of New York (Scheindlin, J.)

25   reducing Anderson’s sentence to the statutory mandatory

26   minimum of 120 months.    The panel has reviewed the briefs

27   and the record in this appeal and agrees unanimously that

28   oral argument is unnecessary because “the facts and legal

29   arguments [have been] adequately presented in the briefs and

30   record, and the decisional process would not be

31   significantly aided by oral argument.”    Fed. R. App. P.

                                    2
1    34(a)(2)(C).     We assume the parties’ familiarity with the

2    underlying facts, the procedural history, and the issues

3    presented for review.

4        Anderson challenges his sentence on the grounds that

5    the Fair Sentencing Act (“FSA”), Amendment 750 to the

6    Sentencing Guidelines, U.S.S.G. § 1B1.10, and 18 U.S.C. §

7    3582(c)(2), should apply retroactively to enable the court

8    to sentence him below the statutory mandatory minimum in

9    effect at the time of his original conviction and

10   sentencing.     We review a district court’s interpretation of

11   a statute de novo.     See United States v. Williams, 551 F.3d

12   182, 185 (2d Cir. 2009).

13       In 2005, Anderson pled guilty to conspiracy to

14   distribute 50 grams or more of a substance containing

15   cocaine base (crack) and distribution and possession with

16   intent to distribute more than fourteen grams of crack; the

17   district court sentenced Anderson to 168 months’

18   imprisonment.     In 2009, after the 2007 amendments to the

19   Guidelines, the district court granted Anderson’s motion for

20   a reduction in sentence and sentenced him to 135 months’

21   imprisonment.     In 2011, after enactment of the FSA, Anderson

22   filed a second motion under 18 U.S.C. § 3582(c)(2) seeking

23   to have the district court reduce his sentence to the low

                                     3
1    end of the revised Guidelines range of 87 to 108 months’

2    imprisonment.    The district court reduced Anderson’s

3    sentence to 120 months’ imprisonment, but determined that

4    the court could not sentence Anderson to a term of

5    imprisonment below the statutory mandatory minimum in effect

6    at the time of his conviction and sentencing.    We affirm.

7        The FSA does not apply retroactively to defendants who

8    were convicted and sentenced prior to August 3, 2010.      See

9    United States v. Diaz, 627 F.3d 930, 931 (2d Cir. 2010) (per

10   curiam).    The Supreme Court’s decision in Dorsey v. United

11   States does not compel a different result.    132 S. Ct. 2321

12   (2012).    In Dorsey, the Supreme Court determined that the

13   FSA’s “new, lower mandatory minimums [] apply to the post-

14   Act sentencing of pre-Act offenders.”    Id. at 2335.    The

15   Court’s holding does not affect offenders who were sentenced

16   before the FSA took effect.    See id. (acknowledging that

17   application of the new mandatory minimums to pre-Act

18   offenders sentenced after the FSA’s enactment but not those

19   sentenced before that date “will create a new set of

20   disparities” but concluding that “this particular new

21   disparity . . . cannot make a critical difference”).     As a

22   result, the revised Guidelines range has no bearing on

23   Anderson’s sentence; the court could not sentence him to a

                                    4
1    term less than the statutory mandatory minimum of 120

2    months’ imprisonment in effect at the time of his conviction

3    and sentencing.   See Williams, 551 F.3d at 185-86.

4        For the foregoing reasons, the judgment of the district

 5   court is hereby AFFIRMED.
 6
 7
 8                               FOR THE COURT:
 9                               Catherine O’Hagan Wolfe, Clerk
10
11

                                   5


38 So.3d 218 (2010)
Michael Ray BARNES, Appellant,
v.
STATE of Florida, Appellee.
No. 2D09-4142.
District Court of Appeal of Florida, Second District.
June 11, 2010.
*219 DAVIS, Judge.
Michael Ray Barnes challenges the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850(b) in which he raised six claims. We affirm the postconviction court's order as to all claims except claim five, which we reverse and remand for further proceedings.
In September 2006, Barnes was found guilty by a jury of one count of capital sexual battery and two counts of battery. He was sentenced to life in prison on the sexual battery conviction and to time served on the two battery convictions. Barnes filed his rule 3.850(b) motion on May 18, 2009, raising six claims of ineffective assistance of counsel. On June 9, 2009, the postconviction court ordered the State to respond. After reviewing the State's response and its attached record documents, the court summarily denied Barnes' motion.

Order Adopting and Incorporating State's Response
In denying Barnes' motion, the postconviction court "adopted and incorporated" the State's response without making specific findings or attaching record documents to its order. When a court summarily denies a rule 3.850 motion, it must "either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion." Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993). However, the rules of criminal and appellate procedure do not preclude a court from incorporating a response *220 from the State if the State has provided the necessary record documents. Langdon v. State, 947 So.2d 460, 461 n. 2 (Fla. 3d DCA 2006); cf. Burnett v. State, 933 So.2d 1282 (Fla. 2d DCA 2006) (reversing the summary denial because neither the trial court's order nor the State's incorporated response appended any record); Dieudonne v. State, 993 So.2d 640, 642 (Fla. 4th DCA 2008) (concluding that if the trial court, as its basis for a rule 3.850 denial, incorporates the State's response, which cites to but does not attach necessary record documents that are not otherwise included in the record on appeal, the trial court's order must be reversed and remanded). Because the requisite record documents in this case are attached to the State's response and are included in our record on appeal, we do not find it necessary to reverse the postconviction court's order on the basis of wholesale incorporation of the State's response. However, we reiterate that the better practice is for the court to either attach those specific parts of the record that refute each claim or to discuss its rationale in its order.

Failure to Request a Richardson Hearing
Barnes' fifth claim raises ineffective assistance based on counsel's failure to request a hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971), after learning of an alleged discovery violation by the State that ultimately deprived Barnes of an opportunity to present testimony questioning the veracity of the child witness. This claim is facially sufficient, the record on appeal does not refute the claim, and the State's response wholly fails to address defense counsel's alleged deficient performance or whether Barnes' case was prejudiced by counsel's inaction. We therefore reverse the denial of claim five and remand the case for further proceedings. See Collins v. State, 671 So.2d 827, 828 (Fla. 2d DCA 1996).
Affirmed in part, reversed in part, and remanded.
WHATLEY and KHOUZAM, JJ., Concur.


461 F.Supp. 245 (1978)
KRAFTSMAN CONTAINER CORPORATION, Plaintiff,
v.
Jack FINKELSTEIN and Shirley Finkelstein, Defendants.
No. 77 C 82.
United States District Court, E. D. New York.
November 21, 1978.
*246 *247 Berman & Zivyak, New York City, by Jeffrey L. Zivyak, New York City, for plaintiff.
Rosenthal & Goldhaber, Brooklyn, by Arthur M. Gabor, Brooklyn, for defendants.

MEMORANDUM AND ORDER
NEAHER, District Judge.
Plaintiff Kraftsman Container Corporation ("Kraftsman") is a New Jersey corporation having its principal place of business in that State. Defendant Jack Finkelstein is a former officer and director of Kraftsman and an owner of one-third of the issued stock of the company. This diversity action has been brought against Finkelstein and his wife, Shirley, to recover $164,462.14 of Kraftsman funds allegedly converted by them between June 1970 and January 1976. The action is now before the court on plaintiff's motion for an order granting it partial summary judgment against Jack Finkelstein on "the issue of liability."[1] Rule 56(c), F.R.Civ.P.
Because plaintiff has not seen fit to provide the memorandum of points and authorities required by Local General Rule 9(b), the precise legal theory underlying the instant motion is not entirely clear. In any event, according to plaintiff, at some time in 1976 a Union County, New Jersey, grand jury handed up a 32-count indictment charging Jack Finkelstein with various acts of embezzlement, fraudulent record-keeping and forgery, and the misappropriation of nearly $20,000 of Kraftsman's funds between *248 January 1975 and January 1976. On November 8, 1976, Finkelstein pled guilty in Superior Court, Union County, to five counts of obtaining money by false pretenses,[2] in violation of N.J.Stat.Ann. § 2A:111-1. Finkelstein was subsequently sentenced to five concurrent terms of one to two years imprisonment, and was assessed a fine of $500 on each of the five counts. The terms of imprisonment were suspended, five concurrent terms of five years probation were imposed, and, as a special condition of probation, Finkelstein was directed to make restitution to Kraftsman in the sum of $1,214.50, the aggregate of the five checks set forth in the counts to which he had pleaded guilty.
As noted above, plaintiff seeks only partial summary judgment at this time, limited to the issue of "liability," leaving to some future stage in the litigation the computation of "damages." In support of its motion, plaintiff has supplied copies of the Union County indictment and December 3 sentencing minutes (Exhibits A and B, respectively), an affidavit of Mel Lubins, president of Kraftsman, and, at the court's request, a copy of the November 8 plea minutes. Despite the fact that virtually all of the claimed conversions were accomplished by allegedly improper drafts upon Kraftsman bank accounts or by diversion of checks payable to Kraftsman's order, plaintiff has not produced any of the checks involved, although a schedule describing some of these is appended to the complaint. Counsel for Jack Finkelstein has filed an affidavit in opposition in which he concedes his client's Union County conviction but denies all other material averments of the Lubins affidavit and Kraftsman's Local Rule 9(g) statement of undisputed facts. See Gabor Aff. (11/10/77), ¶ 6.
The theory upon which the instant motion is based, nowhere expressly set forth, is perhaps revealed in the Lubins affidavit:
"The answer [to the complaint] interposed on behalf of the defendant [Jack] Finkelstein constitutes in part a general denial. A mere denial is not enough to defeat a motion for partial summary judgment. These denials are interposed solely for the purpose of delay, and should be disregarded in the absence of any showing by the defendant of any material dispute as to fact. It is respectfully submitted that the defendant Finkelstein will be unable to raise any genuine issue of material fact with respect to his liability for misappropriation of funds from the plaintiff. Simply stated, he is a convicted felon who took money from his own company, and it should be summarily determined that he is liable to the plaintiff on account of his crimes. Upon such a finding, a further proceeding in the nature of an inquest should be conducted to determine the amount of that liability." Lubins Aff. (10/24/77), ¶ 9.
Because plaintiff has offered no authority for its rather startling view that a party's admission and conviction in a criminal proceeding for misappropriating a limited sum in several discrete transactions may, without more, expose him to civil liability for a vastly greater (and unascertained) amount arising from perhaps hundreds of distinct acts, compare United States v. Podell, 436 F.Supp. 1039 (S.D.N.Y.1977), aff'd, 572 F.2d 31 (2 Cir. 1978),[3] and because its papers *249 indicate a rather fundamental misconception of the summary judgment device, the court has undertaken to treat this motion in more familiar terms.
Rule 56(c), F.R.Civ.P., provides that summary judgment may be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The rule further permits the rendition of an interlocutory judgment limited to the issue of liability when only the amount of damages is genuinely in issue. Id. Moreover, Rule 56(e), as amended in 1963, provides that when a motion for summary judgment is supported by proper affidavits (or by the other materials referred to in Rule 56(c)), "an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Indeed, as the Second Circuit has only recently held, once the movant has made the requisite showing,
"an adverse party may not rest upon mere conclusory allegations or denials. The party opposing the motion must set forth `concrete particulars,' Dressler v. The MV Sandpiper, 331 F.2d 130, 133 (2d Cir. 1964), and cannot make a secret of his evidence, holding it close to his chest until the trial. See Donnelly v. Guion, 467 F.2d 290, 291 (2d Cir. 1972). It is not sufficient merely to assert a conclusion without supplying supporting arguments or facts in opposition to the motion. Id. at 293. See Applegate v. Top Associates, Inc., 425 F.2d 92, 96 (2d Cir. 1970)." SEC v. Research Automation Corp., 585 F.2d 31, 33 (2 Cir. 1978).[4]
It is, of course, settled that on a motion for summary judgment the court is not empowered to "try issues of fact; it can only determine whether there are issues to be tried," American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 (2 Cir. 1967), quoted in SEC v. Research Automation Corp., supra, 585 F.2d at 33 and that all permissible inferences are to be drawn in favor of the party opposing the motion, Hill v. A-T-O, Inc., 535 F.2d 1349, 1354 (2 Cir. 1976). But the holdings of this circuit are entirely consistent with the function of the summary judgment device to expose sham issues, made more emphatic by the 1963 amendments, which added the final two sentences to Rule 56(e). As the Advisory Committee observed in connection with those amendments (intended to overcome a line of cases in the Third Circuit which had drained the rule of its vitality): "The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Adv.Com.Note to Proposed Amendments to Rule 56(e), 31 F.R.D. 648 (1962). See generally Applegate v. Top Associates, Inc., supra; Donnelly v. Guion, supra, 467 F.2d at 292.
Hence, a party may not retreat to "the mere allegations or denials of his pleading" in the face of "a motion for summary judgment made and supported as provided in" Rule 56. Rule 56(e) (emphasis supplied). The converse is, however, equally true; a party seeking summary judgment may not, through the simple expedient of recasting the conclusory allegations *250 of his pleading in affidavit form, put his adversary to the burden of coming forward with "concrete particulars" showing the existence of triable issues. Cf. Askew v. Hargrave, 401 U.S. 476, 478-79, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971). It is incumbent upon the movant in the first instance to show that there exists "no genuine issue as to any material fact," and that he would be, in effect, entitled to a directed verdict should his opponent fail "at least to specify some opposing evidence which it can adduce and which will change the result." Radio City Music Hall Corp. v. United States, 135 F.2d 715, 718 (2 Cir. 1943), followed in Donnelly v. Guion, supra. See Adickes v. Kress & Co., 398 U.S. 144, 157-61, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). It is this requirement that plaintiff has failed to satisfy.
In paragraphs 4, 5 and 6 of his affidavit, Lubins sets forth what purports to be a description of the methods employed by Finkelstein to accomplish his defalcations (and which, recalling Caesar's Gaul, divide "into three major areas"). Kraftsman's position appears to be that these averments, either independently or in conjunction with Finkelstein's admissions and conviction in the New Jersey prosecution, are sufficient to establish Finkelstein's liability as a matter of law. See Lubins Aff., ¶ 9, quoted above.
Rule 56 does not require that any materials outside the pleadings be offered in support of a motion for summary judgment. An unsupported motion for summary judgment after answer is, however, indistinguishable from a motion under Rule 12(c), F.R.Civ.P., for judgment on the pleadings, and will necessarily fail if the pleadings disclose a material issue of fact. See 6 Moore's Fed.Practice, ¶¶ 56.9, 56.11[2] (1976). The real virtue of Rule 56, then, is that where, as here, the material allegations of a well-pleaded complaint are formally in issue, either party may in advance of trial demonstrate the want of any genuine issue by supplementing the record with materials of evidentiary value. The affidavit is a device expressly favored by Rule 56 for placing before the court the substance of testimonial evidence that would be admissible at trial, and Rule 56(e) governs the form of such affidavits:
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."
The material averments of the Lubins affidavit (paragraphs 4 through 6) plainly fall short of this three-prong test. First, there is no indication that Lubins personally observed any of the transactions alleged (indeed, none is specifically referred to) or, for that matter, that he has examined the cancelled checks and can identify the various signatures and endorsements. Second, he presents only ultimate facts and conclusions rather than the primary facts to which he might be expected to testify. Similarly, the affidavit fails utterly to disclose the bases for the averments  indeed, despite plaintiff's contention that Finkelstein made unauthorized drafts upon Kraftsman's accounts and diverted for his own use the proceeds of checks made payable to the corporation, none of the checks has been supplied the court. See generally Applegate v. Top Associates, Inc., supra; Dressler v. The MV Sandpiper, 331 F.2d 130, 132-33 (2 Cir. 1964). Certainly, the fact of Finkelstein's New Jersey conviction does nothing to overcome these defects.
In sum, plaintiff has failed to sustain, on this motion, its threshold burden of showing that it has marshalled evidence which, standing alone, would entitle it to a directed verdict. See United States v. J. B. Williams Co., Inc., 498 F.2d 414, 432 (2 Cir. 1974); American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., supra, 388 F.2d at 279; 6 Moore's Fed.Practice, ¶ 56.02[10] (1976); cf. Sartor v. Arkansas Gas Corp., 321 U.S. 620, 624, 64 S.Ct. 724, 88 L.Ed. 967 (1944). The quality of the defendant's opposing materials is, therefore, irrelevant, as the Supreme Court's treatment of an analogous summary judgment motion in Adickes v. Kress & Co., supra, amply demonstrates. There, the *251 movant  defendant in a civil rights action  sought to shift to the plaintiff the burden, under Rule 56(e), of adducing some support for the allegation, critical to her claim, that a police officer was present in defendant's store at the time she was refused service. The Court, after noting that certain "unexplained gaps" in movant's supporting materials presented a jury question, in view of the rule that "`[o]n summary judgment the inferences to be drawn from the underlying facts contained in [the moving party's] materials must be viewed in the light most favorable to the party opposing the motion,'" id. 398 U.S. at 158-59, 90 S.Ct. at 1609 (quoting from United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)), rejected the argument that under amended Rule 56(e) plaintiff could not rely on the bare allegations of her complaint but was required "to come forward with an affidavit properly asserting the presence of the policeman in the store":
"This argument does not withstand scrutiny, however, for both the commentary on and background of the 1963 amendment conclusively show that it was not intended to modify the burden of the moving party under Rule 56(c) to show initially the absence of a genuine issue concerning any material fact. The Advisory Committee note on the amendment states that the changes were not designed to `affect the ordinary standards applicable to the summary judgment.' And, in a comment directed specifically to a contention like [defendant's], the Committee stated that `[w]here the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.' Because [defendant] did not meet its initial burden of establishing the absence of a policeman in the store, [plaintiff] here was not required to come forward with suitable opposing affidavits." 398 U.S. at 159-60, 90 S.Ct. at 1609 (footnotes omitted; emphasis in quoted matter).
The Adickes holding is plainly controlling here.
Of course, it does appear that Kraftsman has demonstrated that Jack Finkelstein was convicted, following a plea of guilty, of "taking" (the expression is Finkelstein's attorney's) some $1,214.50 in corporate funds.[5] This fact is uncontroverted and, pursuant to Rule 56(d), shall be deemed established. But any suggestion that this disposes of the issue of Finkelstein's liability for several hundred individual and, so far as appears from the pleadings, discrete transactions neither alluded to in the five indictment counts nor mentioned in the course of the plea proceeding is simply incredible, and plaintiff has supplied no authority for its novel proposition. Compare Emich Motors v. General Motors, 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534 (1951); United States v. Podell, supra; cf. McNally v. Pulitzer Pub. Co., 532 F.2d 69, 76 (8 Cir. 1976). Moreover, the court is at a complete loss to understand how the judgment sought  limited to "the issue of liability"  would advance this litigation, since plaintiff would in any event be required to prove, by competent evidence, each transaction. That is, ultimate issues of liability would necessarily remain. Accordingly, plaintiff's motion for summary judgment is denied.[6]
*252 Finally, in view of the foregoing disposition of plaintiff's motion for summary judgment, only two points raised by the defendant in opposition require discussion at this time.
First, the defendant questions the "standing" of plaintiff to maintain this action. Counsel avers that on December 27, 1976, two weeks prior to the commencement of the action, a plan filed by Kraftsman under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701, et seq., was confirmed in the United States District Court for the District of New Jersey. He further avers "[t]hat a verification of this plan and a check of the Court records show this plaintiff is still under said Chapter XI." Gabor Aff. (11/10/77), ¶ 5(a). Invoking the authority of various sections of the Bankruptcy Act, defendant urges that only a receiver or one who has receiver's authority may prosecute a claim on behalf of a corporation in "receivership," and notes that plaintiff's papers are devoid of any indication that Kraftsman has such authority.
The short answer is that unless otherwise specified in the order of confirmation, title to the debtor's property  if it has passed to a receiver, trustee, or debtor in possession during the pendency of the Chapter XI petition[7]  revests in the debtor immediately upon confirmation of an arrangement or plan. See Bankruptcy Act § 70(i), 11 U.S.C. § 110(i). Hence, the mere fact that a final decree closing the estate has not been entered, see 11 U.S.C. § 772, or that the bankruptcy court has retained jurisdiction, pending final allowance or disallowance of claims, id. § 769, or distribution of the deposit, see id. §§ 767(2), (3) and 770, or for some other purpose, see id. § 768, will not preclude the debtor following confirmation from taking up and prosecuting claims not affected by the plan. See generally 9 Collier on Bankruptcy ¶ 9.33 (14th ed. 1975). In any event, a plaintiff is not required to plead its capacity to sue. See Rule 9(a), F.R.Civ.P. Thus, although it appears that defendant has adequately preserved his objections addressed to Kraftsman's capacity, see id., the bare recital that the corporation is "still under ... Chapter XI" is far too equivocal, in view of the entry of the order of confirmation, to establish that the action has been brought without proper authority. Therefore, to the extent defendant's contention constitutes a cross-motion for summary judgment dismissing the complaint, it is denied, without prejudice to renewal upon a proper factual showing.
Second, defendant complains that this action is duplicative of actions currently pending in the New York and New Jersey State courts. Apart from the purely conclusory statement contained in his attorney's affidavit, defendant has offered nothing to support his contention that this action is in any sense identical or similar to the State proceedings; in any event, he has failed to indicate the relief, if any, he seeks. Accordingly, it is sufficient simply to observe that "generally, as between state and federal courts, the rule is that `the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction ....'" Colorado River Water *253 Conserv. Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976) (quoting from McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 54 L.Ed. 762 (1910)). Although it is settled in this circuit that "a district court may stay federal proceedings to allow resolution of a similar cause of action pending in state court," Clarkson Co., Ltd. v. Shaheen, 544 F.2d 624, 629 (2 Cir. 1976), defendant has not come forward with any facts warranting the exercise of the court's discretion to stay this action or justifying departure from the general rule that the federal courts are obliged to exercise the jurisdiction conferred upon them. See Colorado River Water Conserv. Dist., supra.
For the foregoing reasons, plaintiff's motion for partial summary judgment and defendant's cross-motion are denied.
SO ORDERED.
NOTES
[1]  Plaintiff also sought an order, pursuant to Rule 37, imposing sanctions for Jack Finkelstein's failure to appear at a scheduled deposition. The application was granted by separate order dated November 2, 1978.
[2]  These five counts  counts 13 through 17  together charged Finkelstein with obtaining money by falsely representing to employees of United Counties Trust Company that certain checks drawn upon Kraftsman's account were good and negotiable. Each count refers to a single check, the amounts ranging from $153.50 to $365.00. At the plea proceeding, Finkelstein admitted that he had presented each of the enumerated checks for payment, that he had received the proceeds thereof, that the named payees were fictitious, and that none of the drafts were authorized by the corporation. State v. Jack Finkelstein, Indict. No. 913, Minutes of Retraction of Plea (Superior Court, N.J., Union Co.  Law Div., 11/8/76).
[3]  Podell was a civil action brought by the government to recover sums accepted by the defendant, a Congressman, in breach of his fiduciary duty to the United States. The central issue was whether certain checks drawn by third parties to the order of the defendant's campaign committee and law firm represented the same payments he had, by his guilty plea in a prior criminal proceeding, admitted were improperly received by him. In view of the specific character of the charges admitted by the defendant and his failure to provide a suitable explanation for the bulk of the payments (as evidenced by copies of the checks, supplied by the government in support of its motion), the district court granted summary judgment in favor of the government. See 436 F.Supp. 1039, 1043-44 (S.D.N.Y.1977). The Court of Appeals affirmed, noting that the checks, supplied by the government in the civil action had also been offered in evidence at the criminal trial which terminated with defendant's plea of guilty, thereby buttressing the trial court's finding that they represented the payments cited in the indictment. See 572 F.2d 31, 36 (2 Cir. 1978).
[4]  Rule 56(f), of course, permits the court to withhold judgment when the opposing party satisfactorily explains his inability "to present by affidavit facts essential to justify his opposition."
[5]  Although there is no indication in the five counts or in Finkelstein's statements in connection with his guilty plea that Kraftsman rather than the drawee bank bore the loss caused by the unauthorized drafts, defendant's own papers characterize the plea as "to an embezzling from plaintiff." Defendant's Rule 9(g) Statement (11/10/77), ¶ 4.

It should also be noted that of the five checks described in the portions of the indictment to which Jack Finkelstein pled guilty, only four, totalling $1,061.00, are catalogued in the schedule appended to Kraftsman's complaint in this action. Since defendant does not deny that he was convicted of drawing the remaining check without authorization, plaintiff is granted leave to amend its schedule to conform to the evidence. See Rule 15(b), F.R.Civ.P. It would also appear that the defendant will be entitled to claim as a set-off against any ultimate liability such sums as he has paid to Kraftsman pursuant to the New Jersey court's order of restitution.
[6]  We hold only that plaintiff has failed to carry its burden on this motion; nothing herein is intended to suggest that this action is not of a kind susceptible of summary adjudication.
[7]  Under Chapter XI, appointment of a receiver or trustee is not mandatory. See Chapter 11 Rule 11-18(b). When none is appointed, § 342 of the Bankruptcy Act, 11 U.S.C. § 742, provides that "the debtor shall continue in possession of his property and shall ... exercise all the powers of a trustee ...." See also Chapter 11 Rule 11-18(b). Bankruptcy Rule 610, made applicable to Chapter XI cases by Rule 11-57, in turn provides that:

"The trustee or receiver may, with or without court approval, prosecute or enter his appearance and defend any pending action or proceeding by or against the bankrupt, or commence and prosecute any action or proceeding in behalf of the estate, before any tribunal." (Emphasis added.)
Hence, neither "receiver's authority" nor prior court approval is a prerequisite to suit by a debtor in possession. And, should the debtor in possession abandon a claim, "title revests in that same company as debtor and the debtor may proceed in its own name." 14 Collier on Bankruptcy, ¶ 11-57.02[1] (14th ed. 1976). See, e. g., Dallas Cabana, Inc. v. Hyatt Corp., 441 F.2d 865 (5 Cir. 1971).


259 F.2d 283
Alex CAPLAN, Appellant,v.C. Gordon ANDERSON et al., Appellees.
No. 17427.
United States Court of Appeals Fifth Circuit.
September 27, 1958.

Jackson L. Peters, Miami, Fla., M. James Spitzer, New York City, for appellant.
Francis D. Wheeler, Jacksonville, Fla., Don G. Nicholson, Stuart W. Patton, J. Edward Worton, Miami, Fla., Malsolm S. Mason, New York City, Milton Weiss, Miami Beach, Fla., for appellees.
Before HUTCHESON, Chief Judge, and TUTTLE and WISDOM, Circuit Judges.
PER CURIAM.

1
Order: Appealing from an order1 entered on August 8, 1958, In the Matter of TMT Trailer Ferry, Inc., appellant is here alleging that in making the order, the district judge "did not afford the appellant the relief required by the mandate and judgment of this court and has circumvented the plain effect of the mandate by referring the matter to a Master for the taking of testimony where the evidence before him demanded a finding: (a) that appellant's security continues to be in jeopardy; (b) that the debtor corporation has absolutely no equity in the mortgaged vessels, and (c) that the reorganization proceedings were not commenced and are not being continued in good faith in the statutory sense" and that "the appellant is plainly without remedy save by order of this court."

2
Based on these allegations and allegations that the appellant is expediting the preparation of the appeal, appellant moves the court: "(a) that a stay order be entered enjoining any further proceedings before the Special Master until the merits of this appeal have been determined, or in the alternative that the Court enter an order that the proceedings before the Special Master insofar as they affect the rights of the Appellant be enjoined and stayed pending final determination of this appeal on its merits; and (b) that an order of court be entered herein directing the Clerk of this court to expedite the printing of the record on appeal and to assign this case for hearing at the earliest possible setting; and (c) that an order of court be entered authorizing the Appellant where necessary to refer to the record on appeal in the former appeal to this court, being Case No. 17117, styled Alex Caplan, Appellant v. C. Gordon Anderson, et al., Appellees [5 Cir., 256 F.2d 416]; and (d) such other order as this court may deem appropriate to carry into effect or enforce the provisions of its mandate and judgment."

3
Upon consideration of the motion and of the answers thereto filed by the appellees, C. Gordon Anderson and Joseph J. Clark, Trustees, and Merrill-Stevens Dry Dock & Repair Company, the Court, of the opinion that the appeal should be expedited and its hearing be brought on at the earliest practicable date on a record to consist of the record on the former appeal and the additional record made on this appeal, It Is So Ordered.

4
Of the further opinion that the proceedings before the Master, including his report, if promptly and expeditiously conducted and brought to a close, should not be stayed but should be permitted to proceed, and that the stay now sought should not be granted, It Is So Ordered, but without prejudice to the right of appellant to renew his motion if the proceedings before and by the Master are not conducted expeditiously as required by the order.

5
Finally, since appellant in his motion alleges that "he cannot appear in the proceedings before the Special Master pursuant to the provisions of the order of August 8, 1958, without prejudice to his right to appeal from that order", and the court is of the opinion that, in the interest of bringing these matters to a close, he should so proceed, it is further Ordered that appellant's appearance in those proceedings shall be without prejudice to his right to appeal from the order.

Notes:

1
 (1) Appointing a Special Master to take the testimony of the parties (a) on the validity and amount of the mortgages and maritime or other liens asserted against the vessels involved in this proceeding and (b) the respective priorities among the liens;
(2) Fixing the times for (a) filing proofs of and objections to claims, (b) taking the testimony thereon, and (c) the filing of the Master's report with all convenient speed;
(3) Deferring the determination of the merits of the petition of Caplan for an order in conformity with the mandate of this court; and
(4) Requiring the trustee to serve a copy of the order on all parties.